Allahabad High Court
Smt. Kamini Verma vs State Of U.P. on 15 November, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW CRIMINAL APPEAL No. - 855 of 2016 ..Appellant(s) Versus State of U.P. ..Respondents(s) Counsel for Appellant(s) : Lalla Ji Maurya, Anju Tripathi, Ashutosh Tiwari, Jyoti Rajpoot, Kuldeep Kumar Srivastava, Nadeem Murtaza, Reena Gupta, Shailesh Kumar Pathak., Srikant Mishra., Umesh Pratap Singh. Counsel for Respondent(s) : Govt. Advocate., Deepak Kumar Pandey A.F.R. Reserved on 07.10.2025 Delivered on 15.11.2025 Court No. 9. HON'BLE RAJESH SINGH CHAUHAN, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
(Per : Honble Abdhesh Kumar Chaudhary, J.)
1. The present Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure Code, 1973 (in short Cr.P.C.) has been filed by the appellant/ accused Smt. Kamini Verma against the judgment and order dated 10.06.2016 passed by the Additional Sessions Judge/Fast Track Court No. 1, Balrampur in Sessions Trial No. 34 of 2012 arising out of Crime No. 553 of 2011 (State V/s Rajesh Kumar Mishra and others), wherein she has been convicted and sentenced for punishment for the substantive offence under Section 302/34 I.P.C. for life imprisonment along with fine of Rs. 15,000/- and under Section 120-B I.P.C. for life imprisonment along fine of Rs. 15,000/-. However, the benefit of Section 428 of Criminal Procedure Code relating to concurrent running of both the said sentences of conviction has been granted to the appellant by the Ld. Trial Court.
Case of the Prosecution
2. The case of the prosecution as elaborated by the learned Trail Court in the impugned judgment is briefly encapsulated as herein under:
2.1 The complainant- Prem Kumar Shukla(PW-1), had got married his sister-Nandini to Rajesh Kumar Mishra, (A-1) S/o Jagdamba Prasad Mishra and R/o Village Sonhati, Police Station- Pachpedwa, District- Balrampur.
2.2 Out of the said wedlock, one son and two daughters were born, who were aged 5 years, 6 years and 8 years, respectively at the time of incident.
2.3 On 08.12.2011, Rajesh Kumar Mishra took his only son Sundaram for performing Tudan Ceremony to Gaura Chauraha.
2.4 Apparently, at Gaura Chauraha, Rajesh Kumar Mishra used to run a ready-made shop in a tenanted premise, rented out by the landlord- Govind Prasad Pandey (PW-3).
2.5 It has been stated that Rajesh Kumar Mishra had illicit relationship with the appellant-Kamini Verma, (A-2) who is resident of village- Haraiyya Chandrasi, Police Station- Pachpedwa, since the last two years and for which the complainant- Prem Kumar Shukla had even complained to the parents of Rajesh Kumar Mishra on several occasions.
2.6 It has further been stated that on 10.12.2011 at around 5:00 AM in morning the complainant received a telephonic call from Mobile No. 7398526113 belonging to one Shri Ram Pandey, (PW-2) S/o Ram Sumer Pandey, R/o Village- Gaura Chauraha, informing him that after having burnt alive the complainants sister- Nandini and her son-Sundram, both Rajesh Kumar Mishra and the Appellant-Kamini Verma had fled away.
2.7 The complainant also stated that whenever his sister used to come to her parental home, she used to tell her mother and sister-in-law (Bhabhi) that she was being harassed by her mother-in-law (Smt. Parwati Devi) (A-3), father-in-law (Jagdamba Prasad) (A-4) and her husband (Rajesh Kumar Mishra) by demanding motorcycle and chain as dowry. She also used to tell that if she did not fulfill this demand, then her husband would be remarried and her in-laws would end her life and that of the children.
2.8 On the basis of the aforesaid statement of Prem Kumar Shukla, a First Information report (FIR) No. 553/2011 dated 10.12.2011 (Exhibit-Ka-18) came to be lodged at around 8:30 AM in the morning, under Sections 498-A, 304-B, 201 I.P.C. and Section 3/4 of the Dowry Prohibition Act, against four accused, including the Appellant.
2.9 Thereafter, the police arrived at the crime spot and inspected the dead body. Inquest report was prepared of the deceased- Nandini (Exhibit Ka-02) and that of deceased Sundaram (Exhibit Ka-03), wherein the reason was mentioned as burning to death for dowry. The ashes of the burnt room (Exhibit Ka-4) was collected from the crime site. The dead bodies were sent to the District Hospital, Gonda for post mortem, which were conducted on 11.12.2021 at 3.00 PM of the deceased Nandini (Exhibit Ka-16) and at 3.35 PM on the same day of deceased Sundaram (Exhibit Ka-17).
2.10 During investigation, the police prepared the site plan (Exhibit Ka-20). Statements were recorded of the complainant and other witnesses under section 161 of the Criminal Procedure Code, Forensic report (Exhibit Ka-22) was collected and upon completion of investigation, the Investigating officer filed the Charge-Sheet (Exhibit Ka-21) and supplementary Charge-Sheet (Exhibit Ka-23), for offences punishable under Section 498A, 302, 120B of the Indian Penal code.
Proceedings before the Ld. Trial Court
3. The Charge-Sheet named four accused being (i) Rajesh Kumar Mishra (A-1), (ii) Smt. Parvati Devi (A-2), (iii) Smt. Kamini Verma- Appellant (A-3) and (iv) Jagdamba Prasad Mishra (A-4). Thereafter, the case came to be committed to the Sessions Court and to the charges framed against the accused, all of them pleaded not guilty and claimed Trial.
3.1 The prosecution, in order to prove its case, have examined nine witnesses. The details of the witnesses are given herein below: -
P.W.-1 Prem Kumar Shukla Complainant/brother of the deceased P.W.-2 Shri Ram Pandey He got married in the same village as that of the complainant and is related as son of brother-in-law.
P.W.-3 Govind Prasad Landlord of the shop of Rajesh Kumar Mishra P.W.-4 Manzoor Ahmad Nayab Tahsildar, Tehsil-Balrampur P.W.-5 Dr. F.R. Malik E.M.O. Memorial Hospital, Balrampur P.W.-6 Dr. P.K. Srivastava Radiologist of the Hospital P.W.-7 Constable- Hariram Bharti Head Moharrir posted at Gaura Chauraha at the time of the incident P.W.-8 Inspector Banshraj, I.O.
Investigating Officer.
P.W.-9 Harigovind, Additional S.P. C.O./Investigating Officer 3.2 Apart from the oral evidence led by the prosecution, various documents have also been exhibited and proved running from Exbt. Ka-1 to Exbt. Ka-23.
3.3 Thereafter, the statement of the Appellant and the other accused were recorded under Section 313 of the Cr. P.C on 21.1.2015, wherein she denied the fact of being involved in the present incident and setting ablaze of the deceased- Nandini and her son Sundaram. She has stated that she was married in the year 2005 with one Bansraj Verma, R/o Ram Nagar, Police Station- Pachpedwa, District- Balrampur and her parental home is at Haraiyya Chandrasi, Police Station- Pachpedwa. She also stated that the complainant-Prem Kumar Shukla has kinship in the family of Gram Pradhan Brijesh Pandey of village of her parental home and stated that her parental family had an old animosity with Brijesh Pandey. She also stated in her statement recorded under Section 313 Cr.P.C. that she was at her parental home at the time of incident and that Brijesh Pandey had provoked the complainant- Prem Kumar Shukla to get registered this false case against her and she does not recognize Rajesh Kumar Mishra nor had any relationship with him.
3.4 None of the accused persons, including the appellant produced any defence witnesses in their favour.
3.5 After hearing the arguments of both the sides and on basis of the evidence available on record, the Learned Trial Court returned a finding that the oral and documentary evidence placed before the Court by the prosecution were found adequate for successfully proving the entire chain of whole evidence from beginning to end in a coherent manner on the parameters of circumstantial evidence set by the Hon'ble Supreme Court in the case of Sharad Birchandra Sarda v/s State of Maharashtra, 1984 SCC(Crime) 487, against the accused Rajesh Kumar Mishra and Kamini Verma for hatching a criminal conspiracy for killing Prem Kumar Shukla's sister Nandini and nephew Sundaram by burning them to death in the present case. According to the learned Trial Court, the bodies of Nandini and Sundaram were found in the rented shop of accused Rajesh Kumar Mishra, the shutter of the shop was closed from outside and the accused failed to give any satisfactory explanation in this regard, and the accused Rajesh Kumar Mishra had an illicit relationship with accused Kamini Verma, the postmortem report stated that the death was one and a half day before and the cause of death was due to shock of burning before death. According to the Trial Court, these are such links of the witnesses which are connected to each other and clearly prove the accused Rajesh Kumar Mishra and Kamini Verma guilty for the murder of Nandini and Sundaram but the prosecution evidence does not fully prove the allegation in respect of accused Jagdamba Prasad and Parvati Devi.
