HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 09.07.2019.
Delivered on 30.07.2019
Case :- CRIMINAL APPEAL No. – 2141 of 2008
Appellant :- Vijay Bahadur @ Pahadi and others
Respondent :- State Of U.P.
Counsel for Appellant :- Vivek Shrotria,Illegible,Maneesh Kumar Singh,Sri Virendra Bhati
Counsel for Respondent :- Govt. Advocate,Praveen Tripathi
Case :- CRIMINAL APPEAL No. – 2186 of 2008
Appellant :- Akhilesh @ Putte
Respondent :- State Of U.P.
Counsel for Appellant :- Vivek Shrotria,Akhter Abbas,Maneesh Kumar Singh,Neeraj Sahu,S H Ibrahim,Sushil Kumar Singh,Udai Pratap Singh
Counsel for Respondent :- G.A.
Hon’ble Ritu Raj Awasthi,J.
Hon’ble Virendra Kumar-II,J.
(Delivered by Hon’ble Virendra Kumar-II, J.)
1. Since both the criminal appeals have arisen from the same impugned judgment and order, therefore, with the consent of learned counsel for parties, both these appeals are being decided by a common order.
2. Heard Mr. Maneesh Kumar Singh, learned counsel for appellants as well as Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the record.
3. The appellants, Vijay Bahadur alias Pahadi, Smt. Indrawati (since dead), wife of Shri Mewa Lal Jaiswal, Smt. Pramila, wife of Shri Vijay Bahadur and Smt. Sita Devi, wife of Shri Shanker have preferred Criminal Appeal No. 2141 of 2008, assailing the impugned judgment and order dated 30.08.2008 delivered by the Court of learned Additional Sessions Judge/ Special Judge, E.C. Act, Court No.9, District Sultanpur in Session Trial No. 464 of 2002, arising out of Case Crime No. 315 of 2001, under Sections 498-A, 302/34, 201 I.P.C., Police Station Gosaiganj, District Sultanpur. The learned trial court has convicted all the appellants under Section 498-A I.P.C. and sentenced them to undergo for rigorous imprisonment for two years, fine of an amount of Rs.5,000/- has also been imposed on each of the appellants with default stipulation to serve out additional imprisonment for six months. The learned trial court has also convicted them for the offence punishable under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced them for imprisonment for life and fine of Rs.20,000/- on each of the appellants with default stipulation to serve out additional imprisonment for one year. It was directed by the trial court that all the sentences shall run concurrently.
4. The appellant, Smt. Indrawati, wife of Shri Mewa Lal Jaiswal has expired during pendency of this appeal and the appeal on her behalf has been abated vide order dated 30.08.2018.
5. The appellant, Akhilesh alias Putte has preferred Criminal Appeal No. 2186 of 2008, assailing the aforesaid impugned judgment and order dated 30.08.2008. The learned trial court has also convicted him and sentenced him for the aforesaid punishments.
6. The appellants have contended in the grounds of appeal that the prosecution has failed to prove its case beyond all reasonable doubts. The trial has been concluded on the basis of presumption. The learned trial court has not applied its judicial mind while convicting the appellants. The impugned conviction order dated 30.08.2008 is illegal, arbitrary and against the material/ evidence available on record. The learned trial court has failed to consider that the case against the appellants has not been proved beyond reasonable doubt. The findings recorded by the trial court is based on conjectures and surmises and is not based on facts or on law.
7. As per the prosecution version, the complainant, Chhaviraj Jaiswal (P.W.1) submitted written report (Ex.Ka.-1) at Police Station Gosaiganj, District Sultanpur. On the basis of which Check F.I.R. (Ex.Ka.-11) and G.D. (Ex.Ka.-12) of registration of crime were prepared at the police station by the concerned police personnel. Crime No. 315 of 2001, under Sections 498-A, 302 I.P.C. was registered on 14.08.2001 at 9:30 a.m. The occurrence was mentioned to be occurred on 13.08.2001 at 10:00 p.m.
8. The complainant has narrated in his written report that he is resident of Village Pahadpur, Police Station Motigarpur, District Sultanpur. The deceased, Smt. Renu Jaiswal was daughter of his sister, Smt. Subran, wife of Teedi, resident of Jogapur, Police Station Bewana, District Ambedkar Nagar. Smt. Renu was married with the appellant, Akhilesh Kumar Jaiswal, S/o Mewa Lal Jaiswal, R/o Village Kari Bahar, Police Station Gosaiganj, District Sultanpur 12 years ago. Her Gauna was performed 7 years ago prior to the incident. Her daughter was aged 18 months and the deceased Renu Jaiswal was pregnant on the date of incident.
9. It was also mentioned in the written report by the complainant that Akhilesh and his brother Vijay Bahadur and other family members harassed and tortured Smt. Renu Jaiswal and sent her in the month of April, 2001 to her parental home and instructed her to bring amount of Rs.50,000/- from her mother, otherwise she should not return at her matrimonial home. The complainant has also mentioned in his written report that in the month of May, 2001, the appellants brought Smt. Renu Jaiswal at their house. All the appellants on 13.08.2001 at 10:00 p.m. set Smt. Renu Jaiswal and her daughter Rani ablaze by tying them with a cot. It is also mentioned in the written report further that Jagdamba Prasad Verma, R/o Village Kari Bahar informed the complainant on 14.08.2001 at 7:00 a.m.
10. P.W.4, Ram Kumar Jaiswal clicked photographs of the dead body of the deceased at the place of occurrence on 14.08.2001 and provided photographs (Ex.Ka.-6, 7, 8, 9 10) to the Investigating Officer. He has proved receipt of payment (Ex.Ka.-2) in this regard. Negatives (Ex.-1 to 5) were also provided by him.
11. The Investigating Officer prepared supurdaginama (Ex.Ka.-17) regarding negatives which were given in custody of witness Harminder Singh. The Investigating Officer inspected the place of occurrence and prepared site plan (Ex.Ka.-3) of place of occurrence situated in the house of appellants. He collected and took in his possession ashes from the place of occurrence and prepared recovery memo (Ex.Ka.-13). He also took in his possession a plastic can of five litres, which was having smell of kerosene from the place of occurrence and prepared its recovery memo (Ex.Ka.-32).
12. The Investigating Officer conducted inquest proceedings of both the deceased and prepared inquest report of Km. Rani (Ex.Ka.-22) and Smt. Renu Jaiswal (Ex.Ka.-23). He also prepared documents, photo of dead body (Ex.Ka.-24), report to C.M.O. (Ex.Ka.-25), report to R.I. (Ex.Ka.-26), police form (Ex.Ka.-27), sample of seal (Ex.Ka.-28) for autopsy of dead body of Km. Rani.
13. The Investigating Officer also prepared report to C.M.O. (Ex.Ka.-36), report to R.I. (Ex.Ka.-37), police form (Ex.Ka.-38) and photo of dead body (Ex.Ka.-29) for autopsy of dead body of deceased Smt. Renu Jaiswal.
14. The Investigating Officer has also took in his possession parts of cot and half burnt wood from the place of occurrence and prepared recovery memo (Ex.Ka.-35), in between it, dead body of Smt. Renu Jaiswal and Km. Rani were recovered and one Patti of cot was broken into two pieces.
15. The concerned doctor conducted autopsy of the dead bodies and prepared postmortem reports of the dead bodies of Smt. Renu Jaiswal and Km. Rani (Ex.Ka.-33 Ex.Ka.-34 respectively).
16. The Investigating Officer during the course of investigation recorded statement of witness, Mangru Prasad Gupta who heard the conspiracy hatched by the appellants, Vijay Bahadur @ Pahadi, Akhilesh @ Putte, Smt. Indrawati and Smt. Pramila to give poisonous substance to Smt. Renu Jaiswal and Km. Rani to get them unconscious. He prepared site plan (Ex.Ka.-19) on pointing out by Mangru Prasad of place, where aforesaid conspiracy was hatched.
17. The Investigating Officer also recorded statements of witnesses, Manohar Lal Jaiswal (P.W.6), owner of Kumar Sari Emporium, Ganda Nallah Road, Sultanpur, who proved letter (Ex.Ka.-13) sent by Lallan through appellant, Vijay Bahadur Jaiswal and appellant, Akhilesh to extend possible help.
18. The earlier Investigation Officer, Shri Vishnu Pal Singh, S.I., Incharge S.O.G. (P.W.8) altered this crime from the offence punishable under Sections 498-A, 302 I.P.C. for the offence punishable under Sections 498-A, 306 I.P.C. The Superintendent of Police, Sultanpur, on perusal of material and evidence collected during investigation proceedings conducted by P.W.8, wrote a letter (Ex.Ka.-14) on 25.09.2001 to the medico legal expert, Lucknow. The expert proved its report (Ex.Ka.-15) advising that this crime came within the category of murder.
19. P.W.7, Shri Jagdamba Prasad Mishra, Incharge S.I.S. vide its letter dated 29.09.2001 (Ex.Ka.-16) requested the S.H.O., Gosaiganj that on the basis of investigation conducted by him present crime should be converted for the offence punishable under Sections 498-A, 302, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act. Shri Jagdamba Prasad Mishra (P.W.7) also requested S.H.O., Gosaiganj, District Sultanpur vide letter dated 24.10.2001 (Ex.Ka.-18) that the articles which were taken in possession by earlier Investigating Officer from the place of occurrence be sent for preparation of dockets to Forensic Science Laboratory, Mahanagar, Lucknow for chemical analysis.
20. The report dated 16.01.2002 was provided by Joint Director, Forensic Science Laboratory, Mahanagar, Lucknow, which was received by the Investigating Officer on 28.12.2001, which is mentioned in the supplementary C.D.-IVth.
21. The Investigating Officer, after concluding investigation submitted charge sheet (Ex.Ka.-20) against the accused-appellants, Vijay Bahadur @ Pahadi and Akhilesh @ Putte and separate charge sheet (Ex.Ka.-21) against the accused-appellants, Smt. Indrawati (since dead) and Smt. Pramila.
22. The C.J.M., Sultanpur took cognizance on the charge sheets and committed this case to the Court of Sessions on 25.11.2002 against Vijay Bahadur and accused Akhilesh and against Smt. Indrawati and Smt. Pramila on 24.06.2003. The prosecution moved application under Section 319 Cr.P.C. before the trial court on 04.02.2004, which was allowed on 19.02.2004. The trial court summoned Smt. Sita Devi to face the trial.
23. Session Trial No. 179 of 2003, State Vs. Smt. Indrawati and Session Trial No. 464 of 2002, Vijay Bahadur and another were jointly tried and Session Trial No. 464 of 2002 was made leading one. Smt. Sita Devi was granted bail on 24.02.2004 by the Second Additional District Sessions Judge, F.T.C., Sultanpur.
24. The learned trial court of Additional Sessions Judge/F.T.C.-IInd, Sultanpur framed charges against the appellants, Vijay @ Pahadi, Akhilesh @ Putte, Smt. Indrawati (since dead) and Smt. Pramila on 16.09.2003 for the offence punishable under Sections 498-A, 302 read with 34 I.P.C. and 201 I.P.C. Separate charge was framed against Smt. Sita Devi on 09.03.2004 for the aforesaid offences.
25. All the appellants pleaded not guilty and claimed to be tried.
26. The learned trial court vide order dated 31.03.2008 rejected the application No.163-Ka under Section 311 Cr.P.C. moved on behalf of prosecution for summoning the witness, Bahraich Prasad, who is brother of P.W.3, Smt. Subran.
27. The learned trial court has recorded statements of appellants under Section 313 Cr.P.C.
28. The appellant, Vijay Bahadur @ Pahadi has stated that all the appellants were not residing in the same house, but they are related to each other. The allegations of demand of dowry and harassment and torture meted to the deceased Smt. Renu Jaiswal, made by the complainant, against them are incorrect. They never subjected the deceased to cruelty or harassed the deceased for demand of dowry. It is correct that Jagdamba Prasad informed the complainant/ family members of the deceased. Photographs of both the dead bodies were clicked by the photographer.
29. He has further stated that the letter (Ex.Ka.-13) was prepared with conspiracy of Manohar Lal Jaiswal. Forensic expert gave wrong advice (Ex.Ka.-15) to the Superintendent of Police, Sultanpur. He has further stated that the complainant has lodged false case, because his demand of money was not acceded by him.
30. The appellant, Vijay Bahadur @ Pahadi has also filed his written statement, in which, he has mentioned that the co-accused/ appellant, Akhilesh @ Putte resided in the Village Kari Bahar. He (Akhilesh and the deceased Renu) were married 12 years ago. He (Vijay Bahadur) along with his wife and children permanently resided in the Village Randauli, Majrey Udharpur, which was at a distance of two kilometers from the Village Kari Bahar. He constructed his house in Village Randauli and doing business of sale and purchase of food grains. His children are studying in a Nursery School at Udharpur. His mother, Smt. Indrawati was residing with him in the Village Randauli. He relied upon the ration card and copy of Pariwar Register issued on the address of Village Randauli. Therefore, he has contended separate living from the co-accused, Akhilesh @ Putte and the deceased.
31. He has further stated in his written statement that Jagdamba Prasad, resident of his village, informed him that wife and daughter of Akhilesh @ Puttee had burnt, therefore, he, his wife and children and his mother reached in Village Kari Bahar at night and found that the deceased Renu Jaiswal and her daughter Rani were burnt.
32. He has also mentioned in his written statement that co-accused Akhilesh @ Putte went along with his sister Smt. Sita Devi to see Jhanki (tableau) of Janmashthmi in Gosaiganj Bazar. The deceased, Renu Jaiswal also wanted to see Jhanki, but the co-accused, Akhilesh did not bring her. The deceased was arrogant, therefore, she committed suicide along with her daughter by setting them on fire herself in absence of family members. Jagdamba Prasad informed Akhilesh at Gosaiganj also. He, his wife and his mother neither harassed the deceased for demand of dowry, nor made any demand from her family members or the deceased.
33. He has also contended that witness, Manohar Lal is relative of the complainant, who hatched conspiracy. The complainant demanded an amount of two lakh rupees from him and the co-accused, Akhilesh. When his demand was not acceded by them, then the complainant has implicated him falsely in this crime.
34. The appellant, Akhilesh, his mother, Smt. Indrawati (since dead), Smt. Parmila and Smt. Sita Devi adopted the statement of co-accused/ appellants, Vijay Bahadur @ Pahadi and Akhilesh.
35. The appellant, Akhilesh has further stated that he sent information of the incident through Jagdamba Prasad to the mother of the deceased and he conducted last rites/ funeral of the deceased and his daughter. He has denied the allegations and contended the facts as mentioned by the appellant, Vijay Bahadur @ Pahadi in his written statement. He has also taken plea of separate living from other co-accused persons, i.e., his brother, sister-in-law and mother.
36. He has specifically stated that his mother was present in Village Randauli at the house of Vijay Bahadur. He has also mentioned in his written statement that Jagdamaba informed him in the night that his wife and daughter had burnt, then he and his sister came at their house from Gosaiganj, where they went to see Jhanki of Janmashthmi.
37. The learned trial court has also recorded additional statements of appellants, Vijay Bahadur, Akhilesh, Smt. Pramila, Smt. Sita Devi and Smt. Indrawati (since dead) regarding report sent by Forensic Science Laboratory and stated that poison was not found by the forensic experts in the remains collected from the place of occurrence by the Investigating Officer.
38. The appellant produced D.W.1, Gajendra Kumar and D.W.2, Kripa Shanker Shukla, as defence witnesses.
39. The learned trial court has recorded statements of complainant, P.W.1, Chhaviraj Jaiswal, P.W.2, Naveraj, P.W.3, Smt. Subran, P.W.4, Ramkumar Jaiswal, P.W.5, Constable Dharmendra Bahadur Singh, P.W.6, Manohar Lal Jaiswal, P.W.7, Jagdamba Prasad Mishra (I.O.), P.W.8, Vishnu Pal Singh (I.O.), P.W.9, Dr. V. P. Pandey, P.W.10, A. K. Tripathi, S.I., P.W.11, Dr. N. N. Srivastava and P.W.12, Constable Rajendra Prasad Mishra.
40. These witnesses proved the aforesaid documents relied upon by the prosecution.
41. The learned trial court, after appreciation and evaluation of evidence adduced by the witnesses and on perusal of material available on record, delivered the impugned judgment and order and convicted the appellants, awarding the aforesaid punishments.
42. We have perused the record of Session Trial No. 464 of 2002, State Vs. Vijay Bahadur @ Pahadi and others, and Session Trial No. 179 of 2003, State Vs. Indrawati and another.
43. Witnesses, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 are the witnesses of fact.
44. Learned counsel for appellants has argued that there was no occasion for demand of dowry of amount of rupees fifty thousands after 12 years of marriage of the deceased with Akhilesh. No such demand was made at the point of time of her marriage, nor at the time of her Gauna. On the other hand, general allegations have been made against all the appellants except Akhilesh. No specific particulars of demand of dowry made by these appellants have been proved by the prosecution that in which circumstances they demanded amount of fifty thousand rupees from the deceased and on which date and time. The allegation of demand of dowry has specifically been alleged against Akhilesh only. The learned counsel for appellants has relied upon the statement given in cross-examination by P.W.1 in this regard.
45. We have perused the statements of P.W.1, P.W.2 and P.W.3. The complainant, Chhaviraj Jaiswal (P.W.1) is brother of P.W.3, Smt. Subran, who is a widow. P.W.1 has stated in his examination-in-chief that Smt. Renu, deceased, was daughter of his sister, Smt. Subran and she was married to Akhilesh 14 years ago. The appellant, Vijay was present in Court on 04.02.2004 while examination-in-chief of P.W.1 was recorded. He identified him as brother of Akhilesh, appellant, and stated that he is resident of Village Kari Bahar within the limits of Police Station Gosaiganj, District Sultanpur. He has further stated that his brother-in-law, Tidi, husband of his sister, Smt. Subran(P.W.3), expired in the year 1980. Gauna of the deceased was performed in his supervision.
46. P.W.2 Naveraj is the brother of P.W.1. He has stated that marriage of the deceased, Renu Jaiswal was arranged by Ram Bher, who is brother-in-law of his sister and her Gauna was performed by them.
47. P.W.3, Smt. Subran is sister of both the witnesses, P.W.1 and P.W.2. The deceased, Renu was her daughter. Ram Bher arranged marriage of the deceased with Akhilesh. Her husband expired when Renu was aged only one week. She has also stated that Vijay is brother of Akhilesh. Smt. Pramila is the wife of Vijay. Smt. Indrawati (since dead) was the mother of Vijay. Smt. Sita Devi is the sister of Vijay and Akhilesh. Her brother, Chhaviraj (P.W.1) and elder brother-in-law, Ram Bher helped her after the death of her husband.
48. Therefore, P.W.1, P.W.2 and P.W.3 have proved this fact that P.W.1 and P.W.2 performed Gauna of the deceased, Renu Jaiswal, because her father expired in the year 1980, when she was aged only one week and her marriage was arranged by her uncle Ram Bher with the Akhilesh.
49. P.W.1, Chhaviraj has stated in his examination-in-chief that when the deceased Renu went at her matrimonial home after Gauna and returned back at her parental home (after 4-5 days, as stated in cross-examination) she apprised her mother and family members that Akhilesh, his mother Smt. Indrawati, brother Vijay, Pramila and Sita Devi harrassed her for demand of an amount of fifty thousand rupees. The accused persons/ appellants instructed Renu in the month of April, 2001 in this regard to bring fifty thousand rupees and sent her to her parental home.
50. The witness, P.W.1, in his examination-in-chief and cross-examination and the witness, P.W.3, in her cross-examination have specifically stated that the deceased, Renu came at the house of P.W.3 in the month of April and she was given firm advise to reside in her matrimonial home, therefore, the deceased again went with her husband, Akhilesh in the month of May, 2001.
51. Learned counsel for appellants has argued that P.W.3 in her cross-examination has accepted this fact that the deceased, Renu delivered first daughter after 3-4 years of her Gauna and died after one and half year after the birth of her first daughter. Therefore, there is contradiction in the statements of witnesses, P.W.1, P.W.2 and P.W.3 regarding the fact that when the deceased, Renu, visited the house of P.W.3, Smt. Subran, her mother after Gauna, and when she apprised these witnessed about the demand of amount of fifty thousand rupees as dowry.
52. P.W.1, Chhaviraj Jaiswal, in his examination-in-chief, has stated that he managed Gauna of Smt. Renu. When she returned from her matrimonial home at the house of P.W.3 then she apprised about the demand of fifty thousand rupees made by Akhilesh, his mother, Indrawati, borhter, Vijay, Pramila and Sitadevi, specifically and torture and harassment meted by her in this regard. Again in the month of April, 2001 the appellants sent the victim to bring amount of fifty thousand rupees as dowry from her parental home. He has further stated that in the month of May, 2001, the deceased, Renu, was advised and sent with Akhilesh to her matrimonial home.
53. P.W.1, in his cross-examination also stated that marriage of Renu was solemnized 12 years ago, prior to the date of incident and her Gauna was performed after 7 years. He has mentioned that her daughter was aged one and half years on the date of incident and the deceased was pregnant. He has further stated that when Gauna of Renu was performed, she went at her matrimonial home and she came back at her parental home after 4-5 days. Renu was sent to her parental home in the month of April, 2001 to bring an amount of fifty thousand rupees. He has clarified the fact of advice given to the deceased in the month of May, that he and P.W.3, Smt. Subran, mother of the deceased, advised her to go with Akhilesh at her matrimonial home, then she went with her husband, Akhilesh (appellant) in the month of May, 2001.
54. P.W.1, in his cross-examination, has further stated about the prior demand of motorcycle by Akhilesh made by him two to two and half years ago. A Panchayat was convened in this regard. Motorcycle was not given to Akhilesh. Shri Mewa Lal, father of Akhilesh, purchased motorcycle for him. Akhilesh again made demand of amount of fifty thousand rupees after the death of his father. Therefore, from the examination-in-chief and cross-examination of P.W.1, it reveals that there was persistent demand of dowry made by all the accused persons. For the first time immediately after Gauna and the deceased, Renu, apprised her family members, i.e., P.W.1, P.W.2 and P.W.3 when she returned after 4-5 days of her Gauna.
55. P.W.1, in his cross-examination dated 04.02.2004 has mentioned that marriage of Renu was solemnized with Akhilesh, while he was aged 9-10 years. At this point of time, Vijay was also a child. This marriage was solemnized, when Renu and Akhilesh were in their childhood. At this point of time, there was no custom prevailed to give dowry at the time of marriage, hence it was not the case of prosecution that there was any demand of dowry from the time of marriage of Renu and Akhilesh.
56. P.W.1, Chhaviraj, in his cross-examination dated 29.03.2004 has stated that Akhilesh and Vijay are the real brothers. Smt. Indrawati (since dead) was their mother. The appellant, Pramila is the wife of Vijay. Smt. Sita Devi is the sister of Akhilesh. All the appellants reside in the same house situated in the Village Kari Bahar within the limits of Gosaiganj, District Sultanpur. He has further stated that Sita Devi has left her husband. Her second marriage was solemnized, but she did not go to her matrimonial home and she resides in her parental home. He has reiterated again in his cross-examination that marriage of Renu was solemnized with the accused, Akhilesh 14 years ago. His brother-in-law expired in 1980 and he managed her Gauna after five years (He has stated in his cross-examination dated 04.02.2004 that Gauna was performed after 7 years).
57. P.W.1 has further stated that when Renu returned back at her parental home after Gauna, then she apprised that all the accused persons/appellants demanded amount of fifty thousand rupees and beaten her up due to non fulfillment of demand of dowry. She also apprised that appellants harassed her in manifolds way, they did not serve the food to her and kept her hungry. He has stated that he usually brought the deceased, Renu from her matrimonial home and visited to know her well beings at the house of accused persons. He has specifically stated that Sita Devi, Vijay, Smt. Pramila, Akhilesh and Indrawati (since dead) demanded amount of fifty thousand rupees from him on these occasions also. He advised the accused persons that there was some problem and he will arrange something afterward.
58. P.W.1 has also specifically stated that in the month of April, 2001, accused persons sent Renu, the deceased, to bring amount of fifty thousand rupees from her parental home. The appellants made persistent demand from P.W.1 and from the deceased, Renu, up to her death.
59. P.W.1 has further stated in his cross-examination dated 29.03.2004 that he and his sister, Smt. Subran (P.W.3), in the month of May, 2001, advised Renu and Akhilesh and the deceased was sent with Akhilesh at her matrimonial home. The appellants again harassed the deceased persistently and burnt Smt. Renu and her daughter, Rani, on 14.08.2001. Jagdamba Prasad Verma informed him at 8:00 a.m. that in the night of 13.08.2001 at 10:00 p.m., Renu and her daughter Rani have been burnt at the house of appellants. P.W.1, in his examination-in-chief has also stated these facts.
60. It is pertinent to mention here that statement of P.W.1 dated 04.02.2004 was recorded before the disposal of application of prosecution moved under Section 319 Cr.P.C. for summoning Smt. Sita Devi and his statement dated 29.03.2004 was again recorded in presence of Smt. Sita Devi. The cross-examination on behalf of appellants was conducted again on the same facts, which were put forth during cross-examination dated 04.02.2004, therefore, some facts were again repeated in the cross-examination of P.W.1.
61. P.W.1, in his cross-examination, has clarified this fact that at the point of time of marriage of Renu with Akhilesh, her father was not alive and Ram Bher arranged marriage of her elder sister, Kamlesh, his own daughter and the deceased Renu. He has also stated that parental home of the deceased is situated in Village Gogapur within the limits of Ambedkar Nagar and his village is situated at a distance of 20 kilometers from the Village Gogapur.
62. P.W.1 has further stated that Renu was not an arrogant lady or got angered frequently. Jagdamba Prasad gave only information that Renu and her daughter was burnt, but their death was not confirmed by him. Jagdamba Prasad himself came at the house of P.W.1. He has denied and refuted this suggestion that he mentioned false and fabricated fact that Renu and her daughter was tied with the cot and burnt. He himself stated that after observing condition of place of occurrence and of the dead body of both the deceased, he mentioned in his written report this fact.
63. Therefore, P.W.1 has proved that all the appellants made persistent demand of fifty thousand rupees to him personally and they demanded this amount from the deceased even at the point of time when the deceased Renu went after her Gauna at the appellants’ house. She apprised immediately to P.W.1 and P.W.2 regarding demand of fifty thousand rupees made by all the appellants when she had returned at her parental house after 4-5 days of her Gauna. Both the deceased, Smt. Renu and her daughter Rani were burnt at the house of appellants on 13.08.2001 at 10:00 p.m. in suspicious and unnatural circumstances.
64. P.W.2 is also maternal uncle of the deceased, Renu. He has corroborated the statement of P.W.1 regarding demand of amount of fifty thousand rupees as dowry, made by the appellants, Akhilesh, Vijay, Indrawati, Pramila and Sita Devi. All the appellants harassed the deceased and beaten her up in this regard. He has stated in his examination-in-chief that daughter of the deceased was aged one and half year on the date of incident and the deceased was pregnant. The deceased Renu when came from her matrimonial home at her parental house, she apprised his brother, Chaviraj (P.W.1) and his sister, Smt. Subran (P.W.3) and her family members that all the appellants demanded amount of fifty thousand rupees and tortured her.
65. P.W.2 has specifically stated that in the month of April, 2001 when the deceased came at her parental house, he was also present at the house of P.W.3, his sister. He went to meet her. The deceased and his sister apprised him about the demand of amount of fifty thousand rupees and the harassment meted by her, at the house of appellants. On the request of deceased, P.W.3 and her mother, P.W.2 went at the house of appellants and had a conversation with the appellants, Vijay, Akhilesh, Pramila, Sita Devi and Indrawati, regarding demand of amount of fifty thousand rupees and the harassment caused to Renu by them. All the appellants told him that if their demand of amount of fifty thousand rupees would be acceded, then Renu would not be harassed. P.W.2 apprised the appellants about his financial condition and requested to accede their demand after some time. He has mentioned that he came back after advising all the accused persons.
66. P.W.2 has further stated that on 14.08.2004, his brother, Chhaviraj informed him on telephone that Smt. Renu and her daughter, Rani, have been burnt by accused persons/ appellants in their house. Chhaviraj also apprised him about the threat extended by the appellants that Renu should not sent at their house without giving amount of fifty thousand rupees.
67. P.W.2, Naveraj, in his cross-examination has clarified this fact that he is doing business of motor parts at Calcutta from 22 years. He and his brother Ramji Jaiswal have owned shop of motor parts. He comes in his village 3-4 times in an year. P.W.2 has specifically stated that he met the deceased Renu four times prior to her death on the last time in the month of April. He has contended in his cross-examination that he visited the house of his sister, Smt. Subran, in the month of April to meet her. He went at the house of appellants in the month of April, 2001 alone when he came to know that all the appellants demanded amount of rupees fifty thousand from the deceased Renu. All the appellants where present at their house. Nobody, resident of their village was called at this point of time, when he had a conversation with the appellants at their house. The deceased, Renu, was not present in the house of appellants in the month of April, 2001 when P.W.2 visited the house of appellants.
68. P.W.2 has further stated that he apprised the appellants about his financial condition and told them that he is unable to given amount of fifty thousand rupees. He tried to advice the appellants, but they were not satisfied. They were not prepared to listen him. P.W.2 in his cross-examination has clarified this fact that he apprised the Investigating Officer that all the appellants harassed the deceased Renu for non fulfillment of their demand of dowry of amount of fifty thousand rupees. They had beaten her up and did not serve the food to her. It may be fault of the Investigating Officer that he has not mentioned this fact in the statement of P.W.2.
69. P.W.2 has further stated that he apprised also to the Investigating Officer that when Renu came back at her parental home from the house of accused persons then she apprised P.W.1 and P.W.3 about the demand of amount of fifty thousand rupees made by them. He has further mentioned that he apprised the Investigating Officer also the fact that on 16.04.2001, the deceased also came at her parental home at this point of time. He was also present there to meet his sister. His sister (P.W.3) and the deceased Renu apprised him about the demand of amount of fifty thousand rupees made by the accused persons and on non fulfillment of this demand appellants harassed her. They both requested to him to have a talk with the appellants in this regard. He went at the house of appellants and after having a conversation, he came back at his house.
70. P.W.2, in his cross-examination, has further stated that Chhaviraj was apprised by the deceased 7 months ago prior to the date of incident that the appellants were harassing her. He has refuted this suggestion that he never went at matrimonial home of the deceased, Renu, prior and after her death. He has specifically stated that he came from Calcutta after receiving the information of death of Renu on the next day.
71. P.W.2 has further stated that he also apprised the Investigating Officer that his brother and sister had apprised him about the demand of fifty thousand rupees made by the appellants and that they were harassing Smt. Renu on the basis of this demand. He has accepted this fact that when he and his brother (P.W.1) went at the house of appellants after the death of Renu, he did not have a talk with neighbours of the appellants. It may be possible that his brother might have such conversation with the neighbours.
72. Therefore, P.W.2, Nevraj has also had a conversation with the appellants regarding demand of amount of fifty thousand rupees made by the appellants from the deceased and he advised the appellants in this regard not to harass the deceased and told them that he will fulfill their demand after some time. The deceased apprised him in the month of April, 2001, when he was present in her parental house. The deceased and his mother, Smt. Subran asked him to have a conversation with the appellants, why they were demanding amount of fifty thousand rupees and were harassing and beating her up.
73. P.W.1 and P.W.2 has also proved this fact that the appellants harassed and tortured the deceased Renu by making persistent demand of fifty thousand rupees until the death of the deceased since her Gauna itself. P.W.1 and P.W.2, both witnesses have stated that they performed Gauna of the deceased Renu and the deceased went at her matrimonial home after Gauna. They have not stated that when Ram Bher solemnized marriage of the deceased, then she went at the house of appellants. According to the witness, P.W.1, Gauna of the deceased was performed after 5-7 years of her marriage.
