Allahabad High Court
Satish Kumar Verma vs State Of U.P. on 29 September, 2020
Equivalent citations: AIRONLINE 2020 ALL 2034
Author: Ramesh Sinha
Bench: Ramesh Sinha, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 87 Judgment reserved on 30.07.2020. Judgment delivered on 29.09.2020 Criminal Appeal No. 2750 of 2017. Satish Kumar Verma vs. State of U.P. Connected with Criminal Appeal No. 4186 of 2012. Rinki Verma @ Poonam Verma vs. State of U.P. Hon'ble Ramesh Sinha, J.
Hon'ble Raj Beer Singh, J.
(Per Ramesh Sinha, J. for the Bench.)
1. The above two criminal appeals have been preferred against the judgment and order dated 4.9.2012 passed by Additional District and Sessions Judge, Court No. 7, Moradabad in S.T. No. 1094 of 2008 convicting and sentencing the appellants Satish Kumar Verma and Rinki Verma @ Poonam Verma under section 302/34 I.P.C. for imprisonment of life and fine of Rs. 10,000/- and in default of payment of fine one year further R.I.
2. As the above mentioned two criminal appeals have been preferred against the same judgment and order, hence the same are heard and decided together by this common judgment.
3. The prosecution case as emerges out from the F.I.R. is that a written report was given by one Girish Verma (hereinafter referred to as 'the informant') to the concerned police station alleging that his sister, namely, Smt. Manju Verma (hereinafter referred as 'the deceased') was married to appellant Satish Kumar Verma resident of Parsadi Lal Road Chowk, Tadi Khana, police station Civil Line, District Moradabad and from their wedlock two sons an d one daughter were born. One Rinki Verma wife of Sanjay @ Banti resident of Buddhi Vihar, police station Majhola, district Moradabad started visiting his sister's house and gradually illicit relationship was developed between the husband of the deceased, namely, Satish Verma and Rinki Verma. When, his sister objected to the said relationship, his sister's husband had consoled his sister that there is no illicit relationship between them and she was engaged for making silver neckless and, therefore, she may be allowed to stay at their residence. His sister being an innocent lady believed her husband and kept quiet but their illicit relationship did not stop, hence his sister had told about the said illicit relationship of her husband and Rinki Verma to her family members on which her family members made a complaint to the police officials and on interrogation being made about the said fact from Satish Kumar Verma and Rinki Verma both of them denied the illicit relationship and Satish Kumar Verma admitted that from now Rinki would not come to his house nor he would go to her house. After 15 days of the said compromise, Satish Verma disappeared along with Rinki Verma and after two months it was disclosed that both of them were illegally living as husband and wife at Amroha. On pressure being made on the family members of Rinki Verma, the brother of Rinki Verma brought them back at Moradabad. Satish again promised to live with his wife-the deceased. Thereafter Satish kept a condition before his sister whether she wants to live with him or with her family members on which his sister got ready to live with her husband, hence his sister's husband kept informant's sister and Rinki Verma together at the house situated at Line Par where Rinki Verma used to take all household work from his sister and treat her like a servant and also used to torture her. Four days prior to the incident, Satish Verma at the behest of his sister had left his sister and her children at the house situated at Tadi Khana and after three days when her husband did not come then on 3.5.2008 his sister had gone to the house of Rinki Verma situated at Line Par to call Satish Verma. In the night at 10:30 p.m., Satish Verma and Rinki Verma both came to the house of his sister situated at Tadi Khana and assaulted her. An information about the said fact was received by the informant, hence on 4.5.2008 at 6 a.m. in the morning the informant along with Suraj Gupta resident of Buddhi Vihar, police station Majhola and Chandra Prakash Varshney resident of Jayantipur police station Majhola went to the house of his sister and when he reached there, he met Satish Verma and Rinki Verma at the door and when he asked about his sister then they told him that he can go upstairs to meet his sister and when the informant along with his companions went upstairs, then he saw his sister Manju Verma lying on the double bed and after tilting her he found her to be dead. The informant further stated that Satish Verma and Rinki Verma together in order to eliminate his sister from their way had killed her so that they may not be interrupted in their relationship. In the meanwhile, Satish Verma and Rinki Verma fled away when he went upstairs