3.6 The learned Trial Court, in conclusion, after analyzing the evidence available on record, arrived at a conclusion that the prosecution has been successful in proving its witnesses in this case that the accused- Rajesh Kumar Mishra and Kamini Verma hatched a criminal conspiracy to remove Nandini from their path due to their illicit relationship and under this conspiracy, they called Nandini and Sundaram to a rented shop on the pretext of getting Tundan done and in order to satisfy their love affair, they burnt them to death with the common intention of killing them. Thus, according to the Trial Court, the prosecution has been successful in proving the offence under Section 302 read with Section 34 and Section 120B of the Indian Penal Code against the accused persons Rajesh Kumar Mishra and Kamini Verma beyond a reasonable doubt. Therefore, both the accused persons Rajesh Kumar Mishra and Kamini Verma were convicted under Section 302 read with Section 34 and Section 120 I.P.C.
3.7 The learned Trial Court, also found that the charge levelled against the accused persons Rajesh Kumar Mishra and Kamini Verma under Section 498A I.P.C. was not proved beyond reasonable doubt. Therefore, the accused persons Rajesh Kumar Mishra and Kamini Verma were acquitted under Section 498-A I.P.C.
3.8 Similarly, the evidence presented by the prosecution did not prove any allegation against Jagdamba Prasad Mishra and Parvati Devi under sections 498A, 302 read with 34 and 120B of the Indian Penal Code. Therefore, the accused persons Jagdamba Prasad Mishra and Parvati Devi were acquitted under Sections 498A, 302 read with 34 and 120B of the Indian Penal Code.
Proceedings before this Court
4. Being aggrieved by the aforesaid conclusion of the learned Trial court, two Appeals came to be filed. One by the Accused Rajesh Kumar Mishra (being Criminal Appeal No. 856/2016) and the second being the present Appeal (being Criminal Appeal No. 855/2016) by the Accused Kamini Verma.
4.1 During the course of hearing of the present Appeal, this Court was informed that in the Appeal filed by the Accused-Rajesh Kumar Mishra vide Criminal Appeal No. 856 of 2016, an application for bail had been preferred by him, which came to be rejected by a Co-ordinate Bench of this Court on 6.4.2022. The rejection of the said bail application was carried to the Honble Supreme Court vide S.L.P. (Criminal) No. 6131 of 2022. It has further been informed that Rajesh Kumar Mishra, who is the main accused of the present case, had been granted bail (Sentence had been suspended) by Honble Supreme Court vide its order dated 04.07.2023.
4.2 However, subsequently Rajesh Kumar Mishra left for his heavenly abode and as such the aforesaid appeal preferred by him before this Court stood abated vide order dated 21.04.2025.
4.3 It has been thus submitted by the learned counsel for the appellant that it is Kamini Verma, (the Appellant), who is the only surviving accused in the present case and although there is no cogent evidence found against her, still she is being forced to be incarcerated since last more than 11 and half years and as such he has prayed for Bail.
4.4 However, during the hearing of the Bail Application of the Appellant, since the paper-book was ready and the Appeal had been pending for close to nine years, both the parties chose to address this Court on the Appeal itself on merits and as such this Court heard both sides at length.
Submission of the Parties
5. Heard Sri Shailesh Kumar Pathak, learned Counsel for the appellant and Sri Umesh Verma, learned A.G.A. for the State.
6. Learned Counsel for the appellant has vehemently argued that there was no ocular witness to the present incident and the entire case is based on hearsay evidences. According to him, the prosecution has miserably failed to prove the presence of the present appellant- Kamini Verma at the place of occurrence. The Appellant has been convicted on the premises of being in illicit relationship with the main accused- Rajesh Kumar Mishra, however apparently the said relationship was not established by cogent evidence. Learned Counsel for the appellant has further relied on the statement of accused Rajesh Kumar Mishra recoded under Section 313 Cr.P.C. to highlight the reason for the fire which broke on the fateful intervening night of 9-10 December, 2011. According to him, co-accused Rajesh Kumar Mishra has stated that a kerosene lamp was lighting at the place of occurrence. There was no electricity connection in his shop and his residence was situated on the rear side. It was due to fall of the lamp at about 4 o'clock on the morning of 10.12.2011, a fire broke out in the shop due to which the entire shop was guttered and his wife and son had died of burning. He vehemently argued that there was evidence to support the version that Rajesh Kumar Mishra, Govind Prasad Pandey and people from the surroundings tried to extinguish the fire by throwing water and it was Rajesh Kumar Mishra, who had informed the complainant-Prem Kumar Shukla from his mobile. It has also been submitted that although there were four accused persons, who were sent for Trial, however, on the appreciation of evidence, learned Trial Court found only two persons guilty and has exonerated the mother-in-law and father-in-law and convicted the appellant and Rajesh Kumar Mishra.
7. The learned Counsel has also sought to submit that the entire case is based on circumstantial evidence and the present Appellant is being connected to the offence of murder due to invocation of the provisions of criminal conspiracy under section 120B IPC, however it is his submission that a reading of the prosecution witnesses and the material brought on record, reveals that there are various missing link and as such the appellant cannot be convicted in the absence of the completion of chain, which is a sine quo non for any criminal conspiracy to sustain in the eyes of law. He has also argued that in the evidence, which has come on record, there cannot be any iota of suspicion that there could be any meeting of mind or common intention as the Appellant has nowhere been connected to the present incident and has been merely roped in by alleging illicit relationship with the co-accused Rajesh Kumar Mishra. Thus, he prays for setting aside of the Judgment dated 10.06.2016 passed by the Additional Sessions Judge/Fast Track Court No. 1, Balrampur in Sessions Trial No. 34 of 2012 and prays for acquittal of the Appellant in the present case.
8. Per contra, learned A.G.A. appearing for the State has submitted that it is the specific submission of P.W.-2 that the appellant Kamini Verma was present in the shop of Rajesh Kumar Mishra, immediately before the fateful night of incident and as such the last seen theory would be applicable to the facts of the present case. According to the learned AGA, all the prosecution witnesses and the material brought on records, point towards the culpability of the Appellant and the learned Trial Court has rightly convicted the Appellant under section 302/34 and 120B IPC for life imprisonment. He pointed out that there is no specific defence raised by the appellant in respect of her alleged innocence, and therefore, considering the entire evidence on record, her conviction recorded by the learned trial Court has to be upheld. Thus, he prayed for dismissal of the appeal.
Discussion & Finding
9. We have heard the learned Counsel for both the parties and perused the material brought on records. The power of this Court as being the 1st Appellate Court under section 386 Cr.P.C are as wide as the Trial Court and as such this Court can review the whole evidence and all relevant circumstances to arrive at its own conclusion about the guilt or innocence of the accused. This Court in view of the power having been bestowed by the aforesaid provision has a mandatory duty to make proper analysis of evidence and to consider whether the Trial Courts assessment of evidence and its opinion regarding conviction deserved to be confirmed or not because the personal liberty of an accused is being curtailed due to the aforesaid conviction.
10. However, before this Court delves into the evidence of the present case for the purpose of scrutinizing and appreciating its credibility, it would be incumbent upon this Court to first narrate the testimony of each and every prosecution witness, which has come on record vis--vis the involvement or otherwise of the Appellant.
11. As already stated herein above, the prosecution in order to prove its case, have examined nine witnesses. Prem Kumar Shukla(PW1) is the brother of the deceased. His educational qualification is intermediate and is posted as Home-Guard at Sidharthnagar. He has stated in his examination in chief, that Accused Rajesh Kumar and the Appellant had illicit relationship since the last 2-3 years from the date of incident. However, he also says that he does not recognizes the Appellant and came to known about her only after her arrest, after the incident. He also says that the parents of Rajesh Kumar knew about the illicit relationship between Rajesh Kumar and the Appellant. He says that Rajesh Kumar shifted to a rented shop at Gaura Chauraha, some 5-6 months before the incident and used to run a garment shop. The landlord of the shop was Govind Prasad Pandey and the Appellant used to come to the shop of Rajesh Kumar from time to time.