74. P.W.3, Smt. Subran is the mother of the deceased. She has stated that her brother Chhaviraj and elder brother-in-law Ram Bher helped her after death of her husband. She had solemnized the marriage of the deceased Renu and spent amount of fifty thousand rupees including jewellary, cycle and rupees eleven thousands cash. P.W.3 has corroborated the statement of P.W.1 regarding the fact that her brother Chhaviraj convened a Panchayt in the Village Kari Bahar, when appellants made demand of motorcycle. At this point of time, Mewa Lal, father of Akhilesh was alive. Mewa Lal told Vijay and Akhilesh that he will purchase motorcycle for them, because Smt. Subran was widow and was not having means. Mewa Lal purchased motorcycle, hence this demand of motorcycle was not made further.
75. P.W.3 has mentioned that after one and half-two years of the aforesaid Panchayat Mewa Lal expired and after the death of Mewa Lal, the appellants Vijay, Akhilesh, Pramila, Indrawati and Sita Devi again made demand of fifty thousand rupees from the deceased, Renu. They harassed and tortured the deceased by manifold means including keeping her hungry. The deceased, when visited her house she often apprised her about the demand of dowry and harassment meted by her.
76. P.W.3 has specifically stated that whenever Akhilesh came to bring Renu from her house, then he often made demand of amount of fifty thousand rupees. She had also apprised the appellants about her financial condition and on the last time also when Akhilesh brought her daughter Renu from her house. In the month of August, she got information that her daughter was burnt at her matrimonial home. Her cousin Shyam Sunder informed her about the death of Renu, then she saw the dead body of Renu and Rani at the house of appellants. Rani born after 3-4 years of her gauna. At this point of time the deceased was residing at her matrimonial home. Renu visited her house after one month of birth of her daughter.
77. Learned counsel for appellants has argued that P.W.3 has accepted this fact that delivery of her daughter Renu was arranged at hospital by the appellants. She and her family members had not visited the hospital. Therefore, if appellants were annoyed by birth of Rani, they could commit the incident immediately after her birth. They incurred expenses of hospital, therefore, there was no occasion for them to demand fifty thousand rupees after a span of 12 years of marriage of Renu.
78. The argument of learned counsel for appellants is misconceived. There is no contradiction in the statement of P.W.3 about the persistent demand made by the appellants for an amount of fifty thousand rupees. The deceased apprised her even after return for the first time at the house of P.W.3 from her matrimonial home after her gauna. Gauna of the deceased was performed by P.W.1, P.W.2 and P.W.3 after seven years of marriage. There is also no contradiction regarding birth of Rani, because P.W.3 has specifically stated that Rani was born after 3-4 years of Gauna of Renu. Rani was aged one and half years at the time of death of Renu. It may be possible that because financial condition of P.W.1, P.W.2 and P.W.3 was not sound, therefore, family members of P.W.3 could not visit hospital, where Smt. Renu delivered child Rani and Smt. Renu after one month of delivery visited her house. The argument of learned defence counsel that there was no occasion for the appellants for making demand of Rs.50,000/- is of no avail.
79. P.W.3, in her cross-examination has further stated that the deceased Renu came at her house in the month of April and she went at her matrimonial home in the month of May. The deceased apprised her about demand of amount of fifty thousand rupees made by the appellants. She has again reiterated that whenever Akhilesh came at her house to bring the deceased, he often made demand of fifty thousand rupees from her and this demand was placed by the appellants immediately after Gauna of the deceased. She has also apprised the appellants and Akhilesh that her financial condition was not sound and she was unable to accede their demand. She has further stated that the appellants were advised by her. They did not make demand for some time and again they demanded the aforesaid amount. She also apprised the Investigating Officer in this regard that when Akhilesh often came to bring her daughter, he always demanded amount of fifty thousand rupees as informed by the deceased Renu to her.
80. P.W.3 has further stated that Mewa lal (father of Akhilesh) expired after 3-4 years of Gauna of the deceased. He purchased motorcycle two years before his death. Smt. Renu was having pregnancy of 2-3-4 months. She has refuted this suggestion that appellants never demanded motorcycle or amount of fifty thousand rupees. P.W.3 in her cross-examination has also stated that appellants sent information of death of her daughter Renu through Jagdamba Prasad Verma. She has refuted this suggestion that when Renu was burnt the appellants were not present in their house and she was adducing her evidence as advised by her brother Chhaviraj.
81. The prosecution has proved this fact that demand of amount of fifty thousand rupees was made from the deceased Renu, since her Gauna and it persisted until her death. For the last time the appellants sent the deceased Renu in the month of April, 2001 at the house of P.W.3. P.W.2 was present at the house of P.W.3 and he went at matrimonial home of the deceased to have a conversation with the appellants and advised them not to harass the deceased for the aforesaid demand. All the appellants also demanded amount of fifty thousand rupees from P.W.2 also.
82. P.W.1 and P.W.3, i.e., witnesses Chhaviraj and Smt. Subran, have proved this fact that all the appellants were demanding amount of fifty thousand rupees since Gauna of the deceased Renu. Vijay and Akhilesh made demand for motorcycle, when their father Mewa Lal was alive, but this demand of motorcycle was left by them, because motorcycle was purchased by Mewa Lal for them. After the death of Mewa Lal the appellants again demanded amount of fifty thousand rupees and harassed her for non fulfillment of this demand.
83. P.W.1, P.W.2 and P.W.3 have proved persistent demand of dowry made by all the appellants and harassment and torture meted by the deceased Renu at the hands of all the appellants. All the appellants made demand for aforesaid amount from P.W.1 and P.W.2 personally also.
84. Regarding demand of dowry the following expositions of law propounded by Hon’ble Supreme Court are relevant that demand of dowry may be made prior to the marriage, at the time of marriage and after marriage at any time by in-laws of the victim. The agreement to dowry prior to the marriage or at the time of marriage is not required legally.
85. Hon’ble Supreme Court in the case of State of A. P. Vs. Raj Gopal Asawa, (2004) 4 SCC 470 : 2004 SCC (Cri) 1306 in following paras has observed as follows:
8. The Explanation to Section 304-B refers to dowry “as having the same meaning as in Section 2 of the Act”, the question is: what is the periphery of dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar v. State of Haryana [(1998) 3 SCC 309 : 1998 SCC (Cri) 740].
9. The offence alleged against the respondents is under Section 304-B IPC which makes “demand of dowry” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence, that could be either direct or indirect. It is significant that Section 4 of the Act was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word “agreement” referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the respondents seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.
86. Honble the Supreme Court in the case of Reema Aggarwal v. Anupam, reported in (2004) 3 SCC 199 has held as under:-
18. The concept of “dowry” is intermittently linked with a marriage and the provisions of the Dowry Act apply in relation to marriages. If the legality of the marriage itself is an issue, further legalistic problems do arise. If the validity of the marriage itself is under legal scrutiny, the demand of dowry in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498-A and 304-B IPC and Section 113-B of the Indian Evidence Act, 1872 (for short “the Evidence Act”) were introduced, cannot be lost sight of. Legislation enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively requires to be interpreted with a certain element of realism too and not merely pedantically or hypertechnically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on, becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take shelter behind a smokescreen to contend that since there was no valid marriage, the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provisions. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature “dowry” does not have any magic charm written over it. It is just a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by Section 498-A. The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship?If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction”. It would be appropriate to construe the expression “husband” to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in the relevant provisions — Sections 304-B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498-A and 304-B IPC. Such an interpretation, known and recognized as purposive construction has to come into play in a case of this nature. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of Section 304-B or 498-A IPC, viewed in the context of the very object and aim of the legislations introducing those provisions.
23. The judgments of High Courts taking a view contrary to the one expressed above, cannot be considered to lay down the correct position of law.
87. There is no substance in the argument of learned counsel for appellants that the facts narrated by P.W.1, P.W.2 and P.W.3 regarding demand of dowry was unnatural and improbable. Likewise, argument of learned counsel that the deceased did not apprise neighbours of the appellants about the cruelty, torture and harassment that she was subjected to cruelty, harassment and torture or they beaten up her regarding demand of amount of fifty thousand rupees as dowry, is also of no avail, because P.W.1, P.W.2 and P.W.3 have been apprised by the deceased in this regard in her life time on several occasions.
88. Hon’ble Supreme Court in the case of Randhir Singh v. State of Punjab, (2004) 13 SCC 129 in the following paras has observed as under:
9. Great stress was laid on the victim’s statement having not expressed before her friends about any harassment. In a tradition and custom-bound Indian society no conservative woman would disclose family discords before a person, however close he or she may be. Merely because the deceased had not told close friends about the demand of dowry or harassment that does not positively prove the absence of demand of dowry. The said circumstance has to be weighed along with the evidence regarding demand of dowry. If the evidence regarding demand of dowry is established, is cogent and reliable merely because the victim had not stated before some persons about the harassment or torture that would be really of no consequence.
10.In the present case the evidence of relatives, more particularly of the father and the mother, clearly proves demand of dowry. Mere fact that whatever he had obtained by way of pension or compensation for land acquisition had been spent, the capacity to pay may be affected. But it does not prove that the accused persons did not make a demand. The trial court and the High Court have considered this aspect and given positive finding about the demand of dowry having been established. The death occurred during 7 years of marriage. Section 306 IPC deals with abetment of suicide. The said provision reads as follows:
“306. Abetment of suicide.–If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC.
89. P.W.1, P.W.2 and P.W.3 are competent to prove the facts apprised by the deceased to them regarding demand of dowry and harassment and torture and cruelty meted by her at the hands of appellants, while she had resided at her matrimonial home.
90. The learned defence counsel has himself relied upon the exposition of law propounded in the case of Kans Raj Vs. State of Punjab: 2000 SCC (Cri) 935, in which Hon’ble Supreme Court in para-14 has held as follows:
“14. In view of this legal position, statement of Ms. Sunita made to her parents, brother and other acquaintances, before her death are admissible in evidence under Section 32 of the Evidence Act.”
91. In the case of Pakala Narayana Swami Vs. Emperor, AIR 1939 PC 47 Hon’ble Privy Council has held as under:-
…The first question with which their Lordships propose to deal is whether the statement of the widow that on 20th March the deceased had told her that he was going to Berhampur as the accused’s wife had written and told him to go and receive payment of his dues was admissible under S. 32(1) of the Indian Evidence Act, 1872. That section provides:
“Statements written or verbal of relevant facts made by a person who is dead……….are themselves relevant facts in the following cases (1) when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in oases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not at the time when they were made under expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.”
A variety of question has been mooted in the Indian Courts as to the effect of this section. It has been suggested that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the “circumstances” can only include the Acts done when and where the death was caused. Their Lordships are of opinion that the natural meaning of the words used does not convey any of these limitations. The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed, The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. “Circumstances of the transaction” is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in “circumstancial evidence” which includes evidence of all relevant facts. It is on the other hand narrower than res gestae.Circumstances must have some proximate relation to the actual occurrence; though as forinstance in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose.
It will be observed that the “circumstances” are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that “the cause of (the declarant’s) death comes into question.” In the present case the cause of the deceased’s death comes into question. The transaction is one in which the deceased was murdered on 21st March or 22nd March: and his body was found in a trunk proved to be bought on behalf of the accused. The statement made by the deceased on 20th or 21st March that he was setting out to the place where the accused lived, and to meet a person, the wife of the accused, who lived inthe accused’s house, appears clearly to be a statement as to some of the circumstances of the transaction which resulted in his death. The statement was rightly admitted.
92. A Division Bench of this Court in the case of Mahesh Kumar v. State, 2001 Cri LJ 4417 (Criminal Appeal No. 336 of 1991, decided on 01.08.2001) has held as under:
2. The prosecution story, briefly stated, was that Brij Bihari Awasthi (P.W. 2) had married his daughter Smt, Sunita deceased (17) about 11 months before the occurrence of this case with the appellant Mahesh Kumar. He had provided adequate dowry in the marriage. But when Sunita deceased started living with the appellant after marriage the appellant along with his sister Km. Shashi and brother-in-law Prem Shankar started demand of scooter in dowry from Brij Bihari (P.W. 2). The deceased when returned back to her parents house told to her father that in case scooter was not given to the appellant in dowry, she would be killed. Prior to few days of the occurrence Brij Bihari (P.W. 2) had sent Upendra (P.W. 1) to the Sasural of the deceased for taking her back. The appellant and the other accused told Upendra that Sunita deceased would not be sent back to her parents’ house unless scooter was provided to him.
28. The evidence of brother and father of the deceased clearly indicate that scooter was being demanded in dowry and Upendra (P.W. 1) has further stated that the appellant and other accused were treating the deceased with cruelty for and on account of demand of dowry. No doubt the father of the deceased has not specifically stated about the ill-treatment or cruelty, but he has stated that the deceased had told to him that scooter was being demanded from her and that his son also told that deceased was not permitted to come with him because the demand of scooter was not fulfilled. The above statement of the deceased to her father is admissible under Section 32(1) of the Indian Evidence Act as held by the Apex Court in the case of Kans Raj v. State of Punjab, (2000) 41 All Cri C 3 : ((2000) 5 SCC 207 : AIR 2000 SC 2324). After considering the other decisions it was held in the said case that in view of the legal position statements of Mrs. Sunita made to her parents, brother and other acquaintances, before her death are admissible under Section 32 of the Indian Evidence Act as Section 32 Indian Evidence Act is admittedly an exception to the general rule of exclusion to the hearsay evidence and the statements of a person, written or verbal, of relevant fact, after his death or admissible in evidence if they refer to the cause of his death or to any circumstances of the transaction which resulted in his death. To attract the provisions of Section 32 for the purposes of admissibility of the statement of a deceased the prosecution is required to prove that the statement was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay or expense or he is incapable of giving evidence and that such statement had been made under any of the circumstances specified in sub-sections (1) to (8) of Section 32 of the Act. Section 32 does not require that the statement sought to be admitted in evidence should have been made in imminent expectation of death. The word “as to any of the circumstances of the transaction which resulted in his death” appearing in Section 32 must have some proximate relations to the actual occurrence. In other words the statement of the deceased resulting to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement.
93. The learned counsel for appellant has relied upon the observations made by Hon’ble Supreme Court in the case of Kans Raj Versus State of Punjab and others 2000 SCC (Cri) 935 in para-5, which is as follows:
“5. We agree with the learned counsel for Respondents 3 to 5 that his clients, namely, Ramesh Kumar, brother of the husband, Ram Piari, mother of the husband and Bharti, sister-in-law of the accused husband cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PWs 5 and 6 have not brought on record any incriminating circumstance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW 5 in his deposition before the Court had stated that
“after the marriage Rakesh Kumar, accused raised a demand of Rs 15,000 for a scooter and a refrigerator. We fulfilled that demand by giving Rs 20,000 to him for scooter and refrigerator. … Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21-9-1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs 500. She apprehended danger to her life in the house of her in-laws and was not willing to go there”.
He has not referred to any demand of dowry or harassment by the respondents except Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21-9-1988 has not been produced as a witness in the case. Kans Raj, PW 6, the father of the deceased stated before the trial court that Sunita Kumari had told him that she was being taunted by her mother-in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of a BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respectively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in the presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prosecution. In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that Respondents 3 to 5 were roped in the case only on the ground of being close relations of Respondent 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their overenthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
94. But evidence of P.W.1, P.W.2 and P.W.3 regarding demand of dowry and non fulfillment of this demand as a result of which the deceased Renu was subjected to cruelty, harassment and torture by beating her up by the appellants, is cogent reliable, trustworthy and acceptable.
95. Therefore, the above exposition of law of Kans Raj Vs. State of Punjab(supra) is of no avail on the basis of observations made by the Apex Court in para-5.
96. Hon’ble Apex Court in the following exposition of law has held regarding nature of evidence adduced by the prosecution if death of a married women caused by her in-laws at her matrimonial home. The allegations of cruelty harassment and torture meted by her at the hands of in-laws, and requirement of ingredients of 498-A IPC vis a vis 304-B IPC:-
97. In the case of Gurbachan Singh v. Satpal Singh, reported in (1990) 1 SCC 445 Hon’ble Supreme Court has held as under:-
4. The first thing that is necessary for proving the offence is the fact of suicide. Abetment is a separate and distinct offence provided the thing abetted is an offence. Abetment does not involve the actual commission of the crime abetted; it is a crime apart. See the observations ofBarendra Kumar Ghosh [Barendra Kumar Ghosh v.King Emperor, AIR 1925 PC 1 : ILR 52 Cal 197] . It was contended on behalf of the accused that there was no direct evidence of the act of suicide by Ravinder Kaur. There, indeed, could not be in the circumstances in which she died. She was in the house of her in-laws. There is ample and sufficient evidence that she had complained that she was taunted for bringing meagre dowry and that even insinuated that she was carrying ”an illegitimate child’. The aforesaid facts stand established by cogent and reliable evidence. These are grave and serious provocations enough for an ordinary woman in the Indian set up, to do what the deceased is alleged to have done. There is also evidence that the persons in the house of her in-laws including the mother-in-law — mother of the accused Satpal Singh, made no attempt to save her from the burn injuries. The absence of any burn injury in the hands of the people around, indicates and establishes that there was no attempt to save the deceased though she was seen being burnt. The evidence of attitude and conduct of the in-laws — the father-in-law, mother-in-law and the husband — after Ravinder Kaur, the deceased, got burns in not informing the parents and not taking prompt steps to take her to hospital for giving medical assistance corroborate the inference that these accused connived and abetted the crime. Criminal charges must be brought home and proved beyond all reasonable doubt. While civil case may be proved by mere preponderance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt. See Mancini v. Director of Public Prosecutions [1942 AC 1 : (1941) 3 All ER 272] , Woolmington v.Director of Public Prosecutions [1935 AC 462 : 1935 All ER 1] . It is true even today, as much as it was before. There must not be any ”reasonable doubt’ about the guilt of the accused in respect of the particular offence charged. The courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting off some guilty persons. Even after the introduction of Section 498-A of the IPC and Section 113-A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt. There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases. See the observations of Lord Denning in Bater v.Bater [(1950) 2 All ER 458, 459] but the doubt must be of a reasonable man. The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
98. In the case of Moti Lal v. State of M.P., reported in (2004) 2 SCC 469 Hon’ble the Supreme Court has held as under:-
7. So far as the challenge sought to be made on merits as to the conviction of the appellant is concerned, we find that both the courts below have undertaken an independent consideration of the materials on record in the light of the contentions urged on behalf of the appellant and yet found the prosecution case fully substantiated on the basis of concrete and relevant materials brought on record. The defence plea as to want of sufficient proof for demand of additional dowry and harassment on that account and as to the appellant being in possession of sufficient resources in the bank have been considered elaborately and found rejected for valid and relevant reasons supported by concrete materials produced. The ample materials on record overwhelmingly support the factual findings concurrently recorded by both the courts below and they are not shown to be vitiated for any infirmity whatsoever to call for or justify the interference of this Court in the appeal filed under Article 136 of the Constitution of India. The evidence on record, to which our attention has also been drawn by the learned counsel, sufficiently makes out the case of persistent and unabated harassment and acts of cruelty meted out to the deceased by not only pestering her and her relatives to give more and more by way of additional dowry from time to time, but that she had been ill-treated physically and consequently the challenge made to the concurrent findings is not only bereft of substance but does not merit countenance in our hands. The quantum of sentence, keeping in view the serious nature of the offences, also cannot be said to be on the higher side, for showing any further leniency.
99. Hon’ble Supreme Court in the case of Hira Lal v. State (Govt. of NCT), Delhi, reported in (2003) 8 SCC 80 : 2003 SCC (Cri) 2016 at page 87 has observed as follows:
11. Further question is whether a case under Section 498-A has been made out, even if accusations under Section 304-B fail. Section 498-A reads as follows:
“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.–For the purposes of this section, ”cruelty’ means–
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman are required to be established in order to bring home the application of Section 498-A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498-A. Substantive Section 498-A IPC and presumptive Section 113-B of the Evidence Act have been inserted in the respective statutes by the Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304-B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of “cruelty”. In Section 304-B there is no such explanation about the meaning of “cruelty”. But having regard to the common background of these offences it has to be taken that the meaning of “cruelty” or “harassment” is the same as prescribed in the Explanation to Section 498-A under which “cruelty” by itself amounts to an offence. Under Section 304-B it is “dowry death” that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. A person charged and acquitted under Section 304-B can be convicted under Section 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections (See Akula Ravinder v. State of A.P. [1991 Supp (2) SCC 99 : 1991 SCC (Cri) 990 : AIR 1991 SC 1142] ). Section 498-A IPC and Section 113-A of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-A of the Evidence Act is seven years; presumption arises as to dowry death when a woman committed suicide within a period of seven years from the date of marriage.
100. In the case of Ram Kumar v. State of Haryana, reported in (1998) 9 SCC 1 : 1998 SCC (Cri) 833 at page 2 Hon’ble the Supreme Court has held as under:-
4. The “muklawa” ceremony of the younger sister was performed about a month and a half before the occurrence and that shows, according to the learned counsel, that there was no demand of dowry or harassment by the appellants of Raj Dulari. According to the learned counsel, if it had been so, the “muklawa” ceremony of the younger sister would not have been performed. There is no substance in this contention. The marriage of both the sisters took place on the same day. There was no purpose in stopping the “muklawa” of the younger sister. As spoken to by the witnesses, the parents were hoping that if both the sisters started living together the situation would improve and they would be happy. The performance of “muklawa” of the younger sister does not belie the evidence of harassment.
5. The second contention placed before us by the learned counsel for the appellants is that the younger sister had filed a divorce petition later and in that petition, she had improved the story. According to the learned counsel, in the first information report, the appellants’ names were mentioned while in the petition for divorce, the younger sister had implicated her husband also and that shows that the story was not true. There is no merit in the contention. The first information report could not be falsified by the allegations made in the divorce petition. The latter is not relevant for considering the truth of the prosecution.
6.The learned counsel next contended that the deceased had written five or six letters to her parents but none of them has been produced. We have to see whether the evidence placed before the Court is sufficient to prove the charges. The absence of the said letters does not disprove the case of the prosecution. The next argument is that there is no mark on the dead body to evidence the alleged beating. There is ample evidence to prove that there was harassment by the appellants. The same has been believed by the courts below. We see no infirmity in the discussion or appreciation of evidence by the courts below.
101. Learned counsel for appellants has further argued that initial Investigating Officer S.I. Vishnu Pal Singh after recording the evidence of witnesses found that the evidence of murder committed by the appellants was not available. Therefore, he converted this crime for offence punishable under Section 498-A 306 IPC and he exonerated Smt. Sita Devi.
102. Learned counsel for appellants has relied upon statement of PW-8 and argued that PW-8 in his cross-examination has stated that he came to know during course of investigation that accused appellant Akhilesh along with Ram Gopal Verma went to see Krishna Janamashtmi Mela at Gossaiganj. Learned counsel for appellants has pointed out that learned defence counsel has given suggestion to PW-1 Chhavi Raj that the deceased Renu was short tampered and arrogant. She got annoyed due to the reason that appellant Akhilesh and his sister Sita Devi went to see Krishna Janamasthtmi Mela, but they did not bring the deceased. Therefore, the deceased herself set her ablaze.
103. Learned counsel for appellants has vehemently argued that S.P. Sultanpur wrote a letter Ex. Ka-14 to State Medico-legal Expert to get his opinion regarding nature of death of deceased Renu and her daughter Km. Rani whether it was homicidal, suicidal or accidental. He also changed the Investigating Officer and appointed witness PW-7 J.P. Mishra, who was In-charge of SIS to conduct further investigation of this case.
104. The learned counsel for appellants has further argued that the medico-legal Expert Dr. N.N. Srivastava gave his opinion Ex. Ka-15 to S.P. Sultanpur without any rhyme or reason that since both the deceased had not resisted or tried to run away from the place of occurrence, therefore, prima facie this crime may be possibly come within the category of murder. He has also opined that since there was allegation of administering poison to both the deceased, therefore, Viscera should have been preserved by the concerned doctor, who conducted the autopsy on both the dead bodies. He also advised to send remains ashes etc. to chemical analysis to know whether any poison or Kerosene oil was available in the remains or not?
105. It is also argued that PW-7 S.I. J.P. Mishra, without collecting any further evidence converted this crime again for offence punishable under section 498-A, 302 201 IPC and 3/4 of the Dowry Prohibition Act vide report Ex. Ka-16.
106. Learned counsel for appellants has further argued that PW-7 Investigating Officer J.P. Mishra tried to create evidence on the basis of affidavit of witness Mangru Prasad Gupta that the appellants hatched the conspiracy to give poison to both the deceased, but according to chemical analysis report dated 16.4.2002, no poison was found in ashes collected from the place of occurrence or other articles sent for chemical examination. Only some contents of Kerosene oil were found in articles including ashes of remains, which were available at the place of occurrence. Burnt and half burnt clothes, broken bangles of glass and metal chain, Chhalla, and black threads and ashes were sent for chemical examination.
107. Learned counsel for appellants has pointed out that witness Mangru Prasad Gupta was not produced during course of trial. Likewise, Jagdamba Prasad Verma, who gave information to PW-1 Chhaviraj regarding the incident of 14.8.2001 at 7:00 a.m. was also not produced by the prosecution, whereas he was the neighbour of the appellants. PW-7 Investigating Officer J.P. Mishra has not verified the information given by Jagdamba Prasad Verma that Akhilesh and his sister Sita Devi were not present in their house and they went to see Krishna Janamshtami Mela or not?
108. Learned counsel for appellants have also argued that position of dead bodies of both the deceased found by PW-9 Dr. V.P. Pandey that palms/hands were found closed may appear in cases of death by burning. According to medical opinion relied upon by him, he has mentioned that PW-11 Dr. N.N. Srivastava gave his opinion wrongly that the present case could not come within the category of suicide on the basis of his given opinion that both the deceased did not try to run away or resisted.
109. He has also argued that the prosecution has not produced any direct evidence that the appellants were present in their house at the time of incident and they were seen by any witnesses along with both the deceased. Therefore, the appellants could not be convicted for offence punishable under Section 302 IPC by the trial court.
110. Learned counsel for appellants has relied upon medical opinion on the basis of Pariphe’s Jurisprudence on page 418 to 420, which reads as under:-
“the body presents a peculiar attitude, the so-called attitude of defence, known as pugilistic attitude or fencing posture. It is due to heat stiffening. Since the flexors contract more than the extensors, the body presents an attitude of generalised flexion. This attitude of the body is presnet whether a living body is burnt or a dead body is burnt and has therefore no medicolegal significance. The condition is due to coagulation of proteins other than those affected by rigor mortis. It differs from rigor mortis in that it is permanent and does not pass off. The limbs are flexed with the fists clenched and the body slightly bent. The skin is tense.
In asphyxial cases, inhaled smoke is seen as black particles of soot mixed with mucus covering the congested lining of air passages. The soot frequently extends deeply into the lungs. Occasionally, soot is swallowed and may be recovered from the oesophagus. These are vital signs and provide sure evidence that the person was alive at the time of burning. In addition, trachea and bronchi may be injected or filled with forth. Lungs may be shrunken, and congested, and pleural cavities may contain blood stained serous effusion. The chamber of the heart are usually full of blood.”
111. And Modi’s Jurisprudence written page no. 201 and argued that hands after death by burning would get flexed and dead body would slightly bent and limbs would flexed and skin will become tense and shows frequent splits. He has also relied upon opinion that soot in the trachea in a case of death due to burns will be found in case of death is due to asphyxia, when a person was alive, he would no inhale smoke.
112. Learned counsel for has further argued that in the present case also carbon particles were found in trachea of both the deceased. Therefore, it may be inferred that deceased Renu herself set herself and her daughter Rani ablaze and it was a case of suicide.
113. Learned counsel for appellants has also argued that the trial court has discarded the evidence of PW-6 Manohar Lal, because his evidence was also manufactured by PW-7 J.P. Mishra only to procure the conviction of the appellants. The reasons given by the trial court are acceptable and the evidence regarding extra-judicial confession given by PW-6 Manohar Lal is also not sufficient to convict the appellants of serious offence of murder.
114. He has further argued that the evidence of PW-6 Manohar Lal discloses that appellants Akhilesh and Vijay Bahadur approached him to extend help by confessing before him and apprised him that they administered some intoxicant substance/drugs to both the deceased and when both the deceased become unconscious, then they were burnt by them. If any intoxicant substance was administered to both the deceased in milk, then it should have been available in the stomach of both the deceased. The stomach of both the deceased was found empty and congested. In this regard in Modi’s Jurisprudence on page 354 to 369, the following opinion regarding digestion of food before the death and time of death has been mentioned.
Time since death
It is very important from a medico-legal point of view that a medical jurist should always be prepared to give an opinion as to the time which elapsed since death, when a body is brought to him for post-mortem examination. The points to be noted in ascertaining the time are warmth or cooling of the body, the absence or presence of cadaveric hypostasis, rigor mortis and the progress of decomposition. All these points have been discussed at full length, but it must be remembered that the conditions producing these changes vary so much in each individual case, that only a very approximate time of death can be given. In addition to these, the time of death can be ascertained to some extent from the contents of the stomach, bladder and the intestines.
The rate of emptying of stomach varies in healthy person. The emptying of stomach depends on the:
(1) Consistency of food;
(2) motility of the stomach;
(3) osmotic pressure of the stomach contents;
(4) quantity of food in the duodenum;
(5) surroundings in which food is taken;
(6) emotional factors; and
(7) residual variations.
It varies in man from 2.5 to 6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Undigested food has been seen in a stomach of persons who received severe head injuries, soon after their meal and died within 12 to 24 hours afterwards. In one case, the food consisting chiefly of rice and dal (pulse) remained in the stomach for about 40 hours, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death. The presence of tablets or parts of capsules may be significant.
The average urine volume in a healthy adult is about 1.5 litres/day. It varies from 600 to 2500 ml daily. It is dependent on the:
(1) intake of water;
(2) type of food;
(3) environmental temperature; and
(4) physical and mental state of the person.
Tea, coffee, alcohol and other beverages increase the urinary volume. Fifty per cent of the urinary volume occurs during sleep. In some cases, the time of death may be calculated by examining whether the bladder or the intestines are empty or not. Thus, in the case of an individual having been murdered in bed at night, one can state that the individual had lived for some time after going to bed, if the bladder was found full of urine, since people usually empty their bladder before going to bed. Similarly, one can give an opinion that the death occurred some time after he had got up in the morning, if the large intestine was found empty of faecal matter. The estimations of the blood sugar and blood urea are unreliable because of agonal variation due to hypoxia and trauma, so common in medico-legal cases.
Time of death from Stomach Contents.- In P Venkaiah v. State of Andhra Pradesh AIR 1985 SC 1715, it was held by the Supreme Court that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second.
The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of the occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when the deceased had his last meal and what that meal consisted of. The presence of faecal matter in the intestines is not conclusive, as to deceased might be suffering from constipation. Where there is positive direct evidence about the time of occurrence, it is not open to the court to speculate about the time of occurrence by the presence of faecal matter in the intestines. The question of time of death of the victim should not be decided only by taking into consideration the state of food in the stomach. That may be a factor which should be considered along with other evidence, but that fact alone cannot be decisive.
In villages, rural people usually go to answer the call of nature before sunrise, no such generalisation is possible. It depends on the habit of the individual, the state of his heath, particularly of his digestive system, weather and several other factors.
