Ravindra Kumar And Others vs State Of U.P. on 26 April, 2023

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Allahabad High Court

Ravindra Kumar And Others vs State Of U.P. on 26 April, 2023

(Per: Manish Kumar Nigam,J.) Upon the lodging of a First Information Report dated 17.10.1984, investigation had followed and thereafter the police had submitted its charge sheet and had implicated the appellants, namely, Ravindra Kumar, Mahendra Kumar, Naresh Kumar and their father Hukum Chandra Jain Shashtri. The Court thereafter framed charges against the appellants and charged them under Sections 302/201 of IPC read with Section 3/4 of the Dowry Prohibition Act. Trial was undergone whereby 18 prosecution witnesses were examined and cross-examined and from the side of the defence two defence witnesses were also produced.

The accused were given an opportunity to give their statements under Section 313 Cr.P.C. wherein they denied the commission of any crime. However after the trial when the appellants were convicted under Section 302 read with Section 201 of the IPC, the instant Criminal Appeal was filed by them.

During the pendency of the Appeal Hukum Chandra Jain Shashtri had died on 6.4.2009 and, therefore, this Court vide order dated 13.3.2023 had abated the appeal vis-a-vis the appellant no. 4, Hukum Chandra Jain Shashtri.

The case of the prosecution in the First Information Report was that the daughter of the first informant Surekha Jain, aged about 20 years, post marriage on 9.5.1984 with the appellant - Ravindra Kumar son of Hukum Chandra Jain Shashtri, had after some efforts on 10.10.1984 come to her Maika. From her Maika, she was taken on 15.10.1984 by her husband for a cinema show and she, after informing her friends and the family members, had gone to the cinema show. The F.I.R. version is that on 16.10.1984, Mahendra Kumar, the Jeth of the deceased along with the husband of the deceased had come to the house of the first informant (the maika of the deceased) and had alleged that the first informant had hidden the deceased in his house and it has been averred in the First Information Report that they also searched the house of the first informant. However, only on 17.10.1984, the dead body of the deceased was found in the well near the Jal Nigam. Since the first informant had apprehended that his daughter had been killed by her in-laws because of the lack of dowry, he lodged the First Information Report. When the First Information Report was lodged and after the punchnama was prepared the body was sent for post mortem. The first informant Chakreshwar Kumar Jain had alleged that the in-laws of the deceased were moneyed people and, therefore, the post-mortem was got done by a team of Doctors. Thereafter, the accused were arrested on 21.10.1984 and on the pointing of the accused- Ravindra Kumar, the cane(danda) by which it was alleged that the accused Ravindra Kumar had inflicted injuries on the private parts of the deceased and, thereafter, had caused her death was found. Also certain broken bangles were also recovered. It has been alleged that the recovery was done in the presence of two independence witnesses Sri Gopi Krishan Tiwari son of Sri Krishna Ji Tiwari and Sri Chandra Bhan son of Sri Chela Ram.

The post-mortem of the body of the deceased was conducted on 18.10.1984 and the cause of death was found to be asphyxia as a result of throttling. The post-mortem had indicated of the ante-mortem injuries. After the charges were framed, the following prosecution witnesses were examined and cross-examined. They were as follows:-

P.W. -1. Chakreshwar Kumar, P.W. -2. Rupesh Kumar Jain, P.W. -3. Shyama, P.W. - 4. Smt. Anjana, P.W. - 5 Janki Prasad, P.W.- 6 Smt. Kamla, P.W. -7. Dr. V.P. Shukla, P.W. - 8. Chhote Lal, P.W. - 9. Chandra Bhan, P.W. -10. Kanchhedi Lal, P.W. -11. Gopi Krishan Tiwari, P.W. - 12 Pyare, P.W. - 13. Jagdish Narain Vaidya, P.W. -14. Ashok Kumar Singhai, P.W. -15. Uttam Chandra Rakesh, P.W. -16. Durga Prasad, P.W. -17. Har Prasad and;

P.W. -18. Shiv Mangal Singh.