4. On the basis of the said written report (Ex. Ka-3) an F.I.R. was registered at police station Civil Line on 4.5.2008 at 7:30 a.m. by the Constable clerk Ghanshyam Rathi and chik F.I.R. was prepared by him in his hand writing and signature marked as Ex. Ka-5, as case crime no. 383 of 2008 under section 302 I.P.C. which was also endorsed in the G.D. which has been proved as Ex. Ka-6. The investigation of the case was entrusted to Inspector Kavindra Narain Mishra of police station Civil Line, who recorded the statement of the Constable clerk Ghanshyam Rathi and the informant Girsih Verma and thereafter he visited the place of occurrence for spot inspection and at the instance of the witnesses he prepared the site plan (Ex. Ka-9) in his hand writing and signature. The inquest on the dead body of the deceased was conducted under the supervision of Station Officer of Manila Thana, namely, Lokesh Sharan, who was called for the said purpose. The inquest report was prepared by Lokesh Sharan in the presence of the family members of the deceased Manju Verma and other persons. She proved the inquest report (Ex. Ka-4) in her hand writing and signature and further prepared the relevant documents with respect to the same such as, letter to R.I. (Ex. Ka-10), letter to C.M.O. (Ex. Ka-11), seal sample (Ex. Ka-12), Photo Nash (Ex. Ka-13, Challan Nash (Ex. Ka-14) which were also proved by her. Thereafter the dead body was sealed and handed over to Constable Manohar Singh and Constable Geeta Chaudhary along with relevant document for being sent to mortuary for conducting post mortem of the deceased. The post mortem of the deceased was conducted on 4.5.2008 at 2:20 p.m. by Dr. Rajendra Singh, who found three ante mortem injuries on the dead body of the deceased and as per the post mortem report, the cause of death is asphyxia as a result of throttling. The Investigating Officer arrested the accused appellants on 4.5.2008 and recorded their statements. He further recorded the statement of the witnesses of inquest and also collected photograph from the informant (material Ex. Ka-1). The said photograph relating to marriage of Rinki Verma and Satish Verma. He also took on record the compromise entered into on 17.10.2007 between Satish Kumar Verma, Manju Verma and Rinki Verma which also was handed over by the informant to him. He also recorded the statement under section 161 Cr.P.C. of the witnesses, namely, Kamalavati, Vedprakash Verma and Suraj Gupta and thereafter submitted charge-sheet against the accused appellants before the competent court and the same has been marked as Ex. Ka-8.
5. The case was committed to the court of Sessions on 28.8.2008 by the C.J.M. Moradabad.
6. The trial court on 12.9.2008 framed charges against the two appellants Satish Kumar Verma and Rinki Verma under section 302 read with Section 34 I.P.C., who denied the charges and claimed their trial.
7. The prosecution in support of its case has examined P.W. 1-the Informant Girish Verma, P.W.2-Suraj Gupta, P.W. 3-Constable Ghanshyam Rathi, P.W. 4-Chandra Prakash Vashney, P.W. 5-Dr. Rajendra Singh, P.W. 6-Police Inspector Rakesh Vashishtha Investigating Officer, P.W. 7-Police Inspector Kavindra Narain Mishra.
8. Both the appellants were examined under section 313 Cr.P.C., wherein they denied the prosecution evidence. The accused appellant Satish Kumar Verma has taken a plea that the deceased Manju Verma has some land dispute with her brother Girish Verma and her mother and due to the fear of Girish, he had left his house and was not residing at the house situated at Tadikhana.
9. Accused-appellant Rinki Verma has taken the plea that she was not present at the spot.
10. In defence evidence, one Sanjiv Kumar Verma, who is brother of accused-appellant Satish Kumar Verma, has been examined as D.W.-1.
