Allahabad High Court
Pushpendra Chaudhary vs State Of U.P. on 10 March, 2021
Author: Rajan Roy
Bench: Rajan Roy, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED JUDGMENT Reserved on: 03.02.2021 Delivered on: 10.03.2021 Court No. - 11 Case :- CRIMINAL APPEAL No. - 521 of 2009 Appellant :- Pushpendra Chaudhary Respondent :- State of U.P. Counsel for Appellant :- S.S.L. Srivastava,Awadhesh Kumar Yadav,Rajendra Kumar Verma,Sharad Dixit Counsel for Respondent :- Govt. Advocate,Ratnesh Tripathi,S.P. Tripathi Hon'ble Rajan Roy, J.
Hon'ble Saurabh Lavania, J.
(Per: Rajan Roy, J.) Heard.
This is an appeal under section 374 (2), Cr.P.C. against the judgment and order dated 16.1.2009 passed by the Additional Sessions Judge (Court No. 14), Lucknow in Sessions Trial No. 410 of 2006 (Case Crime No. 543 of 2005) by which the appellant has been convicted for the offence punishable under section 302 I.P.C. and sentenced to life imprisonment alongwith fine of Rs. 5000.00 in default of which he would undergo three months' additional rigorous imprisonment.
The appellant was never enlarged on bail and has remained in jail ever since his arrest on 9.11.2005. He was granted parole a few times.
The appellant has himself argued the appeal.
The prosecution story, in short, is that at about 7.30 a.m. on 09.11.2005 Km. Radha D/o Mohan, who used to work as a Maid in House No. 14/94, Indira Nagar, owned by late Ram Naseeb Chaudhary, went to the said house as she did everyday, for work. She rang the bell two or three times. When the door was not opened, she pushed the outer door, which opened. She went inside and opened the drawing room door and found that the appellant Pushpendra Chaudhary alias Guddu was tied up. He asked her to call the Police, whereupon, she told about it to others. When she went inside, she found the owner Smt. Lal Muni Chaudhary W/o late Ram Naseeb Chaudhary and her daughter Km. Sarita Chaudhary's dead bodies lying on the floor. Smt. Lal Muni Chaudhary had a head injury and Km. Sarita Chaudhary, her daughter had been strangled. The Almirahs were open. Accordingly she informed the Police, and gave a written information on 09.11.2005 itself at about 8.30 a.m. Accordingly F.I.R. was lodged at 8.30 a.m. on the same day and Police reached the spot.
Inquest relating to the body of Smt. Lal Muni Chaudhary was carried out from 9.30 a.m. to 10.00 a.m. Inquest relating to the body of Km. Sarita Chaudhary was carried out from 9.30 to 11.50 a.m. Inquest report in relation to the two bodies are exhibited as Ext. Ka-8 and Ka-9.
The inquest report (Ext. Ka-8) pertaining to Lal Muni Chaudhary mentions grievious injuries on the head having been detected by the Panchas. While mentioning clothing etc. on the deceased's body it inter alia mentions about one ring with red gem on the finger of left hand and another ring with white gem on the middle finger of right hand, Gold metal pin in the nose and gold ear-tops in both the ears.
Inquest report (Ext. Ka-9) relating to Km. Sarita mentions the possible cause of death as strangulation. While mentioning the apparels on the body of the deceased, the inquest report inter alia, mentions about golden ear tops in both the ears with gems , red ring in the ring finger of right hand, a ring with white gem in the left hand and a watch in the left hand wrist. It also mentions about a Red colour Dupatta of Georgette tied around her neck. This fact is mentioned even with respect to the injuries noticed by Panchas by stating, "xys esa nqiV~Vs dk Qank dlk gS ftlls xys esa pkjksa rjQ ¼illegible½s dk fu'kku gSA"
The two bodies were sent for postmortem which was conducted at around 3.30 p.m. on 9.11.2005. Postmortem report Ext. Ka-6 relating to the deceased Lal Muni Chaudhary and another postmortem report Ext. Ka-7 relating to the deceased Km. Sarita Chaudhary, have been proved by the Autopsy Surgeon P.W. 5.
As per Ext. Ka-6 following antemortem injuries were found on the body of the deceased Lal Muni Chaudhary :
"(1) Lacerated wound 3cm x 1cm x scale deep present (L) side of head, 8 cm. Behind (L) ear.
(2) Lacerated wound 2cm. x 1cm x scale deep present on midline of forehead, 7cm above root of nose.
(3) Contusion 5cm. X 4cm present on (L) (sic) side of temporal region, just above (L) ear.
(4) Contusion 7cm x 3cm present on dorsal aspect of (L) hand and index finger.
(5) Abrasion 2cm. x 1cm present on back of (L) elbow joint."
On opening the body ecchymosis was found to be present underneath abovementioned injuries. Subdural haematoma was found present all over the brain. Cause and reason of death was mentioned as due to coma as a result of antemortem head injury.
As per Ext. Ka-7 the following antemortem injuries were found on the body of Km. Sarita Chaudhary :
"Ligature mark, present on all around the neck without interruption. Ligature mark is soft and reddish. It is situated 5.5cm below both ear. Ligature mark is after size 25 cm. X 3.3cm present all around the neck."
On opening the body ecchymosis was found to be present beneath the abovementioned injuries. Fracture of second and fourth tracheal rings and lyrings was found. Lyrings and trachea were echymoid and clotted blood was found present. Cause of death was mentioned as due to Asphyxia as a result of antemortem strangulation.
During inquest some strands of hair were found stuck in the nails of Km. Sarita Chaudhary which were collected and a recovery memo i.e. Exhibit Ka-16 was prepared by Naimuddin S.I. on 09.11.2005.
A site-map was prepared.
Sample of the blood stained flooring as also a sample of the normal flooring was collected from the scene of crime and sealed.
Initially the Police did not suspect the appellant of having committed the crime, but, he was eventually arrested at around 3.15 p.m. on 09.11.2005 itself. It is said that on his pointing the ''danda' used for hoisting mosquito-net which was allegedly used to commit the crime on the body of Lal Muni Chaudhary, was recovered from behind an Almirah in the room of late Ram Naseeb Chaudhary. A site-plan of recovery was prepared. A recovery memo was also prepared in this regard i.e. Ext. Ka-3. Apart from the witnesses it was also signed by the appellant and a copy thereof was given to him.
Thereafter sample hair from the head of the appellant was collected by the investigating officer and kept in sealed cover in the presence of witnesses Mahendra Kumar Chaudhary and Siya Ram Chaudhary. A recovery memo was prepared in this regard i.e. Ext. Ka-4, which was also signed by the appellant and a copy thereof was given to him.
A Scarf (Muffler) and iron chain which were allegedly used by the appellant to tie himself to a chair, when he was seen by informant Radha, the Maid, were also collected from the scene of crime and put in sealed cover.
The weapon used in the crime i.e. the ''Danda' used for hoisting the mosquito-net, the hair recovered from the nails of the hands of the deceased Km. Sarita Chaudhary, sample hair collected from the head of the appellant, the blood stained floor and the normal sample as also other articles collected from the scene of crime, were sent for forensic examination.
Forensic/Serologist report dated 22.05.2008 regarding 24 items including the hair recovered from the nails of deceased Sarita Chaudhary (Item No. 20), sample hair taken from the head of the appellant (Item No. 21) and the ''danda' said to have been used in the commission of crime (Item No. 24), was produced in the Trial Court, and it is exhibited as Ext. Ka-21.
Another forensic report regarding the blood soiled floor and the sample floor dated 06.06.2006 was also produced before the Trial Court and it is marked as Ext. Ka-22.