P.W.-1 is the father of the deceased and also the first informant. He has alleged in the examination-in-chief that the marriage of his daughter had taken place with Ravindra Kumar on 9.5.1984. In the marriage he had given around Rs. 40,000/- as dowry which was earlier fixed between the parties. From Rs.40,000/- he had alleged that he had given gold of Rs.5,000/- and Rs. 25,000/- cash and the remaining amount was spent on other expenses and that despite the fact that he had spent such a lot of money, the groom's side was not satisfied and they were asking for more money all the time. In the month of May itself after 15 days of marriage, the son of the first informant Rupesh had gone to fetch Surekha but the in-laws had refused to send Surekha to her Maika and had insisted that till such time Rs. 2,000/-, a dressing table with mirror and Godrej Almirah was not given they would not send Surekha to her Maika and, therefore, it has been mentioned that Rupesh came back empty handed. He had also stated that for the happiness of her child, he had given ultimately Rs. 2,000/- and a steel Almirah and, thereafter, he had gone to the house of the in-laws. The daughter thereafter had come to her maika but only after a very short stay Naresh Kumar, the dewar of Surekha, again came back to her in-laws' place. He has stated that when he had refused to sent Surekha it had angered the dewar and he had threatened him with dire consequences. Again it has been stated that when the month of Sawan came, the first informant had gone again to the house and had requested that they may send Surekha for the Raksha Bandhan but they had outrightly asked if the first informant had brought the money and the dressing table. When the first informant told that he could not arrange the amount demanded and the dressing table which was being asked for, the in-laws had said that they would not send Surekha with the first informant and, therefore, the first informant went back home. He, however, again stated that on Raksha Bandhan he had sent his son Rupesh to bring Surekha with an assurance that the demand of the in-laws would be met and on the assurance Surekha was sent to her Maika. After coming on Raksha Bandhan, Surekha had stayed only for three days when her Dewar again came to take her back and also insisted for Rs. 1,500/- and the dressing table. On the request of the Dewar, the first informant had sent Surekha to her in-laws' house. On 8.10.1984, Hukum Chandra Jain Shashtri again came and told the grand father of Surekha that they could take their daughter home. This news was conveyed by the grand father to the first informant. He showed concern as to what was it that had brought the change in the attitude of the in-laws.

Upon the insistence of in-laws that the first informant may take Surekha home on 10.10.1984, the first informant had brought Surekha home. It has been narrated in the examination-in-chief by the first informant that after coming home Surekha cried a lot and said that because of her bad fate she was suffering. She also informed that she was being tortured in her in-laws house. She was being beaten and also abused. All this she came and told her mother and aunt and also her bua Smt. Anjana. To Smt. Anjana she also told that she was being called "kalooti". By this she meant that they were not liking the colour of her skin. Upon coming to her Maika, she also told the women of the house that her husband had taken a promise from her that she would go for a cinema show on 15th October. He has also stated in his examination-in-chief that when he came to know that the husband of his daughter was taking her for cinema show then he said that if the husband was actually coming to fetch her then she could go. He further stated that around quarter to seven on 15.10.1984, Ravindra Kumar came and remained standing outside and took Surekha with him and along with them Rupesh his son had also gone. However, Rupesh was sent back saying that the couple intended to see the night show. However, when Surekha and her husband did not come on 16.10.1984 at around 3:00pm, the first informant sent Rupesh to her in-laws house to get Surekha back. There upon at 4:00pm Mahendra Kumar, the Jeth, and Ravindra Kumar the husband came to the house of the first informant and said that Ravindra Kumar had sent Surekha in the night. Being surprised the first informant asked Ravindra Kumar whether he had dropped Surekha to her Maika. To which, Ravindra Kumar said that he had, in fact, left Surekha at her Maika. Thereupon the first informant informed Ravindra Kumar that Surekha had never reached her Maika. Thereupon it has been stated by the first informant that Ravindra Kumar and his brothers were very angry with regard to the fact that Surekha was not to be found. Thereupon the first informant said that since Surekha was their daughter-in-law and she was also the daughter of the first informant it would be in the fitness of things that everybody searched for her together. To this, the in-laws said that she was not their daughter-in-law and the first informant may do whatever he wished. Consequently, it has been informed by the first informant that he went out to search for her. On 17.10.1984, the dead body of the deceased was found in the well. The first informant thereafter proved the first information report and also proved the documents by which he had insisted that the postmortem be done by a panel of doctors.