11. After hearing and analyzing the evidence on record, both the accused-appellants were convicted and sentenced by the trial court as stated in opening part of this judgment.
12. Being aggrieved, the accused-appellant Satish Kumar Verma and Rinki Verma @ Poonam Verma have preferred Crl. Appeal Nos. 2750 of 2017 and 4186 of 2012 respectively.
13. Heard Sri G.K. Gupta, learned counsel for the appellant and Km. Meena, learned A.G.A. for the State. No one appeared on behalf of the complainant.
14. In evidence, P.W. 1 Girish Verma, who is brother of the deceased Manju Verma, has stated that the marriage of his sister Manju Verma with accused-appellant Satish Kumar Verma had taken place on 24.6.1994 and out of that wedlock, they were blessed with three children. About seven months prior to incident, appellant Rinki Verma started coming to the house of his sister and meanwhile accused-appellant Satish Kumar Verma developed physical relations with Rinki Verma while the deceased Manju Verma used to object the same. P.W. 1 Girish further stated that regarding the illicit relations of accused persons, a complaint was made to the police and accused Satish had promised that now the accused Rinki Verma would not visit his house. This statement (Ex. Ka-1) was signed by both the accused-appellants as well as by P.W. 1 Girish Verma. After that for some time, accused appellant Satish and deceased Manju Verma stayed together. On the day of Karwachauth, the accused Satish Kumar Verma had taken Rinki Verma to Amroha and they started residing there at a rental house. P.W. 1 Girish and his family members made pressure on the family members of Rinki Verma and consequently they called back Rinki and Satish Verma again promised that now he reside with the deceased Manju Verma and he has given written undertaking (Ex. Ka-2) to this effect before the police. Thereafter Satish Kumar Verma and the deceased Manju Verma started residing at the house situated at Line Par, Moradabad but later on Rinki Verma also he started living there and both the accused used to beat the deceased. Thereafter, Satish left the deceased at the house situated at Tadi Khana and started residing with Rinki Verma at Line Par house. When Satish Verma did not return at his house at Tadi Khana for several days, the deceased Manju Verma went to the house at Line Par to call him then Satish promised that he would come in the night. On the night of 3/4.5.2008, Satish and Rinki came at the house of deceased at Tadikhana and they did beatings with her. The deceased informed to P.W. 1 Girish about this incident on telephone. On 4.5.2008 at about 6 a.m., when P.W. 1 Girish along with Suraj Gupta (P.W. 2) and Chandra Prakash Varshney (P.W. 4) reached at the house of the deceased situated at Tadi Khana and knocked the door, Satish opened the door and Rinki was also standing near the staircase. When P.W. 1 Girish enquired about the deceased, Satish told him that she is at upstairs and he can meet her there. When P.W. 1 Girish reached there he saw that his sister was lying dead on her bed. P.W. 1 Girish stated that Satish and Rinki had committed the murder of the deceased by strangulating her as they wanted to eliminate her so that there may not be any hindrance in their illicit relationship. P.W. 1 Girish reported the murder to police by submitting Tehrir (Ex. Ka-3) and after that police reached at the spot and prepared the inquest report (Ex. Ka-4).
15. P.W. 2 Suraj Gupta has stated that on 4.5.2008 he along with Girish Verma and Chandra Prakash Varshney had gone at Tadi Khana at the house of sister of Girish Verma. The accused Satish Kumar Verma met at the door whereas Rinki was standing near the staircase and when they enquired about the deceased, Satish told that they could see her at upstairs and when they reached at the room situated at upstairs, they saw that the deceased was lying dead on her bed. When they came back on the ground floor they saw that both the accused Satish and Rinki had fled away.
