Rajasthan High Court - Jodhpur
Ashok Kumar @ Sanwar Ram vs State on 11 January, 2023
Bench: Sandeep Mehta, Kuldeep Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 201/2016
Ashok Kumar @ Sanwar Ram S/o Shri Jeevan Ram, by caste Jat,
R/o Rajapura, Police Station Degana, District Nagaur (lodged at
Central Jail, Ajmer)
----Appellant
Versus
State of Rajasthan
----Respondent
For Appellant(s) : Mr. J.S. Choudhary, Senior Advocate
assisted by Ms. Sampatti Choudhary
For Respondent(s) : Mr. R.R. Chhaparwal, PP
Mr. Vikas Bijarnia
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE KULDEEP MATHUR
JUDGMENT
Judgment pronounced on ::: 11/01/2023
Judgment reserved on ::: 01/12/2022
BY THE COURT : (PER HON'BLE MEHTA, J.)
The appellant herein has been convicted and sentenced as below vide judgment dated 12.01.2016 passed by learned Addl. Sessions Judge, Merta in Sessions Case No.52/15 (20/12):-
Offence Sentences Fine Sentence in lieu of
under default of payment
Section of fine
302 IPC Life Imprisonment Rs.50,000/- 6 Months' Additional
R.I.
201 IPC 3 Years' RI Rs.10,000/-- 1 Month's additional
RI
Both the sentences were ordered to run concurrently. (Downloaded on 11/01/2023 at 11:32:59 PM)
(2 of 25) [CRLA-201/2016] Briefly stated facts relevant and essential for disposal of the appeal are noted herein below:-
Shri Asharam (PW.4) submitted a written report (Ex.P/4) to the SHO PS Degana on 03.06.2012 alleging inter alia that his two daughters Sampu Devi and Chhoti Devi had been married to Kailash and Sanwar Ram @ Ashok, sons of Jeevan Ram respectively. A male offspring was born to Smt. Chhoti Devi from her wedlock to Ashok. For the last 4-5 years, the matrimonial relatives i.e., her husband, sister-in-law and brother-in-law had been maltreating Smt. Chhoti Devi. She was often beaten up and turned out of the house. Once, her husband tried to kill her. The informant would often convene Panchayats for pacifying the accused and for settling the strife. However, Ashok Kumar was indulged in an illicit affair with his sister-in-law Smt. Teeja Devi and thus, he did not desist from his foul behaviour and often insinuated that he was not desirous of keeping Smt. Chhoti Devi and would kill her. Four months ago, strife took place between the accused and Smt. Chhoti Devi on which, the complainant went to Chhoti Devi's matrimonial home and tried to settle the matter. On 01.06.2012, his daughter Chhoti Devi had gone to the field at about 9 O' Clock in the morning. The accused Ashok @ Sanwar Ram, Jethani Smt. Teeja Devi and brother-in-law Hari Ram followed her. They strangled her in the room constructed near the well and threw the dead body inside the well, covered it and put stones thereupon. Thereafter, the accused called the complainant and conveyed that his daughter had gone missing. The accused (Downloaded on 11/01/2023 at 11:32:59 PM) (3 of 25) [CRLA-201/2016] took the complainant and his family members to the well on 02.06.2012 late in the afternoon and when the complainant and his family members looked inside, they could see the dead body and police were informed. However, darkness had fallen and thus, the dead body could be taken out in the morning on 03.06.2012.
It was alleged that Ashok Kumar, Teeja Devi and Hari Ram killed Smt. Chhoti Devi by strangling her and threw the dead body in the well.
On basis of this report, an FIR No.141/2012 (Ex.P/18) came to be registered at the Police Station Degana for the offences punishable under Sections 302, 201/34 of the IPC and investigation was commenced. The dead body of Smt. Chhoti Devi was subjected to autopsy by a Medical Board constituted at the Government Hospital, Degana which carried out the procedure and issued a post-mortem report (Ex.P/18). The Board opined that the cause of death of Smt. Chhoti Devi was obstruction caused to the respiratory tract owing to pressure on neck associated with other ante-mortem injuries which were sufficient in the ordinary course of nature to cause death.
