Kalloo @ Kalyan Singh vs State Of U.P. on 11 July, 2022

[Cites 23, Cited by 0]

Allahabad High Court

Kalloo @ Kalyan Singh vs State Of U.P. on 11 July, 2022

1. This appeal is against the judgment and order dated 04.03.2009/06.03.2009 passed by the Additional Sessions Judge, Lalitpur in S.T. No.15 of 2005, arising out of case crime no.382 of 2004, P.S. Bar, district Lalitpur, whereby the appellant Kalloo @ Kalyan Singh has been convicted and sentenced as follows: imprisonment for life as well as fine of Rs.10,000/-, coupled with a default sentence of 2 year, under Section 302 IPC; 3 years R.I. as well as fine of Rs.5,000/-, coupled with default sentence of 1 year, under Section 201 IPC. Both sentences to run concurrently.

INTRODUCTORY FACTS

2. On 11.11.2004, at 5.10 a.m., the appellant gave a written report (Ex. Ka-4) at P.S. Bar, District Lalitpur, which gave rise to Case Crime No.382 of 2004 vide GD report no.6 (Ex. Ka-3) of which Chik FIR (Ex. Ka-2) was prepared by PW-11 at the specified date and time above. In the written report (Ex. Ka-4) the appellant alleged that last night (i.e. night of 10/11.11.2004), at about 10 pm, he and his two sons, namely, Harpal Singh (elder son - PW-13) and Tilak Singh (younger son- not examined), had gone to watch Ramleela. When they returned back, they found informant's (i.e. appellant's) wife (Smt. Babboo Raja, aged 32 years), dead with injuries on her face and Rs.27,000/- cash, one gold mangalsutra, a silver anklet and half Kardhani (waist band) missing. Alleging that due to fear the informant did not come to report in the night, the written report, which was scribed by Hariram Upadhyay (PW-5), was submitted.

3. After registration of the first information report, inquest was conducted at the spot and was completed by 9 am on 11.11.2004. Out of the five inquest witnesses, two have been examined, namely, Hariram Upadhyay (PW-5) and Lakhan Lal (PW-4). On 11.11.2004 itself, the investigating officer lifted from the spot blood stained /plain earth, three broken teeth and one wood plank (weapon of assault), measuring one feet in length, 3 inch in width and 1 inch in depth, as also two earrings of yellow metal, in respect of which a seizure memo (Ex. Ka-13) was prepared.

4. Autopsy was conducted on 11.11.2004 at 3 pm by Dr. M.P. Singh (PW-10). The autopsy report notices as follows:-

Age: 32 years External examination:

Average built body. Rigor mortis pass off from neck present in upper and lower extremities. Eyes and mouth half open. Bleeding from left ear present.

Ante-mortem injuries:

(i) Swelling over left side of scalp 10 cm x 8 cm in size, underneath partial, temporal and occipital bone found fractured.

(ii) Swelling over left side of face 1 cm x 8 cm underlying mandible bone found fractured.

(iii) Multiple linear abrasions in an area of 8 cm x 5 cm over front of neck, right side upper part of neck (sic).

(iv) Swelling 14 cm x 12 cm at lower part right side of chest.

(v) Abrasion 3 cm x 1.5 cm at right (sic) orbital margin.

Internal examination:

(1) Neck:-

(2) Skull:- Left parital, temporal and occipital bone found fractured. Membranes:- found ruptured on left side; Brain:- blood present over the surface of brain at left side.

(2) Thorax:- fifth to ninth ribs of right side and sixth to ninth ribs of left side found fractured. Larynx:- NAD; Trachea:- NAD; Lungs:-NAD; Pericardium:- NAD; Heart:- both chambers empty.

(3) Abdomen:-

Membranes- NAD; Peritoneum- NAD; Cavity filled with 1.5 liters of blood; Stomach- contains 250 gms of pasty food material; Small intestine contains chyme plus gasses; Large intestine contains faecal matter and gasses; Gall bladder found ruptured; Uterus- non gravid.

Estimated time since death: About within one day.

Cause of death: Due to shock and haemorrhage as a result of ante mortem injuries.

5. During the course of investigation, on 15.11.2004, the investigating officer (Ram Naresh Tiwari-PW-12), on the basis of information received, left the police station at 23.40 hours, vide GD Report No.32, to visit the house of the appellant. The appellant was interrogated. Upon interrogation, allegedly, the appellant confessed his guilt in the presence of witnesses Ram Singh Thakur (PW-9) and Darau Kushwaha (PW-7). On the said confessional statement and at the pointing out of the appellant, from the bushes near the house of the appellant, a blood stained stone, alleged to have been used to assault the deceased, was recovered at 07.50 am on 16.11.2004 of which a seizure memo (Ex. Ka-1) was prepared, which was witnessed by PW-9 and PW-7.

6. After completing the investigation, charge sheet (Ex. Ka-15) was submitted against the appellant under Section 302 IPC on 03.12.2004. Whereafter, a supplementary charge sheet (Ex. Ka-16) was also submitted under Section 201 IPC on 09.01.2005. Cognizance was taken on the charge sheet and the case was committed to the court of session.