16. Similarly, P.W. 4 Chandra Prakash Varshney has stated that about quarter to two or two years back he along with Girish Verma and Suraj Gupta had gone at the house of Satish Verma situated at Tadi Khana and when they reached at the door of the house, Satish and Rinki Verma met at the door and when they enquired about Manju, they told that she is at upstairs and they can see her there. When he along with Girish and Suraj reached there, they saw that the deceased was lying dead at her bed and when they came down they saw that both the accused Satish and Rinki had already fled away. P.W. 4 has further stated that the police have conducted the inquest proceeding before him and he has signed the inquest report (Ex. Ka-4).
17. P.W. 3 Constable Ghanshyam Rathi has recorded the F.I.R. (Ex. Ka-5) and G.D. entry (Ex. Ka-6).
18. P.W. 5 Dr. Rajendra Singh has conducted the post mortem on the dead body of the deceased Manju Verma vide post mortem report (Ex. Ka-7), the deceased has received following injuries.
"1. Lacerated wound 0.5 cm. x 0.5 cm. muscle deep on left side of upper lip.1. cm. medial from angle of mouth.
2. Multiple abrasions, contusions in area 11 cm. x. 4 cm. on both side of neck and front of neck 5.5 cm. below from chin, underneath echymosis present.
3. Contusion 2 x. 1 cm. on front of right forearm, 3 cm. below the elbow joint."
19. The cause of death of death was asphyxia as a result of throttling.
20. P.W.7 Kavindra Narain Mishra has conducted the investigation. He stated that inquest proceedings were conducted and documents Ex. Ka 10 to 14 were prepared. He also prepared the site plan of spot (Ex. Ka-9).
21. P.W. 6 Inspector Rakesh Vashishtha has conducted further investigation and has filed charge-sheet (Ex. Ka-8).
22. D.W. 1 Sanjiv Kumar Verma has stated that his sister-in-law (Bhabhi) Manju Verma has died on 4.5.2008. He stated that he heard some noise at 6 a.m. and when he came on the ground floor, he saw that the deceased was lying in Verandah and many persons were present there. The police have also reached there. D.W. 1 Sanjiv further stated that at the time of incident, his brother Satish Kumar Verma used to reside at the house situated at Line Par whereas the deceased was residing in the room situated in front of his room at upstairs. On the night of 3/4.5.2008, the deceased was not present at her room and that on 3.5.2008, he has seen that the deceased was going with Girish at 7-8 p.m. and she did not return at night. Satish also did not return in the night. He further stated that there was no dispute between Satish and the deceased and when he enquired from the deceased as to why Satish is residing separately, the deceased told him that her father had a house at Rishikesh which was sold by Girish Verma and he had misappropriated the sale proceeds and when Satish demanded the share from Girish he has refused and due to this reason some altercation had taken place between Satish and Girish and due to fear of Girish, Satish started residing at Line Par. D.W. 1 has stated that there was no dispute between Satish and the deceased. He further stated that the deceased was suffering from fits of epilepsy.
23. Learned counsel for the appellants has vehemently argued that there is no eye witness of the incident and that as per the prosecution only circumstance shown against the accused-appellants is that on the morning of 4.5.2008 when P.W. 1, 2 and 4 have gone at the house of deceased, they were seen at the door of the house of the deceased and thereafter both the accused-appellants had fled away, however, this circumstance is not established. It was stated that the version of P.W. 1, 2 and 4 is highly improbable and unreliable and it appears that they have concocted a false story that they have seen both the accused persons at the door of house of the deceased. Thus, this circumstance relied by the prosecution has not been established. It was further submitted that there are material contradictions and inconsistency in the statements of P.W. 1, 2 and 4. P.W. 1 Girish has stated that when he along P.W. 2 and 4 reached at the house of the deceased, he knocked the door on which Satish had opened the door and Rinki was standing near the staircase whereas P.W. 2 Suraj Gupta and P.W. 4 Chandra Prakash Varshney have stated that when they reached at the house of the deceased, both the accused-appellants Satish and Rinki met at the door and thus P.W. 2 and 4 have not stated that they knocked at the door or the door was opened by accused Satish. It was further stated that from the statement of D.W. 1 Sanjiv Kumar Verma, it is clear that there was no dispute between the deceased and appellant Satish Kumar Verma thus there is no motive on the part of the accused-appellants to commit the murder of the deceased. Learned counsel for the appellants further submitted that the deceased had three children, who were living with the deceased but none of them has been examined and, therefore, the prosecution has not led its best evidence. He submitted that the chain of circumstances is not complete and the prosecution version that both the accused-appellants were seen at the door of the house, is highly improbable and unreliable. Thus, the trial court has not considered the evidence in correct prospective and committed manifest error while convicting and sentencing the accused-appellants.