Spot proceedings were carried out. Statements of witnesses were recorded. Smt. Sampu Devi, being the younger sister of the deceased and the sister-in-law of the accused appellant alleged that the accused was involved in an extra-marital affair with her sister-in-law Smt. Teeja Devi and that he used to maltreat Chhoti Devi on this account. Chhoti Devi had gone to the field on the day of the incident. The accused Ashok followed her and killed her. The (Downloaded on 11/01/2023 at 11:32:59 PM) (4 of 25) [CRLA-201/2016] accused-appellant was arrested on 04.06.2012 and since then, he continues to be in custody. A charge-sheet came to be filed against the accused appellant Ashok Kumar in the Court of magistrate concerned for the offences punishable under Sections 302 and 201 of the IPC. As the offence under Section 302 IPC was sessions triable, the case was committed to the Court of Sessions Judge, Merta where charge was framed against the accused appellant for the above offences. He pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 25 documents to prove its case. The accused appellant was questioned under Section 313 Cr.P.C. and upon being confronted with the circumstances appearing in the prosecution evidence, he denied the same and claimed to be innocent. He took a pertinent stand that he had been falsely implicated in this case. Much before his wife Smt. Chhoti Devi proceeded to the field, he had proceeded to Khatu with his tractor. When he came back and did not find his wife, he made fervent efforts to search for her but as he could not succeed, informed Chhoti Devi's parents and other family members and also lodged a missing person report with the police. He treated his elder sister- in-law Smt.Teeja Devi like his mother.
Smt. Teeja Devi was examined as a defence witness. She emphatically denied the prosecution suggestion that she and the accused appellant were involved in an extra-marital affair.
After hearing the arguments advanced by the learned Public Prosecutor and the defence counsel and appreciating the evidence (Downloaded on 11/01/2023 at 11:32:59 PM) (5 of 25) [CRLA-201/2016] available on record, the learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment. Hence, this appeal.
Learned senior counsel Shri J.S. Choudhary, assisted by Ms. Sampatti Choudhary, Advocate representing the appellant, vehemently and fervently urged that the prosecution case is based purely on flimsy circumstantial evidence in form of motive and last seen. The theory of motive attributed by the prosecution to the accused appellant that he was involved in an illicit affair with his sister-in-law Smt. Teeja Devi is absolutely flimsy and concocted. Shri Choudhary urged that though the complainant tried to put up a case in the FIR that the accused used to maltreat Smt.Chhoti Devi as he was involved in an illicit affair with his sister-in-law but this allegation is purely conjectural. No complaint in this regard was ever filed either by Smt. Chhoti Devi or by any of the matrimonial relatives that the accused indulged in maltreating his wife because of the so-called illicit affair with Smt. Teeja Devi. He further urged that Smt. Sampu Devi (PW.5) being the sister of the deceased and the sister-in-law of the accused appellant, did not state in her evidence that any panchayat was held so as to counsel the accused regarding his alleged illicit affairs with the sister-in-law Smt. Teeja Devi. Thus, as per Shri Choudhary, this allegation is created one and has no credibility whatsoever. He further submitted that had there been an iota of truth in this allegation, then, the maternal family members would not have waited almost two days to lodge the FIR. No sooner, information had been received regarding Smt. Chhoti Devi's disappearance, (Downloaded on 11/01/2023 at 11:32:59 PM) (6 of 25) [CRLA-201/2016] the maternal family members would be expected to report the matter to the police and the accused would not have been given the liberty to file the missing person report.