As far as the present incident is concerned, he says that on 10.12.2011 at about 5:00 AM, Shri Ram Pandey has informed about the incident on his mobile that his brother-in-law Rajesh and the Appellant has burnt alive his sister and nephew (bhanja) Sundaram in the night and ran away. He was informed that the dead body was lying burnt and he was told to come fast. He further says in his examination-in-chief that when he visited the crime spot, he came to learn that his sister Nandini and bhanja-Sundaram had come to the Gaura Chauraha ready-made garment shop from their home on 08.12.2011 and the Appellant had also come to the shop on the very next day. He further stated that, he came to learn that on the arriving of the Appellant, the same was objected to by his sister by stating that when Rajesh Kumar had called over the Appellant, what was the point in calling his sister-Nandini at his home at Gaura Chauraha and as such all of them quarreled for the entire day and in the night these people burnt his sister and bhanja alive in an organized manner. The said witness had also stated that around 3 AM in the night, the landlord woke up due to sound of cracking of cement and smoke and he was the person who raised an alarm and called all other neighbors and since the said landlord did not hear any scream, he doubted that the deceased was killed before putting on fire.
In the cross-examination, the said witness stated that the appellant is a resident of hariaya chandershi and he has some relatives in the said village. Further, he said that the said village is about 5-6 Kilometers far from the police station- Pachpedwa. He reiterated that he has already stated in his examination-in-chief that he did not know the Appellant before the incident. He has also stated that although he had been off and on visiting his sisters matrimonial home during festival or as per his wishes, every in 4-6 months, but did not ever find the Appellant in his brother-in-laws house. However, he has also stated that, whenever he called the appellant, over phone, the appellant told that she was enemy of his sister. He also admits that he had been trying to talk to the Appellant since the last 2-3 years, however could not succeed and he did not ever try to contact the parents of the Appellant or her husband. He also admits that before the incident, PW1, never visited the shop of his brother-in-law at gaura chauraha. He also stated that the landlord and other person had informed him that the appellant had visited the house of Rajesh Kumar on 09.12.2011. He has further stated that Govind had told him that his sister had come to the shop of Rajesh Kumar at Gaura Chauraha on 08.12.2011. He has also stated that Shri Ram Pandey and other persons, whose name he does not know, have also told that the appellant had visited the shop of Rajesh Kumar. He stated that his sister used to tell about the appellant and as such he has got the name of the Appellant mentioned in the complaint. He has also stated that the neighbor, the landlord and Shri Ram Pandey have told him that when the appellant reached, his sister had bata-kahi with her. Although the said witness, admits that the Appellant is married, however he denies the suggestion that there was no illicit relationship between Rajesh Kumar and the Appellant, also denied the suggestion that the Appellant had nothing to do with the incident.
The said witness admits that neither he nor the deceased or any of the family members, had ever reported about matrimonial harassment before the present FIR. He stated that the entire family, including his mother, father, uncle and brothers have given statement to the Police, as they have been asked to do. He also stated that the deceased-sister had come to the parental house before six months of the incident and at that point of time stayed at her Uncles place, although it was the said witness, who had gone to the matrimonial home to bring her. He denied the suggestion that the fire, which broke out in the shop was an accident or that Rajesh Kumar had tried to save her from the fire.
12. Shri Rram Pandey (PW-2), is the person, who informed PW-1 about the said incident and is a resident of Gaura Chauraha. The said witness in his examination in chief stated that he and the accused Rajesh Kumar are married to the same village-Majhowa, PS: Trilokpur, Siddharthnagar and as such are known to each other and used to often visit each others house. He stated that Rajesh Kumar had a garment shop at Gaura Chauraha, where he also sold Petrol. The shop was rented to the accused Rajesh Kumar by the landlord- Govind Prasad Pandey.
About the incident, he says that a day prior to the incident, i.e on 09.12.2011 at about 3-4 PM in the evening, the deceased along with her son-Subham came to his home and told that Rajesh Kumar had physically abused and thrown her out from the shop at Gaura Chauraha and as such the deceased had requested the witness to let her stay that day and started crying. He also stated that Rajesh Kumar had brought his wife/deceased one day before to his shop and after that also had brought the appellant to the said shop, which resulted in a quarrel between all of them. The witness has also stated that he and his wife, made the deceased understand and around 7 PM in the evening on that same day took the deceased back to the room of Rajesh Kumar, where the appellant was also present. He also stated that he explained and made understand Rajesh Kumar and even Rajesh Kumar talked over phone with his parents and thereafter both he and his wife came back after handing over the deceased to Rajesh Kumar. The witness thereafter stated that he woke up at 5 AM in the morning and got news from people that Rajesh Kumar and the appellant had burnt alive both Nandini and her son-sundaram and fled from the scene. He also stated that he called from his mobile to PW-1, the elder brother of the deceased and informed him about the incident and the said PW-1 and his entire family came to the spot at Gauri Chauraha at about 7:30 PM in the evening and then he visited the spot, where he saw the burnt dead bodies of Nandini and her son- Sundaram.
In his cross-examination, the said witness, stated that PW-1 is related to him as being his brother-in-laws son. He stated that, when the incident occurred, he was sleeping in his house. Gaura Chauraha is about half kilometer from his house. He stated that the electric supply at Gaura Chauraha had been off and on and sometime, it did not come for two weeks in a stretch, when people used lamp and lantern. He admits that some people, who were on a morning walk had informed him about the incident, while he was sweeping and when he reached the spot, the police had already come and hundreds of people were using bucket and tumbler to douse the fire. Govind Prasad Pandey, his mother, Laldhar Jaiswal of Kulahiya village and various police personnel were present on the spot. He stated that Rajesh Kumar was running a ready-made garment shop and used to also sell petrol and stored them in plastic can. The garment shop was full of clothes meant for 6th-12th standard girls Suits and Jeans Pant for elders.
He admits that whatever people told him about the incident, he gave his statement accordingly. He also stated that when he reached the spot, he found the entire goods of the shop was burnt and the two dead bodies. He also admits that he did not see the incident himself and has given his statement, on the basis of what he saw, on reaching the spot after the incident. He has expressed his ignorance about the husband or parentage or village of the Appellant, but he has stated that the Appellant used to stay at Gaura Chauraha and used to visit Rajesh off and on. He admits that the deceased is his brother-in-laws daughter. He stated the size of the shop as 10 X 15 with shutter in the front and wooden door at the rear. He denied the suggestion of any relationship between Rajesh and the Appellant.
13. The next witness is Govind Prasad(PW-3). The said witness is the landlord of the Shop, wherein the incident occurred. He is also the immediate neighbor as per the site-plan field by the prosecution. In his examination-in-chief he stated that Rajesh Kumar was his tenant. He stated that shoes, chappal, readymade and petrol used to be sold from the said shop and was started 4-5 months before the incident. He stated that Rajesh Kumar used to live along with his wife-Nandini and Son-Sundaram in his house on the rear side of the shop. According to the said witness, the Appellant never visited the shop of Rajesh Kumar. He specifically stated that at the time of incident, Rajesh Kumar, his wife and their son were at the house and the Appellant was not present. He stated that he woke up at 2:45 AM in the night with the sound of cracking of plaster and smoke and saw that the shop was in flames and shutter came to be locked. He stated that when he reached the spot, many people had already gathered and were sprinkling water for dousing the fire. It was when the fire was doused that the dead bodies of Nandini and her son were found. He also stated that he is one of the witness of Panchayatnama of the deceased Nandini and her son- Sundaram. He is also one of the witness of the ashes collected by the police from the spot. He also stated that his statement was recorded by the Police at the time of Panchayatnama, however he also stated that he did not tell the Police that there was some quarrel between the deceased, Rajesh and the appellant on the preceding night of the incident.
The said witness was declared hostile and as such was permitted to be cross-examined by the prosecution.
In his cross-examination, the said witness stated that on the previous day of the incident he was at home and again said he was at Tulsipur between 9-10 AM to 8 PM. He stated that he did not see Shriram had come to leave the deceased or her son on the preceding night of the incident. He stated that he never saw the face of the Appellant, from the time Rajesh Kumar had started the shop. He also stated that he did not tell the police that on 09.12.2011 at about 10 AM in the morning, the appellant had come at the shop of Rajesh Kumar, wherein the deceased told her husband Rajesh Kumar that when she was called from her home, why did he call the Appellant, whereinafter quarrel started between Rajesh Kumar, the deceased and the Appellant. He admits that the deceased was brought from her home to the shop some two days before the incident. He stated that he and some people in the neighborhood opened the shutter and doused the fire at the shop. He also stated that he was living alone and his entire family and even his mother- Syamkali were living at his ancestral village- Sakra Pathak. He stated that the rear door of the shop was of wood and the same was not burnt fully but only half. He stated that he did not hear the noise of the deceased as he was sleeping under the blanket. He also stated that when Rajesh took the house on rent, he brought his wife after one month and there were trifle fights between them during their stay in the house. He stated that Nandini and his son were burnt alive in an accident.