24. Per contra, it has been submitted by learned State counsel that though there is no eye witness of the alleged incident but there is strong circumstantial evidence against the accused-appellants. The deceased was wife of accused-appellant Satish Kumar Verma and there is evidence that on the night of incident, the deceased told P.W. 1 Girish Kumar Verma on telephone that on the intervening night of 3/4.5.2008, both the accused-appellants had come there and assaulted her. There is sufficient and reliable evidence that both the accused-appellants were having illicit relationship which was being objected by the deceased and thus both the accused-appellants had strong motive to commit the murder of the deceased in order to remove the hindrance in their illicit relationship. Learned State Counsel further submitted that the version of P.W. 1 Girish Kumar Verma that when he along with P.W. 2 and 4 reached at the house of the deceased, both the appellants have met there at the door and that Satish told him that the deceased is at upstairs and after that both the accused-appellants fled away, has been amply corroborated by the evidence of P.W. 2 and 4. It was stated that there is strong circumstantial evidence against the appellants and the conviction of the accused-appellants is based on evidence.
25. We have considered the rival submissions and perused the record.
26. In the instant case there is no eye witness of the alleged incident of murder of the deceased. The case is based on circumstantial evidence.
27. It is well settled that conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with his/their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence.
28. In case of Hanurnant v. The State of Madhya Pradesh, [1952] 3 SCR 1091 the Hon'ble Apex Court laid down fundamental and basic principles for appreciating the circumstantial evidence. The Hon'ble Court observed:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
29. In a landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:
Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accuses, 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.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".
30. In Joseph vs. State of Kerala, [(2000) 5 SCC 197], the court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-
16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."
31. In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, the Court has held:-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
32. The similar principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679, Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79), Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, Raja @ Rajinder Vs. State of Haryana, (2015) 11 SCC 43 and State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69.
33. In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.
34. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, the Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-
"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"
35. The principle that emerges from the above discussed decisions is that in a case based on circumstantial evidence, Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted it should be tested on the touchstone of law relating to circumstantial evidence laid down by the Hon'ble Apex Court. It is essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, the accused and none else have committed the offence.
36. Keeping in view the above discussed legal position regarding circumstantial evidence, in the instant case it may be seen that the prosecution has heavily relied on the alleged circumstance that about three four days prior to the alleged incident both the accused-appellants have left the deceased at the house situated at Tadi Khana and both the accused persons started residing at the house situated at Line Par, Moradabad and when the appellant Satish did not visit the house at Tadi Khana for three days, on 3.5.2008, the deceased gone at his house at Line Par to call him and accused Satish Verma told her that he would visit his house at Tadi Khana in the night. Thereafter in the night on 3.5.2008 both the accused-appellants came there and beaten the deceased and in this regard, the deceased had informed her brother-P.W. 1 Girish Kumar Verma on telephone. It is further the case of the prosecution that on 4.5.2008 when P.W. 1, 2 and 4 reached at the house of the deceased at Tadi Khana, both the accused met at the door and when they enquired about the deceased Manju, accused Satish told that she is on the upstairs and when he along with P.W. 2 and 4 reached there, they saw that the deceased was lying dead on her bed. In this regard, it may be seen that the prosecution has not filed any record of call details of telephones in order to show that on the night of 3.5.2008, the deceased had made any telephonic call to P.W. 1 Girish Kumar Verma. Further in his statement, P.W. 1 Girish has stated that after reaching at the house of the deceased, he knocked the door and thereafter the door was opened by accused Satish whereas P.W. 2 and 4 have not stated anything regarding knocking of the door and they simply stated that both the accused-appellants were present at the door. The statement of these witnesses, that when they reached there both the accused persons were standing at the door and after finding the deceased was lying dead at upstairs when the witnesses came down, the accused appellants have fled away from there, appears to be a some what improbable and artificial. There is absolutely nothing to indicate that these witnesses had tried to catch hold the accused appellants. It appears against natural human conduct that after committing the murder of the deceased, the accused appellants would wait at the door of their house till 6 a.m. and when suddenly these witnesses reached there, they would run away from there and that said witnesses would not try to get them caught.