7. On 21.01.2006, the trial court charged the appellant for committing murder of his wife on 10/11.11.2004, between 10 pm and 1 am, punishable under section 302 IPC, and for removing evidence of murder as well as lodging a false report, punishable under section 201 IPC. The appellant pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

8. During the course of trial, the prosecution examined 13 witnesses. Their testimony, in brief, is as follows:-

9. PW-1 - Vishwanath. He stated that he knows the accused; accused's wife was killed about a year ago; that he does not know the time of her death; that on the day when accused's wife was killed, the accused came to PW-1's house and informed PW-1 that his wife has been murdered by unknown persons and money and jewellery have been looted; and that after getting information from the accused, PW-1, Hariram Updhyay (PW-5), Bal Chand, Kartar and Chaturbhuj etc. went to the house of the accused and noticed that his wife is dead with blood splattered all over her. The accused did not open any box to show it to him.

The witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination by the prosecution, PW-1 admitted that the accused did not show an open box to him. He also stated that the inquest report was not prepared in his presence. The body was also not sealed in his presence. He denied the suggestion that he had informed the I.O. regarding his suspicion that the appellant had killed his own wife. He also denied the suggestion that from the box no tell tale signs of theft could be gathered. PW-1, however, accepted that he had informed the I.O. about receipt of information from the accused about the occurrence as also that they had visited the house of the accused on receipt of the information to notice the dead body of appellant's wife. PW-1 denied the suggestion that he gave a statement to the I.O. that the accused had given a false report to avoid payment of money. On being confronted with his statement under Section 161 CrPC, PW-1 denied having made any such statement.

10. PW-2 - Ramakant Dubey. He stated that the accused had not come to fetch him to go to his house after the death of his wife. Rather, when the police had arrived at the house of the accused, PW-2 and other villagers visited the house of the accused. He stated that in his presence, the accused never confessed his guilt to the police and had never stated that he has killed his wife.

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination by the prosecution, PW-2 sated that Kalyan Singh had not given him money (Rs. 4,700/-) to be kept by him. He denied the suggestion that the money was given by Kalyan Singh (the accused) to him as he apprehended that the police would interrogate him and if the money is found with him, his report would be found false. At this stage, the witness was confronted with his statement recorded under Section 161 CrPC. The witness denied having given any such statement.

11. PW-3 - Rajendra Singh. (Note: This witness was set up by the prosecution to show conduct of the appellant and prove motive for the crime). He stated that he knows Kalyan Singh (the accused). He also knows Omwati, daughter of Munna Dhimar. Kalyan Singh had told him that he likes the daughter of Munna Dhimar but his wife (i.e the deceased) objects to his liking for her therefore, he has to remove the obstacle. He stated that soon after the said disclosure, the wife of the accused was killed. He stated that he heard in the village that Kalyan Singh had killed his wife.

During cross examination, he stated that in respect of the incident his statement was recorded by the I.O. wherein he had stated that the appellant used to have drinks with him and when he used to get drunk, he used to tell about quarrels with his wife (the deceased). This kind of information was given two or three times and was given two or three days before. At this stage, the witness was confronted with following omissions in his statement under Section 161 CrPC: (a) that he knew Omwati, daughter of Munna Dhimar; (b) that 2-3 days before the incident, he was informed by the accused that his wife is an obstacle and had to be removed; and (c) that he heard in the village that Kalyan Singh had killed his wife. PW-3 also admitted in his cross examination that the police had booked him for possessing a bomb in which he had been put in jail for a month and that case is pending. He also admitted that he was implicated in a case of theft of a hen in which he has been acquitted. He denied the suggestion that police had arrested him in connection with murder of appellant's wife. He admitted that he is a first cousin of the accused and stays separate. He denied knowledge about his father being implicated in a dacoity case. He denied the suggestion that the relationship between him and the accused is not cordial and they are not on visiting terms. He, however, admitted that after the murder of Kalyan Singh's wife, he is not on visiting terms with the accused. He stated that Kalyan used to have liquor with him. He denied the suggestion that Kalyan Singh never told him that he has to remove the obstacle, namely, his wife. He also denied the suggestion that the relationship between the family of Kalyan and his family had been sour and that they were not in talking terms. He denied the suggestion that he was arrested in connection with murder of appellant's wife and the police took Rs.3,000/- to release him. He also denied the suggestion that he asked Kalyan for Rs.3,000/- and as Kalyan refused to pay him money, he has falsely implicated him.

12. PW-4- Lakhan Lal. He is a witness of the inquest. He stated that at the time of inquest he saw the body of the deceased. At the spot two broken teeth of the deceased and a blood stained stone were lying there. He stated that the body was sealed in his presence and that he had signed the inquest report. The relevant portion of his statement is extracted below:-

^^eSaus eqfrdk dh yk'k dks ns[kk Fkk rFkk e`frdk ds nks nkar VwVs IkM+s Fks ,d [kwu vkywnk iRFkj Hkh ogka ij iM+k Fkk njksxk th us iapukek esjs lkeus Hkjk Fkk rFkk yk'k dks esjs lkeus 'khy fd;k x;k FkkA iapk;rukek ij eSus gLrk{kj fd;s FksA iapukek ds le; gjhjke ijl jke ;kno vuqjkx o lhrkjke vkfn yksx mifLFkr FksA iqfyl us iRFkj esjs lkeus dCts esa fy;k FkkA^^ Note: Neither the prosecution nor the defence cross examined this witness even though he stated that blood-stained stone was noticed at the spot. He was also not declared hostile by the prosecution.