14. The next witness namely Manssor Ahmed Ansari (PW-4) is a Naib Tehsildar and is a witness of recording of the Inquest report / Panchayatnama and sending of the dead bodies to Gonda for post mortem. Although, he does not say anything about the Appellant, but he stated in his cross-examination that when he reached the spot, there was a huge crowd and the dead body was found on the floor and under a tin roof. He stated that five people were identified as Panchayat witness and that it took him about two and half hours for preparing the said two Panchayatnama. Further, Dr. F.R. Malik (PW-5) was examined by the prosecution, who has stated that the wounds of the accused Rajesh Kumar Mishra, were due to burn on the right ear, right side of the nose and forehand and left palm. He opined that the wounds were normal and it was possible that these would had been inflicted on 10.12.2011 between 1 AM to 5 AM. In his cross-examination, he accepted the suggestion that these wound can come while trying to save a woman from fire.
15. Dr. P.K. Srivastava (PW-6) is the doctor, who conducted the post mortem. He stated that there were burn injuries in the entire body of the deceased-Nandini and her son- Sundaram, wherein the flesh and bones were also burnt. The line of redness was present in both the bodies. The cause of death has been mentioned as shock due to burn injuries before death. for both the deceased. In his cross-examination, he stated that besides burn injuries, there were no bodily injuries present on the bodies of deceased Nandini & Sundaram. According to the said witness, both were alive, before the burn injuries. There was neither any smell nor any presence of kerosene oil, petrol or any inflammable item on the body of the deceased persons. He admits the proposition that death would have been caused due to being trapped in sudden breaking of fire. He also admitted the suggestion that death could be caused by a fire caused by falling down of burning Tibri or lamp. He also stated that no abnormality or injuries were found on the person of the dead bodies, besides the burn injuries. He also stated that he did not mention that the bodies started rigor mortise and instead wrote pugilistic attitude of the dead bodies.
16. Constable Hariram Bharti, was examined as PW-7. He is the Head Moharrir, who has registered the subject FIR No. 56/11 under section 498A, 304B, 201 IPC and 3/4 of the Dowry Prohibition Act on the written complaint of Prem Kumar Shukla(PW1). In his cross-examination he has stated that Prem Kumar Shukla had come to the Police station along with two other persons and had come with a written complaint and did not write the complaint at the police station in his presence. These people had come for lodging of the FIR around 8:30 in the morning on 10.12.2011. He denied the suggestion that the accused Rajesh Kumar Mishra had himself come to the police station for lodging of the complaint and he was made to sit in the police station. He also denied that he was helping Prem Kumar Shukla as being in the same department or that he had dictated the contents of the complaint.
17. PW-8 (Bansraj) is the Station House Officer of PS: Gaura Chauraha. In his examination-in-chief he stated that the FIR was lodged in his office vide Case Crime No. 553/11 against all the accused person. He stated that since the case was of dowry death, the concerned Magistrate was informed for preparation of Inquest report. He also stated that the Inquest report was prepared in his presence and the investigation was handed over and thereafter conducted by Shri Hari Gobind Mishra. The said Investigating Officer, prepared the site-plan (naksha-naziri) and the said witness identified the signatures and hand-writing of the said Investigating Officer. He stated that the statement of Govind Prasad Pandey ( land lord) was recorded on the spot and other witnesses were also inquired at the spot. He stated that after coming back to the police station, he was directed for arrest of all the accused persons. He stated that on 11.12.2011, the named accused Smt. Parwati was arrested. Thereafter, statement of Prem Kumar Shukla was again recorded on 14.12.2011 and then the case was converted from 304B/498 A IPC to 302/120B and 498A IPC. Thereafter, the case was given to him for further investigation on 15.12.2011 and he got arrested the Appellant- Kamini Verma on 16.12.2011 and the Accused-Rajesh Kumar Mishra on 18.12.2011 and provided him medical aid as he had burn injuries. He also stated that he had recorded the statement of Shri Ram Pandey, Smt. Nirmala Pandey, witness- Shyam Kali and witness- Sanjeev Kumar Srivastava on 10.03.2012 and thereafter, filed the Charge-Sheet against the Accused- Rajesh Kumar Mishra, Smt. Parwati Devi and Kamini Verma on 12.03.2012 and thereafter sent the case property for investigation to Forensic Science Laboratory, Lucknow. Thereafter, he recorded the statement of accused- Jagdamba Prasad Mishra, who had surrendered in the Court on 13.03.2012 and subsequently filed the supplementary Charge-Sheet against him on 24.03.2012.
In his cross-examination, he admits that he has not recorded the statement of the parents or brother of Prem Kumar Shukla. He also stated that since, the parents of the deceased were resident of sidharthnagar and did not made themselves available, he did not record their statement. He also stated that the village of Prem Kumar Shukla is located about 25 KM from PS: Gaura Chauraha. He stated that there was a huge crowd, when he reached the spot and saw the dead body lying on the floor. Everything was burnt, including the stove lamp and other goods. He admits that there was no prior complaint against Rajesh Kumar Mishra or his parents, by Prem Kumar Shukla or by the deceased, while she was alive in PS: Gaura Chauraha. He did not investigate as to mobile number 7398526113 belonged to whom as Shri Ram Pandey admitted that he had informed over the said mobile. He did not investigate as to whether Rajesh Kumar Mishra had any mobile or not. He stated that the electricity at Gaura Chauraha comes off and on and there is no regular supply of electricity and it is virtually non-existent. In the absence of electricity, people use battery, inverter, lantern lamp. He did not mention about the recovery of plastic can from the spot in his seizure memo. He denied the suggestion that Rajesh Kumar Mishra had come to the police station to inform about the incident and was made to sit and was arrested subsequently. He also denied the suggestion that the cause of outbreak of fire at the shop was due to falling of ignited lamp, thereby causing death of the deceased Nandini and Sundaram. He denied various other suggestion, put by the Defense, including the illicit relationship of Rajesh Kumar Mishra and the Appellant. However, he admits that he had not recorded the statement of the landlord or of any of the witnesses. He also admits that the site-plan was not prepared by him of the crime spot nor has he investigated the crime spot. He admits that during investigation, he was the first to arrive and did not see the Appellant in the vicinity of the burnt shop. He also admitted that none of the witness disclosed that the Appellant had put the shop on fire or was seen running away from the spot. He also admitted that during investigation, he found that the Appellant was married to one Vansraj Verma S/o Sitaram, resident of Apthadniya, PS: Pachpedwa, which is 20-25 KM from the crime spot. He admits that he did not interrogate any people from the matrimonial side or the parental side of the Appellant during Investigation. He also stated that the Appellant is resident of Haraiya Chandrasi, PS: Pachpewda and her fathers name is Kishore Verma, who is resident of the same village. He stated that the Appellant was arrested from village- Jaitapur. He admits that he did not prepare any list of burnt or semi-burnt articles from the spot as everything was burnt. He has also stated that during investigation, he found that the spot was used as a ready garment shop and the said shop had furniture and racks present in the shop, before they were burnt. He also stated that other article meant for residing were also there but there was no proof of anything as everything had been burnt and turned into ashes. He denied the suggestion that he had falsely implicated the applicant and also she is neither directly or indirectly involved in the incident.
18. Hari Govind has been examined as PW-9. He had stated that he was posted as a Circle Officer at that point of time. The case was initiated on the written complaint of Prem Kumar Shukla(PW-1) under section 498A, 304B, 201 IPC and 3/4 of the Dowry Prohibition Act. He stated that since the case was of 304B, he was entrusted with the investigation. He has prepared the site-plan of the crime spot and recorded the statement of the landlord. On 11.12.2011 he recorded the statement of the accused- Smt. Parwati and on 14.11.2011 recorded the statement of the complainant- Prem Kumar Shukla and the daughter of the deceased. Since, the daughter was eight years old, the marriage of the deceased came to be known for more than eight years old and as such was not within the ambit of section 304B IPC and as such the case was converted to 302 IPC and the investigation was handed over to the SHO, Gaura Chauraha- Mr. Bansraj.
In his cross-examination, the said witness stated that he was Investigating Officer of the case from 10.12.2011 to 14.12.2011, however the time has not been mentioned anywhere and in any document, although the same is significant in any investigation. He has not mentioned any time on the site-plan and has got prepared on the marking of Govind Prasad Pandey in his own hand-writing. He did not find any eye witness of the incident during his investigation and as such did not record their statement. He has recorded the statement of Gunjan Srivastava as a hearsay witness. He denied the suggestion that the investigation was not carried on the facts narrated by the witness and was wrong. He also denied the suggestion that during investigation, he got to know that the incident was an accident and not an incident of crime. He also admitted that there was no prior complaint of Prem Kumar Shukla or his deceased sister prior to the present incident. He denied the suggestion that the accused has been falsely implicated by him on the basis of false statement of the witness.