In some cases, the evidence itself may not be sufficient to establish as to when the least meal and what article of food if any, was taken by the deceased. Thus, where semi-digested food was found in the stomach, the contention, that it must be inferred from it that the occurrence must have taken place after the deceased had taken his evening meal was not accepted, or that it could not have taken place at 3.30 pm as alleged, as there was nothing to show when the deceased had taken his last meal.
So also, the ”sluggish chronometric sense of the countryside community of India is notorious’ and even urban folk make mistakes about time, when there is no particular reason to observe and remember a minor event like taking of a morning meal. In other cases also, digestion has not been considered to be sufficient to determine the time of death. The time required to digest food depends on various circumstances.
The time required for digestion may depend upon the nature of food. The process of digestion is very greatly delayed in the case of vegetable food consumed by Indians. Time varies according to digestive capacity. The process of digestion is not uniform. It varies from individual to individual. Digestion varies with the state of the gastric mucosa. It also depends on the health of a person at the particular time.
The power of digestibility may be held in abeyance for various reasons. This may be due to the deceased having been in a state of privation, shock and coma. Food consisting of rice and pulse was found to remain in the stomach for about 40 hours without undergoing digestion.
Death does not at once cause the process of digestion to stop. The stomach can even digest itself after that. But digestion of food does not appear to go to any considerable extent after death.
Digestive Status of Stomach contents- An indicator of Time Since Death.
Digestion is an active ante mortem process, which does not continue after death. Although acids and enzymes are present, the peristaltic movements necessary to churn food with them are absent. The presence of food particles in the stomach and upper small intestine provides still another source of information to the doctor regarding time since death. When and what the deceased ate for his last meal is important information for the doctor who will conduct the autopsy. Various ingested food materials remain within the stomach for variable periods of time, depending on the nature and size of the meal. It has been determined through extensive research that under ordinary circumstances the stomach empties its contents 4 to 6 hours after a meal. According to Modi, the gastric emptying varies in human being from 2 1/2 to 6 hours. In certain cases the medical examiner will be able to determine the type of food, which still remains in the stomach, if matched with the last known meal. This can help establish a time period. A number of contributing factors including type of food item, particles size, volume of food, types of food consumed, temperature and individual metabolism may have direct effect upon the digestion and emptying of ingested food in stomach.
The state of digestion and transportation rate of food from the stomach into the duodenum depends on several factors, such as anatomical, physiological, pathological, psychological, agonal, kind of food, etc., which contribute to great ultra and inter individual variability of gastric emptying. The quantity and digestive state of gastric contents is modified by the following factors:
1) The total quantity of food taken.
2) The ratio of solid to liquid in meal.
3) The carbohydrate, fat, protein contents of food.
4) marked variation between individuals.
5) Variation in the same individual from day to day, psychogenic and endocrine factors.
The emptying rate increases directly with meal weight. The stomach usually starts to empty within ten minutes after the first mouthful of food has entered. The bulk of the meal leaves the stomach within two hours. A light meal (small volume) usually leaves the stomach within 1/2 to 2 hours after being eaten, a medium-sized meal requires 3 to 4 hours and a heavy meal 4 to 6 hours. A carbohydrate meal leaves the stomach more rapidly than a protein meal, because carbohydrates are reduced to a semi-fluid state rapidly and a protein meal leaves the stomach more rapidly than fatty meal. Fluids and semi-fluids leave the stomach very rapidly (within two hours), after being swallowed. If water is ingested with a solid meal, the water is emptied rapidly and separately and is not influenced by either the weight or total calories of the accompanying solid meal. Milk leaves rapidly, whereas meat and pulses are retained longer. Moreover Meat, green vegetables and roots cannot be recognized after four hours. Emptying of the stomach depends upon the consistency of the food, motility of stomach, osmotic pressure of stomach contents, quantity of food in duodenum, surrounding in which food was taken, emotional factors and residual variations.
Rulings on the point of Postmortem.
115. In the case of Pattipati Venkaiah Vs State of Andhra Pradesh reported in AIR 1985 SC 1715, Hon’ble Supreme Court has held in paragraph nos. 10 and 17 as under:-
“10. ……….. Moreover, the trial court as also the counsel for the appellant have not properly interpreted the evidence of medical officers (PWs. 20 and 21). To begin with, Dr. Padmanabharao (PW 20) had stated that “the injuries could have been caused by a sharp weapon like a spear” and that “the injuries were aged about an hour or so”. In cross-examination, however, the Doctor has stated that “the margin of time of the causing of the injuries in Ex.p.-17 could not have been 5 or 6 hours”. But, later on, he (PW 20) corrected himself by saying that the injured must have died one hour prior to his examination. The doctor has made a clear admission in the following words;
I cannot pinpoint the time of the causing of the injuries; it may be 5 to 6 hours prior to my examination.
17. Another argument advanced before us was that although PWs. 1 and 2 were supposed to be eye-witnesses, they never cared to disclose the name of the assailant to the doctor when the body of the deceased was taken to the hospital. This argument is only stated to be rejected. A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. In this state of confusion, PWs. 1 and 2 may not have chosen to give details of the murder to the Doctor. It is well settled that Doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post-mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.”
116. In the case of Ram Bali Vs. State of Uttar Pradesh reported in 2004 Cri L J 2490, Hon’ble Supreme Court in paragraph no. 10 has held as under:-
10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 Sc 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerised or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. The State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.”
117. In the case of Ramanand Yadav Vs. Prabhu Nath Jha reported in (2003) as SCC 606 Hon’ble Supreme Court in paragraph nos. 17, 18 and 20 has held as under:
“17. So far as the alleged variance between medical evidence and ocular evidence is concerned it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case the Court has to draw adverse inference.
18. The High Court has thus Knocked out an eyewitness on the strength of an uncanny opinion expressed by a medical witness. Over dependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adaptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony, of eyewitnesses, only if it is so conclusive as to rule out even the possibility of the eyewitness’s version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities. After all he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice.
20. Even otherwise, the medical evidence may be at variance so far as alleged assault by accused Prabhu Nath Jha is concerned. But there is no variance pointed out by the High Court so far as others are concerned. Therefore, there is no supportable foundation for holding that there was concoction. Accused Prabhu even otherwise can be held guilty by application of Section 34 IPC. Though there was no charge framed for an offence under Section 302 read with Section 34 the evidence on record clearly brings out application of Section 34 and as was observed by this Court in Lallan Rai and Ors. v. State of Bihar 2003 (1) SCC 268: 2003 SCC (Cri) 301] Section 34 can be applied if the evidence of the eyewitnesses clearly establishes the role played by the concerned accused.”
118. In the case of Ramkisan and others vs. State of U.P reported in AIR 2004 SC 4678 Hon’ble the Apex Court has held as under:-
“… The counsel for the appellants further contended that the medical evidence adduced in this case disproved the prosecution case. PW 8 Dr. B.B. Subramaniya conducted the post-mortem on the dead body of the deceased Shiv Shankar Singh. He deposed that the injuries found on the body of Shiv Shankar Singh may have been caused by a sharp, heavy-cutting weapon. Injuries 3, 4 and 6 are injuries which must have been caused by such a weapon. Injury 3 is a chop wound on the left forehead 18 cm × 4 cm brain-deep; Injury 4 is a chop wound 10 cm × 3.5 cm and Injury 6 is a chop wound 6.5 cm and 5 cm. All these three injuries are on the head and the brain was exposed. Counsel for the appellants contended that according to the prosecution, the appellants were armed with “lathis” fitted with iron rings and there was no case that any one of the appellants was having any sharp-cutting weapon. It is important to note that the “lathis” were fitted with iron rings and a heavy blow with such a weapon on the head would have caused the skull to break. The doctor was of the opinion that there were multiple fractures of the skull. Except the witnesses saying that “lathis” were fitted with iron rings, there is no evidence as to the nature of the weapons. During the course of the investigation, these weapons were not examined. What was the width of the ring which covered the “lathis” is not known. Under the circumstances, the Sessions Court and the High Court were justified in accepting the prosecution case.
… The counsel for the appellants strongly urged before us that the evidence of the other two witnesses, namely, PW 2 and PW 6, cannot be accepted as they were also not independent witnesses. It was pointed out that these witnesses were so close to deceased Shiv Shankar Singh that they even filed an affidavit before the court in support of the plea for the cancellation of the bail of these appellants. The incident allegedly happened at 8 o’clock in the morning. These witnesses are persons residing in the locality. PW 1 also deposed that these witnesses were present at the time of the incident. The courts below have relied on the evidence of these two witnesses. We do not find any strong reason to discard their evidence.
… Another contention urged by the appellants’ counsel is that the post-mortem showed that the stomach of the deceased was empty. According to the learned counsel, PW 1 and the deceased had left the house in the morning and they must have taken food and that the prosecution story must be false, for the reason that the incident must have taken place somewhere during the night and that is why the post-mortem evidence is to the effect that the stomach of the deceased was empty. There is no direct evidence as to whether the deceased had taken any food in the morning. The counsel for the appellants pointed to the statement given by the investigating officer during the cross-examination in which he had admitted that the father-in-law had stated to him that the deceased had taken breakfast in the morning and thereafter left the house. The father-in-law of the deceased was not examined as a witness. Therefore, the statement given by the investigating officer must have been based on the statement of the father-in-law of the deceased recorded under Section 161 of the Code of Criminal Procedure. The statement given by the investigating officer regarding this fact is not directly admissible in law. In the absence of any evidence to the effect as to whether the deceased had taken food or not before leaving the house on 12-10-1979, the findings of the doctor to the effect that the stomach of the deceased was empty are of no consequence.”
119. Learned A.G.A. has argued that on the basis of evidence adduced on behalf of the prosecution and medical evidence given by PW-9 Dr. V.P. Pandey and PW-11 Dr. N.N. Srivastava and photographs of both the dead bodies of the deceased by PW-4 Ram Kumar Jaiswal, the condition of both the dead bodies reveal that both the deceased were not in a position to resist nor they tried to run away from the place of occurrence, But their dead bodies were found in between cot and their hands were closed as per opinion given by concerned doctor in postmortem reports Ex. Ka-33 and Ex. Ka-34.
120. Learned A.G.A. has further argued that the trial court has wrongly discarded the evidence of PW-6 Manohar Lal, who gave evidence of extra judicial confession and proved letter Ex. ka-13, which was brought by accused Akhilesh and Vijay Bahadur for soliciting his help. PW-6 Manohar Lal has proved this fact that both the appellants i.e. Akhilesh and his brother Vijay Bahadur confessed before him that they administered some intoxicant to both the deceased and all the appellants set Renu and Km. Rani ablaze. The evidence of PW-6 Manohar Lal is corroborated by the medical evidence given by PW-9 Dr. V.P. Pandey and PW-11 Dr. N.N. Srivastava.
121. Learned A.G.A. has further argued that PW-8 Vishnu Pal Singh had not conducted impartial investigation. Therefore, he was changed by S.P. Sultanpur. The S.P. Sultanpur independently took decision to get opinion of medico-legal expert on the basis of postmortem reports, photographs of dead bodies and the evidence available in the case diary that whether this crime was homicidal or suicidal.
122. The S.P. Sultanpur took impartial decision to change investigating Officer and handed over investigation to PW-7 Sri J.P. Mishra, who conducted impartial investigation and rightly converted this crime and submitted charge sheet Ex. Ka-20 and Ex. ka-21 on the basis of evidence available in the case diary against the appellants.
123. Learned A.G.A. has mentioned that as far as exoneration of an accused Smt. Sita Devi is concerned and regarding non-submission of charge sheet against her by PW-7 J.P. Mishra is not so important, because on the basis of evidence adduced by PW-1 Chhaviraj, learned trial court summoned Smt. Sita Devi and she faced the trial.
124. The trial court allowed application under Section 319 Cr.P.C. moved on behalf of prosecution vide order dated 19.2.2004. The order dated 19.2.2004 passed by the court of learned Additional Sessions Judge/F.T.C.-II Sultanpur was not challenged by the appellants and it was not set aside by any higher court and it is still effective.
125. In light of above arguments put forth by learned counsel for appellants and learned A.G.A., we have perused the letter Ex. ka-13 proved by PW-6 Manohar Lal.
126. On the point that the the Court is always entitled to look into the case diary, Hon’ble Supreme Court in para-10 of its judgment in the case of State of U.P. Vs. M.K. Anthony reported in (1985) 1 SCC 505, has held that, “If the investigating officer did obtain the signature of Nar an intimate friend of the respondent speaking about the confession of the respondent, it may be that it may be a violation of Section 162 of the CrPC but no attempt was made to verify this fact by referring to the case diary. The court is always entitled to look into the case diary.
127. It is mentioned in the FIR/written report Ex. Ka-1 that PW-1 Chhavi Raj received information from Jagdamba R/o Kari Bahar on 14.8.2001 at 7:00 a.m. that Smt. Renu and her daughter Rani were burnt by the appellants by tying them with cot on 13.8.2001 at 10:00 p.m. During his cross-examination, PW-1 Chhavi Raj has disclosed this fact that Jagdamba Prasad Verma gave him information that both the deceased have burnt in house of the appellants, then he reached at the place of occurrence and observed both the dead bodies and then he wrote in his written report Ex. Ka-1 that both the deceased persons had been burnt by the appellants in such a way.
128. We have perused the statement of Jagdamba Prasad Verma given under Section 161 Cr.P.C. He has apprised the Investigating Officer that “marriage of the deceased was solemnized with appellant Akhikesh 12 years ago and Gauna was performed after seven years. The deceased reached at her matrimonial home after her Gauna”. He has also stated that “there was a dispute between deceased Renu and Akhilesh from two and a half years ago. Akhilesh demanded a motorcycle, but his father Mewa lal restrained him to make such demand and purchased motorcycle for him”. PW-1 Chhavi Raj attended Panchayat in this regard. He has further apprised the Investigating Officer that matter was settled.
129. The Investigating Officer recorded statement of Jagdamba Prasad Verma under Section 161 Cr.P.C. on 14.8.2001 when he apprised him that “at 11:30 p.m. at night Vijay Bahadur alias Pahadi raised alarm, then he saw that wife of Akhilesh and his daughter Rani was burning in their house. Wife of Vijay Bahadur and their mother Indirawati were standing in the courtyard of house and they were weeping”.
130. Jagdamba Prasad Verma came to know that “Akhilesh went to see Orchestra. He has also stated that some water was thrown on both the deceased, when they were burning. The Investigating Officer in his presence took in his possession can of red colour, from which smell of kerosene oil was emanating.
131. Therefore, Jagdamba Prasad Verma has disclosed and apprised the Investigating Officer that appellant Vijay Bahadur, Smt. Indirawati and Pramila were present in their house situated in village Kari Bahar on the date of incident. He has also disclosed that Akhilesh was not went to see Krishna Janmashtami Mela/Jhanki, on the other hand he went to see Orchestra. He has also accepted that “he gave information to Chhavi Raj regarding the fact that deceased Renu and Km. Rani were burnt in the house of the appellants situated at village Kari Bahar”. The witness Jagdamba Prasad Verma has specifically stated that “Vijay Bahadur, Kallu Jaiswal and he informed Chhavi Raj regarding the incident”.
132. The appellants whereas in their statement recorded under Section 313 Cr.P.C. have stated contradictory facts that Jagdamba Prasad Verma gave information to Vijay Bahadur in village Randauli and to Akhilesh in Gossainganj, where he went along with Ram Gopal Verma and Smt. Sita Devi to see Jhanki in the Mela of Krishna Janamshtami.
133. The appellants have not cross-examined PW-1, PW-2 and PW-3 on the point that at which distance Krishna Janamshtami Mela in Gossainganj was located and it was improbable for Akhilesh and Sita Devi to reach at their house in Village Kari Bahar on 13.8.2001 during period from 10:00 p.m. to 11:30 p.m.
134. According to check FIR Ex. Ka-11 Village Kari Bahar is situated at a distance of six kilometer from the police station Gossainganj. Therefore, it cannot be said that from Krishna Janamshtami Mela Akhilesh and Smt. Sita Devi could not reach at 10:00 p.m. in their native place/house in Village Kari Bahar.
135. We have already observed that appellants Akhilesh and Sita Devi are unable to prove their absence from their house situated in Village Kari Bahar on the date of incident and time, at night, in nature of plea of alibi. The appellant Vijay Bahadur and Smt. Pramila are unable to prove their permanent separate living at village Randauli, which is situated at a distance of only two kilometers from Village Kari Bahar as stated by PW-1 Chhavi Raj.
136. PW-1 in his cross-examination dated 4.2.2004 and 29.3.2004 has stated that accused appellant Akhilesh and Vijay Bahadur were doing business of sale and purchase of foodgrains in their village Kari Bahar and all the appellants were residing in their house situated in native Village Kari Bahar.
137. PW-1 in his examination in chief dated 29.3.2004 has specifically stated that appellant Akhilesh and Vijay Bahadur were doing business of sale and purchase of food grains in their house situated in Village Kari Bahar and Smt. Sita Devi, after desertion from her first husband and after second marriage, was residing with family of Akhilesh and Vijay Bahadur in village Kari Bahar.
138. These facts cannot be termed as improvement made by PW-1, because it was the duty of PW-8 Vishnu Pal Singh earlier Investigating Officer that he should have verified this fact that whether Sita Devi was residing with other appellants in village Kari Bahar at their house and whether Vijay Bahadur, Smt. Pramila and their children were residing permanently at Village Randauli or not?
139. PW-1 Chhavi Raj in his cross-examination dated 4.2.2004 has specifically stated that children of accused appellant Vijay Bahadur were going to school from village Kari Bahar. He has refuted the suggestion that Vijay Bahadur was residing at village Randuali permanently and his children were getting eduction there. Since Village Randauli is situated at a distance of two kilometer only from village Kari Bahar, therefore, it may be possible that children of appellant Vijay Bahadur were going school from village Kari Bahar on the date of incident also.
140. PW-1 has also stated in his cross-examination dated 29.3.2004 that he verified Ration Card of Vijay Bahadur which was issued by Panchayat Secretary and by Block/Tehsil. The Ration Card of Village Randauli prepared in favour of Vijay Bahadur was false and fabricated.
141. PW-2 has also stated in his cross-examination that he went in the month of April, 2001 at house of appellants and all the appellants were present in their house situated in Village Kari Bahar, where Akhilesh and Vijay Bahadur were doing business of sale and purchase of foodgrains from their house. He has also disclosed the distance of village Randauli from Village Kari Bahar as one and a half kilometer.
142. It is relevant to mention here that a contradictory suggestion was given to PW-3 Smt. Subaran that Vijay Bahadur was doing business in Udharpur and resided there, whereas DW-2 has produced Pariwar Register of Village Randauli. As observed at the proper place by us, physical permanent residence of village Randauli could not be proved by appellant himself. Their residence of Village Randauli could not be proved by appellant Vijay Bahadur and his wife Pramila on the basis of evidence of DW-2.
143. Learned counsel for appellants has also relied upon statement of DW-1 Gajender Kumar, who has proved Ex. Kha-1 entry of register maintained by him regarding cremation of dead persons, in which entry was made on 15.8.2001 regarding cremation of dead body of both the deceased. The dead bodies were brought by appellant Akhilesh it was mentioned in it.
144. DW-1 is employee of cremation place. During his cross-examination, he has refuted the suggestion that entry dated 15.8.2001 was made in English language, whereas numbers has been written in Hindi. Therefore, he had not maintained this register himself. This register was not perused by any authority or officer. He has accepted this fact that this register was maintained by him according to his convenience. A suggestion was given that this register was prepared by him forged.
145. The trial court has appreciated and evaluated the evidence of DW-1 Gajender Kumar and found that Akhilesh being husband of deceased performed cremation of his wife Smt. Renu. The evidence of DW-1 and DW-2 do not extend any benefit to appellants and it has been rightly discarded by the trial court.
146. It is relevant to mention here that PW-3 mother of the deceased Smt. Renu is widow. Her husband was expired in the year 1980. The marriage of deceased Renu was arranged by Ram Bhor, her elder uncle and Gauna was performed by PW-1 and PW-2. Her elder sister Kamlesh is married. During cross-examination of PW-1, PW-2 and PW-3, this fact was not clarified whether any other male member brother or her son were available or not. Therefore, it was the duty of the appellant Akhilesh to perform cremation of his wife.
147. PW-7 S.I. J.P. Mishra took up investigation of this crime on the basis of order dated 14.9.2001 passed by S.P. Sultanpur. He was In-charge of SIS. He started investigation on 17.9.2001. He went on 20.9.2001 along with Constable Pramod Tiwari at 10:10 a.m. at the place of occurrence and visited house of the deceased in Village Kari Bahar. Bhullar and Km. Ruchi aged about nine years met him. He recorded their statements.
148. PW-7 has stated that other family members of the appellants were not available and they were absconding. On the same day, he recorded statement of Kamla Prasad Verma. PW-7 recorded statement of PW-3 Smt. Subran and Smt. Kumari wife of Ram Jeet Jaiswal and Ram Magan Verma on 23.9.2001 at 10:10 a.m. in Village Goga Puran.
149. PW-7 has further stated that S.P. Sultanpur prepared letter dated 25.9.2001, which was brought by him on 27.9.2001 in office of medico-legal expert at Aishbagh, Lucknow. He has proved letter of S.P. Sultanpur as Ex. Ka-14, on the basis of which, medico-legal expert gave opinion Ex. Ka-15 to him. On the basis of opinion given by medico-legal expert, he converted this crime on 29.9.2001 for offence punishable under Section 498-A 302 IPC and 3/4 of the Dowry Prohibition Act and prepared special report and mentioned this fact in G.D. No. 19, time 14:45 dated 29.9.2001. He has proved special report Ex. Ka-16.
150. PW-7 recorded statement of Shiv Nayak Verma and Bansh Raj Verma resident of Village Kari Bahar on 5.10.2001. He searched the appellants, but they were still absconding from their house. He recorded statement of Smt. Kamlesh, elder sister of the deceased on 11.10.2001. On 12.10.2001, he recorded statement of Lal Ji alias Lallan. PW-7 prepared Shupurdaginama Ex. Ka-17, after inspection of negative reel prepared by the photographer on 12.10.2001. He sent ashes collected from the place of occurrence and other articles to Forensic Science Laboratory, Lucknow and he prepared report in this regard Ex. Ka-18.
151. PW-7 has further stated that PW-6 Manohar Lal Jaiswal provided him letter dated 16.8.2001 written by Lal Ji Jaiswal and recorded statement of Manohar Lal Jaiswal on 25.10.2001. he has proved this letter as Ex. Ka-13.
152. PW-7 has also proved this fact on 2.11.2001, he received affidavit of Mangru Prasad Gupta form S.P. Office and had mentioned it in case diary. He also prepared a request for arrest of Smt. Indirawati and Smt. Pramila. He raided on 5.11.2001 for search of appellants, but they were not available. He recorded statement of Mangru Prasad Gupta on 5.11.2001. He prepared site plan Ex. Ka-19 as pointed out by Mangru Prasad Gupta it is the place, where the appellants hatched conspiracy disclosed by him.
153. PW-7 on 11.11.2001 submitted charge sheet against Vijay Bahadur and Akhilesh. He has proved charge sheet Ex. Ka-20. On 21.11.2001 accused Smt. Indirawati and Smt. Pramila surrendered before the Court. He recorded statement of complainant again on 2.12.2001 and he submitted charge sheet Ex. Ka-21 against them.
154. PW-7 in his cross-examination has disclosed this fact that Smt. Subran gave him statement that after death of Mewa Lal, Akhilesh started demand for amount of Rs. 50,000/- and whenever he visited her house, then he demanded for cost of motorcycle. He also clarified that he recorded statement of Kamla Prasad Verma on 20.1.2001, who was neighbour of appellants. He again reiterated that he recorded statement of Manohar Lal on 25.10.2001 and statement of Mangru Prasad Gupta on 5.11.2001.
155. PW-7 has specifically stated that Mangru Prasad Gupta met him on 5.11.2001, while he was searching the appellants and he met him on Baroso Chauraha. He has refuted the suggestion that he fabricated the evidence against the appellants after receiving opinion of medico-legal expert.
156. In these circumstances, no material contradiction was elicited during cross-examination of PW-7 J.P. Mishra because witness Mangru Prasad Gupta could not be available to him before 5.11.2001 and he received his affidavit on 2.11.2001 from office of S.P. Sultanpur.
157. It cannot be said that PW-7 J.P. Mishra himself procured affidavit of Mangru Prasad Gupta and recorded his statement after receipt of report of medico-legal expert.
158. Likewise, PW-7 recorded statement of PW-6 Manohar Lal on 25.10.2001 regarding letter dated 16.8.2001 provided by appellant Vijay Bahadur and Akhilesh to him. Therefore, letter Ex. Ka-13 cannot be termed as fabricated and procured by PW-7 Investigating Officer J.P. Mishra.
159. There is no substance in argument of learned counsel for appellant that PW-7 after receipt of report of medico-legal expert has procured or created false and fabricated evidence of extra judicial confession mentioned in the statement of PW-6 Manohar Lal and letter Ex. Ka-13 or affidavit submitted by Mangru Prasad Gupta in office of S.P. Sultanpur.
160. It is pertinent to mention here that appellant Akhilesh and Sita Devi has not proved this fact in nature of plea of alibi that they went to see Jhanki at Krishna Janamshtami on the date of incident in which circumstances and at which time, as per suggestion given to PW-1 Chhavi Raj. PW-8 Investigating Officer without any reason or rhyme has stated in cross examination that Akhilesh and Sita Devi went along with Ram Gopal to see Jhanki at Krishna Janamashtmi on 13.8.21001. The appellants could have proved this fact that Gossainganj was at a such distance from their village Kari Bahar that their presence in Village Kari Bahar was improbable on the date of incident.
161. The appellants Akhilesh and Sita Devi could have got permission under Section 315 Cr.P.C. from the trial court and themselves could prove this fact that “Akhilesh and his sister Sita Devi went on the date of incident at which time to see Krishna Jahamashtmi at Gossainganj. The deceased Renu was also pressing to go with them, but Akhilesh did not permit him, therefore, in absence of family members, Renu along with her daughter Rani set them ablaze”.
162. On the other hand, Jagdama Prasad Verma and Ram Gopal Verma could have been produced by them in defence evidence so that prosecution could be able to cross-examine them, on the basis of defence of plea of alibi, taken by appellants Akhilesh and Sita Devi. It is pertinent to mention here that PW-8 has not disclosed this fact that Smt. Sita Devi also went along with Akhilesh and Ram Gopal.
163. PW-7 Investigating Officer J.P. Mishra has recorded statement of Bhullar aged about 16 years son of Mewa Lal on 20.9.2001, in his statement who under Section 161 Cr.P.C. has apprised Investigating Officer in details that “Smt. Renu cooked food on 13.8.2001. Smt. Indirawati, his brother Akhilesh, Vijay Bahadur and Smt. Pramila returned on 13.8.2001 at 4:00 p.m. in Village Kari Bahar at their house. He took his dinner at 8:30 p.m. and slept on cot outside the house and lying below the Neem tree. He has also apprised the Investigating Officer that Smt. Indirawati, Smt. Pramila, Smt. Renu, her daughter, Vijay Bahadur and Akhilesh, his sister Sita Devi, children of Vijay Bahadur Ruchi and Deepak were present in the house. Akhilesh (his brother) went by motorcycle to see Orchestra at 9:00 p.m. He awoke at 11:30 p.m. on the alarm raised by Vijay Bahadur, Smt. Pramila, Smt. Sita Devi his sister and Indirawati and saw that his younger sister-in-law Smt. Renu and Km. Rani were burning on the cot”.
164. PW-7 has also recorded statement of Km. Ruchi aged about 9 years. She has stated that “after taking her dinner, she went to sleep on the roof of the house and she does not know how both the deceased burnt”.
165. It may be fault of ADGC that witness Bhullar was not summoned and produced during the course of trial, who has disclosed the presence of Vijay Bahadur, Smt. Pramila, Indirawati and Smt. Sita Devi at 11:30 p.m. in their house situated in Village Kari Bahar and presence of Akhilesh upto 9:00 p.m. on the date of incident i.e. 13.8.2001. PW-7 S.I. J.P. Mishra did not verify from Bhullar that when Akhilesh returned back after seeing orchestra?
166. The appellants have stated in their statement recorded under Section 313 Cr.P.C. and in the written statement, wrong facts about their absence from their house in village Kari Bahar and tried to conceal their presence by taking false pleas of alibi and separate living.
167. PW-8 Investigating Office Vishnu Pal Singh has recorded statement of Ram Gopal Verma on 14.8.2001. He has stated in his cross-examination conducted by learned defence counsel that the aforesaid fact came in his knowledge that Akhilesh went to see Krishna Jahamshtmi along with Ram Gopal Verma.
168. PW-7 has recorded statement of witness Bhullar under Section 161 Cr.P.C. He is the younger brother of Akhilesh and Vijay Bahadur. According to Bhullar, Akhilesh went at 9.00 p.m. on date of occurrence to see Orchestra alone. Whereas Ram Gopal Verma apprised PW-8 in his statement under Section 161 Cr.P.C. that Akhilesh contacted him at his house and requested him to help him to remove bag from the way. Then Akhilesh and he went to see Janmashtami at 9:30 p.m. He saw Smt. Renu, brother and sister-in-law of Akhilesh and Akhilesh’s sister and mother in his house. He also apprised that he saw Jhanki and Orchestra for sometime with Akhilesh, then he saw Nautanki alone. Devi Deen and Mangal brought Akhilesh in his absence from Gossainganj.
169. Therefore, all the appellants were present at their house in village Kari Bahar on the date of incident. Jagdamba Prasad Verma was not seen by Ram Gopal along with Devi Deen and Mangal at Gossainganj. Smt. Sita Devi did not go with Akhilesh to see Janmashtami at Gossainganj. It is pertinent to mention here that learned ADGC or learned defence counsel have not produced Ram Gopal during course of trial.
170. Ram Gopal Verma was a competent and capable witness to prove plea of alibi taken by Akhilesh and Sita Devi that he accompanied them to see Krishna Jahamshtami at Gossainganj and from which time up to which time they remained in Krishna Janamshtami Mela, where Jagadama Prasad Verma informed Akhilesh regarding the incident.
171. It is also relevant to mention here that appellant Vijay Bahadur and Pramila Devi has relied upon the Pariwar Register Ex. Kha-2.
172. Learned counsel for appellants has argued that Vijay Bahadur was residing in village Randauli for the purpose of business of sale and purchase of foodgrains and education of his children at Udharpur Nursery School.
173. We have perused the Pariwar Register in which name of Smt. Indirawati (since dead) has not entered. If she usually resided with Vijay Bahadur Jaiswal, then her name should have been mentioned in the Pariwar Register. Therefore, statement given by Akhilesh and Vijay Bahadur in their statement recorded under Section 313 Cr.P.C. and written statement submitted by them, that Smt. Indirawati usually resided with Vijay Bahadur in Village Randauli, is apparently incorrect. No defence witness of resident of village Randauli has been produced by appellants Vijay Bahadur and Smt. Pramila, his wife that they permanently resided in village Randauli and they were not residing on the date of incident in village Kari Bahar.
174. Appellant Vijay Bahadur and Smt. Pramila Devi could have proved themselves by taking permission from the trial court under Section 315 Cr.P.C. regarding the fact of separate living as claimed by them. But they have not mustered courage to appear in defence as defence witness that they were living separately in village Randauli and they were not present in village Kari Bahar on their native place.
175. DW-2 Kripa Shankar Shukla was produced by the appellants to prove Pariwar Register of house situated in Village Randauli. The entry of Sl. No. 155 House 154 has been shown since 12.1.2000. The Pariwar Register Ex. Kha-2 was not maintained by this witness on the date of entry. The inquiry report regarding physical verification of this entry was not available along with Pariwar Register produced by DW-2.