13. PW-5- Hariram Upadhyay. He is the scribe of the written report and is an inquest witness. PW-5 stated that the night in which Kalyan's wife was killed, Kalyan had come to his house at about 1 am in the night and had told him that his wife is lying dead. PW-5 stated that Kalyan informed him that some unknown person has killed his wife. PW-5 stated that upon receiving the information, he and Vishwanath along with the appellant went to appellant's house to notice that his wife was lying dead, her broken teeth and earrings were lying there along with a blood-stained stone. PW-5 stated that in the night itself, he went with the appellant to the police station to lodge the report, which was dictated to him by Kalyan. After the report was lodged, the police had arrived at the spot, the inquest was conducted and the body was sealed. He signed the inquest report as a witness.

Note: Neither the prosecution nor the defence cross examined this witness even though he stated that blood-stained stone was noticed at the spot. He was also not declared hostile by the prosecution.

14. PW-6- Raoraja. (Prosecution examined him as a witness of an extra judicial confession). PW-6 stated that 5-6 days after the death of appellant's wife, appellant had met him and informed him that the police is suspecting him. Appellant requested him to tell the Pradhan to correctly inform the I.O. PW-6 stated that the accused Kalyan never confessed his guilt.

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination at the instance of the prosecution, the witness was confronted with his statement recorded under Section 161 CrPC. He denied that he gave any such statement. He stated that he had informed the I.O. only this much that Kalyan Singh (the appellant) had told him that the police was suspecting him. He denied the suggestion that Kalyan Singh (i.e. the appellant) had made a confession before him. He also denied the suggestion that he is telling lies only to save Kalyan Singh as he has colluded with him.

During cross examination at the instance of defence, PW-6 stated that Kalyan Singh had a talk with him only after he was arrested and not before.

15. PW-7- Darau. (Prosecution examined him as a witness of confessional disclosure/ recovery of stone). He stated that no confessional disclosure was made by Kalyan Singh in his presence. He stated that the investigating officer was carrying the stone with him and that the stone was not recovered at the instance of Kalyan (i.e. the appellant).

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination at the instance of the prosecution, PW-7 denied the suggestion that he is telling lies because of fear of Thakurs of the village. On being confronted with the statement recorded under Section 161 CrPC, he denied having given any such statement. He also denied the suggestion that he was threatened by the accused therefore he is telling lies.

16. PW-8- Nihal Singh. (Prosecution examined him as a witness of extra judicial confession). PW-8, however, denied that any confession was made by the accused to him. Rather, the accused never met him after the incident. He specifically stated that the accused made no confession before him.

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination at the instance of the prosecution, the witness was confronted with his statement recorded under Section 161 CrPC. He denied having made any such statement. He also denied the suggestion that he is telling lies because he is of the same caste as is the accused.

17. PW-9- Ram Singh. (Prosecution examined him as a witness of disclosure/ recovery of blood-stained stone). He stated that when Kalyan Singh (i.e. the appellant) was arrested he was not there. In his presence Kalyan Singh did not take out the stone to hand it over to the police. He, however, admitted his signature on the seizure memo /Fard Baramdagi (Ex. Ka-1).

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination at the instance of the prosecution, the witness though admitted his signature on the fard/seizure memo but stated that such recovery was not made in his presence.

To the Court - The witness informed the Court -- that the police had got his and Darau's signature simultaneously on the memo; that he knew that Kalyan Singh is an accused for the murder of his wife and that he has been arrested 4-5 days after the death of his wife; and that he never made a complaint that Kalyan Singh has been falsely implicated or that his and Darau's signatures on the memo were obtained by force.

During cross examination by the defence, PW-9 stated -- that his signature on the seizure memo was obtained at the police station; that the seizure memo was already written when he had put his signature; that the seizure memo was not prepared in his presence; and that Kalyan Singh's signature was not obtained on the seizure memo in his presence.

18. PW-10 - Dr. M.P. Singh - Autopsy Surgeon. He proved the autopsy report and its contents noticed above. The autopsy report was marked Ex. Ka-2. He accepted the possibility of death of the deceased on 11.11.2004 at about 10 pm. He also accepted the possibility of the injuries noticed on the body being inflicted by use of a stone.

During cross examination by the defence, PW-10 stated that injuries 3 and 5 could be a result of friction from a rough surface. Injuries 1 and 2 could be a result of the head hitting a hard surface and might be on account of a fall. He also accepted the possibility that in such a situation laceration may be noticed. He stated that his estimate with regard to the time of death is merely an estimate as he cannot give a precise time as to when it occurred. He denied the suggestion that he did not properly conduct the autopsy.

19. PW-11- Constable B.L. Pal. He proved the receipt of written report (Ex. Ka-4), preparation of the chik FIR (Ex. Ka-2) and GD entry (Ex. Ka-3) in respect thereof.

During cross examination by the defence, PW-11 stated that the written report was not written in his presence; that besides the accused-appellant (i.e. the informant), 3-4 persons had come to lodge the report.