Shri Choudhary further submitted that the theory put-forth in the statement of Smt. Sampu Devi (PW.5) that the accused followed Smt. Chhoti Devi and that this allegation constitutes tangible valid proof of circumstance of last seen is totally unacceptable. He pointed that in cross-examination, Smt. Sampu Devi admitted that she had seen Chhoti Devi going to the field at about 9 O' Clock and at that time, she was all alone. Shri Choudhary submitted that in the police statement (Ex.D/3) with which Smt. Sampu Devi was extensively confronted, she made a pertinent disclosure that her sister Smt. Chhoti Devi picked up a 'Tagari' (an iron container) and went to the field. At that time, Ashok was at home. Before leaving Sampu had prepared food which Ashok consumed and was sitting on the top of the water tank outside the house. He continued to sit there till 10 O' Clock and then got up and went away. Thus, Shri Choudhary submitted that the prosecution failed to lead credible evidence to prove the circumstance of last seen. Shri Choudhary further urged that the finding recorded by the trial court against the accused on this issue is absolutely conjectural and is based on misreading the evidence of Smt. Sampu Devi (PW.5). He submitted that Smt. Sampu Devi admitted in her cross-examination that when Smt. Chhoti Devi went to the field, Ashok had gone to the Village Khatu for delivering stone slabs. Shri Choudhary urged that in view of this candid admission of Smt. Sampu Devi, the circumstance of (Downloaded on 11/01/2023 at 11:32:59 PM) (7 of 25) [CRLA-201/2016] last seen heavily relied upon by the prosecution deserves to be discarded. Shri Choudhary urged that the theory of last seen is falsified from the chain of events as stated by the prosecution witnesses. He submitted that if at all, the witness Smt. Sampu Devi had seen the accused following the deceased then, she would have immediately divulged this fact to her father Shri Asha Ram who came to the village on the very day after receiving the information that Smt. Chhoti Devi had not returned home. In such an eventuality, the finger of suspicion would be pointed towards the accused and the family members would be expected to lodge the FIR immediately. Thus, Shri Choudhary submitted that the entire prosecution case suffers from tainted and cooked up evidence.
He further submitted that qua the allegation of motive, the star prosecution witness Smt. Sampu Devi (PW.5) made gross improvements in her testimony. She was confronted with her previous police statement (Ex.D/3) wherein, there is no aspersion that the accused was involved in some kind of illicit affair with his sister-in-law Smt. Teeja Devi. Shri Choudhary submitted that all that was stated by Sampu Devi in her investigational statement (Ex.D/3) was that the accused would often eat food with Teeja Devi and when Chhoti Devi objected to this, she would be maltreated. Shri Choudhary thus urged that the theory of motive put forth in the sworn testimony of Sampu Devi (PW.5) is a sheer improvement and deserves to be discarded. Thus, Shri Choudhary urged that neither is the circumstance of last seen proved from the statement of the star prosecution witness Smt. Sampu Devi (Downloaded on 11/01/2023 at 11:32:59 PM) (8 of 25) [CRLA-201/2016] nor is the theory of motive established. He contended that as these were the only two circumstances relied upon by the prosecution to bring home the charges and as neither was proved by plausible evidence, there is no escape from the conclusion that the prosecution failed to prove the charges against the accused by cogent evidence. On these submissions, he implored the Court to accept the instant appeal, set aside the impugned judgment and acquit the accused appellant of the charges.
Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by appellant's counsel. He urged that the appellant and Smt. Chhoti Devi were married about 8-9 years before the incident. Soon after the marriage, Smt. Chhoti Devi started making complaints to her parents that the accused was indulged in an extra-marital affair with her sister-in-law Smt. Teeja Devi and that she was being maltreated for this reason. Numerous panchayats were convened but the accused continued to misbehave with his wife. She was often beaten up and turned out of the house. Finally, on the day of the incident, while Smt. Chhoti Devi had gone to the field, the accused followed her. She was brutally beaten and strangled and thereafter, her dead body was dumped into the well. Though, the accused informed his father-in-law regarding Chhoti Devi having gone missing but this was nothing but a ruse to mislead the maternal relatives. The accused tried to pose as if he was having no idea as to the fate of Smt. Chhoti Devi and participated in the search proceedings. He also submitted the missing person report but the fact remains that all these act were nothing but a ploy to (Downloaded on 11/01/2023 at 11:32:59 PM) (9 of 25) [CRLA-201/2016] throw the complainant and the police off the trail. However, the relatives and the police officials realized the deception being played and came to the well founded conclusion that the accused killed his wife and dumped the dead body in the well. The body was taken out of the well and immediately thereafter, Asharam (PW.4), the father of the deceased lodged the report (Ex.P/4) with the police. Learned Public Prosecutor urged that Sampu Devi (PW.5) has given plausible evidence to the effect that the accused was the only person seen following the deceased towards the direction of the well where her dead body was found and since, the well was thoroughly covered up by securing it with a cover and putting stones thereupon, no one other than the accused could have been responsible for the murder. Learned Public Prosecutor submitted that the accused failed to give any explanation as to how his wife, the deceased Smt. Chhoti Devi's dead body with severe injury marks was found inside the well constructed on the agricultural field owned and operated by the accused. Failure of the accused to offer a plausible explanation entitled the prosecution to raise the reverse burden of proof against the accused by virtue of Section 106 of the Evidence Act and since, the accused failed to discharge such burden, the circumstance of last seen together coupled with well established motive, are more than sufficient to affirm the guilt of the accused, as recorded by the trial court. On these submissions, learned Public Prosecutor implored the Court to dismiss the appeal and affirm the conviction of the accused as recorded by the trial court.