176. The pages of this register were not numbered and entry No. 155 was not made by DW-2 witness. On the front page, the date of issuance of register was mentioned 25.1.2001 along with 16 pages whereas 70 pages were available in this register. Therefore, the evidence of DW-2 was discarded by the trial court in correct perspective and it recorded finding that there was no evidence available on record that appellant Vijay Bahadur and his wife Pramila Devi were physically residing in Village Randuali in House No. 154 permanently.
177. It is relevant to mention here that if a person is owner of more than one house, then it cannot be inferred that he was residing in his particular house. The burden to prove this fact would be on the person claiming that he was residing in his particular house.
178. The native place of Vijay Bahadur and his wife Pramila is situated in village Kari Bahar and witness Jagdamba Prasad Verma, Shiv Nayak and Bans Raj apprised the Investigating Officer that Vijay Bahadur and Pramila along with Smt. Indirawati and Smt. Sita Devi were present on 13.8.2001 at 11:30 p.m. in their house situated in Village Kari Bahar. Bhullar has apprised Investigating Officer that Akhilesh was present upto 9:00 p.m. on the date of incident in his house.
179. Therefore, prima facie it appears that Vijay Bahadur and Smt. Pramila appellants have stated wrong facts in their statement recorded under Section 313 Cr.P.C. and written statement submitted by them regarding their claim of separate living and suppressed this fact that they were present at thir house in village Kari Bahar. They are unable to prove these facts that they were permanently residing in village Randauli as claimed by them. They have stated incorrect and wrong facts in their statement recorded under Section 313 Cr.P.C. and their written statement.
180. The witness Lal Ji Jaiswal has apprised PW-7 I.O. that he referred appellant Vijay Bahadur and Akhilesh to the witness PW-6 Manohar Lal. The witness Jagdamba Prasad Verma and Bhullar in their statement recorded under Section 161 Cr.P.C. have apprised to PW-8 Investigating Officer and the witnesses Lal Ji Jaiswal, Bans Raj and Shiv Nayak Verma in their statement under Section 161 Cr.P.C. have apprised Investigating Officer PW-7, presence of all appellants in their house situated in Village Kari Bahar on 13.8.2001 during period from 4:00 p.m. up to 11:30 p.m. We are constraint to observe that the concerned ADGC has not conducted trial on behalf of prosecution properly and committed glaring fault by not producing aforesaid witnesses during course of trial. The material available on record indicates incriminating circumstances about involvement of all the appellants in this crime.
Ruling about wrong facts stated by the appellants in their statement under Section 313 Cr.P.C. and Section 114 of the Indian Evidence Act:-
181. Hon’ble the Supreme Court in the case of Limbaji v. State of Maharashtra, reported in (2001) 10 SCC 340at page 351 has held as under:-
III.  As the presumption under Section 114 of the Evidence Act looms large in this case, a brief discussion on the basic postulates and evidentiary implications of presumption of fact may not be out of place. A presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our criminal law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events. Holmes, J. in Greer v. US [245 US 559 (1917) : 62 L Ed 469] remarked “a presumption upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth”. Section 114 of the Evidence Act shows the way to the court in its endeavour to discern the truth and to arrive at a finding with reasonable certainty. Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly in the section. Section 114 enjoins:
“114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
Having due regard to the germane considerations set out in the section, certain presumptions which the court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not. Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case:
“The court may presume —
(a) that a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;”
Taylor in his treatise on The Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in Section 114(a):
“The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand.
This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Maule, J., if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stored, ”I think,’ says the learned Judge — and most persons will probably agree with him — ”that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed’.”
IV. We shall now examine as a first step whether the conditions, or to put it in other words, factual circumstances contemplated by Illustration (a) to Section 114 are fulfilled.
182. In the case of Ganesh Lal v. State of Rajasthan, reported in (2002) 1 SCC 731 Hon’ble the Supreme Court has held as under:-
12. Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration (a) provides that a man who is in possession of stolen goods soon after the theft may be presumed by the court to be either the thief or one who has received the goods knowing them to be stolen, unless he can account for his possession. The presumption so raised is one of fact rather than of law. In the facts and circumstances of a given case relying on the strength of the presumption the court may dispense with direct proof of certain such facts as can be safely presumed to be necessarily existing by applying the logic and wisdom underlying Section 114. Where offences, more than one, have taken place as part of one transaction, recent and unexplained possession of property belonging to the deceased may enable a presumption being raised against the accused that he is guilty not only of the offence of theft or dacoity but also of other offences forming part of that transaction.
13. In Baiju v. State of M.P. [(1978) 1 SCC 588 : 1978 SCC (Cri) 142] , Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447], Gulab Chand v. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552], Mukund v. State of M.P. [(1997) 10 SCC 130 : 1997 SCC (Cri) 799] and A. Devendran v. State of T.N. [(1997) 11 SCC 720 : 1998 SCC (Cri) 220] para 20, murder and robbery were proved to have been integral parts of one and the same transaction and the presumption arising under Illustration (a) to Section 114 of the Evidence Act was applied for holding the accused guilty of not only having committed robbery but also murder of the deceased. The presumption was founded on recovery of stolen property belonging to the deceased.
14. While raising such presumption the time factor between the date of the offence and recovery of stolen property from the possession of the accused would play a significant role. Precaution has to be taken that the presumption may not be so stretched as to permit suspicion taking the place of proof. No hard-and-fast rule can be laid down.
15. A review of several decisions of this Court, some of which we have cited hereinabove, leads to the following statement of law. Recovery of stolen property from the possession of the accused enables a presumption as to commission of offence other than theft or dacoity being drawn against the accused so as to hold him a perpetrator of such other offences on the following tests being satisfied: (i) the offence of criminal misappropriation, theft or dacoity relating to the articles recovered from the possession of the accused and such other offences can reasonably be held to have been committed as an integral part of the same transaction; (ii) the time-lag between the date of commission of the offence and the date of recovery of articles from the accused is not so wide as to snap the link between recovery and commission of the offence; (iii) availability of some piece of incriminating evidence or circumstance, other than mere recovery of the articles, connecting the accused with such other offence; (iv) caution on the part of the court to see that suspicion, howsoever strong, does not take the place of proof. In such cases the explanation offered by the accused for his possession of the stolen property assumes significance. Ordinarily the purpose of Section 313 of the Code of Criminal Procedure is to afford the accused an opportunity of offering an explanation of incriminating circumstances appearing in prosecution evidence against him. It is not necessary for the accused to speak and explain. However, when the case rests on circumstantial evidence the failure of the accused to offer any satisfactory explanation for his possession of the stolen property though not an incriminating circumstance by itself would yet enable an inference being raised against him because the fact being in the exclusive knowledge of the accused it was for him to have offered an explanation which he failed to do. (See Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330 : 1983 SCC (Cri) 447] para 13, Gulab Chand v. State of M.P. [(1995) 3 SCC 574 : 1995 SCC (Cri) 552] para 4.)
16. In State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] a female child of tender years was raped and murdered. Case against the accused rested on circumstantial evidence. The accused when arrested was found to have injuries on his person and blood and semen on the underclothes. There were several other incriminating circumstances pointing to the guilt of the accused and this one, mentioned just before, termed by this Court in its judgment as “most formidable incriminating circumstance” was put to the accused but he could not give any explanation whatsoever and instead chose to deny the existence thereof. This Court held that a false answer offered by the accused on his attention being drawn to such circumstance renders the circumstance capable of inculpating him. The Court went on to say that in a situation like this such a false answer can also be counted as providing “a missing link” for completing the chain of circumstantial evidence.
19. …… All these circumstances were put to the accused. His only answer to all such circumstances is galat hai (i.e. it is false or incorrect). The fact remains that the accused failed to offer any explanation of such circumstances and therefore they can be used as inculpatory circumstances against him and the necessary inferences flowing therefrom used as links in the chain of incriminating circumstantial evidence fastening guilt on him. The medical evidence shows that the victim girl was raped, her neck was twisted and she was throttled to kill her. On her death the two legs were chopped off and thekuralias worn by her were removed. The accused was in recent unexplained possession of kuralias. These several criminal acts — rape, killing and theft — were committed in one transaction. The availability of the abovesaid pieces of incriminating circumstantial evidence and their having remained totally unexplained forge a complete chain of incriminating circumstantial evidence so as to fasten guilt upon the accused beyond any reasonable doubt. The silence of the accused supplies the “missing link”, if any, as held by this Court in the case of State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] . It is not only the recovery of stolen property but also availability of other strong circumstances which have fastened inescapable connectivity of the accused with the offences charged.
183. In the case of Kuldeep Singh v. State of Rajasthan, reported in (2000) 5 SCC 7 Hon’ble the Supreme Court has held as under:-
17. It must also be noted that in her statement under Section 313 CrPC Appellant 4 denies that she had left the Ramleela function. The evidence of witnesses clearly establishes that she had left the Ramleela programme.
18. In the case of Swapan Patra v. State of W.B. [(1999) 9 SCC 242 : 1999 SCC (Cri) 1153] it has been held that it is a well-settled principle that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh [(2000) 1 SCC 471 : 2000 SCC (Cri) 263] . In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing “a missing link” for completing the chain.
19. The false answer given by Appellant 4 denying that she had left the Ramleela programme provides the additional link or a missing link in completing the chain of circumstances.
184. In the case of Shankarlal Gyarasilal Dixit v. State of Maharashtra, reported in (1981) 2 SCC 35 Hon’ble the Supreme Court has held as under:-
30. The last circumstance relied on by the prosecution is that the total ignorance of the incident pleaded by the appellant is false, and would itself furnish a link in the chain of causation. We have come to the conclusion that the appellant was not present in the house at the time when Sunita’s dead body was discovered. That makes it impossible to hold that the appellant’s plea is false. Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused,
31. It causes us some surprise that the learned Additional Sessions Judge, Akola, who tried the case, has not shown any awareness of the fundamental principle which governs cases dependent solely on circumstantial evidence. Nowhere in his judgment has the learned Judge alluded, directly or indirectly, to the principle that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.
32. The High Court, it must be said, has referred to the recent decisions of this Court in Mahmood v. State of U.P. [(1976) 1 SCC 542 : 1976 SCC (Cri) 72 : AIR 1976 SC 69] and Chandmal v. State of Rajasthan [(1976) 1 SCC 621 : 1976 SCC (Cri) 120 : AIR 1976 SC 917] in which the rule governing cases of circumstantial evidence is reiterated. But, while formulating its own view the High Court, with respect, fell into an error in stating the true legal position by saying that what the court has to consider is whether the cumulative effect of the circumstances establishes the guilt of the accused beyond the “shadow of doubt”. In the first place, “shadow of doubt”, even in cases which depend on direct evidence is shadow of “reasonable” doubt. Secondly, in its practical application, the test which requires the exclusion of other alternative hypotheses is far more rigorous than the test of proof beyond reasonable doubt.
185. In the case of State of Maharashtra v. Suresh, reported in (2000) 1 SCC 471 Hon’ble the Supreme Court has held as under:-
22.If potholes were to be ferreted out from the proceedings of the Magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held (vide Budhsen v. State of U.P. [(1970) 2 SCC 128 : 1970 SCC (Cri) 343]; Ramanathan v. State of T.N. [(1978) 3 SCC 86 : 1978 SCC (Cri) 341]
23. When we scan through Ex. 17 minutes of the test identification parade we feel that the safeguards adopted by PW 2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that the Division Bench niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by the Division Bench were fatuous and we cannot support them.
27. It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW 22 Dr Nand Kumar. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25-12-1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW 22 Dr Nand Kumar. A false answer offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing “a missing link” for completing the chain.
186. In the case of State of U.P. v. Hari Mohan, reported in (2000) 8 SCC 598, Hon’ble the Supreme Court has held as under:-
6. Admittedly, there is no direct evidence connecting any of the accused with the commission of the crime. The case of the prosecution is based upon circumstantial evidence. It is often said that witnesses may lie but the circumstances cannot. To convict a person on the basis of circumstantial evidence all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. The circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstances, furnished by the prosecution, should be so complete as not to lead any reasonable ground for conclusion consistent with the innocence of the accused. Medical evidence in such a case may be an important circumstance giving assurance to the existence of the other circumstances alleged against the culprit. This Court has consistently held that when the evidence against the accused, particularly when he is charged with grave offence like murder consists of only circumstances, it must be qualitatively such that on every reasonable hypothesis the conclusion must be that the accused is guilty; not fantastic possibilities nor freak inferences but rational deductions which reasonable minds make from the probative force of facts and circumstances.
16. The false assertion by the respondent Hari Mohan that the deceased had died due to cholera on 15-3-1977 is such an important circumstance as would leave no doubt in the mind of the court that the death was neither natural nor suicidal but in fact homicidal. Making of contradictory statement on a fact which the accused knew well that it is a wrong statement on a very vital aspect concerning the death of the deceased can also be counted, among other circumstances, as a link in the chain of circumstances to connect the accused with the commission vide judgment in Rajinder Kumar v. State of Punjab [AIR 1966 SC 1322 : 1966 Cri LJ 960] . In that case the deceased was last seen with him and later the dead body was found buried in his own house, the court counted the contradictory statement made by the accused (that the deceased had gone to the shop of one baba to fetch a toast) as one of the links in the chain. There is no doubt in our mind that Hari Mohan, the accused in this case made a false statement about the deceased by telling her father that she had died due to cholera on 15-3-1977. If Roop Devi had died on 15-3-1977 due to cholera, what prevented the accused persons to intimate her parents about the death. No explanation is tendered by the accused persons. The said accused, however, has taken the contradictory plea in the court that the deceased was not at all living at their residence.
187. Hon’ble Apex Court in the case of Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 at page 30 has held as under:
Regarding burden of proof under Section 106 of Indian Evidence Act:
53. In State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516 : AIR 2000 SC 2988] this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (See also Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] , Sucha Singh v.State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717 : AIR 2001 SC 1436] andSahadevan v. State [(2003) 1 SCC 534 : 2003 SCC (Cri) 382 : AIR 2003 SC 215] .)
79. Both the courts below have found that the appellant-accused had abducted Shri Jaswant Singh Khalra. In such a situation, only the accused person could explain as to what happened to Shri Khalra, and if he had died, in what manner and under what circumstances he had died and why his corpus delicti could not be recovered. All the appellant-accused failed to explain any inculpating circumstance even in their respective statements under Section 313 CrPC. Such a conduct also provides for an additional link in the chain of circumstances. The fact as to what had happened to the victim after his abduction by the accused persons, has been within the special knowledge of the accused persons, therefore, they could have given some explanation. In such a fact situation, the courts below have rightly drawn the presumption that the appellants were responsible for his abduction, illegal detention and murder.
80. Shri Jaspal Singh, learned Senior Counsel appearing on behalf of Jaspal Singh, DSP, the appellant, has vehemently submitted that only three persons had been charged under Sections 302/34 IPC. Rachpal Singh stood discharged by the trial court before recording his statement under Section 313 CrPC, and Amarjit Singh has been acquitted by the High Court. Law does not permit to convict Jaspal Singh, the appellant, alone for the offence punishable under Section 302 read with Section 34 IPC in view of the law referred to hereinabove.
81. The arguments so advanced seem to be very attractive but cannot be accepted for the reason that the case is required to be considered in the factual backdrop mentioned hereinabove. This Court has consistently held that even otherwise “it is possible for the appellate or the Revisional Court to convict an accused for an offence in which no charge was framed unless the court is of the opinion that the failure of justice could be, in fact, occasioned. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him, were explained to him clearly and whether he got a fair chance to defend himself”.
82. The Court cannot lose sight of the fact that Jaspal Singh, the appellant, had also been charged and convicted under Sections 364/34 IPC along with all the other appellants. He was not arrayed as a party-respondent in the criminal revision filed by Smt Paramjit Kaur (PW 2), the complainant for enhancement of punishment as he had already been given life imprisonment for the offences punishable under Sections 302/34 IPC. Had he been acquitted of the said offences and convicted under Sections 364/34 IPC, his sentences could also have been enhanced by the High Court as it so happened in the cases of the other appellant-accused. In addition thereto, admittedly, at the initial stage of the proceedings, the main accused had been Ajit Singh Sandhu, SSP, who committed suicide before framing of the charges. Jaspal Singh, DSP, the appellant, cannot succeed on mere technicalities. In view of the provisions of Section 464 CrPC, and in the peculiar facts of this case, this argument is not worth acceptance.
83. Be that as it may, the contention raised on behalf of Jaspal Singh, DSP, the appellant, does not require further consideration in view of the judgment of this Court in Lok Pal Singh [1985 Supp SCC 76 : 1985 SCC (Cri) 400 : AIR 1985 SC 891] , wherein a similar contention stood rejected.
84. Undoubtedly, the charges had been framed prior to the statements recorded by Kuldip Singh (PW 16) and in such a fact situation, the trial court ought to have altered the charges, but it failed to do so. The offence proved against the appellants has been the abduction of Shri Khalra so that he could be murdered. The High Court is justified in enhancing the punishment particularly in the peculiar facts of this case. The court cannot be a silent spectator where the stinking facts warrant interference in order to serve the interest of justice. In the fact situation of a case, like the instant, if the court remains oblivious to the patent facts on record, it would be tantamount to failure in performing its obligation under the law.
Rulings on the point of circumstantial evidence:-
188. Hon’ble Supreme Court in the case of Joseph v. State of Kerala, reported in (2000) 5 SCC 197 has held as under:-
10. As far as the homicidal fact is concerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant. The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the Convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that the jewels of the deceased, which were sold to PW 11 by the appellant, were seized under Ex. P-5 duly attested by PW 12 and that PWs 5 and 6 were categorical in their evidence that those jewels were worn by the deceased at the time when she left the Convent with the appellant.
189. Hon’ble Apex Court in the case of Vasa Chandrasekhar Rao v. Ponna Satyanarayana, (2000) 6 SCC 286 has held as under:
7. Since the witnesses to the actual murder did not support the prosecution case during trial, the question for consideration is whether the circumstances would be sufficient to bring home the charge. Where the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which a conclusion is drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of guilt and inconsistent with innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. Where the accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. Bearing in mind the aforesaid principle and on examining the circumstances which can be said to have been established in the case in hand, it appears that on the date of occurrence itself, PWs 9 and 21 left the deceased and her daughter with the accused and came back to their respective houses at about 3 p.m. This establishes that the accused and deceased were together in the house of the accused till 3 p.m. At 6 p.m. the father of the accused, PW 1 informed PW 21 on telephone that the accused had killed the deceased. PW 21 accompanied by PW 9, reached the house of the accused and found the deceased lying dead with stab wounds. PW 22, who is a neighbour of the accused, deposed in court that on the date of occurrence at 4.30 p.m. he heard some cries from the house of PW 1 and when he rushed to the place, he saw the accused coming out of the house with bloodstained clothes and on being questioned, the accused confessed that he himself had murdered his wife and daughter. The parents of the accused PWs 1 and 2, before whom the accused killed the deceased, did not support the prosecution during trial and, therefore were permitted to be examined by the Public Prosecutor, but notwithstanding the same, the question remains that whether the aforesaid circumstances which must be held to have been established, are sufficient to bring home the charge against the accused person. It is to be noted that when these circumstances were put to the accused through his examination under Section 313 of the Code of Criminal Procedure, the accused merely denied the same and such denial would be an additional link in the chain of circumstances to bring home the charge against the accused. In the aforesaid circumstances, the question arises whether the statement of PW 21 that PW 1 told him on telephone at 6 p.m. that his son had killed the deceased, could go in as evidence under Section 6 of the Evidence Act. PW 1, not having supported the prosecution during trial, the aforesaid statement of PW 21 would be in the nature of hearsay but Section 6 of the Evidence Act is an exception to the aforesaid hearsay rule and admits of certain carefully safeguarded and limited exceptions and makes the statement admissible when such statements are proved to form a part of the res gestae, to form a particular statement as a part of the same transaction or with the incident or soon thereafter, so as to make it reasonably certain that the speaker is still under stress of excitement in respect of the transaction in question. In the absence of a finding as to whether the information by PW 1 to PW 21 that the accused had killed the deceased, was either of the time of commission of the crime or immediately thereafter, so as to form the same transaction, such utterances by PW 1 cannot be considered as relevant under Section 6 of the Evidence Act. In this state of affairs, it may not be proper to accept that part of the statement of PW 21 and the said circumstance cannot be held to have been established. But even excluding such circumstance, if all other circumstances enumerated above are taken into consideration, which must be held to have been proved beyond reasonable doubt, the conclusion is irresistible that all these circumstances point towards the guilt of the accused and are inconsistent with his innocence. We, therefore, unhesitatingly, come to the conclusion that the High Court committed serious error in acquitting the accused-respondent of the charge under Section 302 IPC. The impugned judgment of acquittal of the High Court is set aside and the accused-respondent is convicted under Section 302 IPC and is sentenced to imprisonment for life. He is directed to surrender forthwith to serve the balance period of the sentence and in the event he does not surrender, steps may be taken for his apprehension to serve the sentence.
190. Hon’ble the Apex Court in the case of Brijlala Pd. Sinha v. State of Bihar, reported in (1998) 5 SCC 699 has held as under:-
9. As has been stated earlier, there is no evidence to indicate the manner in which the three persons in the Maruti van were killed. Conclusion on the same, therefore, has to be arrived at from the circumstantial evidence. In a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and lastly, the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. [State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300 : 1992 SCC (Cri) 642] The law relating to circumstantial evidence no longer remains res integra and it has been held by a catena of decisions of this Court that the circumstances proved should lead to no other inference except that of the guilt of the accused, so that the accused can be convicted of the offences charged. It may be stated as a rule of caution that before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused. It is not necessary to delve into any further, in the law on the subject which has now been crystallised by several decisions of this Court. Bearing in mind the aforesaid principles, let us examine the circumstances said to have been proved by the prosecution by unimpeachable evidence. Since three of the appellants have been sentenced to death by the learned Sessions Judge and the said sentence had been affirmed by the High Court, we thought it appropriate to examine the reliability of the prosecution evidence and the circumstances so proved by such evidence to find out whether all the links in the chain are complete or not. PWs 7 and 8 are the two Constables, who had been posted at Barachatti Police Station on the relevant date of occurrence. These two witnesses have been believed by the learned Sessions Judge as well as by the High Court and nothing has been pointed out to us in this Court to discard their testimony, in fact, no argument has been advanced on that score. According to PW 7, on the early morning of 5-12-1993, while Dudh Nath Ram and Victor were at the police station, Jaikaran Yadav came there and said that criminals were moving ahead firing shots. Getting this information, the Officer-in-Charge, Dudh Nath Ram, Victor and two Constables and a Havildar went on a Maruti van and Brijlala later on went by a private jeep which used to remain at the police station. Further evidence of PW 7 is that when these officers returned back to the police station, they had brought three dead bodies in the jeep with them and they had also brought one Maruti van by towing. This evidence of PW 7 has been fully corroborated by PW 8 who was also posted at the police station on that date. On the evidence of the aforesaid two witnesses, it can be safely held that the prosecution has established beyond reasonable doubt that all the police officers excluding Brijlala Prasad, on getting information from Jaikaran went together in a Maruti van with their arms and ammunition chasing the alleged criminals and then returned back with three dead bodies as well as another Maruti van. The evidence of PW 7 further establishes the fact that the Maruti van which had been brought by towing was found to be damaged and blood marks were also seen on the said vehicle. He further stated that the dead bodies brought by the police people had bullet injuries on them. The prosecution evidence clearly establishes the fact that the speeding vehicle had to stop at 71 Mile Post on account of a traffic jam and the police personnel could easily approach the said vehicle, which was immobile. It is also established beyond reasonable doubt that the vehicle in which the deceased persons were moving had several bullet marks on its body and pieces of bones and blood marks had also been found in the said vehicle as stated by PW 58.
191. As far as learned counsel for appellants have argued that PW-7 J.P. Mishra after receiving information of medico-legal expert tried to create evidence against the appellants as per opinion given by expert. On perusal of record of trial court, it reveal that Mangru Prasad Gupta forwarded his affidavit to District Magistrate Sultanpur on 22.10.2001. On the basis of this affidavit, PW-7 Investigating Officer J.P. Mishra has recorded his statement under Section 161 Cr.P.C.
192. On perusal of affidavit and statement recorded under Section 161 Cr.P.C., it reveal that Mangru Prasad Gupta apprised the Investigating Officer that “he was defecating in the crop of Arhar, which was situated near road, where Vijay Bahadur and Smt. Pramila riding on one motorcycle and Akhilesh and Smt. Indirawati riding on another motorcycle reached there. He heard their conversation that they will administer some poisonous substance to get them unconscious and then Smt. Renu and her daughter would be burnt by the appellants.
193. On the basis of statement given by Mangru Prasad Gupta to PW-7 J.P. Mishra, Investigating Officer, it reveal that intention of the appellants was to get Smt. Renu and her daughter Km. Rani unconscious by administering them some intoxicating substance and then their intention was to set them ablaze. There was no intention to administer poison to cause death of both the deceased.
194. It is also relevant to mention here that on 24.4.2007 application 122 Kha was moved by Vijay Bahadur and others for summoning Satya Narain Dubey, Kripa Shankar Shukla and Rajendra Kumar Banarasi for producing them as defence witness only. The appellants never tried to produce any persons resident of Village Randauli or Village Kari Bahar to prove facts regarding the plea of alibi taken by appellant Akhilesh and Sita Devi and plea of separate living by Vijay Bahadur and his wife Pramila.
195. Mangru Prasad Gupta was summoned on the application 194 kha dated 16.9.2004 moved by Pairokar of Police Station Gossainganj for date 20.10.2004, which was served through his heir son Rajesh Gupta. Therefore, learned ADGC, who conducted proceedings of trial before the trial court could not produce Mangru Prasad Gupta, because he had not appeared before the trial court even after service of summons.
196. It may be fault of learned ADGC (Criminal) that witness Jagdamba Prasad Verma and Bhullar were not examined during the course of trial, even then PW-8 Investigating Officer recorded their statement under Section 161 Cr.P.C. On the basis of fault of ADGC, prosecution cannot be adversely affected.
197. The chemical analysis report dated 16.4.2002 submitted by Joint Director regarding ashes and other articles of deceased Renu disclosed that ashes collected from the place of occurrence and burnt clothes, contained kerosene oil. PW-8 Vishnu Pal Singh collected five litre can having smell of kerosene and prepared recovery memo Ex. Ka-32. He also collected ashes from the place of occurrence and prepared recovery memo Ex. Ka-31, which were sent by him for chemical analysis to the Forensic Science Laboratory. PW-8 Vishnu Pal Singh, earlier Investigating Officer inspected the place of occurrence, and he has proved these recovery memos.
198. PW-8 has stated in his examination in chief that dead body of Smt. Renu and her daughter was found in Dalan of house, which were having two doors. On one door Chaukhat and doors were fixed on eastern side of Dalan and on the other side, door and Chaukhat were not fixed, it was open space for door. He has also stated that he prepared inquest report of both the deceased Smt. Renu and Km. Rani. He found their dead bodies in between one cot. Both the hands were closed/bent at elbow joint, palms were closed, both legs were bent at knee. Intestine was coming out. Clothes were burnt. All the body was burnt and skin was peeled off. The dead body of Km. Rani was beside the dead body of Renu in eastern side. Baan of cot were burnt.
199. PW-8 has proved inquest report Ex. Ka-22 and 23 of both the deceased. He also prepared documents Ex. Ka-24 upto 31 for autopsy of dead body of Smt. Renu. The ashes were proved as material Ex.-1 and can of kerosene oil M Ex.-2.
200. It is pertinent to mention here that PW-7 has not sent ashes and articles of deceased Renu for chemical examination, these were sent through C.J.M. Sultanpur on 20.12.2001.
201. Learned A.G.A. has argued that PW-7 has not sent these ashes and articles of the deceased for chemical examination intentionally to extend benefit to the appellants. Therefore, S.P. Sultanpur took impartial decision for taking opinion of medico-legal expert and these articles were sent for chemical examination afterwards, to know the nature of the crime homicial or suicidal.
202. Prima facie it appears that S.P. Sultanpur considered this fact that P.W.-8 Vishnu Pal Singh was not conducting impartial investigation, therefore, he had changed the investigating officer and handed over investigation to PW-7 J.P. Mishra, who conducted further investigation of this crime. Therefore there is no substance in the argument of learned counsel for appellant that PW-8 Vishnu Pal Singh converted this crime for offence punishable under Section 306 498-A IPC.
203. PW-8 has stated that PW-1 Chhavi Raj had not given statement to him that Smt. Sita Devi was deserted by her husband and second marriage was solemnized, but she did not go her matrimonial home and she was residing in her parental home. Although PW-1 has stated before this Court that Sita Devi after being deserted by her husband was residing along with other appellants in Village Kari Bahar. Likewise, PW-2 Naveraj has apprised to PW-8 that the deceased apprised him when she met him that her in-laws were harassing her, beaten up her and his brother apprised him that in-laws of deceased Renu threatened her to bring amount of Rs. 50,000/- otherwise, they will not permit her to come in matrimonial home.
204. PW-8 in his cross-examination has denied this fact that PW-2 Naveraj apprised him about the fact that in April 2001, he met Smt. Renu in her parental home. He visited house of his sister (PW-3) to meet her, where his sister and Renu apprised him about harassment meted out by her for not fulfillment of demand of amount of Rs. 50,000/- and he went at house of appellants and advised them not to harass Smt. Renu.
205. PW-1 and PW-2 have stated that they had apprised PW-8 about the aforesaid facts.
206. PW-8 has accepted that Smt. Subran (PW-3) apprised him that Smt. Renu apprised her about persistent demand of Rs. 50,000/-.
207. PW-1, PW-2 and PW-3 have proved the facts and circumstances before the trial court, in which, the appellants demanded amount of Rs. 50,000/- after death of Mewa Lal father of appellant Akhilesh and Vijay Bahadur and demand of motorcycle in lifetime of Mewalal. This matter was settled in Panchayat, because Mewalal purchased motorcycle for Akhilesh. Afterwards the appellants made demand of Rs. 50,000/- after death of Mewalal and the deceased Renu apprised these witnesses about persistent demand of Rs. 50,000/- and harassment meted out by her at hands of the appellants on various occasions.
208. Therefore, it may be fault of PW-8 Investigating Officer Vishnu Pal Singh that he did not record correct statement of these witnesses under Section 161 Cr.P.C. On the other hand, during cross-examination, PW-8 has accepted to some extent that PW-2 and PW-3 apprised him about demand of Rs. 50,000/- made by the appellants and harassment meted out by Smt. Renu in this regard. The deceased apprised these witnesses on several occasions.
209. It was fault of PW-8 that he did not verify this fact that Smt. Sita Devi was residing in Village Kari Bahar with appellants after solemnization of her second marriage and dominating position of Smt. Sita Devi in house of appellants as proved by PW-1 Chhavi Raj.
210. PW-1, PW-2 and PW-3 have also proved that all the appellants were residing on the date of incident in their native Village Kari Bahar, which is clear by the statement of Jagdamba Prasad Verma given to PW-8 under Section 161 Cr.P.C. He has also not verified this fact that appellant Vijay Bahadur, his wife Pramila were residing in Village Kari Bahar and not in Village Randauli.
211. Therefore, the evidence of PW-8 Vishnu Pal Singh supports the prosecution version and does not extend any benefit, on the basis of his statement given in his cross-examination conducted by learned defence counsel that he came to know about the fact that Akhilesh went along with Ram Gopal Verma to see Janmashtami Mela.