20. PW-12 - Ram Naresh Tiwari (Investigating Officer). He proved various stages of investigation i.e. inquest, preparation of inquest report, sealing of the body, preparation of documents relating to autopsy, lifting of blood stained earth/plain earth, broken teeth and wooden plank from the spot, preparation of site plan and the documents prepared in respect thereof were exhibited. PW-12 stated that during the course of investigation he recorded the statement of persons conversant with facts of the case. On 12.11.2004, during investigation, he sensed the involvement of the informant in the crime. On 13.11.2004, he recorded the statement of Munna Dhimar (not examined), who stated that his daughter Omwati (not examined) had relations with the accused-appellant. The statement of Omwati was recorded. She admitted having love relations with the accused-appellant. PW-12 stated that on 14.11.2004 he got information that Kalyan's wife has been killed by someone of her family. He stated that on 15.11.2004, during investigation, he recorded statement of Nihal Singh (PW-8) and Rao Raja (PW-6), who stated that Kalyan alias Kalloo (i.e. the appellant) had come and had confessed his guilt and requested them to save him. He stated that after the above information, on 16.11.2004, he again interrogated the informant who confessed his guilt and made a disclosure leading to recovery of the stone. He stated that on that disclosure and at the pointing of the appellant, the recovery was made of which recovery memo (Ex. Ka-1) was prepared. Site plan of the place from where the recovery was made was also prepared, which was marked Ex. Ka-14. He stated that after completing the investigation, he submitted charge sheet (Ex. Ka-15) and a supplementary charge sheet (Ex. Ka-16). He produced the recovered articles, namely, the stone (Ex-1), plain earth (Ex-2), blood stained earth (Ex-3), wooden plank (Ex-4), two broken teeth (Ex-5) and metal ear tops (Ex-6).

During cross examination, PW-12 admitted that Rajendra Singh (PW-3) had not informed him (PW-12)-- that he knew Munna Dhimar's daughter Omwati from before or that the accused-appellant's wife was killed just 2-3 days after the accused-appellant had informed him (Rajendra Singh) that he has to remove the obstacle in his relationship with Munna Dhimar's daughter. PW-12 also admitted that Rajendra Singh (PW-3) never informed him that he had heard in the village that the accused-appellant had killed his wife. In respect of criminal antecedents of PW-3, PW-12 stated that Rajendra Singh (PW-3) did not commit any offence in his presence. If Rajendra Singh had criminal antecedents, he was not aware. PW-12 also stated that he had not recorded the statement of neighbours while preparing the site plan. He stated that in the site plan the indication of the direction from where unknown accused entered the house of the deceased has been disclosed at the instructions of the appellant. He stated that the stone recovered during investigation had blood stains but he had not scraped the stone. PW-12 stated that the stone was not found kept in a concealed/closed place. PW-12 denied the suggestion that he did not properly conduct the investigation and that under pressure from higher authorities submitted charge sheet to save his own skin.

21. PW-13 - Harpal Singh. He is son of the accused -appellant and the deceased. He stated that on the day when his mother was killed, Ramleela was being performed in the village at a distance of about 200 paces from his house. He, his younger brother Tilak and his father (the appellant) went together to witness Ramleela at about 7.30 pm. They witnessed Ramleela till 12 midnight. While they were witnessing Ramleela, neither he, nor his father, left Ramleela to go to the house, either to have water or food, because they had gone to witness Ramleela after having their dinner. He stated that in the house, his mother and his youngest brother, who was a year old, were there. PW-13 stated that after witnessing Ramleela, he came back with his father to their house. At that time, he noticed the door of the house shut. When they had left the house the door was not shut. When they made a call for the deceased (i.e. PW-13's mother) no response came. When they opened the door to enter the house, they found blood oozing from his mother's head.

At this stage, witness was declared hostile by the prosecution and permission sought to cross him by the prosecution was allowed.

During cross examination by the prosecution, PW-13 denied the suggestion that he and his brother went to witness Ramleela at 8 pm, whereas his father came to witness Ramleela between 10 and 11 pm. He stated that he, his father (the accused) and his brother Tilak all went together and when they went to visit Ramleela, his mother and youngest brother were there in the house. He stated that the I.O. had not recorded his statement. How the I.O. recorded his statement under Section 161 CrPC is not known to him. He denied the suggestion that he stated before the I.O. that he and his brother went to witness Ramleela at 8 pm, whereas his father came to witness Ramleela between 10 and 11 pm. He denied the suggestion that his father was a liquor addict and that his father and mother used to have fights. He stated that when they reached home, younger brother was sleeping and mother (the deceased) was lying in the courtyard. He stated that whatever jewellery her mother was wearing were there on her body. He also stated that none of the locks of the house were broken and the box was also not broken. He stated that upon seeing his mother's body, his father (the accused) went to call the villagers. He stated that as his mother was already dead, no effort was made to take her to the hospital. At this stage, the witness was confronted with his statement recorded under Section 161 CrPC. He denied having made any such statement.

During cross examination by the defence, PW-13 stated that at the time when his mother died he was aged 11 years. He stated that villagers were called and they had seen his mother. He also stated that his father had not disclosed to him as to in which room money was kept. He stated that his house was a single floor house having three rooms. He reiterated that when they left the house to watch Ramleela, his mother was alive; and that while watching Ramleela he was all throughout with his father.

22. In addition to the evidence noticed above, a Serologist report, dated 26.10.2005, obtained from U.P. Forensic Laboratory Agra was produced which indicated that the blood found present on the stone was of the same group as found on the clothes worn by the deceased at the time of her death.

Statement of the appellant under Section 313 CrPC

23. The incriminating circumstances appearing in the prosecution evidence were put to the appellant for recording his statement under Section 313 CrPC. The appellant denied the incriminating circumstances and claimed that there was no recovery at his instance. He however admitted that inquest report was prepared. But, claimed that thereafter, the entire investigation was bogus and a false charge sheet has been submitted. The accused stated that he would like to produce defence evidence. But no defence witness was produced. Thereafter, another statement, after PW-13's statement, was recorded. With reference to the statement of PW-13, the appellant stated that he does not wish to lead any evidence.