Investigation was conducted and based on the evidence collected during investigation a chargesheet was filed on 26.12.2005 against the appellant under sections 302, 201 I.P.C.
The case was committed by the learned Magistrate to the Court of Sessions on 05.05.2006.
As the appellant denied the charges, he was put to trial.
Two charges were framed against the appellant on 28.9.2006 as under:
"izFker% %& ;g fd fnukad 9-11-2005 dk le; 7-30 cts izkr% ls igys e-ua- 14@94] bfUnjkuxj Fkkuk xkthiqj] y[kuÅ esa vkius Jherh ykyeqUuh fo/kok Lo- jke ulhc pkS/kjh dh eNjnkuh ds M.Ms ls ekjihVdj pksVsa igqapkdj gR;k dkfjr dh rRi'pkr dq- lfjrk iq=h Lo- jke ulhc pkS/kjh dk xyk o ukd nckdj gR;k dkfjr dhA bl izdkj vkius ,Slk vijk/k fd;k tks /kkjk 302 Hkk-n-la- ds vUrxZr n.Muh; gS vkSj tks bl U;k;ky; ds izlaKku esa gSA
f)rh;r% %& ;g fd mijksDr fnukad] le; o LFkku ij vkius e`rdk Jherh ykyeqUuh o dq- lfjrk dh gR;k dkfjr djds gR;k dkfjr djus dh lk{; feVkus dk iz;kl fd;kA bl izdkj vkius ,Slk vijk/k fd;k] tks /kkjk 201 Hkk-n-la- fd vUrxZr n.Muh; gS vkSj tks bl U;k;ky; ds izlaKku esa gSA vr% ,rn~)kjk eSa vkidks funsZ'k nsrk gwW fd vijksDr /kjkvksa ds fy, vkidk ijh{k.k bl U;k;ky; )kjk fd;k tkosA""
Following witnesses were examined by the prosecution in support of its case:
P.W.1 Radha P.W.2 Mohan Lal P.W.3 Mahendra Kumar Chaudhary P.W.4 Siya Ram Chaudhary P.W.5 Dr. P.K. Srivastava P.W.6 Naimuddin P.W.7 Abhimanyu Dhar P.W.8 Lokendra Singh
P.W.1 is the informant Radha who used to perform daily chores at the house of the deceased. She has testified about the presence of the appellant-accused tied up at the scene of crime at 7.30 a.m. She was the first to visit the scene of crime. She has also testified about the presence of two bodies in the house. She has, however, denied having suspected about the appellant-accused of having committed the offence, accordingly, she was declared hostile, as in her statement under section 161 Cr.P.C. she had expressed such suspicion upon the appellant.
P.W.2 is the father of P.W.1, the Maid Radha. He has, inter alia, testified that his daughter Radha used to work in the house of the deceased. He has proved recovery memo Ext. Ka-2 to which he was a witness. In his cross-examination he has stated that he had never visited the house prior to the date of incident. He had received information of the incident at 7.30-8.00 a.m. from his daughter. When he reached there, Police had already arrived.
P.W.3 is the grandson of P.W. 4 Siya Ram Chaudhary, the brother of late Ram Naseeb Chaudhary. In his examination in chief he has, inter alia, spoken of heated exchange between the deceased Lal Muni Chaudhary and appellant-accused during ''Bariksha' (engagement ceremony) when he had come to Lucknow for the said ceremony of Km. Sarita Chaudhary. He has stated that when he came to know about the crime, barely 3-4 days after the heated exchange between Lal Muni Chaudhary and the accused, he had no doubt that the appellant had committed the murder. He has stated that the appellant-accused confessed his crime, in his presence, before the Police. He has stated that the mosquito-net stick, ''danda', which was used for committing the murder was recovered by the Police on the pointing of the appellant and was sealed. Recovery memo was prepared. The recovery memo was read out and then it was signed by him. He proved recovery memo Ext. Ka-3 before the Court. He has also proved Ext. Ka-4, the recovery memo regarding collection of sample hair from the head of the appellant. He has also proved Ext. Ka-5 pertaining to recovery of scarf (Muffler) and iron chain.
In cross-examination he has, inter alia, reiterated visiting the house of of the deceased on 03.11.2005, a day prior to the Bariksha ceremony for the first time, though he has also stated that he did not know where the Bariksha ceremony was performed as he had stayed at the house of the deceased. He reiterated coming to Lucknow for Bariksha ceremony and returning on the next day about 9.00-10.00 a.m. alongwith his two grandfathers Baburam and Siyaram Chaudhary, brothers of late Ram Naseeb Chaudhary. He has stated that he was alone in the house of the deceased at Lucknow on the day of Bariksha. He has stated that he received information of death of the deceased from his grandfather Siyaram Chaudhary. Thereafter, they started for Lucknow at about 10 a.m. on 09.11.2005 and reached the house of late Ram Naseeb Chaudhary in the evening at 4.30-05.00 p.m. They were interrogated by the Police at the Police Station. They remained at the Police Station. He has reiterated recovery of hair from head of the appellant and its sealing, even in the cross-examination. Even in the cross-examination he has stated that he had informed the Daroga, which is a reference to his statement under section 161, that there were heated exchanges between Lal Muni and appellant. He has proved recovery of the ''danda' mosquito-net stick at the pointing of the appellant and that it was sealed.
P.W. 4, father of P.W.3, is the brother-in-law of deceased Lal Muni Chaudhary. He has stated that after death of late Ram Naseeb Chnaudhari on 24.04.2004, as he did not have any son, therefore, the deceased Lal Muni Chaudhary, his wife, had kept Guddu alias Pushpendra, who was the son of her brother i.e. brother-in-law of late Ram Naseem Chaudhary, with her. He in his testimony has mentioned that late Ram Naseeb Chaudhary had various properties apart from the house at Lucknow such as at Basti, Gorakhpur and Ghaziabad. After the death of his brother he (P.W.4) and Pushpendra used to look after his Bhabhi. After his brother's death Pushpendra alias Guddu wanted his property. He had warned his Bhabhi in this regard. After the "Chhedna" ceremony of Sarita Pushpendra's behaviour was not good. Though in his examination in chief, P.W.4, referred to heated exchange between his Bhabhi and Pushpendra and also that Pushpendra had threatened her with dire consequences if he did not get a share in the property, in the cross-examination this witness has stated that he had not himself seen the heated exchange between the two nor had he seen Pushpendra threatening the deceased, but had heard about it. However, this witness has stated even in the cross-examination that Pushpendra (appellant) used to reside with the deceased. He has testified that he had come to Lucknow for the Bariksha ceremony of Sarita (which was held on 4th November 2005), a day prior to it. He has stated about receiving information of death of the deceased on 09.11.2005 at about 8.00-9.00 a.m. and that he reached Lucknow at about 4.00-4.30 p.m. When he reached the place of crime, Police was there. He reached the Police Station at 5.00-5.30 p.m. He has testified and proved recovery of the weapon used for Commission of the crime at the pointing of Pushpendra. He has also testified and proved recovery of scarf (Muffler) and iron chain as also collection of hair from the head of Pushpendra. He has proved Exts.3, 4 and 5, of which he was a witness. He has also stated that when he received information of death of the deceased, he immediately suspected Pushpendra of having committed the crime. He denied having any property dispute with his late brother or his family.
P.W.5 is the Autopsy Surgeon who conducted postmortem on the body of the deceased on 9.11.2005. He has proved the postmortem and the postmortem report including the injuries mentioned therein. He has stated that death of Lal Muni Chaudhary was caused due to Coma resulting from antemortem injuries. She had died on account of injuries on her head. Injuries of Lal Muni Chaudhary had been caused by hard object. He has also stated that death of Km. Sarita was caused due to strangulation as ligature mark was present. There was no injury on her head.