212. We have perused letter Ex. Ka-13, which is written on Letter Head of Ganesh Brick Field, Lal Ji Jaiswal alias Lallan wrote this letter addressing his uncle Manohar Lal Jaiswal owner of Km. Saari Emporium, Ganda Nala Road, Sultanpur. It is mentioned in this letter that “he was sending Vijay Bahadur alias Pahadi and his younger brother Putte, who are relative of one Medai Saab. They are regretting their mistakes. They are in problem. Please extend possible help to them. He could not come personally, because his elder brother was out for some work and no one was available to look after brick kiln”.
213. It is also written by Lallan in this letter that “Vijay Bahadur and Akhilesh are of their caste and distant relative”.
214. Therefore, it reveal on bare perusal of letter Ex. Ka-13 dated 16.8.2001 that Vijay Bahadur and Akhilesh alias Putte contacted PW-6 Manohar Lal Jaiswal being distant relative of Lal Ji Jaiswal alias Lallan. The appellants Vijay Bahadur and Akhilesh were not having animosity with witness Manohar Lal Jaiswal.
215. We have perused statement of PW-6 Manohar Lal Jaiswal. He has proved letter Ex. Ka-13 dated 16.8.2001 and stated that Lal Ji Jaiswal alias Lallan was known to him. Appellant Akhilesh and Vijay Bahadur resident of Village Kari Bahar brought letter dated Ex. Ka-13 and approached him.
216. PW-6 further stated that he asked them to disclose real facts, then he will extend benefit to them. Vijay Bahadur in presence of Akhilesh apprised him that “they had administered intoxicated drugs to wife of Akhilesh and his daughter aged about one and a half year. When they became unconscious they kept wooden logs below cot of Renu and Rani and set them ablaze. Appellant Akhilesh was present and he also apprised him about these facts”. They also apprised that “wife of Vijay Bahadur, their mother and sister were also participated in their act. After hearing these facts, he refused to help them”.
217. Learned counsel for appellants has argued that if the evidence of PW-6 can be relied in toto, even then medical evidence adduced by PW-9 does not support the prosecution version, because stomach of both the deceased was found empty and congested. Some contents of food or milk might have been found in their stomach.
218. We have analysed the evidence of PW-9 Dr. V.P. Pandey. He has proved this fact that abdomen of both the deceased was so burnt that internal organs were exposed. Second degree to deep burns were found by him all over the body of the deceased. As opined in Medical Jurisprudence of Modi liquid passes from stomach rapidly. There is no substance in the argument of learned counsel for appellants that contents of milk should have been found by PW-9 in stomach of both the deceased as disclosed by PW-6 Manohar Lal Jaiswal in his statement.
219. The appellants have not proved this fact that both the deceased took food on the date of incident i.e. 13.8.2001 and at which time and what contents were of food taken by them. The appellants are inmates of the house, in which, the dead bodies of both the deceased were found. Therefore, according to provisions of Section 106 Cr.P.C. it was burden of the appellants that they should have proved the facts and circumstances, in which, both the deceased were burnt in their house. The appellants have not discharged their burden by adducing cogent and sufficient defence evidence. Therefore, argument regarding empty stomach of both the deceased is of no avail.
220. It is further argued by learned counsel for appellants that carbon particles soothing was found in trachea of both the deceased. Therefore, it may be inferred that both the appellants were burnt, when they were alive and conscious. There is no substance in this argument of learned counsel for appellants also, because PW-6 Manohar Lal Jaiswal has proved inculpatory extra-judicial confession of appellants Akhilesh and Vijay Bahadur. According to it, intoxicating substance/drugs was administered to both the deceased and when they became unconscious, they were burnt in their house by all the appellants. The breathing of unconscious person continues, even in this state also. Therefore, some carbon particles might have been inhaled by both the deceased as mentioned by PW-9 Dr. V.P. Pandey in their postmortem report.
221. Therefore, the argument in this regard is also does not extend any benefit to the appellant.
222. PW-6 Manohar Lal Jaiswal has further stated that he provided this letter Ex. ka-13 to the Investigating Officer. He identified handwriting of Lal Ji Jaiswal, on this letter. He has clarified in his examination-in-chief that Lal Ji Jaiswal is his business partner therefore, he was capable to identify his writing and signature.
223. PW-6 Manohar Lal Jaiswal during his cross-examination has disclosed this fact that he lodged two criminal cases against Ram Lakhan and adduced his evidence in these two cases. He has not adduced any other evidence in any case. No case is pending against him. He has also stated that during the year 1989 upto 1992, he was partner of Lal Ji Jaiswal in business of liquor and their shop was situated at Kadipur. He has no relation with Lal Ji Jaiswal. He belongs only to his caste.
224. PW-6 has specifically stated that complainant Chhavi Raj Jaiswal met him after issuance of summons by the trial court. He has further stated that he had apprised the Investigating Officer after he received letter Ex. Ka-13 from appellant Vijay Bahadur and Akhilesh alias Putte. Vijay Bahadur and Akhilesh brought his letter and Vijay Bahadur picked this letter from his pocket and handed over to him. They stayed for 15-20 minutes.
225. PW-6 has also stated in his cross-examination that he helped Lal Ji Jaiswal so many times in excise and RTO office only. In other matters he has not helped him. He had not verified the relationship of accused persons with Lal Ji Jaiswal. There was no occasion for PW-6 Manohar Lal Jaiswal for asking Vijay Bahadur and Akhilesh in this regard, because in letter Ex. Ka-16 Lal Ji Jaiswal has specifically mentioned that Vijay Bahadur and Akhilesh were his distant relative. He has also stated that appellant Vijay Bahadur and Akhilesh met him only once when they brought this letter and approached him.
226. PW-6 has refuted the suggestion that PW-1 complainant Chhavi Raj is his relative and he and Lal Ji Jaiswal hatched conspiracy to fabricate false evidence on the basis of fabricated letter Ex. Ka-13. It is pertinent to mention here that learned defence counsel has not given any suggestion to PW-7 J.P. Mishra, Investigating Officer or PW-1, PW-2 and PW-3 that PW-1 Chhavi Raj Jaiswal was relative of PW-6 Manohar Lal Jaiswal and Lal Ji Jaiswal, who wrote letter Ex. Ka-13.
227. It may be fault of PW-7 Investigating Officer J.P. Mishra that he called PW-6 Manohar Lal Jaiswal after 10-12 days, whereas PW-6 apprised him immediately after getting letter Ex. Ka-13 from appellant Vijay Bahadur and Akhilesh. It may be possible that PW-6 Manohar Lal thought that letter be kept secret within knowledge of the Investigating Officer only. Therefore, he did not apprise any other person as disclosed by him in his cross-examination.
228. The learned trial court on the basis of this fact that Lal Ji Jaiswal alias Lallan was not produced in evidence or PW-7 J.P. Mishra called PW-6 Manohar Lal after 10-12 days for recording his statement under Section 161 Cr.P.C. has discarded the evidence of PW-6 and recorded the finding that the evidence adduced by PW-6 regarding extra-judicial confession made by Vijay Bahadur and Akhilesh before him is suspicious.
229. This finding has been recorded by the trial court without any cogent reason or rhyme, because PW-6 Manohar Lal Jaiswal was not having any animosity with Vijay Bahadur and Akhilesh. These appellants themselves contacted him on reference through letter dated 16.8.2001 Ex. Ka-13 for soliciting his help. Lal Ji Jaiswal remained business partner of PW-6 Manohar Lal Jaiswal and he helped him in office of RTO and Excise Department, therefore, Lal Ji Jaiswal referred Vijay Bahadur and Akhilesh to PW-6 Manohar Lal Jaiswal.
230. The trial court has also not considered this fact that this fact was not verified by PW-7 S.I. J.P. Mishra that PW-1 complainant Chhavi Raj was relative of PW-6 Manohar Lal Jaiswal. The appellants have not produced any defence witness that PW-6 Manohar Lal Jaiswal was relative of PW-1 Chhavi Raj.
231. Therefore, there is no substance in argument of learned counsel for appellants that the trial court has rightly discarded evidence of PW-6 Manohar Lal Jaiswal regarding extra-judicial confession made by Vijay Bahadur and Akhilesh appellant before him on 16.8.2001 being weak evidence.
The following case law is relevant regarding extra-judicial confession:-
232. The Hon’ble Supreme Court in the case of Ram Khilari v. State of Rajasthan, (1999) 9 SCC 89 has held as under:
3. It was also submitted that it was not probable that the appellant would have gone to Ram Kishan and made such a confessional statement. Ram Kishan’s son being his brother-in-law, it is quite probable that the appellant thought that he would get shelter in his house. His informing Ram Kishan about what had happened was therefore not improbable. It was also submitted that the explanation that this witness was not available for recording his statement for 20 days cannot be believed. The investigating officer has explained that he had summoned this witness but as he was not found, his statement could not be recorded before 19-10-1978. There is no material to infer that he had not gone to the police station even though he was informed. Evidence of PW 5 Ram Kishan suffers from no infirmity and we see no reason to interfere with the findings recorded by the courts below that his evidence is reliable and truthful. His evidence is sufficient to establish the guilt of the appellant.
4. As we are of the opinion that the courts below rightly accepted the extra-judicial confession made by the appellant, his conviction has to be regarded as proper. Therefore, this appeal is dismissed.
233. The Hon’ble Supreme Court in the case of State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 has observed as under:-
7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v.State of M.P. [(2002) 4 SCC 85 : 2002 SCC (Cri) 736 : JT (2002) 3 SC 387] ) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court inShivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033] , Ramesh Babulal Doshi v. State of Gujarat [(1996) 9 SCC 225 : 1996 SCC (Cri) 972] and Jaswant Singh v. State of Haryana [(2000) 4 SCC 484 : 2000 SCC (Cri) 991 : JT (2000) 4 SC 114]
8. Before analysing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
18. Confessions may be divided into two classes i.e. judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) 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. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not 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. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall [(1783) 1 Leach 263 : 168 ER 234] .) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe’s Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is 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, it is enough to exclude the confession. The words “appear to him” in the last part of the section refer to the mentality of the accused.
19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility.
20. If the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. The requirement of corroboration as rightly submitted by the learned counsel for the respondent-accused, is a matter of prudence and not an invariable rule of law. It is improbable, as rightly held by the High Court that the accused would repose confidence in a person who is inimically disposed towards him, and confess his guilt. Similarly, PW 3 is a close relative of PW 4 and as records reveal, a person of doubtful antecedents being a history-sheeter. Though that alone cannot be a ground to discard his evidence, the totality of circumstances cast an indelible shadow of doubt on his evidence. It is to be noted that the accused examined himself as DW 1. Though it was the prosecution version that there was also extra-judicial confession before informant Sahi Ram (PW 6), that was disbelieved by both the trial court and the High Court in view of the fact that he stated differently from what was allegedly stated by him during investigation. He disowned that the accused made any confessional statement before him. Though the prosecution during cross-examination of the accused (DW 1) suggested that he had made an extra-judicial confession before PW 6, significantly, not even such a suggestion was given in respect of PWs 3 and 4.
234. Hon’ble Supreme Court in the case of Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337 has observed as follows:-
6. Thus said, we may turn our attention to the confession made by Dr Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act, 1872, a confession of an accused is relevant and admissible against a co-accused if both are jointly facing trial for the same offence. Since, admittedly, Dr Bansal has been discharged from the case and would not be facing trial with Kalani, his confession cannot be used against Kalani. The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to rely upon the confession on the specious ground that the prosecution was not in any way precluded from examining Dr Bansal as a witness in the trial for establishing the facts disclosed in his confession. This again was a perverse approach of the Designated Court while dealing with the question of framing charges. At that stage, the court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. The Designated Court was, therefore, not at all justified in taking into consideration the confessional statement of Dr Bansal for framing charges against Kalani.
7. So far as the confession of Jayawant Suryarao is concerned, the same (if voluntary and true) can undoubtedly be brought on record under Section 30 of the Evidence Act to use it also against Kalani but then the question is: what would be its evidentiary value against the latter? The question was succinctly answered by this Court in Kashmira Singh v. State of M.P. [AIR 1952 SC 159 : 1952 SCR 526] with the following words:
“The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”
The view so expressed has been consistently followed by this Court. Judged in the light of the above principle, the confession of Suryarao cannot be called in aid to frame charges against Kalani in the absence of any other evidence to do so.
10. A bare perusal of the above statement makes it abundantly clear that it is self-exculpatory and hence inadmissible in evidence as “confession”. Once it is left out of consideration — as it should be — the confessional statements of the other three accused, for what they are worth, cannot be made — in the absence of any other material to connect Dr Desai with the accusation levelled against him — a basis for impugned charges in view of the law laid down in Kashmira Singh [AIR 1952 SC 159 : 1952 SCR 526] .
235. Hon’ble Supreme Court in the case of Ram Lal v. State of Himachal Pradesh 2018 SCC OnLine SC 1730 has observed as under:
15. As discussed above, if the court is satisfied that if the confession is voluntary, the conviction can be based upon the same. Rule of Prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused must be separately and independently corroborated. In the case at hand, as pointed out by the trial court as well as by the High Court, R.K. Soni (PW-2) and R.C. Chhabra (PW-3) were the senior officers of the bank and when they reached the bank for inspection on 23.04.1994, the accused submitted his confessional statement (Ex.-PW-2/A). Likewise, in the enquiry conducted by R.C. Chhabra (PW-3), the accused had given confession statement (Ex.-PW-3/A).
16. Contention of the appellant is that PWs 2 and 3 being the higher officials, it cannot be said that the confession statement of the accused has been made voluntarily and it must have been under the inducement or under false promise of favour. Mere allegation of threat or inducement is not enough; in the court’s opinion, such inducement must be sufficient to cause a reasonable belief in the mind of the accused that by so confessing, he would get an advantage. As pointed out by the trial court and the High Court, though the confession statement has been initially made in the presence of R.C. Chhabra (PW-3) and M.P. Sethi by the appellant, no question was put to R.C. Chhabra (PW-3) that extra-judicial confession (Ex.-PW3/A) was an outcome of any threat, inducement or allurement. The statement which runs to eleven sheets has been held to be made by the appellant voluntarily. Likewise, confession statement (Ex.-PW-2/A) made before R.K. Soni (PW-2) was in the handwriting of the appellant made in the presence of R.K. Soni (PW-2) and H.O. Agrawal, the then Assistant Chief Officer (Inspection). Here again, it was not suggested to R.K. Soni (PW-2) that Ex. -PW-2/A was outcome of some threat or pressure. The trial court as well as the High Court concurrently held that the confession statements (Ex.-PW-3/A and PW-2/A) were voluntarily made and that the same can form the basis for conviction. We do not find any good ground warranting interference with the said concurrent findings.
236. Hon’ble Supreme Court in the case of State of Maharashtra v. Damu, (2000) 6 SCC 269 has observed as follows:
24. The Division Bench has erroneously understood the ratio laid down by this Court in Kashmira Singh v. State of M.P. [AIR 1952 SC 159 : 1952 Cri LJ 839] The portion of the decision extracted by the Division Bench in the impugned judgment was the same as this Court has quoted in Chandrakant Chimanlal Desai v. State of Gujarat [(1992) 1 SCC 473 : 1992 SCC (Cri) 157] . The following is that portion:
“The confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”
25. We may make it clear that in Kashmira Singh [AIR 1952 SC 159 : 1952 Cri LJ 839] this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis-à-vis the confessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab [AIR 1957 SC 637 : 1957 Cri LJ 1014] as under:
“In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.”
This has been followed by this Court in Kehar Singh v. State (Delhi Admn.) [(1988) 3 SCC 609 : 1988 SCC (Cri) 711 : AIR 1988 SC 1883] .
26. There are quite a large number of circumstances in this case which substantially support the truth of the version contained in the confessional statement given by A-4 to PW 19. We may now refer to them one by one.
237. Hon’ble Apex Court in the case of Kusha Laxman Waghmare v. State of Maharashtra, 2004 SCC OnLine Bom 1208 : 2004 Cri LJ 2251 at page 2251 has observed as under:
5. P.W. 2 Sunita is the wife of P.W. 1. She has stated what the accused told her in very clear terms that : “I asked him as to what was the work of him with my husband. Thereupon accused told me that he killed his wife by assaulting her with a stick and had come to disclose of the same to my husband. I got feared on hearing the disclosure made by the accused. I asked him to wait out of my house. Accused then went away. My husband came at about 9.15 p.m. I had told him that as to what disclosed to me. My husband then went towards hut of accused.”
6. It will be seen therefore that the accused did tell her in unequivocal terms that he assaulted his wife as a result of which she died. It is clearly extra judicial confession made by the accused before this witness. The witness was cross-examined and there is nothing in the cross-examination to suggest that her testimony is in any manner termed at requiring it to be rejected.
7. The evidence of this P.W. 2 is corroborated by every material particulars by her husband P.W. 1. A scrutiny of the evidence of P.W. 4, the doctor, reveals that the assault was committed by the accused and as described by P.W. 2, corresponds to the injuries caused on the person of the deceased. The doctor has very clearly opined that the death was caused due to severe intrathoracic haemorrhage. In such circumstances there is intrinsic evidence to corroborate the statement made by P.Ws. 1 and 2. The learned trial Judge therefore did not error in any manner in convicting the accused on accepting the extra judicial confession, after having recorded his finding that the extra judicial confession is corroborated by independent interested evidence on record. We therefore agree with the finding of the learned trial Judge and accordingly dismiss the appeal.
238. We have found evidence of PW-6 sufficient for proving inculpatory extra-judicial confession voluntarily made by appellant Vijay Bahadur and Akhilesh before him. It was not result of any inducement, threat or pressure exerted by PW-6 or Lal Ji Jaiswal. On the other hand, the appellants solicited help of PW-6 being the distant relative of Lal Ji Jaiswal. On the basis of aforesaid exposition of law, voluntary extra-judicial confession made by an accused can be basis of his conviction, legally.
239. It was the duty of the trial court to appreciate and analyze the evidence of PW-6 Manohar Lal Jaiswal regarding inculpatory extra-judicial confession on the basis of postmortem reports and the evidence of the doctors i.e. PW-9 Dr. V.P. Pande and PW-11 N.N. Srivastava medico-legal expert and photographs Ex. 6 to 10 of dead bodies of both the deceased proved by PW-4.
240. We have perused the evidence of PW-4 Ram Kumar Jaiswal, who clicked the photographs at the place of occurrence on 14.8.2001 on request of complainant Chhavi Raj, who paid him amount of Rs. 60/-. He provided negative reel to PW-7 Investigating Officer J.P. Mishra. He has proved negative of photographs Ex. Ka-1 to 5 and photographs Ex. 6 to 10. Learned defence counsel has not cross-examined PW-4.
241. PW-4 has also proved receipt Ex. Ka-2 for payment of his remuneration by PW-1 Chhavi Raj.
242. We have perused photographs along with negative.
243. On bare perusal of photographs of dead bodies of both the deceased, it reveal that only left leg of deceased Renu is bent, right leg is straight. Hands are bent in upper ward direction from elbow joint. Both the dead bodies were lying in between cot. This fact was verified by PW-7 Investigating Officer S.I. Vishnu Pal Singh in his statement that he found both the dead bodies on the place of occurrence in between cot and ”baan’ of cot were completely burnt and one Paati of cot was broken into two pieces.
244. Therefore, position of dead bodies of both the deceased, which appear in these photographs Ex. 6 to 10 reveal that both the deceased were burnt, when they were lethargic and not capable to make any resistance or they were unconscious as clear from the evidence adduced by PW-6 Manohar Lal Jaiswal regarding extra-judicial confession made by appellant Vijay Bahadur and Akhilesh. These appellants apprised PW-6 Manohar Lal Jaiswal that they administered intoxicated drugs to both the deceased and when they became unconscious, then they were burnt on cot, which was found by PW-8 at the place of occurrence.
245. We have perused statement of PW-9 Dr. V.P. Pandey, who conducted autopsy of both the dead bodies of Smt. Renu and Km. Rani and the evidence of PW-11 Dr. N.N. Srivastava medico-legal expert.
246. PW-9 Dr. V.P. Pandey has stated that he conducted autopsy on dead body of deceased Renu on 15.8.2001, while he was posted as Medical Officer in District Hospital, Sultanpur. Constable C.P. Dukh Haran and Constable Ajay Kumar Sonkar of Police Station Gossainganj brought and identified both the dead bodies. On external examination, PW-9 found that rigor mortis had passed from all limbs. The dead body was in state of decomposition. Abdomen was burnt and burst open. Maggots were crawling all over the body.
247. PW-9 Dr. V.P. Pandey found the following ante-mortem injuries on the body of deceased Renu:-
248. There were burn injury of second degree to deep burn all over body starting from deep of scalp upto soles of feet. There was no part of the body, which was spared. Hairs of head and pubic hairs were burnt and singed. Line of redness were present. Abdomen was burnt and burst. Underlying organs were exposed. Both the hands were closed.
249. PW-9 on internal examination found membrance of brain and brain congested. Pleura congested. Larynx, trachea and bronchie were congested. Sooting particles were present in trachea.
250. PW-9 has found this fact that uterus was enlarge, palpi material of weight 40 grams of length 9 c.m. was found. PW-9 opined that Smt. Renu died due to shock as a result of ante-mortem burn injuries.
251. It has been mentioned in the F.I.R. by PW-1 that Smt. Renu was pregnant on the date of incident. A suggestion was given to PW-1 Chhavi Raj, which was refuted by him that deceased Renu wanted to abort the fetus, but accused Akhilesh was not prepared for abortion. Therefore, due to burn injuries, fetus present in uterus of Smt. Renu was found in such a position as disclosed by PW-9. The appellants have not contradicted this fact that Smt. Renu was not pregnant on the date of incident.
252. PW-9 Dr. V.P. Pandey has further stated that he took in his possession, burnt clothes, broken bangle of glass, one pair of tops of yellow metal and one chain and nose ring. Total seven articles were sealed by him and handed over to the constables. Ten police papers were also sent back to the S.H.O.
253. PW-9 has further stated that he conducted autopsy on 15.8.2001 at 1:00 p.m. The death of the deceased was caused on 13/14.8.2001 at 10:00 p.m.
254. PW-9 Dr. V.P. Pandey has further stated that he conducted autopsy at 12:00 P.M. on the dead body of Km. Rani aged about one and a half year, daughter of accused Akhilesh. On external examination he found that rigor mortis had passed on upper and lower parts of body. The dead body was in state of decomposition to putrefaction. The abdomen burnt and burst open. Underlying organ exposes. Maggots were crawling all over the body.
255. PW-9 Dr. V.P. Pandey found ante mortem burn injuries of second degree to deep burns all over the body extending from deep to scalp down to the soles of both the feets. There was no part of body which spared. Both the hands were closed. Scalp hair burnt and singed. Stomach and intestine and other organs were exposed and burnt to some extent. Line of redness was present. Brain and its membrane were congested. Lungs and pleura were congested. Larynx, trachea and pericardium were congested. The abdomen was burnt and burst open. Small and large intestine, liver and spleen, kidney all were congested. He has opined that death of Km. Rani was caused due to shock as a result of ante-mortem burn injuries.
256. He has proved postmortem report Ex. Ka-34. PW-9 sent ten papers back to the S.H.O. after marking them.
257. Learned defence counsel has cross-examined PW-9 Dr. V.P. Pandey. PW-9 in his cross-examination has stated that death of both the deceased possibly caused on 13.8.2001 at 9-10 p.m. at night. No other material contradiction was elicited regarding position of both the dead bodies as shown in photographs proved by PW-4.
Opinion mentioned in Modi’s Medical Jurisprudence about classification of burns and its effects:
Classification of Burns.-Dupuytren classified burns into six degrees, according to the nature of their severity. Mordern classification (Heba’s classification) accords three degrees only by grouping the first and second (epidermal), third and fourth (dermo epidermal), and fifth and sixth (deep) degrees together. Another classification grades burns into superficial and deep burns.
(i) Epidermal Burns
(a) First Degree.-First degree burns consists of erythema or simple redness of the skin caused by the momentary application of flame or hot solids, or liquids much below boiling point. It can also be produced by mild irritants. They erythema marked with superficial inflammation usually disappear in a few hours, but may last for several days, when the upper layer of the skin peels off but leaves no scars. They disappear after death due to the gravitation of blood to the dependent parts.
(b) Second Degree.-Second degree burns comprise acute inflammation and blisters produced by prolonged application of flame, liquids at boiling point or solids much above the boiling point of water. Blisters can be produced by the application of strong irritants of vesicants, such as cantharides. Blisters may also be produced on those parts of the body which are exposed to decomposing fluid, such as urine or faeces, and subject to warmth, as seen in old bed-ridden patients. In deeply comatose persons, bullae may occur over pressure areas. If burns are caused by flame or a heated solid substance, the skin is blackened, and the hair singed at the seat of lesion, which assumes the character of the stroyed. However, subsequently, some slight staining of the skin may remain.
(ii) Dermo-Epidermal Burns
(a) Third Degree.-Third degree burn refers to the destruction of the cuticle and part of the true skin, which appears horny and dark, owing to it having been charred and shrivelled. Exposure of nerve endings gives rise to much pain. This leaves a scar, but no contraction, as the scar contains all the elements of the true skin.
(b) Fourth Degree.-In fourth degree burns, the whole skin is destroyed. The sloughs which form are yellowish-brown and parchment-like, and separate from the fourth to the sixth day, leaving an ulcerated surface, which heals slowly forming a scar of dense fibrous tissue with consequent contraction and deformity of the affected parts. The burns are not very painful as the nerve endings are completely destroyed.
(iii) Deep Burns
(a) Fifth Degree.-Fifth degree burns include the penetration of the deep fascia and implications of the muscles, and results in great scarring and deformity.
(b) Sixth Degree.-Sixth degree burns involve charring of the whole limb including the bones and ends in inflammation of the subjacent tissues and organs, if death is not the immediate result. This degree, it may be noted, is not necessarily related to danger to life. Charring of a limb may be compatible with recovery, once the initial shock is overcome.
Effects of Burns.-Burns and scalds vary in their effects according to the following conditions:
(i) Intensity of the Heat Applied.-The effects are much more severe if the heat applied is very great.
(ii) Duration of Exposure.-The symptoms are also more severe, if the application of heat is continued for a long time.
(iii) Extent of Total Body Surface Area.-To estimate the amount of area affected by second or third degree burns in percentage, the body is divided into different areas, each representing nine per cent. This is called the rule of nine. There is marked fluid loss resulting in shock when over 20 per cent of the body is affected and usually over 50 per cent is fatal.
(iv) Site.-Extensive burns of the trunk, even though superficial, are much more dangerous than those of the extremities. Burns of the genital organs and the lower part of the abdomen are often fatal.
(v) Age of the Patient.-Children are more susceptible to burns, but stand prolonged suppuration better than adults. Older people are more prone to fatal complications.
(vi) Sex.-Sensitive and nervous women are more susceptible to burns than strong women, however, women generally do not bear burns as well as men.
Cause of Death
(i) Immediate Causes of Death
(a) Shock.-Severe pain and marked protein rich fluid loss from extensive burns which result in increased capillary permeability, cause shock and produce a feeble pulse, pale and cold skin, and hyptension resulting in death instantaneously or within 24 or 48 hours. In children, it lead to stupor and insensibility deepening into coma and death due to primary shock within 48 hours.
258. Therefore, PW-9 Dr. V.P. Pandey, has found second degree to deep burns on all over the dead bodies of Smt. Renu and Km. Rani. Their sole of both feets were also burnt along with all parts of body. According to opinion of Medical Jurisprudence, in II and III degree burns nervous become exposed creating/gives rise to much pain. It was not possible for both the deceased to stand still at a particular place, if they were burning in their conscious state and they were alive. The position of both dead bodies being found in between their cot and their sole were burnt, these facts indicate that this case cannot come in any circumstance, in category of suicide. As per evidence given by PW-6 Manohar Lal Verma regarding extra-judicial confession of appellants Vijay Bahadur and Akhilesh, both the deceased might have been burnt by all the appellants in their state of unconsciousness.
259. The statement of PW-1 Chhavi Raj is corroborated and strengthen his statement that he wrote in his written report Ex. Ka-1 that both the deceased were burnt by tying them with the cot and this fact was mentioned by him in his written report after observing the place of occurrence and both the dead bodies.
260. PW-9 proved this fact that the hands of both the deceased were closed, which appear in photographs Ex. 6 to 10. The position of leg and hands of deceased Renu is different from photographs mentioned in Medical Jurisprudence Book relied upon by learned counsel for appellants. When Baan of cot burnt along with dead body of both the deceased and both the dead bodies fell in between cot, then this position may occur as appeared in the photographs. Legs and both the hands were not flexed normally as shown in the medical book of Modi Jurisprudence and relied upon by learned counsel for appellants.
261. Therefore, there is no substance in argument of learned counsel put forth on the basis of medical opinion mentioned in both the Book of Modi Jurisprudence relied by him.
262. We have also perused the statement of PW-11 Dr. N.N. Srivastava, who gave his opinion for homicidal death of both deceased on the basis of photographs and other material sent by S.P. Sultanpur along with details of circumstances in which Smt. Renu and her daughter were burnt in house of appellants.
263. PW-11 has stated that he was posted on 27.9.2001 as Additional Medico-legal Expert. PW-7 Investigating Officer J.P. Mishra contacted him along with letter of S.P. Sultanpur. The Investigating Officer provided him FIR, copy of postmortem report, site plan, photo of dead bodies and on the basis of evidence collected during investigation and facts which were quoted in the letter by S.P. Sultanpur. It was brought in knowledge of PW-11 Dr. N.N. Srivastava by S.P. Sultanpur that:-
(i) Deceased Renu and her daughter had not raised any alarm, while they were burning.
(ii) They had burnt on the cot and did not left it
(iii) The bangles of glass were available in hand of the deceased, but these were not broken.
(iv) The mark of rope or other articles were not available on dead body.
(v) The remains of poison were not found on the place of occurrence.
(vi) The place of occurrence was situated in house of appellants in Village Kari Bahar, Police Station Gossainganj.
264. PW-11 Dr. N.N. Srivastava has considered these facts narrated in the letter Ex. Ka-14 and opined that both the deceased during burning had not tried to run or resist therefore there was possibility that this crime was in category of murder. He has proved his opinion Ex. Ka-15 and advised that the concerned doctor should have preserved Viscera for analysis of poison.
265. It is relevant to mention here that learned defence counsel has not asked any question to PW-9 Dr. V.P. Pandey that why he had not preserved Viscera of both the deceased Smt. Renu and Km. Rani. PW-11 Dr. N.N. Srivastava also advised that to know presence of poison or kerosene oil in burn articles and ashes collected from the place of occurrence should be sent for chemical analysis.
266. PW-11 during his cross-examination again reiterated that both the deceased did not try to run from the place of occurrence or resisted. Therefore, he opined that this case possibly was of murder.
267. Learned defence counsel put forth specific question that if the deceased was mentally prepared to set her ablaze, then there is no question of her running or making resistance. PW-11 Dr. N.N. Srivastava has replied that after burning of the dead body, no body can control. It is natural that he will essentially make resistance and try to run to save himself from flames/fire due to unbearable pain. Another specific question was put forth by learned defence counsel that suicide committed by deceased Renu cannot be ruled out. PW-11 Dr. N.N. Srivastava has replied positively that he has no reason to accept this fact that deceased Renu committed suicide in the given circumstances.
268. Therefore, PW-11 Dr. N.N. Srivastava, Medico-legal Expert was firmed about his given opinion Ex. Ka-15. He refuted this suggestion that he gave his opinion with per-occupied mind. He has stated that he gave his opinion on the basis of available facts. Therefore no material contradiction was elicited during cross-examination of PW-11 also.