24. Interestingly, there is yet another additional statement of the accused recorded under Section 313 CrPC in which the accused-appellant stated that on 11.11.2004 he gave a report at the police station Bar in respect of murder of his wife and robbery against unknown person. In this statement, he accepted that the written report (Ex. Ka-4) bears his thumb impression.

TRIAL COURT FINDING

25. The trial court held the following circumstances proved: (i) that in the night of the incident the accused-appellant was there in his house at 10 pm i.e. the probable time when his wife got killed; (ii) that the accused-appellant gave a false report that Rs.27,000/- (cash) and jewellery articles were looted, inasmuch as, he could not prove that there was a theft or that he showed to the witnesses, including PW-1 or PW-2, a broken box, etc reflecting signs of theft; (iii) giving a false explanation is an indication of appellant's complicity in the crime; (iv) that on the pointing out of the appellant, the weapon of assault (stone) was recovered which, according to serologist report, carried blood of the same group as that of the deceased; and (v) that the appellant had illicit relations with the daughter of Munna Dhimar, namely, Omwati, and three days before the incident he told PW-3 that he had to remove the obstacle i.e. the deceased in his relationship with Omwati.

26. The trial court found the above circumstances forming a chain so complete that indicated conclusively that in all human probability it was the appellant and no body else who committed the murder of his wife. The trial court thus convicted and sentenced the appellant, as above.

27. We have heard Sri Ashwani Kumar Ojha, holding brief of Sri Ved Prakash Ojha, for the appellant; Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record.

Submissions of the learned counsel for the appellant

28. The learned counsel for the appellant submitted that the trial court failed to notice that there was no evidence that at the time of occurrence the appellant was in the house with his wife. Rather, PW-13, the son of the appellant and the deceased, had deposed that the appellant, PW-13 and PW-13's younger brother all had gone to watch Ramleela at about 8 pm and when they had left the house, PW-13's mother i.e. the deceased was alive. Further, PW-13 proved that the accused-appellant was throughout with PW-13 watching Ramleela and returned home together to notice that PW-13's mother has been killed. It was urged that PW-13 is a prosecution witness and even though he was declared hostile, his testimony is not wiped out. It was urged that there was no cogent evidence in respect of motive for the crime because no reliable evidence is there on record to prove that the appellant and Omwati i.e. daughter of Munna Dhimar had illicit relations /love affairs. The only witness examined in that regard is PW-3 who, though, stated in his examination-in-chief that the deceased was killed soon after the appellant disclosed to him that he likes Munna Dhimar's daughter and his wife (i.e. the deceased) objects to it, which obstacle the appellant had to remove, but, this statement of PW-3 was an improvement over his statement recorded under Section 161 CrPC wherein he made no disclosure that the appellant had told him that he has to remove the obstacle and that 2-3 days thereafter appellant's wife died. It was submitted that there is no reliable evidence in respect of the motive. Further, PW-3 is not a trustworthy witness because he was facing prosecution in other matters and suggestion was given to him that the police had pressurised him to depose. Furthermore, suggestion was there that the police had arrested PW-3 as a suspect in the murder of appellant's wife and, therefore, to save himself he became a witness against the appellant. In addition to above, suggestions were given to this witness that his relations with the appellant were not cordial.

29. Learned counsel for the appellant next submitted that the circumstance of recovery of stone has not been proved beyond reasonable doubt, inasmuch as, the witnesses to the recovery have been declared hostile and, otherwise also, the inquest witnesses PW-4 and PW-5 have stated that they had noticed the stone at the spot at the time of inquest. Moreover, recovery of that stone was from an open place. Further, it does not appeal to logic as to why the appellant would hide the stone, particularly, when the wooden plank which was also used for assault was left at the spot. Hence, the circumstance of recovery is not proved beyond reasonable doubt.

30. Lastly, learned counsel for the appellant submits that this is a case where the police to solve out the case has falsely implicated the appellant even though the appellant had promptly informed the villagers about the death of his wife and had reported the matter to the police. It has also been submitted that once PW-13 deposed before the court that the appellant had left home with him to watch Ramleela and when they left, his mother was alive; and, thereafter, his father was throughout with him watching Ramleela; and when they returned back, after watching Ramleela, his mother was found dead, there was no occasion to convict the appellant more so when the prosecution itself gave suggestion that the accused had gone to watch Ramleela later, though not with PW-13. It has been submitted that the trial court has not properly evaluated the evidence hence the judgment and order of the trial court be set aside and the appellant be acquitted of the charge for which he has been tired.

Submissions on behalf of the State

31. Sri J.K. Upadhyay, learned AGA, submitted that this is a case where the deceased was found dead in her own house. The autopsy report and the evidence clearly suggested that she was killed during night hours. As the appellant is the husband of the deceased, the presence of the appellant in the house would be presumed unless proved otherwise. The only witness, namely, PW-13, who states that the appellant was with him watching Ramleela while his mother (the deceased) was in her house, is the son of the appellant and, therefore, there is every possibility that to save his father, he may have given such a statement. Moreover, he was a prosecution witness and has been declared hostile therefore, not much reliance can be placed on his testimony. He submitted that even if it is assumed that there was no direct evidence in respect of the relationship of the appellant with Omwati but, PW-3 did disclose that the appellant has a liking for Omwati and that the deceased is an obstacle in their relationship. This, therefore, is an adequate motive for the crime and forms part of the chain of circumstances. Further, the appellant set up a false case of robbery. There were no tell-tale signs of theft/robbery. The false report lodged by the appellant therefore forms an additional link to the chain of circumstances, indicating appellant's guilty mind. In addition to above, recovery of the stone at the instance of the appellant bearing blood of the same group as that of the deceased is a clinching circumstance which completes the chain as to leave no reasonable doubt that it is the appellant and none else who committed the crime. Even if recovery witness became hostile, the recovery has been proved by the I.O. Therefore, the trial court was justified in convicting and sentencing the appellant, as above. He, accordingly, prayed that the appeal be dismissed and the judgment and order of the trial court be affirmed.