In the cross-examination, he stood firm on what he had stated in the examination-in-chief. Since he had not stated in the First Information Report the fact that Rupesh had also gone on 15.10.1984 to see the movie, he expressed a concern as to why his statement under Section 161 Cr.P.C. wherein he had stated that Rupesh had also gone with the couple was not recorded by the investigating officer. He insisted that on 16.10.1984 at around 4:00pm Mahendra Kumar, Ravindra Kumar had come searching for Surekha.

The P.W. -2 Rupesh who was 14 years of age at the time of giving his statement on 28.8.1985 on oath stated that on demand being made for cash, dressing table and Almirah the wife's side had given the cash, dressing table and almirah. He has also stated that he had accompanied his sisters and Ravindra Kumar for the film but he was made to go back from the Ghantaghar as the couple had insisted that they would see the night show and he also stated that her sister had not returned in the night. He has given a vivid description of what his sister was wearing namely bangles, nose pin, payal bichchiya and sari and blouse of baigani colour. He also stated that on the next date when the sister had not returned he had gone to the house of in-laws of her sister then he was informed that his sister had, in fact, gone with Ravindra Kumar and the door was closed on his face. He has also stated that on 16.10.1984 in the morning at around 9:30 am Naresh and Mahendra had come to the house of the first informant and had searched the house. They were trying to search out Surekha. He has also very categorically stated that when Surekha had gone with her husband then the father of Surekha the First Informant, was not at his residence.

The P.W. -3 Shyama who was the neighbour of the deceased lived in the neighbourhood of the Maika. She has been produced to show that she had also seen the deceased going with Ravindra Kumar for the movie. It has been stated by her that she had specifically asked Surekha that with whom she was going to see the movie then Surekha had said that she was going with her husband and her younger brother.

The P.W.-4, Smt. Anjana who was the cousin bua of the deceased was also produced to give the evidence that she had also seen the couple going to see the movie. She had also wondered why in her statements under Section 161 Cr.P.C. it was not mentioned that the younger brother of the deceased had accompanied the couple.

The P.W.-5 is the grand father of the deceased. He had also tried to establish the fact that because the accused wanted dowry they had killed Surekha.

The P.W.-6 is one Kamla who is the cousin grand mother of the deceased and she has also stated that she had seen the deceased going with her husband to see the movie.

The P.W. -7 is the Doctor who had conducted the post mortem and has proved the post mortem.

The P.W. -8 Chhotelal who was witness in whose possession the recovery of torch was done but he had turned hostile.

The P.W.-9 Chandrabhan who had accompanied Ravindra Kumar during the recovery of Danda and the bangles, in the Court gave his statement and tried to prove the recovery. However, when he was asked if he recognized Ravindra Kumar then he placed his hand on Naresh to say that he was Ravindra Kumar.

The P.W. -10 is the shop keeper who had been produced to prove that the articles which were given in the dowry were bought from his shop.

The P.W. 11, Gopi Krishna Tiwari who was the witness of recovery has been declared hostile. Similarly, the P.W. 12 who had stated that he had seen something being dropped in the well has been declared hostile. Similarly P.W.-13 who was the Editor of the Journal (Weekly) has been declared hostile. The P.W.-14 Ashok Kumar Singhai, the maternal uncle of Surekha, was also declared hostile. The P.W-15 is the witness of the punchnama and the P.W. -16, the P.W. - 17 and P.W. - 18 are formal witnesses.

Learned counsel for the appellant has made the following arguments:

I. He submits that if the first information report is perused then it becomes clear that there was no mention at all of the fact that the deceased was accompanied by her brother Rupesh Kumar yet the P.W. - 1 and the P.W. - 2 in their examination-in-chief during the trial have tried to carve out a case that Rupesh Kumar had accompanied the deceased. In fact, learned counsel for the appellants has argued that Rupesh Kumar had never accompanied the deceased and only to make him witness who had seen the deceased for the last time going with accused a fresh case was being carved out. In this regard learned counsel for the appellants also had submitted that the P.W. 3, 4 and 6, namely, Shyama, Smt. Anjan & Kamla respectively were also sought to be made the witnesses who had seen the appellant Ravindra Kumar going with the deceased for seeing the movie. It has been argued that they have been made to give their evidence in a most unnatural manner. So far as the P.W.-3 is concerned, it has been stated that she was a neighbour, namely, Shyama and she had stated that she had put a question to the effect that who exactly was going with Surekha. If she was a neighbour and she was knowing the deceased then she should have at least known that the younger brother Rupesh was going with her. For a moment, it can be taken that she was not recognizing the husband Ravindra Kumar but she definitely should have recognized the brother and, therefore, for her to ask as to with whom Surekha was going to the movie was a very unnatural question. Further the P.W. - 4 and 6 who were also produced as witnesses who had seen the deceased going with the accused Ravindra Kumar for the last time, if their evidence is perused, it seems strange that they were remembering very strange things like the colour of the sari & blouse and whether she was bearing bichhua, bangles and payal and, therefore, learned counsel submits that they were all brought up witnesses and they had actually not seen the deceased going with the accused Ravindra Kumar.

II. It has been submitted that the whole crime had no eye-witness and, therefore, the case was based on circumstantial evidence. Learned counsel for the appellant relied upon Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622, and submitted that the following had to be there to see whether the chain of evidence was complete to hold the accused guilty. The following five essential ingredients to complete the chain to hold the accused guilty were not there:

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

2. The fact so established should be consistent only with the hypothesis of the guilt of the accused.

3. The circumstances should be of conclusive nature and tendency.

4. They should exclude every possible hypothesis except one to be proved.

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."

III. Learned counsel for the appellants further submits that if the statements of the P.W. - 3, 4 and 6 are perused then it becomes clear that the evidence which they were coming up with was too good an evidence to be believed. They were remembering every small details of the deceased and this makes the evidence doubtful.

IV. Learned counsel for the appellants submits that the evidence as was brought forth on record had various contradictions. The P.W.-1 says that the accused when had gone with his daughter Surekha he was there in the house but the P.W.-2 the brother whom the P.W.-1 had said had accompanied the couple says that the father (P.W.-1) was not present at the time when the accused and his sister (the deceased) were going to see the movie. Further it has been stated that the P.W. -1 gives a different time on the 16th of October 1984 when in-laws had come to search for the deceased. He says that they had come in the evening to search for the deceased in the Maika. However, P.W.-2 states that the in-laws had come in the morning of 16.10.1984 to search for the deceased.

V. Learned counsel for the appellants further submits that the recovery as has been sought to be made under Section 27 of the Evidence Act was no recovery in the eyes of law as per the law laid down in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 and in Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110.

Learned counsel for the appellants submits that there are two parts to recovery under Section 27 of the Evidence Act. The first is that when the police takes the accused in his custody then he has to record a statement in the presence of two independence witnesses as to what recovery was intended. Thereafter, when the police along with the accused and the two independent witnesses reaches the spot where the author of the concealed articles takes the Police party and the Police party discovers the concealed articles then a recovery memo has to be again prepared. In the present case, learned counsel for the appellants states that the first step was missing. There was no statement recorded of the accused in the presence of 2 independent witnesses as to what was the recovery he was intending to get made.

Further, learned counsel for the appellants states that if the statement of the independent witness Chandrabhan is perused then it becomes clear that in the Court he had not even been able to recognize Ravindra Kumar and, in fact, placed his hand on Naresh Kumar. He, therefore, states that the recovery was a bogus recovery. He further states that in the Punchanama the dead body was found to be having the bangles in the hands of the deceased and, therefore, he submits that the broken bangles which were sought to be recovered were in fact planted. He has also submitted that the Danda was also planted only to match it with the ante-mortem injuries on the private parts of the deceased.

VI. Learned counsel for the appellants further submits that the demand of dowry was also not established and, therefore, there was no motive. In fact, he submits that vide exhibit ka(4), the prosecution had apprehended that the accused side was very rich and, therefore, they had moved an application for getting the post mortem conducted by a panel of doctors. He has also submitted that when the prosecution had come up with a case that the appellants were demanding Rs. 2,000/- a dressing table and an almirah and had thereafter found that this demand might appear to be very insufficient for, the accused persons who were very rich, they had come up with another case that the accused were not liking the colour of the skin of the deceased and, therefore, they had come up of with the case that the in laws were calling her "Kalooti".