P.W. 6 had prepared inquest-report pertaining to both the bodies on the directions of the Investigating Officer P.W.7. He has proved the inquest reports Ka-8 and Ka-9. He had also prepared the memo regarding recovery of hair from the nails of Km. Sarita i.e. Ext. Ka-16. He has proved the same. Recovery of weapon used for committing the crime on the body of Lal Muni i.e. the mosquito-net stick (danda) as also the scarf (Muffler) and iron chain which were used by the appellant to tie himself in the chair, was recovered in his presence by the investigating officer and on his direction he had prepared the recovery memos relating to the said items and had put his signatures thereon. He has proved the said exhibits Ka-3 and Ka-5 also. He has, however, stated that said items were not before him in Court. He has stated that he had informed the I.O. about hair in the nails of Km. Sarita and if had not written about this in his statement under section 161 Cr.P.C. he is not aware about the reasons. He has denied before the Court that the five witnesses to the Panchayatnama were Rikshaw Pullers and residents of other districts. He has stated that he deliberately did not make the neighbours witnesses to the inquest-report.
P.W.7, who is the Investigating Officer, has stated that he had received the investigation of the said case on 09.11.2005 and had recorded the statement of the informant Radha. He had prepared site-plan at her instance. Ext. Ka-17, site-plan was proved by him. He has stated that he instructed S.I. Naimuddin P.W.6 to get the Panchayatnama etc. prepared. He got the sample of blood stained flooring etc. collected from the scene of crime and recovery memo prepared. He proved Ext. Ka-2 in this regard. He has also stated about collection of hair from the nails of Km. Sarita Chaudhary and sealing it in a box. He recorded the statement of witnesses. He has stated that the appellant was interrogated in the Crime Branch, he admitted the commission of crime and agreed to get the weapon used for committing the crime, recovered. Pushpendra was brought to the scene of crime and on his pointing the mosquito-net stick was recovered and recovery memo was prepared i.e. Exhibit Ka-3. On pointing of the appellant the scarf (Muffler) and iron chain which the appellant had used to tie himself to the chair was recovered. Recovery memo (Ext. Ka-5) was prepared in this regard. He has stated about preparing the site-plan of recovery and has proved Ext. Ka-16 in this regard. He has spoken of taking sample hair from head of the appellant and sealing them in a box. He has proved Ext. Ka-4 i.e. recovery of hair of appellant which bears his signatures. He sent the items collected from the scene of crime as aforesaid for scientific examination to the forensic laboratory. He also identified the mosquito-net stick which was taken out from the sealed bundle before the Court with its permission and which had an iron nail on its top. He has also spoken about a second bundle being opened containing four tin boxes in one of which were the hair recovered from the nails of Km. Sarita Chaudhary during inquest. He has also stated about opening of another tin box containing the sample hair of Pushpendra.
In cross-examination the investigating officer has, inter alia, stated that he had reached the scene of crime at about 9.00 a.m. He inspected the bodies at the scene of crime. The hair in the nails of Km. Sarita were recovered by P.W. 6 S.I. Naimuddin and sealed in his presence. Prior to inspection of the scene of crime appellant had gone to Hospital. From there appellant was taken by the Crime Branch, which had reached the hospital on receiving information of the crime on its own. He met the apppellant-accused at Jwala Hospital at about 12 p.m. By that time he was not a suspect in his eyes. His activities were suspicious. The bed in the room in which the body of the deceased were lying had three mosquito-net sticks and one stick was missing which was recovered on the pointing of the appellant-accused from the room in front of it. The bodies were lying near the bed. One of the bodies was near the door, while the other was towards the Western wall of the room. There was no blood on the bed. He has stated that when the appellant-accused confessed his crime, he (P.W.7) arrested him from the Crime section at about 3.00 p.m. He did not know late Ram Naseeb Chaudhary. He denied having brought the appellant-accused from Basti and showing his arrest at Lucknow.
P.W. 8 is the Head Moharrir who made necessary entries in the G.D. and had prepared the chik F.I.R.
Following witnesses were produced by the appellant in his defence :
D.W.1 Savitri Devi D.W.2 Gulab Chandra D.W.3 Sarvesh Kumar D.W.4 Pramod Kumar.
D.W.1 is mother of the appellant-convict. She has deposed that on the date of the incident her husband was sleeping in the cattle-yard. On the day of the crime at about 4.00-5.00 a.m. in the morning four-five persons knocked at her door, whereupon she opened it. They asked for her son Punshpendra. She called him whereupon they caught hold of him. While taking him away they informed her that they had come from Ghazipur Police Station, Lucknow. They asked her to come to the Police Station. They took Pushpendra away in a Police Jeep. She deposed that Late Ram Naseeb Chaudhary had great affection for Pushpendra. Her son, when he visited them, stayed at their place a day or two, but not more than that. Her son never studied at Lucknow. She also stated that she had received invitation of Bariksha ceremony of Sarita and her husband had attended the ceremony. She had not. Her husband had not told her about any dispute during the Bariksha ceremony. She spoke about the presence of Gulab amongst the children who had gathered when the Police was taking her son away. She has stated that Gulab (D.W.2) was the son of her Jeth. She has also spoken about dispute between Late Ram Naseeb Chaudhary and his brothers relating to property.
D.W.2 is a cousin of Pushpendra, the appellant, and also his neighbour. He has also deposed that four or five persons had come in plain clothes at about 4.00-4.30 a.m. on 09.11.2005 who had taken away Pushpendra from his residence at Basti. He has stated that he was sleeping in his ''verandah' when these persons came and inquired about Pushpendra whereupon he pointed out his house to them. Then they took him away. He has also stated that one of the persons was in Police Uniform, but he did not see his name plate. He stated that the accused was B.Sc. Passed and he had completed his B.Sc. from Lucknow. Then he stated that he did not know whether Pushpendra resided in Lucknow and where he resided. He or his family members had never told him where he resided in Lucknow.
D.W.3 Sarvesh Kumar is witness to the inquest report. He has not supported the prosecution story. He stated that he had no knowledge of the case. He had not seen any dead body. 2-3 years ago Police personnel had taken him to Ghazipur Police Station alongwith Ram Sahare, Pradeep and Ram Sanware. They had taken them to the Police Station in front of him. They were rikshaw pullers. His brother Pramod was not present at that time. He was in the village. Police had got their signatures made in the Police Station. Out of the four, two had put their thumb impressions and two had made signatures. This was at about 7.00-8.00 a.m. in the morning. Police had asked them about their names, family and address. He identified Pramod Kumar (D.W.-4) who was present in Court as his brother, who had studied only upto 2nd-3rd class. He stated that he could identify the signature of his brother Pramod who signed in Hindi and did not know English.
In cross-examination he denied having been set up on behalf of the accused for giving false testimony, however, he accepted that he did not receive any summons from the Court for deposing in the case and that he had come to depose on the asking of the accused's father. He did not even know the Court where the testimony was to be recorded and only on his direction he had come to the court to depose. Accused's father had also told him about the testimony which was to be given. He had not told him to give such testimony so that his accused is acquitted. He had brought his rickshaw license which did not bear the seal and date of the issuing authority. The licence had expired. He was Sarvesh Kumar Maurya.
D.W.4, Pramod Kumar is brother of D.W. 3. He has stated that he had come to Lucknow for the second time. He had never gone to Ghazipur Police Station with his brother. He denied the signatures as his on Ext. Ka-16. He stated that he could not sign in English. In cross-examination he admitted that he did not receive any summons from the Court for deposing before it. Nobody had asked him to testify. He had come to depose alongwith Sarvesh. He had not brought any application with him for getting himself examined as witness. He had no knowledge about the case.