ANALYSIS

32. Having noticed the rival submissions and the entire prosecution evidence, before we proceed to evaluate the evidence to ascertain whether on the basis of proven circumstances the prosecution has been successful in bringing home the charge, it would be useful to notice the law as to when conviction can be recorded on the basis of evidence circumstantial in nature. The apex court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, in paragraph 153, observed as follows:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

"19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

33. In a recent three-judge Bench decision of the Apex Court in the case of Shatrughna Baban Meshram Vs. State of Maharashtra, (2021) 1 SCC 596, reiterating the legal principles set out in Sharad Birdhichand Sarda's case (supra), in para 42, it was observed:-

".....42. Before we deal with the second submission on sentence, it must be observed that as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], a case based on circumstantial evidence has to face strict scrutiny. Every circumstance from which conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. The decision in Sharad Birdhichand Sarda V. State of Maharashtra [(1984) 4 SCC 116] had noted the consistent view on the point including the decision of this Court in Hanumant v. State of M.P. [1952 SCR 1091] in which a bench of three judges of this Court had ruled (AIR pp 345-46, para 10):-

"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

34. In addition to above, we must bear in mind the most fundamental principle of criminal jurisprudence, which is, that the accused "must be" and not merely "may be" guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles were also reiterated by a three-judge Bench of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-

"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."

35. Having noticed the legal principle as to when in a case based on circumstantial evidence conviction can be sustained, at this stage, it would be useful to examine as to when a lawful presumption of guilt can be drawn against the accused, in a case based on circumstantial evidence, by taking the aid of section 106 of the Evidence Act, in respect of death of his or her spouse due to injuries received in the house, where he or she resided with the other spouse. In this context, the Supreme Court, after noticing earlier decisions, in the case of Shivaji Chintappa Patil Vs. State of Maharashtra, (2021) 5 SCC 626, in paragraph 23, observed:-

"23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."

36. In the case of Satye Singh and others Vs. State of Uttarakhand, (2022) 5 SCC 438, after analysing earlier decisions in respect of applicability of Section 106 of Evidence Act, the Supreme Court, in paragraphs 19 and 20, observed:-

"19. Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused.

20. In Shambu Nath Mehra vs. State of Ajmer, AIR (1956) SC 404, this court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49]."

37. Extending the principle further by reiterating that section 106 of the Evidence Act does not absolve the prosecution to prove the guilt of the accused, it was observed that in a case based on circumstantial evidence mere falsity of defence is not sufficient to record conviction unless the chain of circumstances has been established by the prosecution. The relevant observations in that regard can be found in paragraph 25 of the judgment of the Apex Court in the case of Shivaji Chintappa Patil (supra), which is extracted below:-

"25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)."

38. Reiterating the above principle, in Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725, in paragraphs 22 and 23 of the judgment, Apex Court held:-

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

39. In an earlier decision in the case of Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, the Supreme Court, in paragraph 26 of the judgment, had clarified the law with regard to the provisions of Section 106 of the Evidence Act in the following words:-

"It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd."

40. The legal principle deducible from the decisions noticed above is that in absence of statutory exception to the contrary, the ordinary rule in a criminal trial is that the burden lies on the prosecution to prove the guilt of the accused. This burden is not diluted by the rule of evidence contained in section 106 of the Evidence Act. It is only when the facts proved by the evidence give rise to a reasonable inference of guilt of the accused unless the same is rebutted, and such rebuttal can be by proof of some fact(s) which can only be within the special knowledge of the accused, the court can take the aid of section 106 of the Evidence Act and take accused's failure in adducing a cogent explanation as an additional link to the chain of circumstances to record conviction. But if the proven circumstances by themselves do not indicate that in all human probability it is the accused who has committed the crime and exclude all reasonable hypotheses consistent with his innocence, it would not be lawful for the court to absolve the prosecution of its burden to prove the guilt and, by taking recourse to the provisions of section 106 of the Evidence Act, shift the onus on the accused to prove his innocence. Needless to add that it is a matter of appreciation of evidence as to when recourse to the provisions of section 106 of the Evidence Act can be had. Much would depend on facts of the case.

41. Bearing in mind the legal principles noticed above, we would first examine whether the incriminating circumstances relied by the prosecution have been proved beyond reasonable doubt. If yes, whether they form a chain so complete as to indicate that in all human probability it is the appellant who has committed the crime and exclude all other reasonable hypotheses consistent with his innocence.

42. In this case, the incriminating circumstances on which the trial court based the order of conviction are as follows:-

Circumstance A - that the appellant is the husband of the deceased and in the night of the incident, at about 10 pm i.e. the probable time of the incident, the appellant was present in his house where the deceased was found dead with ante mortem injuries, whereas, appellant's children including PW-13 had gone to visit Ramleela;

Circumstance B - that the appellant made a false report that his wife was killed by robbers who looted Rs.27,000/- cash, and jewellery articles;

Circumstance C - that the appellant had illicit relations with Munna Dhimar's daughter Omwati regarding which, three days before the incident, he informed PW-3 that the deceased was an obstacle in his relationship with Omwati and would have to be removed;

Circumstance D - that a blood stained stone was recovered on the disclosure/ pointing out of the appellant and the serologist report confirmed that it bore blood of the same group as found on the clothes of the deceased worn by her at the time of her death.