19. Having narrated the testimony of the various witnesses brought on record, this Court finds that the case of prosecution is essentially based on circumstantial evidence as there is no ocular witness in the present case. The theory put forth by the prosecution is relating to Murder of the deceased-Nandini & her son-Sundaram, by Rajesh Kumar Mishra, who is the husband of Nandini and father of Sundaram, by setting them on fire in his tenant shop in the intervening night of 9-10th of December, 2011. The prosecution has also included an angle to the said story, which is in respect of illicit relationship between Rajesh Kumar Mishra and the Appellant herein, which according to the prosecution story existed for more than 2-3 years. Apparently, a motive has been sought to be accorded to the said incident by further unfolding the story by narrating that it was due to the said illicit relationship the deceased Nandini i.e. wife of Rajesh Kumar Mishra was not treated properly and there was continuous fight between them, and therefore, to remove the said obstacle from their illicit relationship, both Rajesh Kumar Mishra and the Appellant hatched a conspiracy to commit murder of Nandini & her son Sundaram by setting them ablaze with the common intention of causing death.
20. The prosecution in order to prove the aforesaid story has examined as many as nine witnesses. This Court would be discussing the evidence of these prosecution witnesses at proper places, wherever it is material, while appreciating these evidence in its discussion.
21. Admittedly, there is no eye witness in the instant case and the entire evidence against the appellant is in the nature of circumstantial evidence. No doubt, it is a well-established principle of criminal jurisprudence that conviction on a charge of murder may be based purely on circumstantial evidence, however the caveat being that any such evidence ought to be deemed credible and trustworthy. In cases involving circumstantial evidence, it is crucial to ensure that the facts leading to the conclusion of guilt are fully established and that all the established facts point irrefutably to the accused persons guilt. The chain of incriminating circumstances must be conclusive and should exclude any hypothesis other than the guilt of the accused. In other words, from the chain of incriminating circumstances, the prosecution has to establish the chain of each and every circumstance pointing out to the criminal act performed by the accused and there should be no other possibility for the conclusion that the criminal act is done by any other persons than the accused. Although, the judgment of the Honble Supreme Court in Hanumant Govind Nagargundkar Vs State of Madhya Pradesh, (1952) 2 SCC 71, served as a cornerstone in the adjudication of criminal cases reliant on circumstantial evidence, wherein the Supreme Court in a very meticulous manner evaluated the reliability of witness and examined their sufficiency of evidence and went on to reinforce that it was imperative that conviction must rest on incontrovertible proof in all cases decided on circumstantial evidence. However, in the law with regard to conviction based on circumstantial evidence came to be crystalized by the Supreme Court in the case of Sharad Birdhichand Sharda v. State of Maharashtra, (1984) 4 SCC 116, wherein it was held;
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilts to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court inShivaji Sahabrao Bobadev.State of Maharashtra[(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] Certainly, it is a primary principle that the accusedmustbe and not merelymaybe guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
22. The Supreme Court in a very clear and loud term has held that the aforesaid five golden principles, are to be construed as the Panchsheel of the proof of a case based on circumstantial evidence.
23. Having narrated the test on the anvil of which a case has to be tested for assessing the guilt or innocence of the accused, based on circumstantial evidence, we now proceed to consider the circumstances, against the Appellant in the light of the evidence on record. So far as the Appellant- Kamini Verma is concerned, the prosecution has claimed the following are the circumstances against her: -
(i) That, she was in an illicit relationship with the main accused Rajesh Kumar Mishra, for the last 2-3 years, so a motive has been sought to be alleged, for the said crime.
(ii) Just on the preceding evening of the incident, PW-2 has stated that the Appellant was seen along with the main Accused- Rajesh Kumar Mishra at his shop, at the time, when PW-2 accompanied by his wife and the deceased Nandini & her son- Sundaram, went to the said shop at about 7 PM for negotiating peace amongst the husband and wife and handed over the custody of the deceased and her son to Rajesh Kumar, propounding thus a last seen theory to prove the guilt.
(iii) It was informed by PW2 to PW1 that she and the main accused (Rajesh Kumar Mishra) has killed the deceased & her son, by putting them on fire and fled away from the scene along with the main accused- Rajesh Kumar Mishra.
24. We try to make assessment of the credibility of evidence brought on record on the aforesaid three aspects, but before this court analyze the evidence brought on record, finds its bounden duty to ask itself two questions; (i) what was the cause of death and (ii) what was the cause of the incident. As to what was the cause of death is concerned, it has come on record that death has occurred on the fateful night of 9-10th of December, 2011. Admittedly, from the post mortem report (Exhb. Ka-16 & 17) it has come on record that death was caused because of shock due to burn injuries before death as also narrated by PW-6 in his examination-in-chief. Further, it has also been stated by the said witness, who is the doctor and conducted the post mortem of the deceased that the brain and lungs were congested and particles of smoke was found in the wind pipe of the body. He has further stated that a line of redness is present in both the bodies. It is significant to note that a line of redness is basically an ante-mortem burn and isa vital reaction, indicating the person was alive when the burn occurred.This "red flare" is caused by the body's inflammatory response, including blood vessel dilation and congestion, in the skin adjacent to the burn.It is a key forensic indicator of a live injury and can be accompanied by blisters, signs of healing, and other microscopic changes. Therefore, as per Medical Jurisprudence, a line of redness is found, in case the deceased was alive before being burnt alive. Further, in his cross-examination, the said Doctor-witness (P.W.-6) has stated that he did not mention that the bodies started rigor mortis and instead wrote pugilistic attitude of the dead bodies. In that regard it may be mentioned that rigor mortis is a natural post-mortem stiffening of muscles after death and it begins in involuntary muscles within 1-2 hours and then spreads to voluntary muscles over 6-12 hours, which is a very significant factor for indicating the actual time of death, whereas on the other hand pugilistic attitude of the body means heat stiffening, which is caused by excessive heat exposure, such as from fire and results in stiffening of the limbs into a flexed, boxer or fencing like position. Both the condition is distinct post-mortem effect, however the latter is specifically due to the body exposed to extreme heat. Thus, both the deceased as per the expert opinion were alive and thereafter came to be burnt by fire. Further, the said witness-PW-6 (Dr. P.K. Srivastava) has admitted in his cross-examination that besides the burn injuries, there was no bodily injuries or any abnormality present on the bodies of deceased Nandini and Sundaram. He has specifically deposed that both were alive, before the burn injuries. Thus, it can be safely concluded from the scientific testimony of the doctor (PW-6) that both the deceased persons were alive, before they eventually succumbed to burn injuries on the intervening night of 9/10th of December, 2011 due to excessive heat and smoke. Since, no bodily injury was found, it could also be concluded that there was no physical assault and any foul play and the deceased and her son, were very much alive, before they were eventually burnt alive.
25. Since, material brought on records sufficiently prove that the cause of death had been caused by burn injuries, due to fire on the fateful intervening night of 09-10th of December, 2011, it would be significant to determine as to what was the cause of the incident of 9-10th of December, 2011. This Court finds that the site-plan (exhibit-Ka-20) was prepared by the Investigating Officer (PW-9) on the marking of the Landlord (PW-3) of the shop and there is no controversy relating to the same. In the site-plan, it is available that the Shop was of size- 10 x 15. Further, PW2(Shri Ram Pandey) in his evidence has stated that the Accused-Rajesh Kumar, used to run a ready-made garment shop and also sold petrol and stored them in plastic can. He has also stated that the said shop was full of clothes meant for 6th-12th standard girls suits and Jeans pant for elders. Further, PW-3 (Govind Prasad), who is the landlord and the adjoining neighbor of the accused- Rajesh Kumar has said in his examination-in-chief that shoes, chappal, readymade and petrol used to be sold from the said shop. In the same manner, PW-8 (Bansraj), the Investigating Officer, has also stated that during investigation, he found that the spot was used as a ready-made garment shop and the said shop had furniture and racks present in the shop, before they were burnt. He also stated that other articles meant for residing were also there but there was no proof of anything as everything had been burnt and turned into ashes. Although, the main accused- Rajesh Kumar in his statement recorded under section 313 Cr. P.C has denied the said selling of petrol, however in view of the consistent version of three witness corroborating each other, it cannot be altogether ruled out that the Accused-Rajesh Kumar used to also sell petrol from his shop. This Court also may take Judicial notice of the fact that in rural areas, wherein Petrol Pumps authorized by Oil companies are far fledged, it is common for a village shop to also keep and sell petrol, generally to fill the gap and absence of full-fledged petrol pump in the near vicinity.