(Downloaded on 11/01/2023 at 11:32:59 PM)
(10 of 25) [CRLA-201/2016]
We have given our thoughtful consideration to the
submissions advanced at bar and have carefully re-appreciated the evidence available on record.
As per the admitted prosecution case, marriage of the appellant with Smt. Chhoti Devi was solemnized about 8-9 years before the incident and thus, the prosecution does not have aid of presumption under law for proving the charge of murder attributed to the appellant. Admittedly, there was no eyewitness of the alleged murder of Smt. Chhoti Devi which took place on 01.06.2012 and the entire case of prosecution is based on circumstantial evidence. Two circumstances were relied upon by the prosecution so as to prove the charges:- (1) Motive in form of the alleged extra-marital affair of the appellant with his sister-in- law Smt. Teeja Devi and (2) last seen evidence inasmuch as, it is claimed that the appellant was lastly seen following Smt. Chhoti Devi towards the agricultural field/well from which her dead body was recovered.
The only witness examined by the prosecution to prove the circumstance of last seen was PW.5 Smt. Sampu Devi, sister of the deceased Chhoti Devi and the sister-in-law of the appellant herein. She alleged in her testimony that Ashok was having illicit relations with his sister-in-law Smt. Teeja Devi. For this reason only, Ashok would repeatedly beat up Chhoti Devi. Ashok was entranced by Smt. Teeja Devi and that is why, he maltreated his wife Chhoti Devi. On the fateful day, Chhoti Devi proceeded to the field in morning at about 9 O' Clock. Ashok followed her. He killed (Downloaded on 11/01/2023 at 11:32:59 PM) (11 of 25) [CRLA-201/2016] Chhoti Devi and threw the dead body in the well and covered it by stones. In cross-examination, the witness admitted that Chhoti Devi was living with her husband for last about 10-11 years. They had a son, aged nine years. All the families lived as separate units. Smt. Teeja Devi used to reside with the mother-in-law, whose name was also Chhoti Devi. She admitted the suggestion given by the defence counsel in cross-examination that Smt. Chhoti Devi had gone to clean the fields in the morning at about 9 O' Clock and that she was all alone at that point of time. Relevant portions from cross-examination of Smt. Sampu Devi are extracted and reproduced hereinbelow for the sake of ready- reference:-
"NksVhnsoh lqcg 9 cts vdsyh gh xbZ Fkh ftls eSaus ns[kk FkkA NksVhnsoh [ksr esa lwM+ djus ds fy;s xbZ FkhA v'kksd nwljks dk VsDVj pykrk FkkA ;g ckr lgh gS fd v'kksd [kkVw esa iRFkj&ifV~V;ka Mkyus dk dke djrk gSA ftl fnu NksVhnsoh vk[kjh ckj [ksr esa xbZ Fkh ml jkst v'kksd [kkVw xkao esa iRFkj iV~Vh Mkyus x;k Fkk fdUrq og ekjdj fQj x;k FkkA --------------------------------- v'kksd us esjh cfgu dks [ksr esa tkus dk dgk Fkk eq>s ugha dgk FkkA esjs lkeus cfgu dks ugha dgk Fkk] eSaus cfgu ls iwNk rks mlus crk;k fd v'kksd [ksr ij vk;sxkA
-------------------------- v'kksd fQj ckn esa lk<s X;kjg cts VsDVj fudyk Fkk fQj [kkVw iRFkj ysus ds fy;s fudyk Fkk rFkk 'kke dks ikap cts iRFkj ysdj vk;k FkkA v'kksd ds vkus ls igys gh esjs firkth xkao esa vk x;s FksA firkth dks lwpuk eSaus dh Fkh fd cfgu ?kj ij ugha vkbZ] ;g ckr eSaus vkB cts dgh FkhA ---------------------------------------- esjs firkth [ksr esa gh Fkh fQj v'kksd vkus ds ckn og [ksr esa x;k FkkA eSaus iqfyl c;ku izn'kZ Mh 3 esa ;g fy[kk fn;k Fkk fd ^^v'kksd viuh HkkstkbZ rhthnsoh ds lkFk voS/k laca/k j[krk Fkk rFkk mlds lkFk [kkuk ihuk djrk Fkk bl (Downloaded on 11/01/2023 at 11:32:59 PM) (12 of 25) [CRLA-201/2016] dkj.k rhthnsoh ds dgus ds dkj.k esjh cfgu NksVhnsoh ds lkFk gj 4&5 fnu ls ekjihV djrk Fkk** ijUrq iqfyl us izn'kZ Mh 3 esa ,slk D;ksa ugha fy[kk irk ughaA ^^v'kksd gekjs ls ugha le>rk Fkk og dsoy rhthnsoh ls gh le>rk FkkA** ;g ckr eSaus iqfyl dks crk nh Fkh ijUrq ,slk izn'kZ Mh 3 esa D;ksa ugh fy[kk irk ughaA "