37. One of the important aspect in the matter is that the Investigating Officer-P.W. 6 Rakesh Vashishtha has stated in his cross examination that the deceased had three children, who were residing with the deceased at the time of incident. P.W. 1 Girish had also stated that the deceased had three children. However, surprisingly the Investigating Officer did not record any statement of these children. In the site plan of the spot two rooms have been shown at upstairs, one room has been shown of deceased and another room has been shown of D.W. 1 Sanjiv Kumar Verma and between these two rooms there is an open space. Doors of both the rooms are opposite to each other. From the site plan it appears that the deceased was residing only in one room and as her children were residing with her, thus naturally they might have also been residing in the same room and, therefore, these children were most important witnesses to state as to how the incident had taken place but surprisingly, the Investigating Officer did not record any statement of these three children. It is not so that the children were infant and due to this reason, their statement could not be recorded and no such fact has been brought on record. P.W. 1 Girish has stated that the elder son of the deceased, namely, Deepu was aged about 10-12 years, second child Gudiya was aged about 8 years and third one was aged about 4 years. Thus, it was incumbent of the Investigating Officer at least to inquire elder son Deepu as to how this incident had taken place. It is also not disputed that D.W. 1 Sanjiv Kumar Verma and his wife were residing in another room in the same premises but it appears that he has also not been examined during investigation. P.W. 7 Inspector Kavindra Nath Mishra has also stated in his cross examination that mother of the accused Satish Kumar Verma and two other families were residing on the ground floor but the Investigating Officer also did not examine any of them. It is one of the settled proposition of law that the prosecution must led its best evidence but in the instant case, it is quite apparent that the prosecution has not examined any of the person residing in the said premises where the incident had taken place. All these facts further raise doubt about the version of P.W. 1, 2 and 4 that when they reached at the house of the deceased, both the accused-appellants were present at the door and they have succeeded in running away from there.
38. In view of the above stated facts, it appears thoroughly doubtful that on 4.5.2008 at around 6 a.m. when P.W. 1, 2 and 4 have reached at the house of the deceased, both the accused-appellants met them at the door and that they have fled away from there. As stated above, it is well settled that each circumstance has to be established by cogent evidence but in the instant case, the alleged circumstance, which has been heavily relied upon by the prosecution, has not been established.