269. According to medical evidence giving by PW-9 and expert opinion given by PW-11 Dr. N.N. Srivastava, it was not the case of suicide. PW-11 was firmed on his opinion that it was a case of murder. Therefore, on the basis of material available on record PW-9 and PW-11 have proved the state and condition of dead bodies of both the deceased, which were appeared in the photographs clicked by PW-4 on the place of occurrence.
270. It is established that the dead body of both the deceased person was found in between cot, on which, they were lying, which indicates that either both the deceased were tied with the cot as mentioned in the FIR by PW-1 or they were administered intoxicant drugs as disclosed in extra-judicial confession which has been proved by PW-6 Manohar Lal Jaiswal that the appellants gave intoxicant drugs to both the deceased therefore, they became unconscious and lethargic. They were not able to make resistance or to run away from the place of occurrence.
271. Therefore, learned trial court has recorded wrong finding about the evidence of PW-6 Manohar Lal Jaiswal and it has not appreciated his evidence in correct perspective. His evidence regarding inculpatory extra-judicial confession made by appellant Vijay Bahadur and Akhilesh could not be discarded. The reasons given by learned trial court are not correct and sufficient to discard the evidence of PW-6. On the other hand, medical evidence adduced by PW-9 and PW-11 corroborates the evidence of PW-1, PW-2 and PW-3 regarding the fact that all the appellants committed murder of Smt. Renu and Km. Rani at their house situated in Village Kari Bahar on 13.8.2001 at 10:00 p.m.
272. On the basis of evidence adduced by PW-9 Dr. V.P. Pandey and PW-11 Dr. N.N. Srivastava, in the present case, two views i.e. another view of suicide committed by Smt. Renu is not possible, as argued by learned counsel for appellants.
273. Learned counsel for appellants has argued that no independent witness was produced on behalf of prosecution to primarily prove the charges framed against the appellants, therefore, prosecution is not able to prove beyond reasonable doubt their involvement in this crime.
274. As far as independent witnesses are concerned following expositions of law propounded by Supreme Court are relevant to mention here, which are as follows:
Exposition of law regarding evidence of independent witnesses:
275. A Division Bench of Hon’ble Supreme Court in para-16 of its judgment given in the case of Shiv Ram and anr. vs. State of U.P. reported in (1998) 1 SCC 149 has observed as under:-
“16. …… The witnesses further admitted that many persons had gathered at the place of occurrence, if this be so it was very much necessary for the prosecution to examine some independent witnesses to lend assurance to the credibility of the evidence of these two eyewitnesses. These submissions do not impress us at all. nowadays it is a common tendency that no outsider would like to get involved in a criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. it is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnitude of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. We have done this exercise and we are unable to be persuaded to discard the evidence of these two witnesses on the grounds urged before us. The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The first information report which was lodged within four hours, naming all the accused also lends asurance to our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. The contentions of the learned counsel for the accused, therefore, stand rejected.”
276. A Division Bench of Hon’ble Supreme Court in the case of Yogesh Singh v. Mahabeer Singh: (2017) 11 SCC 195, has held as under:
50 – The learned counsel for the respondents has also sought to assail the prosecution version on the ground of lack of independent witnesses. We are not impressed by this submission in the light of the observations made by this Court in Darya Singh v. State of Punjab [Darya Singh v. State of Punjab, AIR 1965 SC 328 : (1964) 3 SCR 397 : (1965) 1 Cri LJ 350] , wherein it was observed: (AIR p. 333, para 12)
“12. … It is well known that in villages where murders are committed as a result of factions existing in the village or in consequence of family feuds, independent villagers are generally reluctant to give evidence because they are afraid that giving evidence might invite the wrath of the assailants and might expose them to very serious risks. It is quite true that it is the duty of a citizen to assist the prosecution by giving evidence and helping the administration of criminal law to bring the offender to book, but it would be wholly unrealistic to suggest that if the prosecution is not able to bring independent witnesses to the Court because they are afraid to give evidence, that itself should be treated as an infirmity in the prosecution case so as to justify the defence contention that the evidence actually adduced should be disbelieved on that ground alone without examining its merits.”
51. Similarly, in Raghubir Singh v. State of U.P. [Raghubir Singh v. State of U.P., (1972) 3 SCC 79 : 1972 SCC (Cri) 399] , it was held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses. In this connection, general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when tempers on both sides are running high, has to be borne in mind.
277. A Division Bench of Hon’ble Supreme Court in the case of Vijendra Singh v. State of U.P. :(2017) 11 SCC 129 has held as under:
30. It is next contended by Mr Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs 1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused. They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited.
31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P.[Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 : 1981 SCC (Cri) 795] would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para 13)
“[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.”
It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v.State of Bihar [Kartik Malhar v. State of Bihar, (1996) 1 SCC 614 : 1996 SCC (Cri) 188] has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
278. Shri Vishnu Pal Singh, (P.W.8), earlier Investigating Officer recorded statement of Jagdamba Prasad Verma on 14.08.2001, who is the neighbour of appellants and on 20.09.2001 P.W.7, J. P. Mishra recorded statement of the witness, Bhullar, who is younger brother appellants, Akhilesh and Vijay Bahadur. But, the learned A.D.G.C. who conducted the proceedings of trial on behalf of prosecution before the trial court has not produced them during the course of trial. It may be his fault, on the basis of which, the prosecution version cannot be adversely affected.
279. As pointed out earlier, Mangru Prasad Gupta was summoned by learned A.D.G.C., but he has not cooperated during the course of trial. He did not turn up to adduce his evidence. On perusal of case diary it reveal that learned A.D.G.C. has discharged witnesses, Devideen Verma, Ram Sakal Verma, Jamuna Prasad Singh @ Malla Singh. It is also pertinent to mention here that witness, Devideen Verma is also the resident of Village Kari Bahar. It may be possible that he has not adduced his evidence under the influence of appellants, therefore, he was discharged by learned A.D.G.C.
280. It is relevant to mention here that the Investigating Officers, P.W.7 and P.W.8, have not listed Jagdamba Prasad Verma as witness in charge sheet, who informed the complainant about the burning of both the deceased and witness, Bhullan, who is family member of the appellants as witness.
281. The witness, Devideen Verma apprised the Investigating Officer that Vijay Bahadur raised alarm at 11:30 p.m. about the burning of the deceased in the house of appellants. Likewise, he also stated that Akhilesh went to Orchestra. The presence of Vijay in his house in the Village Kari Bahar was clarified by this witness also, but he has not supported the prosecution version, therefore, he was discharged. Ram Sakal Verma and Jamuna Prasad Verma were the witnesses of inquest report prepared by the Investigating Officer of both the deceased.
282. The Investigating Officer(P.W.7) has also recorded statement of Lalji @ Lallan Jaiswal on 12.01.2001, who given letter (Ex.Kka.13) and referred Vijay Bahadur and Akhilesh to P.W.6, but the learned A.D.G.C. has also not produced this witness before the trial court, which indicates that learned A.D.G.C. has not conducted trial of this gruesome crime with diligence and properly.
283. The Investigating Officer has also recorded statement of Shivnayak Verma, who has corroborated the version of prosecution that all the appellants were present at 11:00 p.m. on the date of incident in their house.
284. The same evidence was provided by witness, Bansraj Verma, but these witnesses were not produced by learned A.D.G.C. during the course of trial. Both these witnesses are the resident of Village Kari Bahar. Bansaraj Verma gave tuition to the children of Vijay Bahadur @ Pahadi. He has stated that on 13.08.2001 he gave tuition to the children and he saw that Vijay Bahadur, Akhilesh, Smt. Pramila and Smt. Indrawati came at the house from somewhere. Bhullar, Smt. Seeta Devi and both the deceased were present in the house and Vijay Bahadur raised alarm at 11:00 p.m.
285. The Investigating Officer listed both these witnesses, Shiv Nayak Verma and Bansraj Verma in the charge sheet. On the basis of faults of learned A.D.G.C. committed during the course of trial, does not affect prosecution adversely.
286. Learned trial court, on the basis of evidence available on the record, has appreciated and evaluated evidence adduced by the prosecution and recorded findings in correct perspectives, except regarding extra judicial confession. Non production of independent witness does not extend any benefit to the appellants. There is no substance in the argument of learned counsel for appellants in this regard.
287. The Investigating Officer (P.W.8) has also collected can of five liters from the place of occurrence (marked by ‘C’ in site plan, Ex.Ka.-3), which was having smell of kerosene and it was on a considerable distance from the place, A B. The place of occurrence is in the Dallaan (Big room) of the house of appellants situated in Village Kari Bahar, which was having an open door and it could not be locked from inside. P.W.7 has proved this fact that on another door of this Dallaan only, Chaukhat (doorpost) and door were fixed.
288. The report dated 16.04.2002 sent by Joint Director, Forensic Science Laboratory, Mahanagar, Lucknow discloses that kerosene oil was found in burnt and half burnt clothes and ashes collected by the Investigating Officer from the place of occurrence. This chemical analysis report was not challenged by the appellants during the course of trial, therefore, this report dated 16.04.2002 is admissible in evidence, according to the provisions of Section 293 Cr.P.C., because Forensic Laboratory, Mahanagar, Lucknow is the laboratory of the State of U.P. It corroborates the prosecution version that both the deceased were burnt in the house of appellants by pouring kerosene oil.
289. P.W.7, Shri Jagdamba Prasad Mishra, the Investigating Officer, has proved this fact that he searched appellants on 05.10.2001, but they were absconding. He again raided on 05.11.2001, the appellants, Vijay, Akhilesh were still absconding. He submitted charge sheet on 11.11.2001. The appellants, Smt. Indrawati (since dead) and Smt. Pramila surrendered before the court concerned on 21.11.2001, therefore, this conduct of appellants is against them that they absconded after the incident from their house is relevant under Section 8 of the Indian Evidence Act.
290. P.W.5, Constable Dharmendra Bahadur Singh has proved Check F.I.R. (Ex.Ka.-11) and stated that he prepared Check F.I.R. on the basis of written report submitted by complainant, Chhaviaj. He also prepared G.D. (Ex.Ka.-12) of registration of crime. During his cross-examination he has clarified that Check F.I.R. reached in C.O. Office on 16.08.2001 and it was sent to the Court of C.J.M. on 22.08.2001. No material contradiction could be elicited during cross-examination of P.W.5 regarding lodging of F.I.R. of this crime. It cannot be termed as ante timed.
291. The witness, P.W.10, Shri A. K. Tripathi, S.I., has proved this fact that on 06.09.2001 the complainant, Chhaviraj Jaiswal provided him photographs of the dead bodies of the deceased and receipt issued by photographer, which were mentioned by him in case diary. On 08.09.2001 he recorded statement of witness, Ram Sakal Verma, who apprised P.W.10 about the cot of the deceased and half burnt wood found on the place of occurrence. He prepared recovery memo (Ex.Ka.-35). He has also proved photographs, which were taken by him in his possession as Ex.Ka.6 to Ex.Ka.-10 and receipt (Ex.Ka.-2) issued by the photographer.
292. P.W.10 has recorded statement of Karunesh Kumar singh and Heera Lal on 08.09.2001 regarding recovery memo (Ex.Ka.-35). He also recorded statement of Ram Kumar Jaiswal (P.W.4) on 13.09.2001. He has further stated that on 15.09.2001 investigation of this crime was transferred to S.I.S., therefore, he stopped further investigation. Learned defence counsel has not cross-examined P.W.10.
293. P.W.12, Constable Rajendra Prasad Mishra, pairokar of Police Station Kotwali Nagar has stated that S.I., Vishnu Pal Singh prepared report to C.M.O., report to R.I. and police form-13 in his hand writing and signatures who was posted at Police Station Kotwali on the post of S.S.I. He has identified his hand writing and signatures and proved these documents as Ex.Ka.-36, Ex.Ka.-37 and Ex.Ka.-38. Learned defence counsel has also not cross-examined P.W.12, therefore, these witnesses, P.W.5, P.W.10 and P.W.12 are the formal witnesses.
294. PW-8, Sri Vishnu Pal Singh, earlier Investigating Officer recorded statement of witness, Jagdamba Prasad Verma and P.W.7, Investigating Officer has recorded statement of Bhuller, who is younger brother of appellants, Vijay Bahadur and Akhilesh. This fact came to knowledge of both the Investigating Officers that all the appellants Akhilesh, Vijay Bahadur, their mother Smt. Indrawati(since dead), Smt. Pramila and Smt. Sita were residing in their same house with the deceased Smt. Renu and Kumari Rani on the date of incident.
295. PW-1 Chhaviraj, whenever brought the deceased from her matrimonial home (on the last time 07 months ago, prior to date of incident, according to PW-2), situated in village Kari Bahar. He found all the appellants in the aforesaid house and he had conversation with them not to harass the deceased Renu for demand of amount of Rs. 50,000/-. Likewise, the PW-2 Naveraj visited house of the appellants in village Kari Bahar in the month of April, 2001 and he had also a conversation with all the appellants regarding the aforesaid demand and harassment meted by the deceased Renu.
296. The witness Bhullar apprised P.W.7 and Jagdamba Prasad Verma apprised the Investigating Officer PW-8 that Akhilesh was present in his house along with other appellants up to 9.00 p.m. and Vijay Bahadur raised alarm regarding burning of the deceased Renu and her daughter Rani at 11.00 p.m. on the date of incident, i.e. 13.08.2001, even then he without any rhyme and reason converted this offence for offence punishable under Section 498A and 306 I.P.C. only to extend undue benefit to the appellants.
297. The witness Bhullar and Jagdama Prasad Mishra apprised to PW-7 and PW-8 respectively regarding the fact that Akhilesh went for seeing Orchestra at 9.00 p.m. alone, even then PW-8 in his cross-examination conducted by learned defence counsel has stated wrong fact that Akhilesh went to see “Janmashtami Jhaki”. Therefore, he aimed to weaken prosecution version. He has not considered condition of dead bodies of both the deceased, who were found by him in between their cot, which was only possible if both the deceased were unconscious as indicated in inculpatory extra-judicial confession made by appellants, Akhilesh and Vijay Kumar before PW-6.
298. Smt. Sita Devi and Pramila Devi adopted statements of appellants, Akhilesh and Vijay Bahadur. They have not negated their presence in their house situated in Kari Bahar by adducing any reliable and cogent evidence that in their absence deceased Renu committed suicide along with her daughter.
299. The appellant Akhilesh has pleaded in his written statement incorrectly that Smt. Sita went with him to see “jhanki” of “Janmashtami” at Gosaiganj Bazar, whereas he according to evidence collected by PW-8, earlier Investigating Officer, went at 9.00 p.m. to see Orchestra alone.
300. Likewise accused Vijay Bahadur and his wife Smt. Pramila pleaded their separate living along with their children in village Randauli, which is situated at a distance of two kilometers only from their native village Kari Bahar. This plea was wrongly contended and stated by these appellants, because P.W.7 and PW-8 collected evidence of Bhullar and Jagdamba Prasad Verma that they were present in their house at Kari Bahar and Vijay Bahadur raised alarm on 13.08.2001 at 11.30 p.m.
301. The appellant Akhlesh and Smt. Sita Devi were unable to prove their absence from their house situated in Kari Bahar for purpose of seeing Krishna Janamastmi at Gosaiganj in category of plea of alibi. Their wrong contentions stated in their statements under Section 313 Cr.P.C. in this regard, is an additional link to the chain of incriminating circumstances against them.
302. Likewise, appellant Vijay Bahadur and his wife Smt. Pramila have also contended in their written statements recorded under Section 313 Cr.P.C., wrong facts of separate living. Therefore, these contentions are also an additional link and contributes to the chain of incriminating circumstances against them.
303. Learned trial Court has not appreciated and analyzed in correct perspectives the evidence of PW-6 on the basis of medical evidence adduced by PW-9 and PW-11, doctors, and conditions of dead bodies of both the deceased by earlier Investigating Officer PW-8 and particulars mentioned by doctor PW-9 in their post-mortem reports. The evidence of PW-6 could not be discarded by learned trial Court regarding inculpatory extra-judicial confession made before PW-6 by appellants Akhilesh and Vijay Bahadur involving themselves and Smt. Pramila, Smt. Sita and their mother Smt. Indrawati (since dead).
304. Inculpatory extra-judicial confession is an additional link to the incriminating circumstances against all the appellants.
305. Learned counsel for the appellants has argued regarding exposition of law propounded by Supreme Court in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 that provisions of Section 106 Indian Evidence Act has been considered in the exposition of law relied upon by him and primary duty of the prosecution is to prove bebond reasonable doubt that the appellants have committed murder of both the deceased in their house and they were present on the date of incident in their house.
306. Learned counsel for the appellants regarding plea of separate living of appellants, Vijay Bahadur and Smt. Pramila Devi along with their children in village Randauli, has relied upon paras 11 to 13 of the decision of Hon’ble Supreme Court in the case of Bibi Parwana Khatoon Alias Parwana Khatoon and another Vs. State of Bihar, (2017) 3 SCC (Cri) 446, which are as follows:
“11.We have gone through the judgment and order passed by the trial court (copy Annexure P-9) in which the trial court has mentioned the name of the defence witnesses but not discussed as to why their testimony as to the fact that married sister-in-law (of the deceased) and her husband used to live in Village Sabutar, is not believed. The High Court has also committed the same error.
12. Apart from the above, in support of their plea, there are three documents filed on behalf of the appellants, which are copies of public documents, to show that they are residents of Village Sabutar in District Purnea. Copy of the residence certificate is Annexure A-1, which shows that Sub-Divisional Officer, Sadar, Purnea, has certified on 31-10-2008 that Hasan Raja (Appellant 2) used to live in Village Sabutar, PS K. Nagar, District Purnea. Another document (Annexure A-2) is copy of PAN issued by the Income Tax Department of the Government of India, which appears to have been sent on the address of the account holder Parwana Khatoon (Appellant 1) on her address of Sabutar, Purnea, Pin Code 854205. Not only this, copy of service book (Annexure A-3) of Appellant 1 Parwana Khatoon shows that she was Panchayat teacher in Primary School, K. Nagar (Purnea). This document also shows that address of Appellant 1 is Village Sabutar, PO Kajha, Police Station K. Nagar, District Purnea. All these public documents read with the oral testimony adduced before the trial court, create serious doubt in the prosecution story, so far it relates as against the present appellants. (We are not commenting on the evidence as against the husband of the deceased.)
13. In view of the above discussion of oral and documentary evidence, we find that both the courts below have erred in law in holding that the charge under Section 304-B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that the appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal.”
307. In the present case appellants Vijay Bahadur and Smt. Pramila are unable to prove their separate living on the basis of copy of Pariwar Register or Ration Card. They have not adduced any oral evidence of any witness resident of Village Kari Bahar and Randauli regarding their physical living in the house situated in village Randauli. Therefore, learned trial Court has rightly discarded their aforesaid documentary and oral evidence of D.W.2.
308. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of State of Rajashtan Vs. Ramanand (2017) 2 SCC (Cri) 632 and argued that in this case as per prosecution version women and her daughter was found dead in the house of accused persons/respondent having burn injuries. The concerned doctor opined that death of both the deceased were not as a result of burn injuries. They died due to strangulation and their bodies were sought to be set a fire in order to create an impression that as if they had died of burn injuries. Learned defence counsel has relied upon on para 10 and 15, which are as follows:
“10.The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be the author of the crime. The entire case of the prosecution on this count rests purely on circumstantial evidence. It is true that the deaths have occurred in a room occupied by the respondent along with wife, Anita and daughter Ekta. But no witness has been examined to suggest that the respondent was at or around his residence at the relevant time. The marriage was more than 10 years’ old and as such no statutory presumption on any count could be drawn, more particularly, when none of the prosecution witnesses had supported the case of the prosecution as regards demands of dowry and harassment. Apart from strangulation marks nothing was found in the post-mortem report regarding any other bodily injury. The absence of any evidence as regards dowry or related harassment also nullifies the element of presence of any motive on the part of the respondent. None of the prosecution witnesses alleged anything against the respondent nor are there any other supporting circumstances such as discovery of any relevant fact.
11. We are, therefore, left with the only material, namely, Ext. D-1 which was the reporting made by the respondent. It undoubtedly shows that the respondent himself had opened the door and found the bodies of Anita and Ekta lying with injuries. In the face of Ext. D-1 it is not possible to accept the assertion that the door was locked from inside and was pushed open by PW 7 and others. Locking of door from inside would have been consistent with the theory of suicide but that theory stood demolished as a result of medical evidence. We are, therefore, persuaded to accept what emerges from Ext. D-1 that the respondent himself had opened the door and found the bodies having burnt.
12. Relying on Section 162 CrPC Mr Jain, learned Senior Advocate submitted that Ext. D-1 could not be relied upon and read against the respondent. The terms of Section 162 are quite clear and govern cases where statements are made to a police officer “in the course of an investigation” under Chapter XII CrPC. Statement Ext. D-1 was neither given in the course of an investigation, nor could it be termed as a confession. Further, the cross-examination of PWs 14 and 15 would show that the respondent stood by and relied upon that statement. We do not see any difficulty why statement Ext. D-1 could not be read in evidence.
13. However, that by itself does not establish beyond any doubt that it was the respondent alone who was responsible for having caused the deaths of Anita and Ekta. Even if the circumstance emerging from Ext. D-1 is taken to be against the respondent, that by itself without any connecting material on record, is not sufficient to bring home the case against the respondent.
14. Mr Jain, learned Senior Advocate is right in his submission that in a case where the prosecution is coming up against the acquittal of the accused and is praying for conviction on a graver charge, the accused is entitled to plead for acquittal. While considering similar plea for acquittal, though this Court negated the plea on facts, the legal position was summed up by this Court in Chandrakant Patil v. State[Chandrakant Patil v. State, (1998) 3 SCC 38 : 1998 SCC (Cri) 720] as under: (SCC pp. 42-43, paras 7 9)
“7. Powers of the Supreme Court in appeals filed under Article 136 of the Constitution are not restricted by the appellate provisions enumerated under the Code of Criminal Procedure or any other statute. When exercising appellate jurisdiction, the Supreme Court has power to pass any order. The aforesaid legal position has been recognised by a Constitution Bench of this Court in Durga Shankar Mehta v.Raghuraj Singh[Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520] and later followed in a series of decisions (videArunachalamv.P.S.R. Sadhanantham[Arunachalamv.P.S.R. Sadhanantham, (1979) 2 SCC 297 : 1979 SCC (Cri) 454] ,Delhi Judicial Service Assn.v.State of Gujarat[Delhi Judicial Service Assn.v.State of Gujarat, (1991) 4 SCC 406] ).
9. It is now well-nigh settled that Supreme Court’s powers under Article 142 of the Constitution are vastly broad-based. That power in its exercise is circumscribed only by two conditions, first is, that it can be exercised only when the Supreme Court otherwise exercises its jurisdiction and the other is that the order which Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. …”
15.In view of medical evidence on record, the deaths could never be termed as a case of suicide and consequently the conviction of the respondent under Section 306 was wholly unjustified. At the same time there is nothing on record to conclusively establish that the respondent was the author of the crime. The circumstances on record do not rule out every other hypothesis except the guilt of the accused. However strong the suspicion be, in our view, the respondent is entitled to benefit of doubt and cannot be convicted under Section 302 IPC.”
309. In the present case PW-6 Manoher Lal has proved inculpatory extra-judicial confession made before him by the appellants Akhilesh and Vijay Bahadur involving themselves and Smt. Pramila, Smt, Sita and Smt. Indrawati (since dead) also. Therefore, exposition of law does not extend any benefit to the appellants, because two views are not possible in this case. PW-11 doctor has specifically opined that this case cannot be said to be in category of suicide. It is a clear cut case of murder.
310. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 6 of the case of Lakhjit Singh and another Vs. State of Punjab 1994 SCC (Cri) 235, which is as follows:
“6. In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused. In the instant case, there is some evidence which we will consider later about the demand of dowry and about ill-treatment, which could be a strong reason for committing suicide also. Unless some other material connect the accused with administration of poison, on mere suspicion or conjecture they cannot be found guilty. Both the courts below by suspicion and by drawing adverse inferences, however, held that the accused must have administered the poison. This is again only on the basis of a strong suspicion. So far as the earliest information given by the first appellant is concerned, it is not as if there is no basis whatsoever, to suspect to that it was a case of heart attack. As a matter of fact, PW 2 who performed the autopsy, gave an opinion that the death was due to presence of organo-phosphorus compound and heart attack. Therefore, it cannot be concluded that in the initial stages they suppressed the truth and wanted to create false evidence. For these reasons we find it difficult to hold that the appellants were responsible for administration of poison and thus guilty of offence punishable under Section 302 Indian Penal Code.”
311. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 48, 51 and 52 of the case of Jose Alias Pappachan Vs. Sub-Inspector of Police, Koyilandy and another (2017) 1 SCC (Cri) 171, which are as follows:
“48. The arguments exchanged have received our anxious consideration cumulatively with the evidence on record. Admittedly there is no eyewitness to the incident. The endeavour of the prosecution, however has been to demonstrate that after the couple had returned from Potta in the evening of the date of the episode, they returned home and thereafter the appellant had committed the murder of his wife Neena by first strangulating her with the nylon rope that was recovered from under the cot in the dining room and then had hanged her from the hook of the roof of the service area by using a saree as a ligature. This inference, according to the prosecution, is inevitable from the attendant facts and circumstances. The quality and the decisiveness of such evidence, therefore, would be of determinative relevance.
51. The medical evidence as elaborated hereinabove also does not decisively establish the case to be of homicidal hanging. The unchallenged expositions of the doctor performing the post-mortem examination highlighting the absence of the characteristic attributes attendant on death due to homicidal hanging following strangulation further reinforce the possibility of suicide. The absence of definite medical opinion about the homicidal death of the deceased in our comprehension is a serious setback to the prosecution.
52. The evidence of the eyewitnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In the absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to accompany DW 1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW 1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.”
312. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 11, 22, 23 and 25 of the case of Mulak Raj and others Vs. State of Haryana 1996 SCC (Cri) 398, which are as follows:
“11………. When she reached Krishna Kumari’s house she found 2-3 boys present there besides 1 or 2 ladies including Accused 3 and 4. On enquiring about the whereabouts of Krishna Kumari, deceased, Accused 4 told Santosh Kumari, PW 14 that she should go inside and see for herself. Thereupon Santosh Kumari, PW 14 went inside the house of the accused and found the dead body of Krishna Kumari lying in the kitchen. Her tongue was protruding out. There was bleeding from the nose. Santosh Kumari, PW 14 informed the father of the deceased, PW 23 who was her father-in-law. She requested him to come immediately to the house of the accused. Her father-in-law, PW 23, immediately rushed to the spot. Mother-in-law of Santosh Kumari also came to the spot. …….
………. Dr S.K. Gupta, PW 1 conducted the post-mortem on the dead body of Krishna Kumari on 13-4-1977 at 9.00 a.m. We shall refer to the result of the post-mortem examination a little later. Suffice it to say at this stage that on the basis of the said post-mortem report the police registered criminal case against all the accused under Section 302 read with Section 34 of the IPC as it was felt that Krishna Kumari had not committed suicide but had died a homicidal death. …………
……. Ultimately the accused were arrested in February 1978 and after completing investigation charge-sheet was submitted against the accused for offences under Section 302 read with Section 34 IPC and after usual committal proceedings the case reached the Sessions Court being Sessions Case No. 26 of 1978 and Sessions Trial No. 39 of 1978. The offences with which the accused were charged were under Section 302 read with Section 34 IPC and also under Section 201 read with Section 34 IPC. The learned Additional Sessions Judge, Gurgaon, who tried the accused, after recording evidence offered by the prosecution as well as by the defence, came to the conclusion that the prosecution was not able to establish beyond reasonable doubt that deceased Krishna Kumari had died a homicidal death and that prosecution had also failed to establish that the accused were guilty of murdering her. Consequently they were acquitted of the offences with which they were charged. ……..
22.That takes us to the last circumstance on which strong reliance was placed by the High Court for convicting the appellants. That pertains to the scene of offence. It is true that the scene of offence was shown to be the kitchen in the household of the accused where all the four accused were staying. It is also true that at the time when the dead body of the deceased was found lying in the kitchen, witness Santosh Kumari, PW 14 found that the kitchen was in perfect order and there was no smoke in the kitchen. The kitchen was neat and clean and there was no smell emanating from the kitchen. But even if that is so, it is difficult to appreciate how this circumstance by itself points a guilty finger to the accused or any one of them. Merely because deceased Krishna Kumari who was staying with the accused had died a homicidal death in their household and her dead body was found in the kitchen with post-mortem burns it cannot be said that the said circumstance by itself would connect all the accused or any one of them with the crime.
23.The question still remains as to who killed the deceased Krishna Kumari, whether it was Accused 1 or 2 or 3 or 4 or whether all of them jointly had taken part in killing her by suffocating her. Further question remains as to who was the principal accused guilty of offence under Section 302 out of the four accused and who were guilty of offence under Section 302 read with Section 34 for having shared the common intention to murder her. It is difficult to appreciate how Accused 3, a minor girl aged sixteen and a half years being sister-in-law of the deceased, had shared such common intention if at all there was any. All these questions remain unanswered on the unsatisfactory state of evidence led by the prosecution. As we have noted earlier the basic flaw in the case lies in the lukewarm and cursory investigation initiated by the police after registering the offence under Section 302 read with Section 34 IPC against these accused. Result was that the prosecution case became lame from the very beginning and, therefore, it must be visited with the logical consequence of failure to bring home the offence of murder to the accused who may at the most remain under the cloud of a strong suspicion of having liquidated Krishna Kumari in their household on that fateful morning. However strong the suspicion may be, it cannot take the place of proof. The High Court seems to have been swayed away by the unfortunate and untimely homicidal death of a young girl in the household of her father-in-law and husband on the altar of dowry demand. However, it is impossible on the state of evidence on record to bring home the offence under Section 302 read with Section 34 beyond the shadow of reasonable doubt to any of the accused. The High Court with respect seems to have almost rendered a moral conviction against the accused rather than a legal one.
25. In the result the appeal succeeds and is allowed. All the appellants-accused are acquitted of the offence under Section 302 read with Section 34 IPC with which they were charged. Similarly they are entitled to be acquitted of offence under Section 201 read with Section 34 IPC as they are not held to be criminally involved in the incident. All the accused are given benefit of doubt. The judgment and order of the High Court are set aside and the order of acquittal as rendered by the trial court is restored. The accused were on bail pending this appeal. Now there is no occasion for them to surrender. Their bail bonds are ordered to be cancelled and sureties shall stand discharged.”
313. In the present case on the basis of material available and the medical opinion given by PW-9 and PW-11, this is a case of murder. The medical evidence supported the statement of PW-6 Manohar Lal and PW-1, PW-2 and PW-3. Inculpatory extra-judicial confession is also an additional link of the circumstances. The wrong contentions/ statements given by the appellants in their statements recorded under Section 313 Cr.P.C. are also an additional link to the circumstances against them. Therefore, this exposition of law does not extend any benefit to the appellants, because two views are not possible in this case.
314. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 9, 10 and 13 of the case of Sawal Das Vs. State of Bihar 1974 SCC (Cri) 362, which are as follows:
“9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The language of Section 106 of the Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab [AIR 1956 SC 460 : (1956) Cri LJ 827] that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharing his burden of creating a reasonable belief, that circumstance, absolving him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt.
10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or 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 may lie upon the accused. The crucial question in the case before us is: Has the prosecution discharged its initial or general and primary burden of proving the guilt of the appellant beyond reasonable doubt?