26. Further, the reason accorded for the cause of the incident has been mentioned as fire in the shop on that fateful day by the accused- Rajesh Kumar Mishra in his statement recorded under Section 313 Cr.P.C. According to him, the fire was caused due to falling of the burning kerosene lamp and suddenly being flamed as he did not have any electric connection in his shop or in its rear portion. As far as the electricity is concerned, PW-2(Shri Ram Pandey) in his cross-examination stated that the electric supply at Gaura Chauraha had been off and on and sometime even, it did not come for two weeks in a stretch, when people used lamp and lantern. Further, PW-8 (Investigating Officer) in his cross-examination has stated that electricity at Gaura Chauraha comes off and on and there is no regular supply of electricity and it is practically non-existent. In the absence of electricity, people use battery, inverter, lantern lamp. This court finds that there is neither any evidence nor any material has been brought on record, as to whether there was any electricity connection in the shop of the accused- Rajesh Kumar Mishra or as to whether there was any electricity supply on the intervening night of 9-10th of December, 2011. However, one thing, which this court is persuaded to believe is that, whether there was any electric connection or not, the supply of electricity was really bad as it is but natural that unlike these days, electricity in rural areas used to be scant and used to come, once in a blue moon. Thus, in absence of any electricity, the usage of kerosene lamp at shop and home was natural in rural areas. The usage of kerosene lamp for lighting the shop and its rear portion, by the accused Rajesh Kumar Mishra comes as a natural act and nothing unusual is found against him. Although, there is no investigation nor any evidence has been led as to the cause of the fire, it is quite possible that due to the falling down of burning kerosene lamp, fire might have caught, which flared up instantly due to the presence of highly inflammable item like petrol and other combustible items like the shop being full of ready-made garments, furniture racks, etc. and the small size of the shop merely aggravated the said fire to be fatal. However, the question still looms large as to who caused the said fire? A perusal of the evidence brought on record, it cannot be said with certainty as to who might have caused the fire and there is merely suspicion that it could have been caused by the Main Accused Rajesh Kumar in conspiracy with the Appellant. However, this Court finds itself difficult to eschew the said analogy, for various reasons apparent from the discussion in the subsequent paragraphs, including the fact that there could had been a reason to kill the deceased-Nandini by her husband- Rajesh Kumar Mishra, but not for his son-Sundaram. From evidence of P.W.-5, the doctor, who examined Rajesh Kumar Mishra has stated that the burn injuries sustained by him, can be due to saving a person from fire.
27. Now, we come to the parallel story of the prosecution in respect of the crime and it is regarding the conspiracy between appellant and Rajesh Kumar Mishra, leading to the alleged burning of the deceased. Admittedly, the deceased Nandini & Sundaram, were the wife and son of the co-accused Rajesh Kumar Mishra. The prosecution is claiming that there was illicit relationship between Rajesh Kumar Mishra and the Appellant and the said Rajesh Kumar Mishra was treating the deceased with mental and physical cruelty and wanted the said obstacle to be removed from his life and as such Rajesh Kumar Mishra conspired with the appellant for killing his wife and son. Thus, the prosecution is indirectly claiming that the Appellant was a conspirator and most importantly both of them had a motive and common intention to cause the said fire.
28. As far as evidence in respect of illicit relationship between the appellant and accused- Rajesh Kumar Mishra is concerned, except for PW-1(Prem Kumar Shukla), the brother of the deceased, none of the witnesses has told anything about the said relationship. It has come in evidence of PW-1 that the Appellant was in illicit relationship with the Main Accused-Rajesh Kumar Mishra for the last 2-3 years, however he has also stated in the same breath that he did not know the appellant before the incident nor has ever met her before the said incident. The said witness, after the said statement has improved his version by stating that he had called the appellant over phone, wherein allegedly the appellant told him that she was enemy of his sister. However, he again admits in his cross-examination that although he had been trying to talk to the appellant for the last 2-3 years, but could not succeed. He further states that he did not even try to contact the parents of the Appellant nor her husband. He also admits that neither he nor the deceased sister have ever lodged a complaint of any matrimonial harassment before the said incident. Further, the said witness has stated in his cross-examination that PW-2, PW-3 and other neighbours told that the Appellant used to come to the shop and since his deceased sister used to take the name of the Appellant before her death, therefore he has named the Appellant as an accused in the FIR. This court finds the testimony of PW-1 is basically hearsay as he personally does not have any knowledge about the alleged illicit relationships. This hearsay evidence cannot be admitted and relied upon. Moreover, although, PW-1 claims that his deceased sister used to say about the illicit-relationship to other family members, neither of the family members have come forward to record their statement or enter the witness box to prove the said fact. Further, although he stated that the so called illicit-relationship has been going on for 2-3 years, however neither did he talk to the husband of the Appellant nor her parents. Neither, the husband nor the parents of the Appellant were investigated or produced to prove the said fact. Further, not even a complaint had been lodged by him or by his deceased sister relating to the said fact of illicit-relationship, either with the police or the panchayat or for that matter any relative, as is prevalent in rural areas. None of the relatives, which PW-1 says had come to the police station for recording statement had been produced to prove the said factum. Interestingly, although according to PW-1, the so called illicit-relationship existed for the last 2-3 years. However, court finds that the substratum of illicit-relationship has neither been investigated nor any material has been brought on record to show the comity between the Appellant and the Main Accused- Rajesh Kumar Mishra. Neither the CDR (Call Detail Records) nor any iota of whisper has been by the Investigating Officer on the said aspect. In fact, the Investigating Officer of the case (PW-8) admitted in his cross-examination that during investigation, he found that the Appellant was married to one Vansraj Verma S/o Sitaram, resident of Apthadniya, PS: Pachpedwa, which is 20-25 KM from the crime spot. He also admitted that he did not interrogate any people from the matrimonial side or the parental side of the Appellant during Investigation. He also stated that the Appellant is resident of Haraiya Chandrasi, PS: Pachpewda and her fathers name is Kishore Verma, who is resident of the same village. Further, although, PW-1 has stated that the deceased used to tell about the illicit-relationship of the Appellant with her husband to her parents and other family members, but this Court finds that there was no endevour on the part of the prosecution or the complainant to produce any of the family members of the deceased, who would have thrown some light or created some kind of foundational threshold for the said allegation. In any case, this Court finds that the Investigating officer (PW-8), in his cross-examination has admitted that he had not recorded the statement of the parents or brother of Prem Kumar Shukla, since, the parents of the deceased were resident of Sidharthnagar and did not made themselves available, to get their statement recorded. Thus, the said allegation of illicit relationship appears to be a cultivation of fertile mind of the prosecution, which lacks any cogent evidence.
29. Further, PW-1 has also alleged that the Appellant used to come off and on at the shop of the main accused- Rajesh Kumar. However, in his cross-examination, he has admitted that he had never visited the shop of the Accused-Rajesh Kumar before the incident. Therefore, even this statement seems to be hearsay and cannot be relied upon. Although, PW2 in his cross-examination has stated that the Appellant lived at Gauri Chauraha and used to come to the place of Rajesh, however this court finds that none of the other witnesses has supported the said statement. There is no investigation on the said aspect, infact it is the other way round, wherein the Investigation officer (PW-8) says that during investigation he found the Appellant to be resident of Haraiya Chandrasi, PS: Pachpewda and her fathers name is Kishore Verma, who is resident of the same village. As far as the coming of the Appellant on and off the shop of the accused- Rajesh Kumar is concerned, there is an affirmative statement of PW3, the landlord, who is resident of the adjoining shop/home that he has never seen the Appellant on the shop of the accused- Rajesh Kumar Mishra. Moreover, when the statements of P.W.-2 and P.W.-3 are just a poxed, who lives at a distance, almost about half kilometer away, seems to be not plausible and non- reliable. Thus, even the coming of the Appellant on the shop of accused Rajesh Kumar Mishra of and on as alleged is doubtful. Although, PW3 has been declared hostile, however there are catena of Judgments, which says that the statement of hostile witness can be relied upon, in case the same is corroborated with other evidence. In the present case, except for P.W.-2 none of the witnesses have deposed about the factum of visit of appellant at the shop of Rajesh Kumar Mishra, which happens to be a busy Chauraha. The shop/resident of P.W.-2 being far about half kilometer, the said statement seems to be highly unreliable.