Learned A.G.A. Sri J.K. Upadhyay for the State, however, has submitted that since the accused had gone with the deceased to see the movie, the burden, in fact, to prove that the accused were innocent had shifted on them in view of Section 106 of the Evidence Act.

Learned AGA further submits that post-mortem was conducted only after three days and, therefore, the ante-mortem injuries as were found in the post mortem spoke volumes. Still further learned AGA submitted that upon coming to know about the fact that the deceased was not to be found on 16.10.1984 conduct of the appellants made it apparently clear that they were the perpetrators of the crime.

Having heard Shri V.P. Srivastava, learned Senior Counsel assisted by Sri N.L. Tripathi and Sri Rajeev Nayan Singh, learned counsel for the appellants and Sri J.K. Upadhyay, learned AGA for the State, we are of the view that the appellants were innocent and the Appeal deserves to be allowed. In the first case, the case is based on circumstantial evidence. Definitely the chain to prove that the crime was committed by the accused was not complete. In the first instance, we find that the F.I.R. version was very different from the version which was taken by the P.W. 1 and the P.W.- 2 i.e. the first informant and his son. The P.W.-1 only to bring in a definite witness who had seen the deceased going with the accused Ravindra Kumar had introduced, the P.W. - 2 i.e. his own son Rupesh Kumar who had, as per the first informant, seen the accused taking the deceased with him. The Court finds that the prosecution has not been able to show with any certainty as to whether Rupesh had accompanied the deceased. In the first place, his name was not found in the First Information Report and secondly the witness Rupesh himself, when he came to the witness box gives contradictory statements. He has, in fact, stated that the father of the deceased at the time when the deceased had gone with Ravindra Kumar was not at home. All these factors create a doubt in the mind of the Court.

Secondly, we find that since the recovery had not been done as per the law laid down in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 and in Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110, the recovery was a sham recovery. Also we find that the motive to commit the crime has not been clearly established. To begin with, the prosecution had come with a case that there were certain demands of dowry. However, even the demands as have been brought forth by the father were found to be very different from the demands which were brought forth by the son. At one place they say that in addition to the money, dressing table was demanded and another place they say that in addition to the money an almirah was demanded. The father and son duo upon coming to realise that the accused side were rich had tried to give colour to the case by saying that the deceased had also mentioned that the colour of the skin of the deceased was not liked by the in-laws.

As per the law laid down in Rishi Kesh Singh & Ors. vs. The State reported in AIR 1970 Allahabad 51(FB), since the burden is on the prosecution to prove to the hilt that the accused were guilty and since they have not been able to prove the accused guilty to the hilt, we find that the prosecution case has no substance and the Appeal deserves to be allowed.

The first information report, we are definitely aware, is not an encyclopedia of facts. However, the fact that the first informant missed to inform in the first information report that the son of the first informant had accompanied the deceased and her husband is a vital omission. Howsoever much in the statements of the various prosecution witnesses the presence of P.W.-2 Rupesh Kumar Jain has been brought in, the prosecution witnesses have miserably failed to prove that the P.W.-2 Rupesh Kumar Jain had accompanied the deceased and her husband when they had gone to see the cinema. Furthermore, if the various contradictions and the statements of the other prosecution witnesses are examined then the only inevitable conclusion is that the prosecution was trying to bring in P.W.-2, Rupesh Kumar Jain as a witness who had seen the deceased and her husband going together for the last time.

The prosecution must prove its case beyond all reasonable doubt as has been held by a Full Bench judgement of this Court in Rishi Kesh Singh & Ors. vs. The State reported in AIR 1970 Allahabad 51(FB). The operative portion of the judgement is reproduced here as under:-

"177. In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows: -

The majority decision in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused."

The prosecution definitely failed to prove the case which was taken by it beyond all reasonable doubt.

Under such circumstances, the appeal is allowed. The judgement and order dated 22.2.1986 passed by Additional Sessions Judge, Lalitpur, in S.T. No. 4 of 1985 is set aside.

Order Date :- 26.4.2023 PK (Manish Kumar Nigam,J.).....(Siddhartha Varma,J.)

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