39. So far as the question of motive is concerned, the case of the prosecution is that accused Satish Verma has developed illicit relation with Rinki Verma and this relationship was being objected by his wife Manju Verma (deceased). In this connection, P.W. 1 Girish Verma has stated that regarding the said illicit relationship of accused-appellants Satish and Rinki, a complaint was made to the police and consequently accused-appellant Satish Verma has made a written undertaking stating that Rinki Verma would not visit his home and this statement was signed by both the accused-appellants as well as other family members of accused-appellant Satish and also by P.W. 1 Girish and that document has been proved as Ex. Ka-1. Similarly, when accused-appellant Satish did not adhere to the said undertaking and continued his relationship with accused-appellant Rinki, P.W. 1 Girish has again made a complaint to the police on which again a written undertaking was given by accused-appellant Satish which has been proved as Ex. Ka-2, wherein accused-appellant Satish has stated that he has illicit relations with Rinki but in future, he would not continue any such relation with her and from now he would reside with his wife Manju at his house. In this connection, it may also be stated that there is evidence that earlier for some days both the accused-appellants Satish and Rinki had started residing at Amroha as husband and wife in a rented premises. All these facts and evidence on record clearly shows that there was illicit relationship between accused-appellant Satish and Rinki and this illicit relationship was being objected by the deceased Manju. It is quite natural that the deceased might have objected such relationship. Thus, the prosecution has succeeded in proving that the accused-appellants have motive to commit the murder of the deceased as she was proving a hurdle in their relationship. It is well settled that the proof of motive is not sine qua nun for conviction and in case there is direct evidence, the motive aspect looses its significance. However, it is also equally well settled that in a case based on circumstantial evidence, motive is considered as an important aspect. In the case of State of U.P. vs. Kishanpal and others, (2008) 16 SCC 73, it has been held by the Apex Court that the motive may be considered as a circumstance which is relevant for assessing evidence. Similarly in the case of Shivaji Genu Mohite vs. State of Maharashtra, AIR 1973 SC 55, it was observed by the Apex Court that in case, the prosecution is not able to discover impelling motive, the same would not reflect upon the credibility of a witness, proved to be a reliable eye-witness. However, the evidence as to motive, would go a long way in a case where the case is wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence. In the case of Amitava Banerjee @ Amit @ Bappa vs. State of West Bengal, AIR 2011 SC 2913, it was held by the Apex Court that the motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself.
40. In view of the aforesaid pronouncements of the Hon'ble Apex Court, it is apparent that in a case based on circumstantial evidence, motive assumes importance and it holds one of the link in chain of circumstances, however, failure to prove motive is not fatal by itself. In the instant case, as stated above, it has been established that accused-appellant Satish was having illicit relationship with accused-appellant Rinki and it was being objected by the deceased Manju and thus, the motive aspect has been established by prosecution.
41. We have also considered the matter from the angle whether the provisions of Section 106 Evidence Act can be pressed into service in the present case as the deceased Manju Verma was wife of accused-appellant Satish Verma. It may be stated that the provisions of Section 106 of the Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon that person. The case of the prosecution is that at the time of incident, the deceased was residing at the house situated at Tadi Khana whereas accused-appellant Satish has started living with accused-appellant Rinki at the house situated at Line Par and that when the accused-appellant Satish did not visit his house at Tadi Khana for three days, the deceased had gone at the house at Line Par and accused-appellant Satish had promised that he would return back at the house at Tadi Khana in night. According to prosecution, in the night of 3/4.5.2008, both the accused-appellants have come at the house of the deceased at Tadi Khana, however, this version is based on hearsay evidence of P.W. 1 Girish Verma as he stated that the deceased told him on telephone that on the night of 3.5.2008, both the accused-appellants came there and they have beaten the deceased but as stated earlier, no cogent evidence was collected in this regard. Prosecution has not produced any call details either telephone of the deceased or of P.W. 1 Girish to show that the deceased had made any call to P.W. 1 Girish. Further this version is not supported by any person residing in the said premises. The brother of the accused-appellant Satish, namely, Sanjiv Kumar Verma (D.W.-1) has stated that on that night accused-appellant Satish did not visit his house at Tadi Khana. The children of the deceased, who at the time of incident were residing with the deceased, were also not examined. The persons residing at the ground floor of that premises were also not been examined. Thus as stated earlier, it could not be established that on the night of incident the appellants have come at the house at Tadi Khana, where deceased was residing. Here it would be pertinent to mention that it is the case of prosecution that appellants have started residing at the Line Par house and appellant Satish has not visited his house at Tadi Khana since last three days prior to incident. In view of these facts, Section 106 of the Evidence Act, cannot be pressed into service so as to show any adverse inference against appellant Satish Verma on the ground that he has failed to explain as to how the deceased has suffered death.