30. In any case, this court is conscious of the fact that there cannot be any direct evidence for illicit relationship, given its secrecy which is required to be maintained by the participants, however there ought to be some circumstances or rather some foundation had to be built by the prosecution, which could lead to draw an inference to the said relationship. Alas! none of the circumstances, brought on record lead to any such inference, which this court finds to be at best a suspicion or an attempt to calumniate Accused- Rajesh Kumar, wherein the Appellant has been made a party. It would be pertinent to mention herein that the Honble Supreme court in the case of Sujit Biswas vs. State of Assam, AIR 2013 SC 3817, has held that suspicion, howsoever strong, cannot substitute the proof and conviction is not permissible only on the basis of the suspicion. The relevant para 6 has been quoted in verbatim herein below:
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that may be proved, and something that will be proved. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between may be and must be is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between may be true and must be true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between may be true and must be true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P.,(1952) 2 SCC 71, State v. Mahender Singh Dahiya (2011) 3 SCC 109 and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777.
31. In any case, the testimony of PW-1 as far as the relationship of the Appellant with the main Accused-Rajesh Kumar largely being hearsay is not trustworthy and cannot be relied upon for conviction.
32. Further, it seems the entire case of motive is linked with the factum of illicit relationship of the Appellant with the main Accused- Rajesh Kumar. Even the learned Trial court has presumed the alleged illicit relationship between the Appellant and Accused- Rajesh Kumar as there is neither any direct or indirect evidence of the same brought on record. Time and again, the Court has held that motive plays a very significant role in cases based solely on circumstantial evidence, particularly when there is no direct evidence, like the present case. However, this court finds that, the prosecution has not shown any strong motive for the appellant to conspire with the Main Accused- Rajesh Kumar, except the so called illicit-relationship, which this court hastens to hold that the same could not be proved from the material on record. Further, one may argue that while motive is not always necessary for conviction, however as already stated hereinabove, its significance increases in a case of such kind as the present one, wherein the case is entirely based on circumstantial evidence. In any case, a strong logical conclusion needs to be espoused by the prosecution as to why the accused would commit such a heinous crime, especially when according to the own case of the prosecution, the so called alleged illicit-relationship had been ongoing for the last 2-3 years and the prosecution has failed to prove from the material on record as to what was the proximate cause or need for the Appellant, to conspire to harm the deceased and her son, and leave the other two daughters. According to this court, the factum of so called illicit relationship existing since the last 2-3 years goes against the prosecution, without proof of immediate intent. Thus, without evidence of intent, the prosecutions case has a serious gap that prevents it from completing the chain as required for conviction for cases based entirely on circumstantial evidence.
33. Although, according to the impugned judgment, the testimony of PW-2 (Shri Ram Pandey) forms a crucial pillar of the prosecutions narrative, however, this Court finds his evidence highly improbable and unreliable. Apparently, he is the person, who has informed the de-facto complainant (PW1) telephonically about the said incident and according to the evidence of (PW-1), the incident and its details including the factum of alleged involvement of the Appellant as explained in the FIR has been told to him by (PW-2). Admittedly, both PW2 and PW1 have been married in the same village and in that way are inter-related to each other. Therefore, it is quite natural for PW-2 to inform of the said fateful incident. However, as far as the factum of allegation mentioned in the FIR relating to the Appellant and Rajesh Kumar burning the deceased alive and fleeing away from the scene as mentioned in the FIR is concerned, it has been admitted by PW-2 in his cross-examination, that when the incident occurred, he was sleeping in his house. Further, he had admitted that the location of the shop at Gaura Chauraha is about half kilometer from his house, which means it was not proximate to the place of incident. He has also admitted that some people, who were on a morning walk had informed him about the incident, while he was sweeping and when he reached the spot, the police had already come and hundreds of people were using bucket and tumbler to douse the fire. Thus, as far as the allegation mentioned in FIR relating to the deceased being burnt alive and running away of the Appellant by PW-1 on the askance of PW-2 is merely a hearsay. Neither any of the passerby have been named by the said PW-2 nor any of them have been produced as a prosecution witnesses, although P.W.-2 is a resident of the said place. It is hard to believe that he could not name any of the passerby. Further, the said allegation as mentioned in the FIR has to be believed with a pinch of salt, as PW-8, the investigating officer, has stated in his cross-examination that during investigation, he was the first to arrive and did not see the Appellant in the vicinity of the burnt shop, nor any witness told him about the presence of the Appellant or fleeing away from the crime spot. He also admitted that none of the witness disclosed that the Appellant had put the shop on fire or was seen running away from the spot. Thus, the allegations merely seem to be imaginary and not in any manner incontrovertible, so as to fix the liability of the Appellant.
34. However, the hinge of the reasoning by the learned Trial court to fix the culpability of the Appellant, seems to be based on the hypothesis of last seen theory. Apparently, PW-2 in his statement has stated that on the preceding day i.e on 09.12.2011, at about 3-4 PM in the evening, the deceased along with her son-Sundaram came to his home and told that Rajesh Kumar had physically abused and thrown her out from the shop at Gaura Chauraha and as such the deceased had requested the witness to let her stay that day and started crying. It is rather absurd that when the entire prosecution story is based on the narrative that the Appellant and Accused- Rajesh Kumar conspired to get rid of the deceased, why on earth, the deceased would had been thrown out from the very same shop/home, wherein she was allegedly pre-planned to be put on fire, in the first place and secondly, if at all she was thrown out from her matrimonial home, why she did not call her own brother(PW1) or lodge a complaint with the Police or for that matter did not seek the help of the landlord (PW3) or any neighbour, but went to PW2 for seeking help, which was far away from the shop and located at about half a kilometer away. One can say, that since PW2 was related and known to the deceased and seeing the sensitive issue of she being thrown out because of the illicit relationship, the deceased could had chosen to approach the PW2 for help, but the problem lies in the issue that the factum of visiting of the deceased to the house of PW2 is not corroborated by any of the witnesses. PW2 is a related witness and the evidence has to be accepted with caution and most significantly PW2 did not even also bother to inform about the said incident to the complinant-PW-1 on that day itself, although it has come in evidence that PW-2 had a mobile phone. It is rather unusual that no one has seen the deceased and her son going to the place of P.W.-2 in broad day light at 3 PM, especially when it was a market place. The overarching principle of Criminal Jurisprudence is that the prosecution must prove its case beyond reasonable doubt. In the present case, the inconsistencies in the prosecutions evidence, and the procedural lapses create a significant doubt as to the appellants guilt. This Court cannot sustain a conviction based on mere conjecture or suspicion.
35. Further, since the fact of coming of the deceased and her son to the house of PW2 is under serious cloud, this court hastens to examine the other part of his statement, wherein he states that he and his wife, made the deceased understand and around 7 PM in the evening on that same day took the deceased back to the shop/room of Rajesh Kumar, where the appellant was also present. He also stated that he explained and made understand Rajesh Kumar and even Rajesh Kumar talked over phone with his parents and thereafter both he and his wife came back after handing over the deceased to Rajesh Kumar. Again, there is not a single witness, who would had corroborated the fact of travelling of PW2, his wife and the deceased along with her son from the PW2s house, located at about half a kilometer far to the shop located at Gaura Chauraha at 7 PM, which apparently seems to be a market place with many people around, who would have seen these four people on their way from PW2 house to the Shop. No doubt, the said PW2 gives a timeline to the said incident, however the said timeline is not supported by any oral or scientific evidence. Neither the CDR of PW2 was investigated, nor the statement of any witness to corroborate the said timeline has been produced by the prosecution. On the contrary, this court finds that PW3, who is the landlord and as per the site-plan(Exhibit-Ka-20), is resident of the immediate adjoining shop/home states in his evidence that he did not see PW2 come to leave the deceased or his son on the preceding night of the incident. Infact, he goes a step further and says that he never ever saw the face of the Appellant from the time Rajesh Kumar had started the shop. Further, from the site-plan it is also available that the shop of one Gunjan Srivastava, who had a Mobile Shop is situated across the road, neither the police nor the prosecution has bothered to produce her in the witness box, who would had testified about the said timeline. The proposition of PW2 seems to be highly unlikely that when the very reason i.e the alleged presence of Appellant in the shop, for which the deceased was thrown out from the shop/home, could had been allowed to be continued and still the deceased would had agreed to stay back along with Rajesh Kumar and the Appellant, who allegedly had an illicit relationship. Further, it cannot be eschewed that when Rajesh Kumar allegedly conspired with the Appellant to murder the deceased- Nandini, because of the so called illicit relationship with the Appellant, how could he had planned the same fate for his only son, as it has come in evidence that the said deceased & Rajesh Kumar had two daughters and one son. The prosecution, failed to explore this angle during the investigation or to present any evidence excluding such a possibility. In a case resting solely on circumstantial evidence, this unexplored alternative scenario further weakens the prosecutions claim against the appellant. Recently the Supreme court in the case of Shail kumari vs State of Chhattisgarh ( Criminal Appeal No. 2189 of 2017), after quoting & relying the judgment in Vadivelu Thevar V/s State of Madras, AIR 1957 SC 614, has observed that:-
12. This Court in Vadivelu Thevar (supra) has classified the witnesses into three types: (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. It has been held that in the first category of cases, there is no difficulty inasmuch as if the testimony of such witness is found to be fully reliable, it may convict or may acquit on the basis of his statement. Even in the second category cases, there is no difficulty that if evidence of such a witness is found to be wholly unreliable, the testimony must be discarded. The difficulty arises only in the case of third type of witnesses, where the Court is required to separate the chaff from grain to arrive at a conclusion. The perusal of the cross-examination of PW-2 would reveal that he has fully improved his case in his examination-in-chief. He has narrated what does not find place in his statement under Section 161, Cr.P.C. As such, his evidence is totally contradictory and therefore totally unworthy.