The statement of the appellant under section 313 was recorded on 27.09.2008. In his statement under section 313 Cr.P.C. the appellant Pushpendra has stated that his hair were plucked/cut by the Police. He has stated that he was picked up by the Police at about 4.00 a.m. on 09.11.2005 and brought to Lucknow. He has stated that he has been falsely implicated on account of enmity.
The learned Trial Court found the chain of events constituting the circumstances conclusively proved and that it pointed to only one hypothesis that is the guilt of the accused Pushpendra. Firstly, it found that the accused Pushpendra resided with the deceased in the house where the crime was committed. He was found in the same house after the commission of crime, therefore, he had special knowledge of the case constituting the crime, but he did not give any explanation to discharge his burden in terms of section 106 of the Indian Evidence Act. Secondly, the hair collected from the nails of the deceased Sarita were subjected to forensic examination alongwith the hair collected from the head of the accused and as per report of the forensic laboratory they were the same. Thirdly, the weapon used for commission of crime i.e. the mosquito-net stick was recovered on the pointing of the accused just as the scarf (Muffler) and iron chain were recovered and recovery memo was prepared. Fourthly, motive for commission of the crime by the accused was proved. As a result of trial, learned Sessions Court found the appellant guilty of having committed the offence of culpable homicide amounting to murder punishable under section 302 I.P.C.
As regards the offence punishable under section 201 I.P.C. learned Trial Court opined that it could not be proved beyond reasonable doubt.
The appellant was, thus, held guilty and convicted for double murder of his ''Bua' Smt. Lal Muni Chaudhary and her daughter Km. Sarita Chaudhary. The appellant was accordingly sentenced as already mentioned and is in jail.
From the postmortem report and the medical opinion expressed by the doctor the fact that the deceased Lal Muni Chaudhary and Km. Sarita did not die a natural death, but were murdered, is evident. The only question is who murdered them ?
Contention of the appellant was that he has been falsely implicated. The F.I.R. was lodged against unknown persons. In fact Police came to know about the double murder on 8th of November, 2005 itself and picked him up from his house at Basti at 4 a.m. in the morning of 09.11.2005 which is amply proved from the testimony of defence witnesses 1 and 2. It brought him to the place of crime and made him sit in the house. It is then that the Maid Radha rang the bell. When the appellant, on hearing the ringing of bell two or three times, approached the door, he found Radha entering the house whereupon, he stopped her and asked her to call the Police. It was dark, therefore, Radha could not possibly see that he was tied or not. It is against this background that the entire story has been built up to falsely implicate him. Property of the deceased has devolved upon her relatives, opposite party no. 4 and his two brothers and it is they who with the Police have hatched the conspiracy to implicate the appellant. No neighbours have been produced as eye witnesses. The weapon allegedly used in the crime has not been examined forensically. There is nothing to prove that the appellant had strangulated one of the deceased Km. Sarita Chaudhary. Muffler and iron chain allegedly recovered from the scene were not produced during trial. The appellant never resided at Lucknow at the relevant time and only resided there till 2002 when he was doing his B.Sc. The recovery memos had not been proved. D.W.3 and D.W.4, who are witnesses of the Panchayatnama and the Ext. Ka-16 pertaining to recovery of hair from the nails of the deceased Km. Sarita Chaudhary, have belied the inquest and the recovery. Promod Kumar, the witness to said recoveries has stated that he does not sign in Engligh. D.W.3 has stated that Pramod Kumar has studied only till class II or III.
He argued that the duration of death as mentioned in the postmortem, which was conducted at around 3.00 p.m. is said to be one day old, therefore, obviously the death had not occurred in the night intervening 8th and 9th of November 2005, but had occurred prior to it, but the papers were ante-dated and a cooked up story was put forth implicating the appellant. No question was put to P.W.1 as to whether the appellant resided with the deceased and there is no evidence to establish that he did reside with them. P.W. 2, father of P.W.1 was set up by the relatives of the deceased. He pointed out the contradictions in the testimony of P.W.3 and P.W.4 to drive home the point that P.W.4 had admittedly not seen any fight between the deceased Lalmani Chaudhary and the appellant, but had merely heard it i.e. hearsay. Moreover, according to him, P.W.4 had stated that the fight took place a day prior to ''Bariksha ceremony', whereas, P.W.3, his son, had opined that the fight took place during ''Bariksha ceremony'. Based on this statement of P.W.3 he has also argued that it is the own statement of P.W.3 that he did not attend the Bariksha ceremony, but remained in the house of the deceased, whereas, ''Bariksha ceremony' was being performed elsewhere, therefore, if the fight, as stated by him in his examination-in-chief, took place during ''Bariksha ceremony', P.W.-3 was also not a witness to it. Both the witnesses were interested witnesses being relatives of the deceased and had cooked up a story to falsely implicate the appellant.
He pointed out the contradiction in Ext. Ka-3 which is recovery memo of the alleged weapon used in the crime i.e. the stick, wherein it is stated that considering the possibility of existence of finger prints on the said stick it was not sealed, whereas, P.W. 3, a witness to the said recovery memo, has stated that the Police took possession of the said stick and sealed it "loZeksgj fd;k FkkA" He also pointed out the statement of P.W. 4 that the said stick had been sealed whereas the recital in Ext. Ka-3 was that it was not sealed. He also submitted that no time was mentioned on any Fard/recovery memo, therefore, it goes to show that the ''Fard' was prepared subsequently in the office. There was no mention of hair in the nail of deceased Sarita Chaudhary in the inquest report, though it is mentioned in the recover memo. Out of two independent witnesses of recovery of hair of Sarita Chaudhary, Shiv Lal was not produced and Pramod appeared as defence witness 4 and belied the recovery. Shiv Lal was witness to two recovery memos, but, on one he is said to have put his thumb impression, while, on the other, he has signed. None of the witnesses were inhabitants of the area, but, were residents of other districts. He pointed out the contradictions in the testimonies of P.W.1 and P.W.2. He submitted that P.W.2 had stated that her daughter Radha, P.W.1 had told him that four days prior to the date of commission of crime there was a fight in the owner's house where she worked i.e. Lal Muni Chaudhary's house. The appellant Guddu had fought on account of settlement of marriage of Km. Sarita Chaudhary and was angry and upset and that she suspected Guddu of having murdered her "Malkin", whereas, P.W.1 has not made any such statement and had denied having made such statement of suspecting the appellant of having committed the crime. He also pointed out that P.W. 2 had clearly stated in cross-examination that prior to the date of commission of crime he had never visited the house of Chaudhary Saheb and that he reached the place of incident one hour after receiving the information at about 7.30-8.00 a.m. from his daughter.
He also invited attention of the Court to the contradictions in the testimony of P.W. 6 and P.W. 7. P.W. 6 had stated about preparing recovery memos of hair collected from body of Km. Sarita on his own, whereas P.W. 7 has stated that they were sealed in his presence. He has denied that the witness to inquest were Rickshaw pullers, whereas P.W. 4 has admitted this fact.
He also contended that P.W.1 had belied the prosecution story and had been declared hostile. P.W. 2 was not an eye witness. P.W. 3 and P.W. 4 were also not eye witnesses. It was a case of circumstantial evidence, but the chain of events was not complete. The appellant had proved his alibi with the support of D.W.1 and D.W.2. Recoveries were suspect and unreliable just as the testimonies. Dupatta by which strangulation is said to have taken place was never collected nor put to forensic examination.
He, therefore, contended that the learned Trial Court had erred in convicting the appellant and its judgment is liable to be set aside and the appellant is liable to be set free.
He also contended that he was in jail for the past 15 years. His conduct was found to be "very good" that is why he was put in Adarsh Karagar.