CIRCUMSTANCE - A

43. In so far as the appellant being husband of the deceased and the deceased residing with the appellant in the same house where she was found dead, with injuries, are concerned, the prosecution has been successful in proving those facts by leading evidence already noticed above. In fact, the appellant does not dispute those facts. The dispute is on two counts: (a) with regard to the presence of the appellant in the house when the incident occurred; and (b) with regard to the time when the incident occurred. With regard to the presence of the appellant in the house at 10 pm, we do not find any substantive evidence. PW-1 and PW-5 only state that in the night they were informed by the appellant that somebody has killed his wife. They do not state as to when she was killed. PW-1 does not even state as to at what time, the appellant informed him about appellant's wife's death. PW-5, who is the scribe of the written report, however, stated that the appellant informed him about the incident at 1.00 am in the night. PW-5 does not state that the appellant told him that he had left his house at 10 pm. and on return found his wife dead. PW-5, however, accepted that the appellant had got the report written from him. The prosecution witnesses who have been examined during the course of trial have not stated that they have seen the appellant in the house at 10 pm. There is virtually no evidence that the appellant was seen at 10 pm in the house with his wife. Rather, the evidence of PW-13, who is the son of the appellant and the deceased, is that the appellant, PW-13 and PW-13's younger brother had gone to watch Ramleela at 7.30 pm and that he, his father and his younger brother were there at Ramleela continuously till 12 midnight. Though, the prosecution declared him hostile and suggested to him that he and his younger brother had arrived at the Ramleela by 8 pm whereas the accused-appellant arrived later, between 10 and 11 pm, but this witness stood firm and refuted any such suggestion and claimed that his father (the appellant) had gone with him to watch Ramleela and was there with him till they returned to their house to notice the deceased dead. No doubt, this witness has been declared hostile but it is well settled that a hostile witness testimony is not washed off the record. It can be relied upon by the prosecution as well as defence to support their respective plea to the extent found dependable.

44. In C. Muniappan v. State of T.N., (2010) 9 SCC 567, it was observed by the Supreme Court, in paragraphs 81, 82 and 83 of the judgment:

81. It is settled legal proposition that:

.......the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found dependable on a careful scrutiny thereof."

82. In State of U.P. v. Ramesh Prasad Misra, (1996)10 SCC 360, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon......

83. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence."

The law noticed in C. Muniappan's case (supra) has been noticed and applied by the Supreme Court in a recent decision in the case of Rajesh Yadav and Another v. State of U.P., 2022 SCC OnLine SC 150.

45. In light of the law noticed above, the testimony of PW-13, who is the son of the appellant and the deceased and was aged 11 years at the time of incident, appears straight forward and there appears no logical reason to disbelieve him. More so, when the prosecution itself suggested to him that PW-13 was watching Ramleela since 8.00 pm and his father (the appellant) joined him later at 10.00 p.m. In such circumstances, the prosecution itself admits that at some stage, both, father and son, were watching Ramleela in the night concerned. Thus, the only material that remains in respect of the presence of the appellant in his house at 10 pm is the statement of the appellant in the written report submitted at the police station. It is well settled that a first information report is not a substantive piece of evidence. The same can be read in evidence only to contradict or corroborate its maker when the maker is examined as a witness (See Harkirat Singh v. State of Punjab, (1997) 11 SCC 215; State of Bombay v. Rusy Mistry, AIR 1960 SC 391; Sheikh Hasib @ Tabard v. State of Bihar, (1972) 4 SCC 773). Notably, the appellant has not been examined as a witness and therefore the contents of the first information report cannot be read as a piece of evidence against the appellant though, the act of making the report would be admissible as a piece of conduct of the appellant. The prosecution witnesses who have been examined during the course of trial have not stated that they have seen the appellant in the house at 10 pm. There is virtually no evidence that the appellant was seen at 10 pm in the house with his wife. Further, there is no evidence that the deceased was killed between 8.00 p.m. or 10.00 p.m. on 10.11.2004. It could be that she was killed between 10.00 p.m. and 12 minight. The autopsy surgeon can only give an estimate. He can never with precision state as to when death could have occurred. We are therefore of the view that the finding returned by the trial court that the appellant was present in his house, when his wife was killed, at about 10 pm, is based on no admissible evidence. Rather, the evidence of PW-13 is to the effect that the appellant was watching Ramleela with him from about 8 pm till about midnight when they returned to the house to find the deceased murdered.

CIRCUMSTANCE - B

46. Even if the issue as to whether the appellant made an incorrect report is decided against the appellant, the same is not a clinching circumstance as to hold the appellant guilty for murder of his wife, firstly, because if the appellant was at the Ramleela with his sons when his wife is killed, what transpires in between is not within his knowledge, in such circumstances, the first thing that comes to mind is that there may be a theft. Suggestion to report a theft may also be from the villagers who visited the house. Further, who knows, there might have been a theft though, the appellant might have failed to prove. Although, the investigating officer may have come up with a case that he could not notice tell-tale signs of robbery but that itself cannot be a ground to hold that the first information report lodged by the appellant was false to his own knowledge. Secondly, mere submission of a false report or false explanation, as we have already noticed above, by itself is not a clinching circumstance as to hold the accused guilty though it may form an additional link to the chain of circumstances already complete. We, therefore, discard this circumstance by holding that it is not of a conclusive tendency pointing towards the guilt of the appellant.