42. In Shambhu Nath Mehra v. State of Ajmer 1956 SCR 199, Hon'ble Apex Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said:
"This [Section 101] lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."
43. The applicability of Section 106 of the Evidence Act has been lucidly explained by the Hon'ble Apex Court in case of State of Rajasthan v. Kanshi Ram, JT 2006 (12) SCC 254.
"The provisions of Section 106 of the Evidence Act are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution."
44. Similarly in case of P. Mani vs. State of Tamil Nadu 2006 (3) SCC 161, Hon'ble Apex Court held thus:-
"We do not agree with the High Court. In a criminal case, it was for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were seen together inside a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke open the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any application whatsoever."
45. Keeping in view the above stated position of law, in the instant case, it could not be proved that on the night of 3/4.5.2008 when the deceased suffered death, the accused-appellants Satish and Rinki were present at the house at Tadi Khana along with the deceased. Further D.W. 1 Sanjiv Kumar Verma was also residing on the same floor in front of the room of the deceased and that some other family members of the accused-appellant Satish as well as other families were residing on ground floor. Thus, it is not the case that only the appellant Satish and the deceased were residing together when the alleged incident took place. There is no evidence that deceased was last seen alive along with the appellants inside her room. As noticed earlier, Section 106 of the Evidence Act, is not intended to shift the burden of proof on the accused but to take care of situations where a fact is known only to accused. In the present case, there is evidence that prior to some days of the incident, accused-appellant Rinki Verma has started residing along with accused-appellant Satish at the house at Line Part and the prosecution version that on the night of incident he visited the house of the deceased at Tadi Khana, is highly doubtful and could not be established. Thus, in the facts and circumstances of the present case, provisions of Section 106 of the Evidence Act are not applicable.
46. No other material circumstance has been alleged or proved by the prosecution. In view of the aforesaid, it is apparent that the sole circumstance relied upon by the prosecution that in the morning of 4.5.2008 at around 6 a.m. both the accused-appellants had met P.W. 1, 2 and 4 at the door of the house when they had gone there and thereafter appellants have fled away from there, could not be established. Similarly, the provisions of Section 106 of the Evidence Act are also of no help to the prosecution. No doubt prosecution has proved motive but sole evidence of motive would hardly be sufficient to sustain conviction. As stated in the case of Joseph vs. State of Kerala (supra) suspicion is not a substitute of proof and there is long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond reasonable doubt.
47. Examining the entire evidence carefully, it is manifest that the circumstances relied upon by the prosecution are not of conclusive nature and chain of circumstances is not complete. The circumstances are not totally inconsistent with the innocence of accused-appellants. The evidence on record does not stand scrutiny to the law laid down by Hon'ble Apex Court through number of pronouncements for sustaining conviction on the basis of circumstantial evidence. It is cardinal principle of criminal jurisprudence that guilt of accused must be proved beyond all reasonable doubt. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kaliram vs. State of Himachal Pradesh, (1973) 2 SCC 808, State of Rajasthan vs. Rajaram (2003) 8 SCC 180, Upendra Pradhan vs. State of Orissa (2015) 11 SCC 124 and Golbar Hussain and others vs. State of Assam and another (2015) 11 SCC 242.]
48. In view of the aforesaid, we reach to the conclusion that the prosecution has failed to prove its case beyond doubt and both the accused-appellants deserve benefit of doubt.
49. Accordingly, the conviction and sentence of both the accused-appellants, namely, Satish Kumar Verma and Rinki Verma @ Poonam Verma is set aside and they are acquitted of the charges levelled against them.
50. Both the accused-appellants are stated to be in jail, they shall be released forthwith, if not wanted in any other criminal case.
51. Both the appeals are allowed.
52. It is further directed that the appellants Satish Kumar Verma and Rinki Verma @ Poonam Verma shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.
53. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance.
(Raj Beer Singh, J.) (Ramesh Sinha, J.)
Dated:- 29.09.2020
Shiraz.