In his written submissions running into three pages the appellant has merely referred to the decision of the Supreme Court in the case of State of Haryana v. Jagbeer Singh, AIR 1978 SC 33; Panna Veera Reddy v. State of Andhra Pradesh, 1989 Supp. 2 SCC 706; Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773; M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200; and in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 116; which lay down the principles for considering a case based on circumstancial evidence. some of these decisions hold that if two views are possible, then, one favourable to the accused should be adopted and in such cases benefit of doubt should be given to the accused.
Learned A.G.A. Sri Pankaj Kumar Tewari appearing for the State contended that the entire testimony of P.W.1, who has been declared hostile, is not liable to be discarded completely, as, in her examination in chief, she has stated about the presence of the appellant in the house when she opened the door and she saw him sitting and tied. This part of her testimony has not been dislodged even in the cross-examination. It supports the prosecution story and is admissible. To this extent P.W. 1 has corroborated what she had stated in her ''Written Tehrir' to the Police dated 09.11.2005 that when she entered inside the house, she found the appellant tied and that he had asked her to call the Police, whereupon, she came out and told the neighbours and a number of persons collected on the spot. Thereafter she went inside and saw the body of the deceased lying there. This part of P.W.1's testimony also corroborate the recitals in the F.I.R. and is admissible in evidence. He has relied upon decision of the Supreme Court reported in (2015) 4 SCC 749, Ms. Pepsi Foods Ltd. & anr. v. Spl. Judicial Magistrate (Para-27) in this regard. In view of this, the presence of the appellant at the scene of crime at about 7.30 a.m., when P.W. 1 entered the house where the crime was committed, is established, as such, in view of section 106 of Evidence Act it is for the appellant to explain and prove as to what happened in the house in his presence. Appellant has not been able to discharge his burden under section 106 of the Indian Evidence Act. In this regard he also submitted that the testimony of D.W.1 and D.W.2 is not reliable as D.W. 1 is the mother of the appellant and D.W.2 is a neighbour who, as per statement of D.W.1 and D.W.2 himself, is a cousin of the appellant. These testimonies are not reliable especially in view of the testimony of P.W.1 to the extent it is admissible as aforesaid as she is otherwise an independent witness.
He argued that as per the forensic report the hair collected from the nails of the deceased Km. Sarita Chaudhary and the sample hair collected from the head of the appellant matched and, therefore, this scientific evidence coupled with the testimony of P.W. 1, as referred hereinabove, clearly and conclusively establish the guilt of the appellant. According to him, Ext. 16 which is the recovery memo pertaining to recovery of hair from the nails of the deceased Km. Sarita Chaudhary, has been proved by P.W. 6 and 7 and there is no reason to disbelieve their testimony merely because they are Police pesonnel, as they did not have any personal axe to grind for implicating the appellant. Relatives of the deceased P.W.3 and P.W.4 had absolutely no motive to implicate the appellant falsely. They were in the normal line of succession to the estate of the deceased. The appellant on the other hand, as per the testimony of P.W. 2, 3 and 4, had a grudge on settlement of marriage of Km. Sarita Chaudhary and wanted the property to be given to him, as, Lal Muni Chaudhary whose husband had already expired earlier, did not have any son, but he feared that it would go to her daughter. The weapon used in commission of the crime i.e. the ''danda' was recovered on the pointing of the appellant from the back of an Almirah where it was hidden in the room of Late Ram Naseeb Chaudhary in the same house where the dead bodies were found.
According to him, postmortem and the medical opinion corroborated the commission of crime by strangulation and by the weapon recovered. No questions had been put to the prosecution witnesses on the question of veracity of recovery memos or that he had been brought to the scene of crime by the Police from Basti at 4.00 a.m. in the morning of 09.11.2015, therefore, the said plea cannot be raised by him at this stage. Prior to 3.15 p.m. Police did not suspect the appellant and when they did, they arrested him on 09.11.2005 at 3.15 p.m. The inquest was conducted between 9.30 a.m. and 10 a.m. and the body was sealed. Post mortem took place at 3.30 p.m. There is no question of ante-timing the F.I.R. or manipulating or concocting the recoveries.
He submitted that the chain of events was complete as, firstly, appellant was found present at the scene of crime at the first instance by the Maid Radha P.W.1. Secondly, on appellant's pointing the weapon used for commission of crime was recovered. Thirdly, he could not satisfactorily explain as to what happened in the house as he was the only occupant alive, the remaining two having been murdered. Fourthly, the hair collected from the nails of deceased Km. Sarita Chaudhary matched with the sample hair of the appellant in the forensic examination. Fifthly, motive for the appellant to commit the crime being greed for the estate/property of the deceased was also established. The alibi set up by the appellant is absolutely unreliable in view of the testimony of P.W.1 referred earlier, especially as, D.W.1 and D.W.2 are interested witnesses. Thus, the chain of events is not only complete and established, but it leads to only one hypothesis i.e. guilt of the appellant of having committed culpable homicide amounting to murder, as such, the Trial Court did not commit any error in convicting and sentencing the appellant. Its judgment did not require any interference.
It is a case of circumstantial evidence. In a case of circumstantial evidence, the circumstances from which 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 guilt of the accused. 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. This is the legal position settled by a catena of decisions of the Supreme Court. Reference may be made in this regard to the celebrated case of Sharad Birdhi Chand Sarda v. State of Maharashtra, (1984) 4 SCC 1165 and Jose @ Pappachan v. Sub Inspector of Police, Koyilandy, (2016) 10 SCC 519.
When we examine the facts and evidence of this case in the light of the aforesaid proposition of law, we find, firstly, that P.W. 1 Radha used to work in the house of the deceased, a fact which is proved by her testimony and also that of her father P.W.2 and this part of her testimony has not been dislodged in the cross-examination even after she was declared hostile nor has the testimony of her father P.W.2 been dislodged in this regard. From the address of P.W. 1 and P.W. 2 it is also a proven fact that they resided in the vicinity of the house where the crime was committed. In her examination in chief P.W. 1 has categorically stated that on 09.11.2005 at 7.30 a.m. when she went to the house of the deceased to perform her daily duties, she rang the bell a couple of times, but, the door did not open, whereupon, she pushed the outer door which opened. She then pushed the door of the drawing room which also opened and she saw Guddu Bhaiyya sitting tied. He told her to call the Police. She came out and informed the neighbours. Several people gathered there. She then entered the house alongwith these people. By then Police had also arrived. She saw two dead-bodies lying. They were of the owner of the house i.e. Lal Muni Chaudhary and her daughter Km. Sarita. In fact the exact words spoken by her before the Court are "iq"isUnz dqlhZ ij cSBk Fkk cW/kkA og mBk vkSj vius vki [kqy x;kA" This part of her testimony has remained intact even after she had been declared hostile and had been cross-examined by the prosecution and the defence. She in fact has proved the ''Tahrir' given by her in writing at 8.30 a.m. on 09.11.2005, to the Police, and also the contents of the F.I.R. in this regard. Her testimony to this extent being supportive of the prosecution story is admissible and reliable. Reference may be made in this regard to the decision of the Supreme Court in the case of Ramesh Harijan v. State of U.P., (2012) 5 SCC 777; Rohtash Kumar v. State of Haryana, (2013) 14 SCC 434, and M/s Pepsi Foods Ltd. (supra) wherein the aforesaid proposition of law has been laid down. It proves that the appellant was sitting tied up in the chair when Radha entered the house, but, when he rose, whatever was tying him, got untied by itself. Even at the cost of repetition it needs be emphasized that this part of the testimony could not be belied in the cross-examination on behalf of the accused, therefore, in the chain of events, one circumstance, a very important one, that is, the presence of the appellant at the scene of crime after the crime had been committed, on the date of its detection, is proved.