CIRCUMSTANCE - C

47. In so far as the circumstance that the appellant had illicit relations with Munna Dhimar's daughter Omwati and therefore had motive to commit the crime is concerned, there is no worthwhile evidence in proof of that circumstance. No doubt, the investigating officer has made a statement that he recorded the statement of Munna Dhimar and Omwati during the course of investigation to infer that Omwati had love relations with the accused but this information being hearsay cannot be read in evidence. Neither Munna Dhimar nor his daughter Omwati has been examined as a prosecution witness. The other evidence in this regard comes from PW-3. The credibility of PW-3 has been shattered by the defence by pointing out that he was an accused in a case relating to possession of explosive and was recently released on bail and that that case was pending; and that he was a suspect in this case and was held by the police therefore, to save himself he had become a police witness. That apart, the testimony of PW-3 is not in respect of his own knowledge about the relationship between the appellant and Munna Dhimar's daughter. Rather, it is in respect of the appellant telling him about appellant's liking for Munna Dhimar's daughter Omwati and his wife's objection to it. Importantly, PW-3's statement that soon after appellant's disclosure of his relationship and expression of desire to remove the obstacle in his relationship, the deceased was killed, is not there in his statement recorded during investigation. Moreover, in what manner the appellant contemplated removal of the obstacle is not disclosed in PW-3's deposition. In our view, firstly, the testimony of PW-3 does not inspire our confidence and, secondly, the statement of PW-3 is not a conclusive reflection of appellant's resolve to kill his wife. Hence, this circumstance too, is discarded.

CIRCUMSTANCE - D

48. In respect of recovery of the blood stained stone, bearing blood of the same group as of the deceased, on the disclosure made by the appellant and at his pointing out is concerned, firstly, no separate disclosure statement has been made an exhibit. Secondly, the alleged recovery is from an open space i.e. the bushes near the house of the appellant. Thirdly, there is a serious doubt with regard to the disclosure as well as the recovery of the stone of which a composite seizure memo (Ex. Ka-1) was prepared. According to the seizure memo (Ex. Ka-1) disclosure was made in the presence of Ram Singh (PW-9) and Darau (PW-7). Both these witnesses have denied that such recovery was made on the pointing out of the appellant. PW-7 specifically stated that there was no disclosure made by the appellant in respect of his guilt. PW-7, rather, stated that the I.O. was carrying stone and that the stone was not recovered by Kalyan (the appellant). PW-9 states that Kalyan (appellant) was not arrested in his presence and that Kalyan did not get any stone recovered. Both these witnesses, however, admit their signature on the seizure memo. No doubt, it is not the requirement of law that a recovery can be deemed proved only when supported by a public witness, if there is any. It is well settled that a police witness may also prove the recovery. But, what restrains us from accepting this recovery is that not only the public witnesses of recovery have resiled from the prosecution case in respect of the recovery at the instance of the appellant but there are two other prosecution witnesses, who were witnesses of the inquest proceeding, namely, PW-4 (Lakhan Lal) and PW-5 (Hariram Upadhyay), who have stated that at the time of inquest they had seen the body of the deceased and had noticed a blood stained stone lying at the spot. Interestingly, the prosecution did not declare those witnesses hostile and did not cross examine them. In such circumstances, the recovery of the stone at the pointing out and on the disclosure made by the appellant becomes highly doubtful. That apart, there is another reason for us to doubt the recovery which is, that if the accused had left the other weapon of assault, namely, wooden plank, at the spot, of which seizure memo (Ex. Ka-13) was prepared on 11.11.2004, what was the logic for the accused to hide the stone used to inflict injury on the deceased, particularly, when the accused himself had reported about the murder of his wife. In such circumstances, the recovery of the stone on the disclosure made by the appellant or at his pointing out becomes highly doubtful and, therefore, in our view, the said circumstance too, is liable to be discarded. Once we doubt the recovery of the stone at the instance of the appellant, the serologist report connecting the blood group of the deceased with the blood present on the stone is of no consequence. For all the reasons recorded above, we hold that the recovery of the blood stained stone on the disclosure made by the appellant, or at his pointing out, is not proved beyond reasonable doubt.

49. The summary of our analysis is that the prosecution has failed to lead evidence that the appellant was present in the house at the time when the deceased was killed. No general presumption regarding appellant's presence in the house can be drawn as according to the prosecution own witness (PW-13), who is the son of the deceased, he and the appellant had left to watch Ramleela. When they left the house, the deceased was alive. On their return after watching Ramleela they found deceased dead. This witness also states that the appellant was throughout with him watching Ramleela. PW-13, therefore, shatters the very foundation of the prosecution case. Moreover, this is not a case where the appellant has absconded. He reported the incident to the villagers in the night itself and, thereafter, reported the incident to the police in the wee hours of the morning. Once this is the position and as we have found the incriminating circumstances on which the trial court has based the order of conviction not proved beyond reasonable doubt, the benefit of doubt would have to go to the accused-appellant. Consequently, the appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellant is set aside. The accused-appellant is acquitted of the charge for which he has been tried and convicted. The appellant is reported to be in jail. He shall be released forthwith unless wanted in any other case, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.

50. Let a copy of this order be forwarded to the court below along with the record for information and compliance.

Order Date :- 11.7.2022 AKShukla/-

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