13. ……………. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maid servant, was a witness essential to the unfolding of the prosecution case. Her evidence could not be withheld by the prosecution whatever may be its effect upon the case. We think that the principle laid down by Privy Council inStephen Sneviratne v. King [AIR 1936 PC 289, 300 : 37 Cri LJ 963] , with regard to such a witness, is applicable here. It was observed there (at p. 300):
“Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this was is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but, at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.”
315. Learned counsel for the appellants has relied upon para 3, 6 and 10 in the case of Nesar Ahmed and another Vs. State of Bihar 2002 SCC (Cri) 1100, (2001) 9 SCC 736 propounded by Three Judges’ Bench of Hon’ble Supreme Court, which are as follows:
“3. There is no eyewitness in this case. The entire case is based on circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only to the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. It is on the basis of these principles that we shall examine the circumstantial evidence relied upon by the prosecution in this case.
6. Before we allow to link up the above circumstances, it is absolutely essential to first consider whether the prosecution has led any unimpeachable evidence to show that the appellants were present in the house where the deceased died as a result of burn injuries at the crucial time. In our opinion, if it is found that the presence of the appellants at the crucial time has not been established in the house, all other circumstances would not complete the chain of circumstantial evidence to lead to any irresistible conclusion consistent only with the hypothesis of guilt of the appellants and inconsistent with their innocence.
10. The deceased was aged 22 at the time of her death. According to the medical evidence she died of burn injuries. It is an unfortunate case. But for what we have said above, we do not find it possible to hold that the prosecution has established the guilt of the appellants beyond a reasonable doubt. The chain of circumstantial evidence is not so complete as to be consistent only with the hypothesis of guilt of the appellants. The benefit of doubt, under the circumstances, must go to the appellants.”
316. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 6, 8 and 10 of the case of Sujit Biswas Vs. State of Assam 2013 Crl. L.J. 3140, which are as follows:
“6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that “may be” proved, and something that “will be proved”. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between “may be” and “must be” is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P.[AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya[(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] andRamesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905] )
8. In Sharad Birdhichand Sarda v. State of Maharashtra [Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] this Court held as under: (SCC p. 185, para 153)
“153. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused … 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,
(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.”
10. Thus, in view of the above, the court must consider a case of circumstantial evidence in the light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. Inferences are drawn from established facts, as the circumstances lead to particular inferences. The court must draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.”
317. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 9 of the case of Ashish Batham Vs. State of MP. 2002 SCC (Cri) 1718, which is as follows:
“9. So far as the case on hand is concerned, it becomes necessary even at the threshold to find out whether the courts below really endeavoured to find out that each and every incriminating circumstance has been clearly established by reliable and clinching evidence. In a case like the one before us entirely resting on circumstantial evidence and the defence plea that the prosecution had withheld and suppressed documents, witnesses and materials, it was obligatory for the courts below also to ensure whether the prosecution has come up before the court with the whole and unvarnished truth or merely presented a perfunctory and tailored case to suit its game plan of somehow securing a conviction, resulting in grave miscarriage of justice. ……….
……….. Evidence collected by the prosecution regarding the journey of the appellant from Bhopal to Dahod and materials to evidence actual journey with his sister in its possession was also not marked though shown in the list of documents with the charge-sheet. Ironically, the courts below tried to blame the accused for not getting official witnesses examined in this regard for the defence, in spite of his having examined his sister (DW 1) and a tenant (DW 2) in the house at Dahod where DW 1 also lived. ………..
…………….. Witness 19 in the list submitted with the charge-sheet, was not examined. He was the best and really vital witness, who could speak for his absence on account of being away at Dahod as well as regarding the search of his person before the alleged search and seizure of the purse and chain on 12-4-1999 at Shajapur by PW 27 and as to whether the appellant was really absconding or evading being apprehended as projected by the prosecution, in spite of the real fact that even without any arrest warrant he accompanied Inspector Gaur to Shajapur without any demur…….
……. whose statements were recorded and cited as witness but were given up and not examined at all. …………… All those aspects would really go to a great extent to justify the grievance sought to be made on behalf of the appellant, that the prosecution instead of impartially endeavouring to unravel the truth was bent upon persecuting the appellant to get him somehow convicted, with a preconceived idea of his guilt.”
318. Learned counsel for the appellants has relied upon exposition of law propounded by Supreme Court in paras 6,8,12,13,16 and 17 of the case of Reena Hazarika Vs. State of Assam, AIR 2019 SC (Criminal) 223, which are as follows:
“6. Miss Diksha Rai, learned counsel for the State submitted that the appellant was last seen with the deceased in the room, confirmed by CW-1. The appellant has failed to offer any explanation of the circumstances as to how the death occurred at night. Her unnatural conduct in not even weeping was also noticed by PW-7. The knife used for assault, and blood soaked clothes of the deceased have also been recovered.
8. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given.
12. The post-mortem report makes it evident that the chop wounds could not have been caused by the small knife alleged to have been recovered. Fracture of the temporal bone with the knife was an impossibility. PW-6 in the deposition ruled out that the injury could be caused by a fall. The post mortem did not find any alcohol in the body of the deceased. The witness also opined that injury no. 4 could have been caused while the deceased may have attempted to save himself from assault. The multiple injuries could certainly not have been caused by one person and tells an entirely different story by itself that the assailants may have been more than one. The chop injuries were possible by a moderate and heavy weapon like a dao. In our opinion also, if the deceased was of average built, it is difficult to accept, according to normal prudence and human behaviour and capacity, that the appellant being a woman, could have made such severe and repeated assault on the deceased, who was her husband, with a small knife, without any resistance and suffered no injury herself.
13. PW-7 claimed to have found a knife with the smell of Dettol. Even if the knife had been wiped to erase traces of blood the wooden handle could have revealed much if it had been sent to the FSL. The witness again offers no explanation why he did not do so. No bottle of Dettol has been recovered. There is absolutely no evidence that the deceased would often assault the appellant and the minor child in a drunken condition. The fact that PW-7 did not notice tears in the eyes of the appellant, deemed as unnatural conduct by the courts below, cannot be sufficient to draw an adverse inference of guilt against the appellant. The appellant being in a helpless situation may have been stunned into a shock of disbelief by the death of her husband. It is not uncommon human behaviour that on the death of a near relative, or upon witnessing a murderous assault, a person goes into complete silence and stupor showing no reaction or sensibility. We also find it difficult to believe and rely upon the evidence of CW-1 primarily because of her minority. If the deceased had been assaulted by the appellant in the room at night, it would certainly have led to noise and shouts and the witness could not have possibly slept throughout without waking up.
16. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word ”may’ cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing.
17. Unfortunately neither Trial Court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non-consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 observing as follows:–
“26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to the assess, the evidence in an appeal here, but because there has been in this case a departure from the rule that when an accused person but for the word a reasonable defence which is likely to be true,…… then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true friend pitted against AV and vacillating case is bound to raise a reasonable doubts of which the accused must get the benefit….”
A similar view is expressed in M.Abbas V. State of Kerala, (2001) 1 SCC 103 as follows;-
“10. ….On the other hand, the explanation given by the appellant both during the cross-examination of prosecution witnesses and in his own statement recorded under Section 313 Cr.P.C. is quite plausible. Where an accused sets up a defence or offers an explanation, it is well-settled that he is not required to prove his defence beyond a reasonable doubt but only the preponderance of probabilities…..”
319. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in paras 2 and 9 to 14 of the case of P. Mani Vs. State of Tamil Nadu (2006) 2 SCC (Cri) 36, which are as follows:
“2. The deceased was the wife of the appellant. They were not on good terms. The deceased nurtured grudge against him on the belief that the appellant was having an affair with another woman (PW 12) who is wife of his elder brother (PW 11). On 4-10-1998 at about 10.45 a.m., some children had been watching television in the house of the appellant. They came out therefrom stating that the deceased had asked them to go out of the house and bolted the door from inside. Upon hearing the same, PWs 1, 2 and the appellant herein went back and broke open the door. Allegedly, the appellant had poured kerosene on her and set fire to the deceased.
9. The High Court, however, did not pay much credence to the said statements of the investigating officer and other witnesses inter alia on the ground that the burden of proof thereof lies upon the appellant in terms of Section 106 of the Evidence Act, as also in view of the fact that the appellant did not suffer any burn injury.
10. We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been watching television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever.
11. The High Court furthermore commented upon the conduct of the appellant in evading arrest from 4-10-1998 to 21-10-1998. The investigating officer did not say so. He did not place any material to show that the appellant had been absconding during the said period. He furthermore did not place any material on record that the appellant could not be arrested despite attempts having been made therefor. Why despite the fact, the appellant who had been shown to be an accused in the first information report recorded by himself was not arrested is a matter which was required to be explained by the investigating officer. He admittedly visited the place of occurrence and seized certain material objects. The investigating officer did not say that he made any attempt to arrest the appellant or for that matter he had been evading the same. He also failed and/or neglected to make any statement or bring on record any material to show as to what attempts had been made by him to arrest the appellant. No evidence furthermore has been brought by the prosecution to show as to since when the appellant made himself unavailable for arrest and/or was absconding.
12. The absence of injury on the person of the accused had been found by the High Court to be one of the grounds for believing the prosecution case. All the prosecution witnesses categorically stated that the fire was doused by pouring water. In that situation, no wonder, the appellant did not suffer any burn injury. It is not the case of the prosecution that in fact any other person had suffered any burn injury in the process of putting out the fire. The incident admittedly took place inside a small room. It had two doors. The prosecution witnesses knocked on both the doors. Their call to the deceased to open the door remained unanswered and only then they took recourse to breaking open the door. According to them, not only the appellant herein was with them at that point of time, but also he took part in dousing the flames. Indisputably, he took the deceased to the hospital. If the version of the deceased in her dying declaration is accepted as correct, the witnesses and in particular the neighbours would have lodged a first information report and, in any event, would not have permitted the appellant to take her to the hospital.
13. The question is as to whether in the aforementioned situation reliance should be placed on the dying declaration. The son and daughter of the deceased categorically stated that she had been suffering from depression and she had made an attempt to commit suicide a week prior to the date of occurrence. It is the positive case of the prosecution itself that she was not keeping good relations with the appellant on the belief that he had an affair with another lady. The same admittedly has not been proved. If she had been labouring under a false belief and if in fact she had been suffering from depression for whatever reasons, the possibility of her making wrong statement before the Magistrate cannot be ruled out. In any event, the materials brought on records do not support the prosecution case, but support the defence.
14. Indisputably conviction can be recorded on the basis of the dying declaration alone but therefor the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them. In this case the circumstances which have been brought on record clearly point out that what might have been stated in the dying declaration may not be correct. If the deceased had been nurturing a grudge against her husband for a long time, she while committing suicide herself may try to implicate him so as to make his life miserable. In the present case where the appellant has been charged under Section 302 of the Penal Code, the presumption in terms of Section 113-A of the Evidence Act is not available. In the absence of such a presumption, the conviction and sentence of the accused must be based on cogent and reliable evidence brought on record by the prosecution. In this case, we find that the evidences are not such which point out only to the guilt of the accused.”
320. Learned counsel for the appellants has relied upon exposition of law propounded by propounded by Three Judges’ Bench of Hon’ble Supreme Court in para 25 of the case of Pyare Mohan Lal Vs. State of Jharkhand and others AIR 2010 Supreme Court 3753, which is as follows:
“25. In State of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52 : 1976 SCC (LS) 542 : AIR 1976 SC 2547] this Court observed that it must be borne in mind that in cases where there is any conflict between the views expressed by larger and smaller Bench of this Court, the court cannot disregard or skirt the views expressed by the larger Bench. In Triveniben v. State of Gujarat [(1989) 1 SCC 678 : 1989 SCC (Cri) 248] this Court considered the issue and observed as under: (SCC pp. 701-02, paras 35-36)
“35. … The practice over the years has been that a larger Bench straightaway considers the correctness of and if necessary overrules the view of a smaller Bench. This practice has been held to be a crystallised rule of law in a recent decision by a Special Bench of seven learned Judges. In A.R. Antulay v.R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC (Cri) 372 : AIR 1988 SC 1531] Sabyasachi Mukharji, J. speaking for the majority said (at AIR p. 1548): [SCC p. 653 : SCC (Cri) p. 423, paras 43-44]
”43. The principle that the size of the Bench–whether it is comprised of two or three or more Judges–does not matter, was enunciated in Young v.Bristol Aeroplane Ltd. [1944 KB 718 : (1944) 2 All ER 293 (CA)] and followed by Chinnappa Reddy, J. in Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra [(1985) 1 SCC 275 : 1984 SCC (Cri) 653] where it has been held that a Division Bench of three Judges should not overrule a Division Bench of two Judges, has not been followed by our courts.
44. … The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches. See the observations of this Court in Mattulal v. Radhe Lal [(1974) 2 SCC 365] , Union of India v. K.S. Subramanian [(1976) 3 SCC 677 : 1976 SCC (LS) 492 : AIR 1976 SC 2433] , SCC at p. 681 : AIR at p. 2437 andState of U.P. v. Ram Chandra Trivedi [(1976) 4 SCC 52 : 1976 SCC (LS) 542 : AIR 1976 SC 2547] , SCC at p. 64 : AIR at p. 2555. This is the practice followed by this Court and now it is a crystallised rule of law.’
36. The answer to the question posed in Javed Ahmed case [(1985) 1 SCC 275 : 1984 SCC (Cri) 653] thus stands concluded and it is now not open to anyone to contend that a Bench of two Judges cannot be overruled by a Bench of three Judges. We must regard this as a final seal to the controversy.”
321. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of State of Bihar and others Vs. Sri Radha Krishna Singh and others, AIR 1983 Supreme Court 684 and argued that learned trial Court has discarded evidence of DW-2 regarding separate living of appellants Vijay Bahadur and Smt. Pramila. It has not appreciated documentary evidence of a public document, i.e., Pariwar Ragister and Ration Card in correct perspectives. He has relied upon the observations of Hon’ble Supreme Court in para 32 to 36, which are as follows:
“32. To start with, the main fabric and the cornerstone of the documents produced by the plaintiffs appears to be Ex. J, an ancient document of the year 1810 whose admissibility was seriously disputed by the appellants but all the courts have found this document to be admissible. Apart from the majority judgment, even M.M. Prasad, J., has clearly held that Ex. J being an entry in a register made by a public officer in the discharge of his duties squarely falls within the four-corners of Section 35 of the Evidence Act and is, therefore, doubtless admissible. In this connection, the learned Judge observed thus:
“There can thus be no doubt that it is a report of a public officer in the due discharge of his public and office duties. There can thus be no doubt that it is admissible under Section 35 of the Evidence Act.”
33. Certain inferences drawn by M.M. Prasad, J., do not appear to us to be correct because they are not borne out by the recitals in Ex. J and are really based on a wrong interpretation of certain expressions used in Persian language. These observations appear at p. 483 of his judgment (Vol. VIII) where the learned Judge says that the document shows that Gajraj Singh was one of the descendants of Hirday Narain Singh and that Debi Singh and Gajraj Singh belonged to the same family. This anomaly appears to have crept in because the said document (Ex. J) is in Persian language and on a very close reading of the recitals pertaining to these two facts, the inferences drawn by the learned Judge do not appear to be correct. We shall elaborate this point further when we deal with the merits of the document. We agree with the unanimous view of the High Court that Ex. J is admissible. In fact, the said Exhibit itself would show that it was written by a serishtedar, a government officer, on the direction of a very high governmental authority who had asked him to make a detailed enquiry regarding the possession of various zamindars and submit a report to the Government about possession. We are, therefore, of the opinion that all the conditions of Section 35 of the Evidence Act are fully complied with and fulfilled, and it is difficult to accept the conclusion that the document is not admissible either under Section 35 or under any other provision of the Evidence Act. It is a different matter that even though a document may be admissible in evidence its probative value may be almost zero and this is the main aspect of the case which we propose to highlight when we deal with the legal value of this document.
34.Before, however, making any comment on the probative value of the document in question it will be necessary to peruse and analyse its important contents and their legal effect on the case put forward by the parties. We might mention here that the appellants before us have not accepted the stand taken by the High Court that this document is admissible in evidence but have argued at some length that it is totally inadmissible. Dr Singhvi was not very vehement in persuading us to hold that the document is inadmissible but Mr Misra, appearing for one set of the appellants, forcefully contended that the document is inadmissible. In view of the arguments addressed before us, it may be necessary to consider the question of admissibility also.
35.In our opinion, Ex. J squarely falls within the four-corners of Section 35 of the Evidence Act which requires the following conditions to be fulfilled before a document can be admissible under this section,
“(1) the document must be in the nature of an entry in any public or other official book, register or record,
(2)it must state a fact in issue or a relevant fact,
(3) the entry must be made by a public servant in the discharge of his official duties or in performance of his duties especially enjoined by the law of the country in which the relevant entry is kept.”
36. A perusal of Ex. J clearly shows that it is a report made by an officer of the Government in the due discharge of his official duties because the recitals of the document show that he was entrusted with the task of and enjoined the duty of ascertaining the possession of various landlords for the purpose of taking suitable steps in the matter. It is beyond dispute in this case that the said Exhibit does mention a number of persons through whom the plaintiffs claim their title and, therefore, it relates to a relevant fact. The question as to whether the relevant fact is proved or not is quite a different matter which has nothing to do with the admissibility of the document but which assumes importance only when we consider the probative value of a particular document. The fact that the report was called for from the Mirzapur Collectorate has been amply proved both by oral and documentary evidence. Thus, all the aforesaid conditions of Section 35 are fully complied with in this case.”
322. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of Ramesh Chandra Agrawal Vs. Regency Hospital Limited and others (2009) 9 SCC 709 and argued that PW-11 has adduced his evidence ignoring opinions mentioned in book of Medical Jurisprudence and he has given his opinion without any rhyme and reason. He has relied upon the observations of Hon’ble Supreme Court in paras 16, 17, 18 and 22, which are as follows:
“16. The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the layperson. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court’s knowledge. Thus cases where the science involved, is highly specialised and perhaps even esoteric, the central role of an expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognised field of expertise,
(ii) that the evidence must be based on reliable principles, and
(iii) that the expert must be qualified in that discipline.
(See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 Edn., Cambridge University Press, p. 178.)
17. Section 45 of the Evidence Act, 1872 speaks of expert evidence. It reads as under:
“45.Opinions of experts.–When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts.
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant.”
18.The importance of the provision has been explained in State of H.P. v. Jai Lal[(1999) 7 SCC 280 : 1999 SCC (Cri) 1184] . It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
22. In the article “Relevancy of Expert’s Opinion” it has been opined that the value of expert opinion rests on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of an expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be crosschecked. Therefore, the emphasis has been on the data on the basis of which opinion is formed. The same is clear from the following inference:
“Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.”
323. Learned counsel for the appellants has relied upon exposition of law propounded by Supreme Court in paras 116, 124 to 127 and 169 of the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) SCC 116, which are as follows:
“116.This statement does not appear to be true for the following reasons:
(a) Birdhichand knew full well that PW 30 was a police contact constable and as he was not prepared to persuade the doctors to give a death certificate, his attitude was hardly friendly as he was insisting that the matter should be reported to the police.
It is, therefore, difficult to believe that Birdhichand would take such a great risk in laying all his cards on the table knowing full well that the witness was not so friendly as he thought and therefore he might inform the police; thereby he would be in a way digging his own grave.
(b) On a parity of reasoning it would have been most improbable on the part of the appellant, after having decided to report the matter to the police, to ask PW 30 to report the time of death as 5.30 a.m. knowing full well his attitude when he came to the Apartments.
124. Taking an overall picture on this part of the prosecution case the position seems to be as follows:
(1) If the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr Banerjee in his post-mortem report has not found any mark of violence or resistance. Even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short while before the appellant.
(2) Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water, if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her.
(3) The third possibility is that as Manju had returned pretty late to the flat she went to sleep even before the arrival of the appellant and then he must have tried to forcibly administer the poison by the process of mechanical suffocation, in which case alone the deceased could not have been in a position to offer any resistance. But this opinion of the doctor has not been accepted by the High Court which, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the doctor that Manju died by mechanical suffocation has not been proved or, at any rate, it is not safe to rely on such evidence. In this connection, we might refer to the finding of fact arrived at by the High Court on this point:
In view of the above position as is available from the evidence of Dr Banerjee and from the observations made by the medical authorities it will not be possible to say that the existence of the dark red blood in the right ventricle exclusively points out the mechanical suffocation particularly when such phenomenon is available in cases of poisoning by potassium cyanide. (PB p. 147-48)
In view of this answer it will not be possible to say conclusively that this particular symptom of observation is exclusively available in case of mechanical suffocation.
Thus we have discussed all the seven items on which Dr Banerjee has relied for the purpose of giving an opinion that there was mechanical suffocation. In our view, therefore, those 7 findings would not constitute conclusive date for the purpose of holding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation. As the 7 findings mentioned above can be available even in the case of cyanide poisoning we think that it would not be safe to rely upon these circumstances for recording an affirmative finding that there was mechanical suffocation (p. 150-151)
125. It is not necessary for us to repeat the circumstances relied upon by the High Court because the finding of fact speaks for itself. This being the position, the possibility of mechanical suffocation is completely excluded.
(4) The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the post-mortem that the deceased had died as a result of administration of potassium cyanide.
(5) The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour or so, his suspicion was roused and therefore he called his brother from the adjacent flat to send for Dr Lodha.
126. In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide, as alleged by the defence, can be safely ruled out or eliminated.
127. From a review of the circumstances mentioned above, we are of the opinion that the circumstance of the appellant having been last seen with the deceased has not been proved conclusively so as to raise an irresistible inference that Manju’s death was a case of blatant homicide.
169. We are, therefore, clearly of the opinion that the facts of the present appeal are covered by the ratio of the aforesaid decisions. At any rate, taking the worst view of the matter on the evidence in this case two possibilities are clearly open–
(1) that it may be a case of suicide, or
(2) that it may be a case of murder
and both are equally probable, hence the prosecution case stands disproved.”
324. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in paras 5, 7, 12 and 15 of the case of Mangu Singh Vs. Dharmendra and another (2018) 1 SCC (Cri) 792, which are as follows:
“5. The informant, PW 1, has filed the present appeal before this Court. The State is also before us by filing special leave petition against the acquittal order. The learned counsel for the State has argued in line of the decision arrived at by the trial court. It is vehemently argued that the motive of the accused that he wanted to get rid of the victims so that he could marry his love, was proved by the testimony of PW 1. The respondent was alone with the two victims and it was his duty as provided under Section 106 of the Evidence Act, 1872, to give a reasonable explanation regarding the homicidal death of the two victims. ………..
7. In our considered opinion, four main issues are argued before this Court and we shall now examine each and every contention in light of the arguments adduced before us. It is a settled law that motive is not a necessary element in deciding culpability but it is an equally important missing link which can be used to corroborate the evidence. In the present case, the motive of the accused was stated to be twofold. One being that he was in love with a girl, whom he wanted to marry but his wife and daughter were the hindrance. The other immediate motive was the non-fulfilment of dowry demand by PW 1 (father of the girl). Upon perusal of the records, it appears that PW 1 has deposed that the respondent-accused was in love with a girl who lives in Ghaziabad and this fact was told to him by his wife, who got this information from her daughter G (deceased). Even if the said fact is presumed to be true, still PW 1’s deposition to this fact is hearsay and in fact, his wife should have been examined to testify this fact. PW 1 neither stated this fact in the FIR nor in the statement made before the police, and it was only after two and half years later that this fact was stated in his deposition before the court. The prosecution also laid heavy emphasis on the said fact. However, in the investigation no such fact came to light, nor was the wife of PW 1 summoned for making statements before the police or before the court. The witness even testified that this alleged relation of the accused was reported to the accused’s father upon which he apologised for his conduct, however, the said fact was not proved. As against the immediate cause, which again is a material addition at the time of deposition before the court, neither such fact was made before the police nor investigated by the police. The court did not even try the respondent-accused for the alleged offence of dowry demand, as prima facie no case was made out.
12. The third issue is the confessional FIR. The trial court proceeded to believe the FIR as admission of guilt by the accused. Not only the lodging of the FIR was delayed but it was suspected to be ante-timed. The police investigation disclosed that FIR (Ext. Ka 22/23) was lodged by the respondent-accused and thereafter at about 8.30 p.m. PW 1 was informed. However, as per the deposition of PW 1, he received the information about the FIR at about 7.00 p.m., thereafter he proceeded to the place of incident and was a witness to inquest proceedings. The respondent-accused has taken the defence that he was forced to scribe it at the dictation of the investigating officer, after being assaulted at the police station and it was registered ante-timed. The series of events abovestated, thus, cast doubts on the time of the FIR. The facts of the FIR remained disproved and hence Ext. Ka 22/23 is not reliable. The trial court laid undue stress on the non-explanation of fact of death of the victims by the respondent-accused. It is established that the trial court based the conviction upon the testimony of PW 4, yet it took a “U” turn to shift the burden on the respondent-accused under Section 106 of the Evidence Act, 1872, to prove the incident. The High Court, in our considered view, rightly reversed the finding on this point of law. Section 106 does not absolve the prosecution’s burden under Section 101 to prove its case of guilt of the accused beyond reasonable doubt. As stated above, the prosecution has miserably failed to explain the facts and circumstances surrounding the lodging of both the FIRs, and the testimony of PW 4 is proved to be crooked. The prosecution case was never a case of circumstantial evidence as the prosecution, till the end laid stress on the testimonies of eyewitnesses.
15. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and have also scanned through the entire materials available on record, including the impugned judgment [Dharmendra v.State of U.P., 2010 SCC OnLine All 1441 : (2010) 70 ACC 817.] . It appears that the prosecution has failed to prove its case beyond reasonable doubt against the accused and the High Court was justified in doubting the veracity of the prosecution case and recording the verdict of acquittal, which does not suffer from the vice of perversity.”
325. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of Dev Kanya Tiwari Vs. State of U.P. (2018) 2 SCC (Cri) 860 and argued that in this case also death was caused by strangulation. Learned counsel for the appellants has relied upon on para 16, 17 and 18, which are as follows:
“16. In the above backdrop of the case, primarily when there existed a complaint lodged by the wife of the deceased pointing out that the deceased committed suicide by consuming poison, generally it is expected that the doctor will preserve viscera for chemical analysis. On this point, the prosecution has failed in its duty as no steps have been taken to preserve viscera. Merely a statement by doctor, PW 6 that viscera was not preserved as there is no presence of poison would not be suffice in the peculiar circumstances of this case, particularly when the independent panch witnesses together as well as the investigating officer recorded their view that it was a case of poisoning, which has been duly supported by PWs 1, 2 and 3.
17. However, the allegation against the accused levelled by the prosecution found support only from PW 5, brother of the deceased. Even the evidence of father of the deceased (PW 4) cannot be taken into consideration as it clearly appears that he has come to know about the incident through PW 5 only. Medical evidence in the form of post-mortem report (Ext. P-1) though supports the case of prosecution, non-preservation of viscera by the doctor remains fatal to the prosecution case. It is worthwhile to note that nowhere in his evidence, PW 5 mentioned about noticing ligature mark on the neck of the deceased, nor he agitated the cause of death during panchnama. The fact remains that on certain aspects, the trial court also disbelieved the version of PW 5. In our opinion, the prosecution miserably failed to establish the chain of events, which points out at the guilt of the accused, and the courts below gravely erred in not considering the case in accordance with the settled principles of law.
18. The paramount consideration of the court must be to ensure that miscarriage of justice is prevented. Much acclaimed notion in the administration of criminal justice is that if two views are possible basing on the evidence adduced in the case, one pointing to the guilt of the accused and the other to the innocence of accused, the view which is favourable to the accused should normally be adopted. As we have already observed in the case on hand there is no direct evidence as to the deceased consuming poison or having been done to death by throttling. The presence of blisters all over the body of the deceased and his nails turning into bluish colour, no mark of fingers on the body of the deceased as noted in the post-mortem report and the presence of PW 5 at the time of panchnama without any objection, non-examination of Dr Hiralal, the corroborative statements by most of the prosecution witnesses and that of the IO to whom Dr Hiralal also disclosed that the deceased consumed poison, all these circumstances form ample evidence to strengthen the case of the accused that the deceased committed suicide. We are, therefore, constrained to observe that the courts below must have persuaded themselves to give the benefit of doubt to the appellant, as in the peculiar circumstances of this case, it is not safe to convict the accused under Section 302 IPC.”
326. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of State of M.P. Versus Sanjay Rai 2004 SCC (Cri) 1913 and argued that in this case also death was caused by strangulation. Learned counsel for the appellants has relied upon on para 16, 17, 18 and 19, which are as follows:
“16. The only circumstance which the trial court relied upon to hold guilt was by referring to some textbooks on medical jurisprudence. With reference to them it was held that case of strangulation was clearly made out.
17. It cannot be said that the opinions of these authors were given in regard to circumstances exactly similar to those which arose in the case now before us nor is this a satisfactory way of dealing with or disposing of the evidence of an expert examined in this case unless the passages which are sought to be relied to discredit his opinion are put to him. This Court in Sunderlal v. State of M.P. [AIR 1954 SC 28 : 1954 Cri LJ 257] disapproved of judges drawing conclusions adverse to the accused by relying upon such passages in the absence of their being put to medical witnesses. Similar view was expressed in Bhagwan Das v. State of Rajasthan [AIR 1957 SC 589 : 1957 Cri LJ 889] . Though opinions expressed in textbooks by specialist authors may be of considerable assistance and importance for the court in arriving at the truth, they cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. In substance, though such views may have persuasive value, they cannot always be considered to be authoritatively binding, even to dispense with the actual proof otherwise reasonably required of the guilt of the accused in a given case. Such opinions cannot be elevated to or placed on a higher pedestal than the opinion of an expert examined in court and the weight ordinarily to which it may be entitled to or deserves to be given.
18. Apart from that, even if on the hypothetical basis it is held that doubt could (sic not) arise on the basis of strangulation, in the absence of any evidence whatsoever to connect the respondent-accused with the act of strangulation, the conclusions of the trial court could not have been maintained and the High Court which is entitled to reappreciate the evidence could and has rightly discarded it.
19. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. …………..”
327. This exposition of law does not help in any way to the appellants, because two views are not possible in the present case on the basis of evidence adduced by Doctor PW-11 witness, who was Medico Legal Expert.
328. Learned counsel for the appellants has relied upon the exposition of law of Hon’ble Supreme Court in the case of State of Maharashtra Vs. Ashok Chotelal Shukla 1997 SCC (Cri) 1186 and argued that in this case also death of his wife was caused by burning and accused had not explained satisfactorily, the circumstances in which his wife was burnt in his house under Section 313 Cr.P.C. Learned counsel for the appellants has relied upon on para 27 and 28, which are as follows:
“27. On the question of homicide what we find is that the High Court heavily relied upon the fact that prosecution witnesses Tambe and Tiwari were in the flat when the incident of burning of Vibha took place. The prosecution evidence shows that they hurriedly left the flat and did not wait for putting on their shoes before leaving the flat. This conduct of Tambe and Tiwari indicates that something very unusual had taken place in their presence and that had obliged them to leave the flat in such a hurry. If they were told to leave the flat either because the respondent told them that he had to go out or because there was some exchange of words between Vibha and the respondent, they would not have left in such a manner. If it is believed that the respondent had left them in the drawing room and gone inside for about two or three minutes and then Vibha was seen rushing into the drawing room in a burning condition, as deposed by these two witnesses, then also it becomes very doubtful it the respondent would have tried to burn his wife while outsiders were present in his house. Moreover, the respondent was aware that his mother-in-law was to come with Rachna at about that time and, therefore, it was unlikely that the respondent would have thought of murdering Vibha at that point of time. All these factors were taken into consideration by the High Court and, therefore, the finding recorded by it cannot be regarded as unreasonable. There is no evidence on record to show when the scuffle, as indicated by what has been recorded in the scene-of-offence panchnama, had taken place. There is some substance in the contentions raised by the learned counsel for the State that Vibha, if she really wanted to commit suicide, would not have run out of the bedroom and that she would not have carried the plastic can of kerosene, as it would have immediately caught fire and would not have been found in the drawing room in the condition in which it was found. These are indeed incriminating circumstances suggesting that the respondent followed with the said can and poured kerosene over her in the drawing room and placed it there. But the possibility of the said plastic can having been placed there by someone else cannot be ruled out. It is true, as submitted by the learned counsel for the State, that the reason given by the High Court that planting of the plastic can cannot be ruled out because of the time-lag between the time when the incident took place and the scene of offence panchnama was made, is not quite correct. The mother of Vibha along with Vibha and other persons had left the flat within a short time for taking her to a hospital and at that time they had closed the door and the flat could be and was in fact opened only after the police obtained the key of the flat from the respondent. Therefore, it was not correct to say that during these six to eight hours anybody could have planted the said plastic can in the drawing room. But even during that short period besides Vibha’s mother Pushpa, her sister Usha, other persons had gathered in the flat and any one of them could have placed the said plastic can at the place where it was found. If the respondent had carried the said can to the drawing room and poured more kerosene over Vibha more damage would have been caused to the articles lying in the drawing room. The evidence discloses, and that is what the High Court has found, that the damage caused to the articles lying in the drawing room was very less.