As regards the plea of alibi set up by the appellant that he was picked up from his residence at Basti on 9.11.2005 itself at about 4.00-4.30 a.m. Apart from his statement in this regard under section 313 Cr.P.C. D.W.1, his mother and D.W.2, his neighbour and cousin, have also deposed on the same lines. D.W.1 is his mother and, therefore, obviously she would make all possible efforts to ensure that her son is not held guilty. She is a related and interested witness. This apart she in her statement has stated that her son never studied at Lucknow nor resided at the place of late Ram Naseeb Chaudhary for long. During the course of arguments the appellant himself stated in no uncertain terms before the Court that he had studied B.Sc. at Lucknow till 2002 and used to live in a hostel in Bakshi Ka Talab. P.W.4, brother in law of the deceased has stated that he used to live with the deceased. D.W.2 being a neighbour and cousin, his testimony, is also that of an interested witness and not reliable, especially in view of the credible evidence available against the appellant in the form of testimony of P.W.1 pointing towards his presence prior to 7.30 a.m. on 09.11.2005 in the house of the deceased where the crime was committed. Testimony of D.W.2 on this issue as to whether the appellant studied in Lucknow and resided in Lucknow is also apparently dodgy as he first said that he did and then he retracted by saying that he did not have knowledge. There is no independent witness to establish that the appellant was at his residence at Basti prior to 7.30 a.m. on 09.11.2005. On the other hand, the testimony of P.W. 1 to the extent it is admissible and reliable proves his presence as aforesaid at the scene of crime at the relevant time. Plea of alibi is thus belied and is rejected.
We find it highly improbable that after picking him up from Basti as alleged, the Police reached Lucknow before 7.30 a.m. and asked him to sit in the house of the deceased, without any Police personnel around, as none were found when Radha P.W. 1, the Maid, visited the house and that the Police allowed Radha to enter the house which was the scene of a crime of double murder, unhindered, and that it cooked up a story to implicate the appellant in connivance with P.W. 3 and P.W. 4. There is no evidence that P.W.3 and P.W.4 had any motive in this regard. They reached Lucknow in the evening of 09.11.2005.
Moreover, as regards the suggestion of the appellant while he was arguing the matter in person that the death had in fact been detected by the Police a day earlier on 08.11.2005 itself and thereafter the story was cooked up to implicate the appellant falsely, we find that he has not stated so in his statement under section 313 Cr.P.C. about the crime having been detected on 08.11.2005 itself, though he had stated about being picked up from Basti. Moreover, we find from the testimony of P.W. 1 that she had visited the house of the deceased a day earlier at 5.00-5.30 p.m. and had returned after half an hour which goes to show that the deceased were alive by then, therefore the story sought to be set up by the appellant that the murder had not taken place in the night, but had taken place prior to it and the Police was aware of it and it cooked up a story to implicate the appellant, is not acceptable. After detection of the crime and the presence of the appellant by P.W. 1 at 7.30 a.m., F.I.R. was lodged within one hour at 8.30 a.m. which is prompt. It cannot be said that there was sufficient time to fabricate a story and implicate the appellant falsely. It would be rather fanciful to accept as suggested by the appellant during the course of arguments that the Police had come to know about the double murder a day earlier i.e. on 08.11.2005, without any explanation having been offered by the appellant as to through whom did the Police come to know about it and how is it that no one came to know about the crime till the morning of 09.11.2005.
The presence of the appellant at the scene of crime at 7.30 a.m. on 09.11.2005 having been proved, the onus shifted upon him to offer an explanation as to the facts within his special knowledge as per section 106 of Evidence Act 1872. We may in this context refer to the decision of the Supreme Court in the case of Trimukh Maroti Kirkan versus State of Maharashtra reported in (2007) 10 SCC 445; Shambhu Nath Mehra versus State of Ajmer reported in AIR 1956 SC 404; State of Rajasthan versus Kashi Ram reported in JT 2006 (12) SCC 254 and Collector of Customs, Madras & Ors. v. D. Bhoormull AIR 1974 SC 859, wherein, it has been held that as a general rule, in a criminal case, burden of proof is on the prosecution and section 106 of the Evidence Act is certainly not intended to relieve it of other burden, but, where certain facts are in the special knowledge of a person, section 106 imposes a burden upon him to establish those facts and if he fails to establish or explain those facts, an adverse inference of facts may arise against him which coupled with the presumptive evidence adduced by the prosecution would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. The explanation offered by such person has to be probable and satisfactory. 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 is insisted upon by the Courts as was observed in the case of Trimukh (supra). A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also proceeds to see that a guilty man does not escape. Both are public duties. The Supreme Court went on to observe in Trimukh's case (supra) that where offence like murder is committed inside the privacy of a house, initially 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 a circumstantial evidence. The burden would be of a comparatively lighter character. In view of section 106 of the Evidence Act there will 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 supported 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. In the present case the plea of alibi has already been found by us to be untenable. No explanation has been offered by the appellant which could discharge him of the burden imposed upon him under section 106 of the Evidence Act.
A question could arise as to why the appellant would be present at the scene if he had committed the crime. He could have fled. It was for the appellant to offer an acceptable and satisfactory explanation in this regard in terms of section 106 of Evidence Act, but he has not offered such explanation. It is in this context that the testimony of P.W. 4 is relevant as according to him appellant used to reside with the deceased and looked after them and as per the testimony of P.W. 3 there were heated exchanges between the deceased Lal Muni Chaudhary and the appellant barely four or five days ago between 3.11.2005 to 5.11.2005 and the crime was detected in the morning of 09.11.2005, as such, the suspicion would fall on him, if he absconded. Therefore, his presence in the house tied up in the chair which came off when he stood up as stated by P.W.1 was necessary to make out a case of murder by someone else and to project himself as one of the victims. The big question is why the perpetrators of the crime, if they were someone else than the appellant, assuming it to be so, would leave a witness (appellant) behind, tied, and not visit him with the same fate as had visited the deceased. The plea of alibi having been found untenable in view of testimony of P.W. 1, the appellant was required to offer an explanation about the events which took place in the house which could only be in his special knowledge, especially as, the prosecution successfully discharged the burden to prove its case, but the appellant did not offer any acceptable and satisfactory explanation, therefore, an adverse inference has to be drawn against him.
Recovery of strands of hair from the nails of deceased Km. Sarita Chaudhary has been proved by P.W.6 and P.W.7. Even though, Shiv Lal who is alleged to be one of witnesses to the said recovery has not been produced and another witness, alleged Pramod Kumar, has been produced by the defence, albeit, without any summons having been issued by the Court, and he has denied any knowledge of the case and also that he does not sign in English, merely because of this, we are not persuaded to disbelieve the recovery of such hair in view of testimony of P.W.6 who has prepared the recovery-memo and has proved it. P.W.7, the Investigating Officer, has also supported his testimony in this regard. The fact that they are Police personnel does not by itself persuade us to take any other view of the matter in the absence of any evidence to show that they had any personal interest to falsely implicate the appellant. Prompt lodging of F.I.R., within one hour of the incident, inquest having been conducted promptly, body being sent for postmortem promptly, recoveries being made, all on the same day within reasonable time, we do not find any reason to disbelieve the recovery of hair from the nail of deceased Km. Sarita Chaudhary. As regards the recovery of sample hair from the head of the appellant, apart from being admitted to the appellant, it has also been proved by the testimony of P.W. 3 and P.W. 4, and by the testimony of P.W.6 and P.W.7. Copy of this recovery memo pertaining to the sample hair has been supplied to the appellant. The hair collected from the body of Km. Sarita Chaudhary and the sample hair collected from body of the appellant were subjected to forensic examination by the Forensic Laboratory and both were found to be of the same origin and as being similar. This report having remained unchallenged, hair recovered from the nails of Km. Sarita Chaudhary having matched with sample hair of appellant, it is another circumstance which is proved against the appellant and in favour of the prosecution story.