36. This court finds the statement of PW2 neither wholly reliable nor wholly unreliable and as such has to tread the path with great caution. The testimony of PW2 does not inspire confidence for the simple reason that no material on record has been brought to corroborate his evidence and further he is a far-away witness, who has been merely pitched by the prosecution to substantiate their hypothesis of last seen theory. Interestingly, the Ld. Trial Court, while convicting the appellant, relied heavily on this theory of the alleged presence of the appellant at the scene, his presumed relationship with Accused- Rajesh Kumar. In doing so, the Trial Court appears to have overlooked the significant inconsistencies in the testimonies of PW1, PW2 and PW3, as well as the unexplored angle as stated herein above. In any case, if the testimony of PW2 is seen to be a gospel truth, even then the last seen theory cannot be a tool to convict the Appellant without having its corroborative evidence. The Honble Supreme court in Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 has held that evidence on last seen together is a weak piece of evidence and conviction only on the basis of last seen together without there being any other corroborative evidence against the accused, is not sufficient to convict the accused for an offence under Section 302 IPC. The following passage from the judgment in paras 12 and 15 can be profitably referred:
12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere nonexplanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seenthe appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan,(2010) 15 SCC 588
37. The Honble Supreme Court in an identical factual situation in the case of Krishnan v. State of T.N. (2014) 12 SCC 279 held at paragraph 21 to 24, which gives for a very enlightenment read. The said paragraphs are being quoted at the risk of prolixity as follows:
21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar (1994) Supp (2) SCC 372 this Court held as follows: (SCC p. 385, para 31)
31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.
22. This Court in Bodhraj v. State of J&K, (2002) 8 SCC45 held that: (SCC p. 63, para 31)
31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.
23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.
In Jaswant Gir v. State of Punjab, (2005) 12 SCC 438, this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of last seen together even if version of the prosecution witness in this regard is believed.
38. In the case at hand also, at best, the only evidence against the appellant is of last seen together as propounded by the prosecution story. The evidence of motive does not satisfy us to be an adverse circumstance against the appellant inasmuch as if the appellant has any ill-intention, she or the main accused- Rajesh Kumar would not have chosen the shop for the said incident and further there is no evidence of any animosity or otherwise with the son of the deceased. The evidence appears to be inconclusive and are not incontrovertible proof for convicting the Appellant in the given circumstances.
39. This Court finds that the Trial Court after analysing the aforesaid evidence went on to cast an unnecessary burden of proof on the Appellant to prove her part of the story as stated by her under Section 313 of the Cr.P.C. and went on to hold that since no evidence were produced in that respect, the theory propounded by the prosecution is correct. The aforesaid analogy drawn by the Trial Court is not correct, because a foundation or evidence beyond reasonable doubt by the chain of events has to be prepared for shifting the burden of proof on the Appellant, which in the present case is incomplete and missing. Recently the Honble Apex Court in the case of Nusrat Parveen V/s State of Jharkhand, 2024 INSC 955, held that:-
It is a cardinal principle of criminal jurisprudence that Section 106 of the Evidence Act shall apply and the onus to explain would shift on to the accused only after the prosecution succeeds in establishing the basic facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer a proper explanation about the existence of the said other facts, the Court can draw an appropriate inference against the accused. In cases based on circumstantial evidence, the accused's failure to provide a reasonable explanation as required under Section 106 of the Evidence Act can serve as an additional link in the chain of circumstantial evidence - but only if the prosecution has already established other essential ingredients sufficient to shift the onus on to the accused.
40. Further, in an identical situation, the Honble Supreme Court held in the case of Anees v. The State Govt. of NCT; 2024 INSC 368 that:-
Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed.
41. In the present case, as detailed above, the evidence suffers from significant weaknesses. The, lack of a clear motive and merely placing the appellant as a last seen person at the scene, without any further corroboration, does not satisfy the elevated standard of proof required in a case built solely on circumstantial evidence. In criminal jurisprudence, suspicion, however strong, cannot substitute for proof. Where the prosecutions case rests entirely on circumstantial evidence, the legal standard demands that every link in the chain of circumstances must be established beyond reasonable doubt. In the instant matter, the deficiencies as narrated herein above erode the prosecution story and as such the Appellant cannot be convicted on these evidence.
42. The learned trial Judge also appears to have relied heavily upon the evidence of P.W. 2 and PW3, in respect of the facts that appellant had been seen at the shop of Rajesh Kumar and on that basis has drawn an inference that there was some conspiracy between the appellant and the main accused- Rajesh Kumar. However, from the aforesaid facts, it could not be established that there was any illicit relationship between the appellant and the said Rajesh Kumar. So far as the theory of prosecution in respect of conspiracy between these appellants to kill deceased Nandini is concerned, only inference to that effect is not sufficient. Some, more material or evidence is required by the prosecution to support such theory. The entire case being based on circumstantial evidence, the prosecution needs to establish each and every circumstances to complete the chain pointing towards the guilt of accused. So far as this point is concerned, it is settled position. Further, the Honble Apex Court in the case of State of Kerala Versus P. Sugathan and another [AIR 2000 Supreme Court 3323], held that:
circumstances should give rise to a conclusive inference of an agreement between two or more persons to commit an offence. Circumstances should be prior in time then the actual commission of offence and conspiracy is a continuous offence and any act committed by any of the conspirator during the subsistence of conspiracy would attract Section 120-B.
43. Unfortunately, the shoddy investigation by the Police and the half-baked evidence produced by the prosecution during Trial, entitles the appellant to benefit of doubt.
Conclusion
44. In view of the aforesaid discussion, this Court holds that the learned Trial Court has drawn direct inference merely based on the fact that there was illicit relationship between the appellant and Rajesh Kumar Mishra, therefore, they conspired with each other and executed a plan of killing Nandini and her son. However, it is evident from the discussions made hereinabove, that the learned Trial Court while convicting appellant- Kamini Verma for the offence punishable under Section 120-B of the Indian Penal Code, has not made any objective analysis of the evidence on record referring to the particular act of appellant Kamini Verma indicating that she hatched a conspiracy with the main accused- Rajesh Kumar Mishra, as per the observations of Honble Apex Court in the aforesaid case of State of Kerala Versus P. Sugathan and another(Supra).
45. Further, there are no circumstances established by the prosecution about the involvement of appellant Kamini Varma in the crime. It is well settled that suspicion, how so ever grave, cannot replace the proof. Therefore, we are of the opinion that, the learned trial Judge has committed an error by drawing inference that appellant-Kamini Verma was involved in the present crime. No active role of appellant- Kamini Verma in hatching conspiracy for killing Nandini or the Appellant having any common intention with the co-accused Rajesh Kumar, has been established by the prosecution beyond all reasonable doubts and therefore, she is certainly entitled for benefit of doubt.
46. As a sequel to the above, the impugned Judgment cannot be sustained in the eyes of law. Thus, the present Criminal Appeal 855/2016 stands allowed and the judgment and order dated 10.6.2016 passed by the Additional Sessions Judge/Fast Track Court No. 1, Balrampur in Sessions Trial No. 34 of 2012 arising out of Crime no. 553 of 2011 (State V/s Rajesh Kumar Mishra and others), is hereby quashed and set aside and the Appellant- Kamini Verma is acquitted from the offence punishable under Sections 302/34 of the Indian Penal Code and Section 120B of the Indian Penal Code. As a consequence, to the said acquittal, the Appellant shall be set at liberty forthwith, if not required in any other case.
47. There shall be no order as to cost.
.
(Abdhesh Kumar Chaudhary, J.) (Rajesh Singh Chauhan, J.) November 15, 2025 Anuj Singh