28. We also find considerable force in the submission made by the learned counsel for the State that the conduct of the respondent soon after the incident was highly unusual, that he made a false statement to the doctor to whose hospital he had gone for treatment and that he has not given any explanation in his Section 313 statement as regards some of the highly incriminating circumstances and they are all indicative of the fact that he had caused the death of Vibha. It was submitted by the learned counsel that if this was a case of suicide by Vibha then the respondent would have tried to put out the fire and in that case he would have received more burn injuries than what were found on his person. The curtain with which he had tried to put out the fire had only a small burnt portion and that indicates that he had tried to extinguish the fire only at the last moment, and that too to make a show that he was not guilty, particularly when he found that the mother of Vibha had already arrived. It was also submitted that if it was really a case of suicide he would have at once tried to secure medical help for Vibha. Instead of doing that he got himself admitted in a hospital. This unusual conduct of the respondent and his failure to explain some of the incriminating circumstances create a strong suspicion about his involvement but it does not lead to the only conclusion that Vibha had not committed suicide but he had caused her death. He was the only person staying in the flat with Vibha and, therefore, he might have felt that he would be falsely involved by his in-laws. If in this state of mind he did not do what he was expected to do that cannot lead to the conclusion that he behaved in that manner because he had committed the murder of Vibha. The High Court has considered all these factors and given good reasons for holding that this was not a case of homicide. We also find that the reasons given by the High Court for not relying upon the two dying declarations are not improper. Therefore, the finding recorded by the High Court, that the prosecution has failed to establish beyond reasonable doubt that the respondent caused her death, does not call for any interference.”
329. In the present case there is evidence of PW-6 Manohar Lal regarding inculpatory extra-judicial confession against the appellants. It is an additional link to the incriminating circumstances. Therefore, this exposition of law is of no avail for appellants.
330. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in paras 11 and 14 of the case of Wattan Singh and others Vs. State of Punjab 2004 SCC (Cri) 855, which are as follows:
“11. The only finding recorded against the appellants is that they are family members of Baldev Singh. In respect of Harpal Singh, the only finding is that he was a family friend. Further finding recorded is that they were present at the house where the body of Manmohan Kaur had been kept and also at the cremation ground. The mere presence of the accused at the house or at the cremation ground or their relationship with her husband would not attract the provision of Section 201 IPC.
14. This Court in Palvinder Kaur v. State of Punjab has held that in order to establish the charge under Section 201 IPC, it is essential to prove that an offence has been committed; mere suspicion that it has been committed is not sufficient. It has to be proved that the accused knew or had reason to believe that such offence had been committed, and with the requisite knowledge and with the intent to screen the offender from legal punishment caused the evidence thereof to disappear or gave false information respecting such offence knowing or having reason to believe the same to be false. Palvinder Kaur [AIR 1952 SC 354 : 1953 SCR 94 : 1953 Cri LJ 154] decision has been followed in various later decisions (Suleman Rahiman Mulani v. State of Maharashtra, Nathu v. State of U.P. and V.L. Tresa v. State of Kerala…………..”
331. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 9 of the case of Suchand Pal Vs. Phani Pal and another 2004 SCC (Cri) 220, which is as follows:
“9. The trial court appears to have discarded the defence version highlighting the unacceptability of the prosecution version and came to a conclusion that the shot was made from a close range on the courtyard. This plea was taken at the argument stage by the prosecution, trying to read the prosecution evidence in a manner so that the ocular evidence and medical evidence do not appear to be irreconcilable. The High Court was right in disapproving the course adopted by the trial court. It is an established position in law that the prosecution can succeed by substantially proving the version it alleges. It must stand on its own legs and cannot take advantage of the weakness in the defence case. The court cannot on its own make out a new case for the prosecution and convict the accused on that basis. Only when a conclusion is arrived at on the evidence and the substratum of the case is not changed, such a course is permissible. The High Court noticed the medical evidence to be consistent with the defence version that the deceased was hit by the gunshot from a close range and that she was accidentally shot in the scuffle between the informant party and the accused. Coming to the acceptability of the dying declaration, the High Court has rightly discarded it. The declaration made by the deceased was not voluntary and in fact, the answers were not given by her and it was her husband who was answering. Such nature and manner of response from the injured who ultimately succumbed to injuries can by no means be elevated to the level of her “dying declaration”, even when it is found to sound “the voice of Jacob”. Stand of the prosecution that he tried to clarify by stating that it was the accused who had fired the gun does not improve the situation. In the true sense of the term or in legal parlance the statement made by the deceased cannot be called a dying declaration. In view of the admitted hostility and strained relations, the natural effort was to rope in the accused. The High Court, therefore, discarded the evidence as not worthy of acceptance.”
332. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 28 of the case of Rama Paswan and others Vs. state of Jharkhand, (2008) 1 SCC (Cri) 657, which is as follows:
“28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Evidence Act, 1872 (in short ”the Evidence Act’) are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be ”filling of loopholes’. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.”
333. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 7 of the case of Maruti Rama Naik Vs. State of Maharashtra 2004 SCC (Cri) 958, which is as follows:
“7. We will now consider whether the evidence of PW 4 in any manner corroborates the evidence of PW 3 or for that matter the said evidence of PW 4 is acceptable at all. PW 4 has admitted that he is a close relative of deceased Krishna Mahada Naik. While he had noticed the incident of the attack on the deceased Krishna Mahada Naik, he has not spoken in any manner about the subsequent attack which includes the attack on PW 3. According to this witness, at the relevant time, he was going to the bus-stand to board a bus to reach his factory where he was working when he saw the assault on the deceased Krishna Mahada Naik by the assailants including the appellants. Having noticed the incident, he did not go to any one of his relatives’ house to inform about the attack in question. He knew at that point of time that Krishna Mahada Naik was injured and still alive, still he did not make any effort whatsoever to get any help to shift the injured to a hospital. According to this witness, even after seeing Krishna Mahada Naik lying injured in a critical condition, he without informing anybody about the incident, went to the bus-stand, took a bus and went to his factory and even at that point of time, he had sufficient opportunity to inform the other people about the incident or for that matter, even the police which he did not do. It is interesting to note from the evidence of this witness that even though he had an opportunity of approaching the police, he did not go to them because he did not know whom he had to inform about the incident in the police station. The witness further states that he went to the factory, worked for a while, took leave from the factory and went back home. Even after reaching home, he did not bother to find out from anybody there about the fate of the victims nor did he inform anybody about he having witnessed the incident. It is only at about 6 p.m. when PW 21 recorded the statement for the first time, he came out with the fact of having witnessed the incident. It is rather surprising as to how and in what manner, PW 21 came to know that PW 4 was a witness to the incident. The prosecution has also failed to explain the delay in recording the statement of this witness, therefore, bearing in mind the conduct of PW 4 in not informing anybody about his having witnessed the incident and the delay in recording his statement makes us hesitant to place any reliance on his evidence. The only other piece of evidence relied on by the prosecution to support its case against these two appellants is that of recovery which even according to the prosecution, was made from a place which was not in the exclusive possession of the appellants and the said place was easily accessible by other people and also the fact that recovery was made almost 9 days after the incident in question, in our opinion, this piece of evidence also would not at all be sufficient to base a conviction of these appellants without further acceptable corroboration. Therefore, we are of the opinion that these appeals must succeed. The conviction and sentence imposed on the appellants are set aside and the appeals are allowed.”
334. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 10 of the case of Assoo Vs. State of Madhya Pradesh (2011) 14 SCC 448, which is as follows:
“10. We have also perused the evidence of PW 3 None Lal, a neighbour, and one of the first to arrive at the spot. He gave a story which completely dislodges the statements of PWs 1 and 2. He deposed in his cross-examination that Shri Bai, a neighbour of the appellant, had made allegations against the deceased in the presence of Ghaffoor and Ishaq that she was involved in illicit activities while her husband was away and that she would reveal all to her husband when he returned home and that immediately after these remarks the appellant had returned home on which the deceased had gone inside and set herself ablaze. We take it, therefore, as if the prosecution had accepted the statement of PW 3 as true, as the witness had not been declared hostile.”
335. Learned counsel for the appellants has relied upon exposition of law propounded by Chhattisgarh High Court in para 9 of the case of Gore Lal and others Vs. State of Chhattisgarh reported in 2011 Crl. L.J. 2470, which is as follows:
“9. Having gone through the entire evidence available on record it appears that it was an unfortunate case where the couple could not adjust with each other but because of this fact alone, it cannot be said that the deceased was subjected to cruelty by the accused/appellants. It is further unfortunate that the deceased committed suicide by consuming some poisonous substance and subsequently allegations have been leveled against the accused/appellants. In such cases the minute examination of the witnesses becomes a must and in the case in hand most of the witnesses have made stereo-type of allegations against the accused persons and they appears to be general in nature. So far as the demand of articles viz. T.V., Refrigerator, vehicle, silver, gold etc. is concerned even the witnesses have failed to depose as to on what date and in which month or on which occasion the said demand was made by which of the particular accused/appellant. As the allegations are not very specific, it is difficult for this Court to believe the same especially in view of the statement of Kirti Sahu (PW-5), the sister-in-law of the deceased.”
336. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in paras 33, 51 and 58 of the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra (2011) 2 SCC (Cri) 375, which are as follows:
“33.In case, the complainant in the FIR or the witness in his statement under Section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded. (Vide State v. Sait)
51. The deposition of Manorma (PW 7), aunt of the deceased is by no means different, as she had also made major contradictions and improvements in her statement made in court. She had not stated in her police statement that the appellants were demanding gold ornaments from the deceased and her family or that the appellants were keeping the deceased starving and were not allowing her to meet her daughter, Mili. The explanation furnished by her that she had not been feeling well and had forgotten to narrate such material facts, cannot be believed.
58. None of the prosecution witnesses had made any allegation of any demand of dowry or ill-treatment during the said earlier period. It is unnatural that after expiry of such a long period, the appellants suddenly became greedy and started demanding ornaments and for not meeting their demand, started ill-treating the deceased to the extent that she had to commit suicide. Thus, the allegations made by the complainant party remained unnatural and improbable. More so, the demand had been only of a thin gold chain which could not be very expensive in those days, especially given the socio-economic status of all the parties. For the gold ornament worth such a petty amount after the expiry of a long period of about 6½ years, from the date of marriage, it is not natural that the appellants could treat the deceased with such cruelty that she was drawn to commit suicide.”
337. Learned counsel for the appellants has relied upon exposition of law propounded by Hon’ble Supreme Court in para 5 of the case of Kans Raj Versus State of Punjab and others 2000 SCC (Cri) 935, which is as follows:
“5. We agree with the learned counsel for Respondents 3 to 5 that his clients, namely, Ramesh Kumar, brother of the husband, Ram Piari, mother of the husband and Bharti, sister-in-law of the accused husband cannot be alleged to be involved in the commission of the crime and were rightly acquitted by the High Court. There is no evidence produced by the appellant worth the name against the aforesaid respondents. Even PWs 5 and 6 have not brought on record any incriminating circumstance attributable to the aforesaid accused which could be made the basis for their conviction. Ram Kishan, PW 5 in his deposition before the Court had stated that
“after the marriage Rakesh Kumar, accused raised a demand of Rs 15,000 for a scooter and a refrigerator. We fulfilled that demand by giving Rs 20,000 to him for scooter and refrigerator. … Rakesh Kumar used to threaten Sunita that she would be done to death because of having inadequate dowry. On 21-9-1988 Sunita had come to my younger brother Tarsem in connection with a ceremony concerning his son. She also visited us as the house of Tarsem Kumar is close to our house. She stayed with us for the night. We gave her customary present i.e. clothes etc. and cash amount of Rs 500. She apprehended danger to her life in the house of her in-laws and was not willing to go there”.
He has not referred to any demand of dowry or harassment by the respondents except Rakesh Kumar. Tarsem Kumar, the other brother of the deceased at whose residence she had gone on 21-9-1988 has not been produced as a witness in the case. Kans Raj, PW 6, the father of the deceased stated before the trial court that Sunita Kumari had told him that she was being taunted by her mother-in-law Ram Piari, accused Ramesh Chander and his wife Bharti accused besides her husband Rakesh Kumar. The details of the alleged taunting have not been spelt out. The only thing stated is that the accused used to tell the deceased that she being the daughter of a BJP leader, who used to boast about his financial position had brought inadequate dowry. He further stated that various sums of money and the colour TV was given to Rakesh Kumar on his demand. Amar Nath and Janak Raj, President and General Secretary of Mahajan Sabha respectively and one Kundan Lal Gaba were taken by him to the residence of the accused persons. The deceased was alleged to have been taunted again in the presence of the aforesaid witnesses. However, none of the aforesaid witnesses supported the case of the prosecution. In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that Respondents 3 to 5 were roped in the case only on the ground of being close relations of Respondent 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their overenthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
338. Learned A.G.A. has relied upon the following exposition of law of Hon’ble Supreme Court regarding the fact that if in-laws or their relatives murdered the deceased secretly in their house, the parents or her family members cannot adduce direct evidence regarding the offence and circumstantial evidence adduced by relatives of the deceased/ married woman would be of less degree, comparatively to other cases of circumstantial evidence. The burden of proof according to Section 106 of Indian Evidence Act also correspondingly lies on the accused-appellant to explain the circumstances in which married women died in unnatural and suspicious circumstances and they cannot keep mum in this regard.
339. Hon’ble Supreme Court in the case of Harjit Singh v. State of Punjab, (2006) 1 SCC 463 : (2006) 1 SCC (Cri) 417at page 469 in para 19 has held as under:
19. In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under Sections 302, 304-B and 306 of the Penal Code. The distinction as regards commission of an offence under one or the other provisions as mentioned hereinbefore came up for consideration before a Division Bench of this Court in Satvir Singh v. State of Punjab [(2001) 8 SCC 633 : 2002 SCC (Cri) 48] wherein it was held: (SCC p. 643, paras 21-22)
“21. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is ”at any time’ after the marriage. The third occasion may appear to be an unending period. But the crucial words are ”in connection with the marriage of the said parties’. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ”dowry’. Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage.
22. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened ”soon before her death’. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words ”soon before her death’ is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval which elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept ”soon before her death’.”
340. This Court in Criminal Appeal No. 1252 of 2001: Munnu Seth and others Vs. State of U.P. decided on 10.01.2014 in para 26 and 33 has observed as under:
26. ……..The accused persons cannot get away with their lips or keeping mum about the incident. They have to explain the circumstances in which the deceased had suffered burnt injuries in their house. There was no access of any body else in the house of the accused appellants, so the question of there being any other eye witness does not arise. Section 106 Evidence Act requires the accused persons to detail the facts which are in their special knowledge. I am conscious of the fact that the provisions of section 106 of the Act does not relieve the initial burden of the prosecution burden to prove its case beyond all reasonable doubt. In this connection we may usefully refer to the observations of the Hon’ble Apex Court given in the case of Tulshiram Sahadu Suiryawanshi Anr. -vs- State of Maharashtra (2013) 1 SCC (Cri) 199, wherein it was held “A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference.”
33. In Criminal Appeal no. 1022 of 2008 Bhola Ram vs State Of Punjab decided on 11 November, 2013, the Apex Court has held as under:
23. As observed by the Law Commission of India (LCI) in its 91st Report of 10th August, 1983 (in paragraph 1.8) the truth may not come in a dowry death case due to the sequestered nature of the offence. This is what the LCI said:
“Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family.”
24. This passage also clearly brings out that in a case of a dowry death, every member of the family may not be fully and equally guilty. The degree of involvement may differ – as an associate, as a silent witness, as a conniving witness and so on.
25. So far as this case is concerned, we have gone through the evidence of all the witnesses on record and while there is no doubt that Janki Devi died an unnatural death within a few years of her marriage to Darshan Ram, no definite allegation has been made by any of the witnesses including Nath Ram or anybody from his family that Bhola Ram had demanded any additional dowry from him or anybody in his family or had treated Janki Devi with cruelty or in a humiliating manner so as to make him complicit in the dowry death.”
341. Hon’ble Supreme Court in the case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80 at page 690 in para 15 has held as under:
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
342. Hon’ble Supreme Court in the case of State of Rajasthan v. Jaggu Ram, (2008) 12 SCC 51 : (2009) 1 SCC (Cri) 317 at page 60 in para 27 and 28 has held as under:
27. In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In Ram Gulam Chaudhary v. State of Bihar [(2001) 8 SCC 311 : 2001 SCC (Cri) 1546] this Court considered the applicability of Section 106 of the Evidence Act in a case somewhat similar to the present one. This Court noted that the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor his body was found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference.
28. In Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] a two-Judge Bench of which one of us (G.P. Mathur, J.) was a member, considered the applicability of Section 106 of the Evidence Act and observed: (SCC pp. 689-691, paras 13-15)
“13. The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not want to antagonise a neighbourhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the houses should go unpunished.
14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirlandv. Director of Public Prosecutions [1944 AC 315 : (1944) 2 All ER 13 (HL)] –quoted with approval by Arijit Pasayat, J. in State of Punjabv. Karnail Singh [(2003) 11 SCC 271 : 2004 SCC (Cri) 135] .) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
”(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.’
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.”
Similar view has been expressed in State of Punjab v. Karnail Singh[(2003) 11 SCC 271 : 2004 SCC (Cri) 135] , State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254 : (2007) 1 SCC (Cri) 688] andRaj Kumar Prasad Tamarkar v. State of Bihar [(2007) 10 SCC 433 : (2007) 3 SCC (Cri) 716 : (2007) 1 SCR 13] .
343. Learned A.G.A. has relied upon exposition of law of Hon’ble Apex Court in the case of Chandra Bhawan Singh Versus State of U.P. 2018 (2) JIC 458 SC regarding non-explanation of incriminating circumstances by which accused not offers any explanation and argued that if any accused has not offer any explanation then it became an additional link in the chain of circumstance to make it complete. Learned A.G.A. has relied on paras 25 and 30 to 39, which are as under:
25. In the second place, he contended that since the entire case of prosecution is founded on circumstantial evidence, it was necessary for the prosecution to have adduced evidence to prove the complete chain of events. The learned counsel contended that there is no evidence, much less sufficient evidence, adduced by the prosecution to prove the chain of events leading to the guilt of committing the murder of Satyawati by the appellants and hence the conviction is bad in law.
30. In our opinion, both the courts below properly appreciated the evidence and came to a right conclusion that the appellants were responsible for commission of the offence of murder of Satyawati.
31. It is a settled principle of law that when the courts below have recorded concurrent findings against the accused persons which are based on due appreciation of evidence, this Court under Article 136 of the Constitution of India would be slow to interfere in such concurrent findings and secondly, would not appreciate the evidence de novo unless it is prima facie shown that both the courts below did not either consider the relevant piece of evidence or there exists any perversity or/and absurdity in the findings recorded by both the courts below, etc.
32. We, however, made endeavour to peruse the evidence with a view to find out as to whether the concurrent findings of both the courts below have any kind of infirmity or/and whether the concurrent findings are capable of being legally and factually sustainable in law or need to be reversed. Having gone through the evidence, we are of the view that the findings are legally and factually sustainable.
33. We find that there is evidence to prove the factum of demand of dowry. Rajender (PW 1) is the real brother of the deceased. He was the complainant. His evidence was rightly relied on by the two courts below for holding that the appellants were persistently making a demand of dowry (motorcycle) from Satyawati and her family members and they used to harass her for such cause. The testimony of PW 1 is natural and consistent having no material contradiction, we, therefore, find no justification to disbelieve it. The same deserves to be accepted.
34. So far as the story of suicide set up by the appellants is concerned, it is, in our view, wholly unbelievable on the evidence brought on record:
35. First, it is not possible, rather difficult, for a person to commit suicide by using DBBL gun;Second, it has come in evidence that there were as many as 7 gunshot injuries noticed on the body of Satyawati. In our view, it is not possible for a person to commit suicide by firing seven gunshots one after the other on his/her body with the use of DBBL gun in hands. However, one can commit suicide by firing one shot with a pistol. Such was, however, not the case of the appellants.
36. Coming to the involvement of the appellants in commission of the offence, we find that the High Court relied on the following circumstances appearing against the appellants for holding them guilty of commission of the offence of murder of Satyawati. These circumstances are extracted hereinbelow: (Tribhuwan Singh case[Tribhuwan Singh v. State of U.P., 2014 SCC OnLine All 15374 : (2014) 6 All LJ 241] , SCC OnLine All para 28)
“28. Here prosecution has discharged its part of the burden by leading evidence of which it was capable by substantiating the fact (i) that there has been demand of dowry, (ii) deceased has been taken to her in-laws house, (iii) at the time of death, deceased has been staying with her in-laws and appellants are the inmates of the house, (iv) death in question has taken place inside the house, (v) injuries caused clearly reflects that it is case of murder, (vi) story of suicide set up by Appellant 3 was not at all supported by medical evidence, (vii) DBBL gun has been used in the commission of offence, and once chain of events are clearly linked up then in view of Section 106 of the Evidence Act, as young bride in question has been killed inside the house, then there is corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. The principle is that when an incriminating circumstance is put to the accused and the said accused does not offer any explanation which on the face of it is found false or untrue, then the same becomes additional link in the chain of circumstances to make it complete.”
37. In our considered opinion, the aforementioned seven circumstances set out by the High Court for holding the appellants guilty cannot be faulted with. These seven circumstances do establish the chain of events and being directly connected with the incident in question, establish the involvement of the appellants in commission of the offence beyond reasonable doubt. In our opinion, the test laid down to prove the guilt by circumstantial evidence in this case is fully satisfied by the aforementioned seven circumstances against the appellants.
38.That apart, we also find from the evidence that Chandra Bhawan Singh, the appellant herein was the first to lodge the FIR about the incident wherein he stated that Satyawati has committed suicide. Apparently, this fact proves that first, he was present in the house where Satyawati was found dead and second, he falsely stated that Satyawati committed suicide because he wanted to divert the attention of the police from the reality. As held above, no evidence was led to prove that it was a case of suicide.
39. We also find that both the accused (appellants herein) in their statements recorded under Section 313 of the Criminal Procedure Code, 1973 failed to give any explanation when asked about the circumstances in which the incident occurred in their house. When the incident admittedly occurred in their house, the appellants were required to explain the circumstances in which Satyawati died. They, however, failed to give any explanation.
344. We have found the following incriminating circumstances against the appellants:
i) PW-1 Chhaviraj-complainant and PW-3 Smt. Subran, mother of the deceased have proved this fact that marriage of the deceased Renu was solemnized with appellant Akhilesh 12 years ago (prior to the date of lodging of F.I.R. by PW-1) when he was aged 9-10 years;
ii) PW-1-Chhaviraj, PW–2 Naveraj and PW-3, witnesses have proved this fact that “gauna” of the deceased was performed after seven years of the marriage. The deceased went at her matrimonial home and returned back after 4-5 days, then she apprised them about demand of cost of Moter Cycle Rs. 50,000/- and harassment and torture meted by her at the hands of all the appellants. She had specifically apprised that all the appellants made demand of dowry and harassed and tortured her for non- fulfillment of it;
iii) The statements of PW-1, PW-2 and PW-3 are admissible under Section 32 (1) of the Indian Evidence Act in this regard of persistent demand of dowry and harassment and torture caused by all the appellants to the deceased prior to her death;
iv) PW-1 Chhaviraj has proved this fact that whenever he brought the deceased Renu from her matrimonial home being her maternal uncle, all the appellants demanded amount of Rs. 50,000/- from him also. He advised them that their demand would be fulfilled after some time. He apprised them also about his financial condition and requested them not to harass Smt Renu;
v) PW-2 Naveraj is also maternal uncle of the deceased. He went in the month of April, 2001 to meet his sister Smt. Subran, where the deceased came on 16.04.2001 also. The deceased Renu and his mother PW-3 Subran asked him to go at her matrimonial home to have a conversation with the appellants. PW-2 went at the house of appellants and had a conversation with all the appellants regarding demand of dowry of Rs.50,000/-. He also apprised them about his financial condition and asked them not to harass the appellants and their demand would be fulfilled afterwards.
vi) PW-1 and PW-3 have also proved this fact that initially Akhilesh and Vijay Bahadur demanded Motorcycle. A “panchat” was convened, which was attended by PW-1 Chhaviraj. It was settled by Mewalal, who was father of both the appellants that he will purchase Motorcycle for them, therefore, this matter was settled and Motorcycle was not demanded further.
vii) PW-1 and PW-3 have also proved this fact that Mewallal died after two-two and half years, then appellants again demanded amount Rs. 50,000/- and subjected the deceased Renu with cruelty, harassment and torture. The deceased apprised these witnesses that the appellants even kept her hungry by not serving the food.
viii) PW-1 and PW-3 have also proved this fact that appellant sent the deceased in the month of April, 2001 by instructing her that she should bring amount of Rs.50,000/- from her matrimonial home. In the month of May, 2001. Smt. Renu was advised firmly, then she was sent with Akhilesh to her matrimonial home. The appellants again subjected her to cruelty, harassment and torture, until her death. PW-3 has stated in her cross-examination specifically that whenever Akhilesh came to bring the deceased Renu he often demanded Rs.50,000/- and she apprised him about her financial condition.
ix) Jagdamba Prasad Verma witness informed appellant no.1-Chhaviraj on 14.08.2001 at 7.00-8.00 a.. that Smt. Renu and her daughter Rani had been burnt on 13.08.2001 at 10.00 p.m. in the house of the appellants. PW-1 Chhaviraj and PW-3 went at the house of the appellants and found that dead body of both the deceased was lying in between the cot. After observing the place of occurrence and both the dead bodies, PW-1 Chhaviraj observed that both the deceased were burnt by tying them with the cot.
x) PW-9 Doctor V.P.Pandey conducted autopsy of both the deceased and proved post-mortem (Ext Ka-33 and 34) and PW-4 and PW-10 have proved photographs of both the dead bodies (Ext Ka-6-Ext Ka-10);
xi) PW-9 has proved this fact that both the hands of deceased Renu and Km. Rani were closed and whole dead bodies of both the deceased were burnt from second degree to deep burns including from skull up to sole of the feet.
xii) PW-11 Doctor S.N.Srivastava has given firm opinion that this case was found by him case of murder on perusal of documents sent to him by Superintendent of Police, Sultanpur. During cross-examination he has specifically given his firm opinion that this case could not be of a “suicide”, because both the deceased did not raise any resistance nor tried to run away from the place of occurrence i.e. from their cot. His opinion is supported by opinion written in Modi Medical Jurisprudence regarding classification of burns.
xiii) On the basis of opinion of PW-11 doctor S.N.Srivastava, statement of PW-1, PW-2 and PW-3 are corroborated that both the deceased were tied with the cot and burnt by the appellants.
xiv) PW-6 Manoher Lal has proved inculpatory extra-judicial confession voluntarily made by appellant Akhilesh and Vijay Bahadur regarding the fact that they administered some intoxicating drug to bot the deceased in milk. Both the deceased when became unconscious, all the appellants set them ablaze in their house situated in village Karibahar. The witness PW-6 was not suggested during his cross-examination that extra-judicial confession made by these appellants was outcome of some threat, pressure, inducement or allurment. It is pertinent to mention here that the appellants approached PW-6 on the reference/ on the basis of letter (Ex.Ka.-13) written by their distant relative Lal Ji Jaiswal @ Lallan.
xv) The evidence of PW-6 is also corroborated by the evidence adduced by PW-9 and PW-11, both the doctors. If a person set him ablaze himself also, he cannot stand still on the particular place after setting him on fire. He will feel unbearable pain and will try to save himself afterwards, by running or adopting rescue measures.
xvi) Inculpatory extra-judicial confession made by the appellants which has been proved by PW-6 Manoher Lal, reveal and indicate this fact that both the deceased were under influence of intoxicating drug and became unconscious while they were burnt in the house of the appellants. This inference may be safely drawn regarding this fact under Section 114 of Indian Evidence Act. The appellants have not discharged their burden under Section 106 of Indian Evidence Act by proving the facts and circumstances in which both the deceased were burnt, by adducing cogent, reliable and trustworthy evidence.
xvii) As per prosecution version all the appellants were present in their house as usual and their presence has not been negated by them by adducing cogent, sufficient and reliable defence evidence.
xviii) On the basis of oral evidence of witnesses, medical evidence and material available on record, finding recorded by learned trial Court for discarding evidence of PW-6 Manoher Lal is hereby set aside.
xix) On the other hand evidence of PW-1, PW-2, PW-3 and PW-6 is supported by evidence of PW-9 and Dr. PW-11. It is credible, reliable, trustworthy and acceptable, which cannnot be discarded on the grounds that no independent witness was produced during course of trial by the prosecution.
345. On the basis of circumstantial evidence adduced on behalf of prosecution, inculpatory extra judicial confession of appellants, Vijay Bahadur and Akhilesh, proved by P.W.6, and medical evidence adduced by doctors, P.W.9 and P.W.11, involvement of all the appellants has been proved by cogent, reliable, trustworthy and acceptable evidence of witnesses. This is a case of gruesome crime of double murder, including the deceased, Smt. Renu, who was pregnant on the date of incident and her daughter aged 18 months. The incriminating circumstances are such as to lead only to a hypothesis of their guilt and reasonably exclude every possibility of innocence of the appellants.
346. The exposition of law relied upon by learned counsel for appellants is not applicable to the facts and circumstances of this case and does not extend any benefit to the appellants in any way on the basis of expositions of law, quoted by us and relied upon by learned A.G.A.
347. On the basis of above discussions, the impugned judgment and order dated 30.08.2008 delivered by learned trial court cannot be termed as perverse or against the evidence available on record. It is liable to be upheld and it is upheld.
348. Both these appeals lack merits and are liable to be dismissed.
349. Accordingly dismissed.
350. The appellant, Akhilesh is detained in jail. Other appellants are on bail. Their bail bonds are forfeited and their sureties are hereby discharged. The appellant, Vijay Bahadur, Smt. Pramila and Smt. Seeta Devi shall surrender before the concerned trial court immediately. If they will not surrender they will be arrested to serve out sentence/ imprisonment awarded by the trial court.
351. All the appellants shall deposit amount of fine imposed on them also.
352. Copy of judgment be sent to the learned trial court and to the Superintendent of concerned jail for compliance.
353. Record of trial court be sent back.
Order Date :- 30.07.2019