As per the forensic report dated 25.2.2008, referred earlier, strands of hair recovered from the nails of deceased Km. Sarita Chaudhary (Item No. 20) and the sample hair taken from the head of the appellant (Item No. 21) were found to be of the same origin and were the same, therefore, this is a circumstance which goes against the accused and in favour of the prosecution story, especially as, this report has gone unchallenged before the Trial Court.
The forensic report dated 22.5.2008 found blood on item nos. 1 to 20 and 24 which were sent to the forensic laboratory for examination. Sl. Nos.1 to 20 as mentioned in the report are various items which were recovered from the body of the deceased including apparels and hair collected from the nail of Km. Sarita Chaudhary. Item No. 24 was the ''danda' used for hoisting the mosquito net, the weapon used in crime. Blood was found on that also. Item No. 23 was the sample flooring collected collected from the scene of crime. Blood on item Nos. 5 to 8 and 16 to 19 was found insufficient for serum. Human blood was found on Item Nos. 1 to 4, 9, 10, 15 and 22. Blood on Item No. 11 to 14, 20 and 24 was found to be disintegrated on account of which its origin could not be ascertained. The blood on Item No. 1, 3, 10 and 22 could not be categorized. Blood on Item Nos. 2, 4, 9 and 15 were not found suitable for categorization. As already stated, Item Nos. 20 and 21 matched.
In another forensic report dated 06.06.2006 the blood soiled flooring recovered from the scene of crime, when examined with the sample flooring they also matched thereby proving the scene and place of crime as being the house from where the flooring was collected.
The disclosure statement containing the information leading to the recovery of ''ala-e-katl' as contained in the recovery memo, Ka-3, itself has been proved by P.W. 7. The recovery of weapon used for commission of the crime on the body of Lal Muni Chaudhary i.e. the danda used for hoisting the mosquito-net, on the pointing of the appellant, in the evening of 9.11.2005 itself, after his arrest at about 3.15 p.m., has also been proved by P.W.3 and 4 and also P.W.6 and 7 and there is no reason for us to disbelieve their testimony in this regard. The slight contradiction in the statement of P.W. 3 and P.W. 4 viz.-a-viz. Statement of P.W.6, P.W.7 and P.W.8 as to whether the ''danda' which was recovered was sealed or not is not sufficient to discard the prosecution story in its entirety it being a minor inconsistency. The conduct of the appellant in pointing to the danda (ala-e-katl) kept behind the almirah in the room of Late Ram Naseeb Chaudhary and himself taking it out from behind it, is amply proved from the testimony of P.W.3, P.W.4, P.W.6 and P.W.7, therefore, in view of section 8 of the Evidence Act this is also an evidence admissible and available against the appellant. We are, therefore, of the opinion that recovery of the weapon of crime on pointing of the appellant and his conduct in this regard, which has been proved by the prosecution as aforesaid, is also a circumstance which goes against the appellant and points towards his guilt.
When we examine the antemortem injuries mentioned in the postmortem report and the internal examination of the body by the Autopsy Surgeon as also the medical opinion expressed by him i.e. P.W.5, we find that the injuries on the head of Lal Muni Chaudhary are such as could be caused by the ''danda' recovered on the pointing of the appellant. The weapon of crime was produced before the Trial Court and the Court below has opined that lacerated would such as the one on the head of lal Muni Chaudhary could be caused by such a hard danda as has been recovered, rightly so. In the forensic report blood was found on the danda (Item No.24), but it was found to be disintegrated. Such injuries as existed on the head of Lal Muni could be caused from such a weapon as was recovered. It is the said injuries which according to the medical opinion of P.W. 5 had resulted in coma consequently causing the death of Lal Muni Chaudhary. It would have been better if the ''danda' had been shown to P.W.5 to elicit his opinion, but, merely on account of this omission, the prosecution story does not get materially prejudiced as P.W.5 has stated that the injuries on her head were caused by a hard object and the ''danda' recovered was such an object as also opined by the Trial Court before which it was available. Thus, this circumstance is also proved against the appellant.
On a perusal of the inquest report it is evident that a georgette dupatta was found around the neck of Km. Sarita Chaudhary. While it is true that the said dupatta was not collected nor any recovery memo was prepared in respect thereto, but this is only a lapse on the part of the investigation, nothing more. The medical evidence and medical opinion clearly mentions about presence of ligature mark all around her neck. The cause of death is mentioned as antemortem strangulation. It is proved that death of Km. Sarita Chaudhary was caused by antemortem strangulation. Considering the presence of the appellant in the house at the date, time and place already referred and his failure to offer any explanation as to the events which took place at the scene of crime in the house where out of the three occupants two died and only the appellant survived, more so, on account of matching of the hair recovered from the nails of Km. Sarita Chaudhary with the sample hair collected from the body of the appellant and postmortem report, which has been supported by P.W.5 according to whom death was caused by antemortem strangulation, non-recovery of dupatta, even when the inquest report mentions about it; is a deficiency on the part of investigation and no benefit can accrue to the appellant on this count.
As regards motive on the part of appellant, while P.W. 4, brother-in-law of the deceased has stated in his cross-examination that he did not himself see heated exchanges taking place between the deceased and the appellant nor did he see or hear him extending threats to her if he was not given a share in the property, which only goes to show his truthfulness, P.W.4 has not only mentioned about various properties being owned by late Ram Naseeb Chaudhary, he has also stated that Late Ram Naseeb Chaudhary did not have any son and as per testimony of P.W. 4 the deceased i.e. his wife and daughter were looked after by the P.W. 4 and the appellant Pushpendra Chaudhary alias Guddu. Guddu used to reside with the deceased regularly, whereas P.W.4 used to visit her once or twice a month. He has stated, "esjs HkkbZ dh e`R;q ds ckn HkkHkh o lfjrk dh enn iq"isUnz o ge yksx djrs FksA ge yksx eghus esa ,d&nks ckj vDlj vk;k&tk;k djrs FksA iq"isUnz mUgha ds ikl cjkcj jgrk FkkA" Late Ram Naseeb Chaudhary, brother of P.W. 4 died on 24.04.2004. Thus, as per P.W.4 Pushpendra resided with Lal Muni Chaudhary at Lucknow in her house. Even the mother of the appellant D.W.1 has stated before the Trial Court that late Ram Naseeb Chaudhary was her real ''Nandoi'. She has said, "esjs uUnksbZ Lo0 jke ulhc pkS/kjh vfHk;qDr iq"isUnz dks cgqr vf/kd ekurs FksA" The fact that Bariksha ceremony of deceased Km. Sarita Chaudhary had taken place is admitted to D.W.1, the mother of the appellant, also. Thus, P.W.4's testimony proves that the appellant resided with her. It is true that no witness other than P.W. 4 has been examined to prove that the appellant resided with the deceased regularly, but then, there is no reason for us to disbelieve the testimony of P.W. 4 and the defence has not been able to impeach his credibility in any manner. There is no evidence to suggest that there was any dispute between the deceased, P.W.3 and P.W.4 regarding her property or that they had any ill motive to falsely implicate the appellant in the case. Their testimonies are natural truthful and acceptable. Merely because they are relatives of the deceased is no ground in the facts of the present case to disbelieve them. As held by the Trial Court, the documentary evidence filed by the defence before the Trial Court relate to a period after the date of commission of crime and they pertain to some litigation between the heirs of the deceased regarding her property which had devolved upon them based on the natural and legal line of succession. There is also no evidence to show that any Will had been executed by the deceased in favour of the appellant which could create some apprehension in the mind of P.W.3, P.W.4 and other relatives as regards non-devolution of her estate/property in their favour assuming that it did not go to her daughter Km. Sarita Chaudhary, which in turn could give them some motive either to implicate the appellant in the crime or to themselves commit the crime. P.W. 3 and P.W. 4 did not have any motive to implicate the appellant. There is no evidence on record to suggest that the relationship between the deceased and P.W. 3, P.W. 4 and other members of the family were strained. Moreover, as already stated, appellant's presence at 7.30 a.m. in the morning on 09.11.2005 is proved by P.W. 1 and no explanation has been offered by the appellant in this regard. The plea of alibi set up by him has not been found to be credible. Moreover, in this regard on the aspect of motive we would like to refer to the testimony of P.W. 3 who is the grandson of P.W. 4. He had also visited Lucknow for the Bariksha/Chhedana ceremony of deceased Km. Sarita Chaudhary held barely couple of days prior to the date of crime. In his examination in chief he has categorically stated as under:
"cjhNk esa rw&rw eS&eS gqvk FkkA rw&rw& eS&eS iq"isUnz vkSj Jherh ykyeqUuh ¼nknh½ esa gqvk FkkA iq"isUnz lEifRr esa fgLlk pkg jgk Fkk bl dkj.k fookn gqvk FkkA bl >xM+s esa iq"isUnz us /kedh Hkh fn;k Fkk fd ;fn eq>s lEifRr esa fgLlk ugha feysxk rks vPNk ugha gksxkA /kedh nsus ds 3&4 fnu ckn eSus lquk fd dq0 lfjrk o Jherh ykyeqUuh ¼nknh½ dh gR;k gks x;hA tc eSus lquk rc eq>s iw.kZ 'kadk gks x;h fd gR;k iq"isUnz pkS/kjh mQZ xqM~Mw us dh gksxhA"
Even in the cross-examination of P.W. 3 on behalf of the appellant, this part of his testimony has not been dislodged by the defence.
Much mileage was sought to be drawn by the appellant on account of the statement of P.W.3 that "cjhNk esa rw&rw eS&eS gqvk FkkA". Accordingly, as argued by the appellant, as per P.W.3's statement it was during the Bariksha Ceremony that the verbal fight had taken place, but, this witness himself has mentioned in his cross-examination that he did not know where the Bariksha ceremony had been held and that he remained in the house, therefore, he could not say as to how many people had come in the Bariksha ceremony and by what means of conveyance. He was alone in the house, all others had gone to attend the Bariksha ceremony. Therefore, the appellant contended that the statement made in the examination in chief is belied by what he has stated in the cross-examination. We are of the opinion that the words "cjhNk esa rw&rw eS&eS gqvk FkkA" are of vide import. ''Bariksha', being referred by the P.W. 3, does not necessarily mean only the actual place of ceremony of Bariksha, but, it is generally understood in common parlance to include the entire period of reaching the place, town or district, where the Bariksha is to take place, staying there attending the Bariksha and thereafter returning from the Bariksha. There is no reason for us to take a narrow view of such a statement as implying only the ''actual ceremony' which took place at Lucknow and not the entire period of stay of P.W.3 at Lucknow when he specifically came to attend the Bariksha ceremony. It is highly unlikely that such a dispute will take place during the actual ceremony when guests from groom's side are also present. It is more probable that it may have taken place prior to or after the actual ceremony hours where P.Ws. 3 and 4 and others were lodged. In fact, P.W.4 has stated in cross-examination that the fight between deceased Lal Muni Chaudhary and appellant Pushpendra Chaudhari had taken place a day prior to the Bariksha, though he himself did not see it but had heard about it. P.W.4 had also come to Lucknow for the said ceremony.
As per unrebutted testimony of P.W. 3 who is grandson of P.W. 4 heated exchange took place between the appellant and the deceased as appellant was asking for a share in the property which led to a dispute and he even extended a threat to the deceased that if he did not get a share, then it would not be good for her. In cross-examination of this witness nothing was brought out to dislodge his version about the heated exchanges between the deceased Lal Muni Chaudhary and the appellant nor about him having come to Lucknow for the Bariksha ceremony nor anything which could establish that he had himself not seen the heated exchanges between Lal Muni Chaudhary and the appellant. No such suggestion or question was put to him in the cross-examination nor did it illicit any such response so as to make his testimony in this regard unworthy of credence. His presence in the evening of 09.11.2005 at Lucknow could also not be dislodged in the cross-examination. This argument is, therefore, rejected. In view of the testimony of P.W. 3 and P.W. 4 motive for committing the crime on the part of the appellant is established, therefore, this is also a major circumstance which goes against the appellant and points towards his guilt coupled with the other events already discussed.
Thus, this completes the chain of events which have been conclusively proved.
As regards alleged contradictions in the testimony of P.W.6 and P.W. 7, as pointed out by the appellant we do not find much contradiction except so far witness to the inquest whether they were rickshaw pullers or not, is concerned. In this regard P.W.7 has stated that they were rickshaw pullers who were the ones available. P.W.7 has stated that hair collected from body of Km. Sarita Chaudhary was sealed by P.W.6 in his presence which does not materially contradict P.W.6's statement that he had prepared the recovery memo in this regard on his own. There are no major contradictions.
The prosecution having proved its case beyond reasonable doubt as regards the presence of the appellant at the scene of crime, it, having proved with the support of unchallenged forensic report that the hair in the nails of deceased Km. Sarita Chaudhary was of the same origin as the hair sample taken from the head of the appellant, it having recovered the weapon used in committing the crime on the body of Lal Muni Chaudhary on the pointing of the appellant, his (appellant's) conduct in this regard having been proved, the medical evidence having corroborated the commission of murder on the body of Lal Muni Chaudhary by a hard object, such as the danda recovered, the other deceased Km. Sarita Chaudhary having died of strangulation in the very house where the appellant was found present and the hair in her nails having matched with that of the appellant, the motive on the part of appellant also having been proved, it was incumbent upon the appellant to have offered an explanation of the events which took place in the house as the crime was committed inside the house, especially as the alibi set up by him is not credible, and there was nothing more that the Police could have done in the matter and accordingly the burden had shifted on the appellant, but, the appellant has failed to offer any acceptable explanation in this regard to discharge his burden under section 106 of the Indian Evidence Act, hence this compels the Court to draw adverse inference against him as has been done by the Trial Court, rightly so. This coupled with the evidence led by the prosecution rebuts the initial presumption of the appellant and proves his guilt.
We are, thus, of the view that the chain of events discussed hereinabove is conclusively proved and it points to only one direction that is the guilt of the appellant in murdering his ''Bua' and ''sister', as charged. Prosecution case is proved beyond reasonable doubt.
The Trial Court has acquitted the appellant of the offence punishable under section 201 merely because the scarf/Muffler and iron chain which were recovered were not produced by him, but we have no doubt as to the guilt of the appellant as regards the offence punishable under section 302 I.P.C. just as the Trial Court did not have any doubts in this regard.
We have perused the judgment of the learned Trial Court. We do not find any error therein warranting our interference in this appeal.
For all these reasons this appeal fails and is dismissed.
A certified copy of this judgment shall be sent to the Trial Court for necessary action, if any required.
Lower Court record be sent back to the Court concerned.
As the appellant is in jail, let a certified copy of this judgment be communicated to him through the Chief Judicial Magistrate concerned, free of cost.
(Saurabh Lavania, J.) (Rajan Roy, J.) Order Date :- 10.03.2021 A.Nigam