(Emphasis supplied) Upon threadbare appreciation of the evidence of Smt. Sampu Devi and more particularly the portions extracted from her cross- examination (supra), it becomes clear that the witness did not see the appellant going together or following Smt. Chhoti Devi when she proceeded to the field on the fateful day. Rather, she clearly admitted that Chhoti Devi went to the field all alone. Though the witness raised a conjecture that accused-appellant killed Chhoti Devi and threw the dead body in the well but manifestly this observation of the witness is purely hypothetical because she admittedly did not see the accused with the deceased on the fateful day. Furthermore, in the previous police statement of the witness (Ex.D/3), she categorically stated that Smt. Chhoti Devi went to the field at about 9 O' Clock. The accused consumed food and sat on the water tank where he remained till 10 O' Clock. Apparently thus, none of the prosecution witnesses, saw the accused either going to the field with the deceased or following her in the said direction. Hence, we have no hesitation in holding that the prosecution miserably failed to prove the circumstance of last seen.
As the prosecution has alleged that the accused murdered the deceased by throttling her and then threw the dead body in (Downloaded on 11/01/2023 at 11:32:59 PM) (13 of 25) [CRLA-201/2016] the well, it would be apposite to discuss the evidence of medical jurist Dr. S.N. Maheshwari (PW.11) who was one of the members of the Medical Board which carried out autopsy on the dead body of Smt. Chhoti Devi. The doctor stated that the Board conducted autopsy on 03.06.2012. The body was decayed and in advanced state of decomposition. The head was opened and it was noticed that there was a bruise admeasuring 4 x 4 cm on the right side and underneath this injury, blood was collected. Another injury admeasuring 3 x 2 cm was located on the middle of the head underneath which also, blood had collected. There was a lacerated wound admeasuring 7 x 3 cm proceeding from the vagina to cervix and the blood vessels and the skin of vagina were damaged. In addition thereto, the following injuries were noticed by the Board:-
(1) Injury on the left elbow admeasuring 2 x 1 cm (2) Bruise admeasuring 4 x 1/2 cm on the right palm joint (3) Bruise admeasuring 4x 1/2 cm on the left palm joint. (4) Bruise admeasuring 1 x 1/2 cm on the right hand's little finger.
(5) Bruise associated with haematoma admeasuring 10 x 15 cm on the front of the chest.
(6) 'U' shape abrasion 12 x 3 cm on the upper part of the
neck. The underlying bones were broken and the
muscles were damaged
(7) Bruise admeasuring 5 x 3 cm below the neck with haematoma. All injuries were ante-mortem in nature. (Downloaded on 11/01/2023 at 11:32:59 PM)
(14 of 25) [CRLA-201/2016] The Board opined that the cause of death was obstruction of the respiratory passages because of compression of neck. In cross-examination, the doctor admitted that the external injuries noticed by the Board in the post-mortem report could have been caused on account of falling into the well from a height. The cause of death was suffocation caused by the injuries. There were no marks on the body which could indicate that the deceased had been strangled. Neither any ligature mark was visible nor was any pressure applied to the wind pipe. The doctor admitted that if a person falling into a well collided with hard surface like stone etc. on the neck area, such injuries associated with blockage of respiratory system could be caused. Clearly thus, as per the testimony of the medical jurist, it is established beyond all manner of doubt that the victim received the injuries as a consequence of falling into the well. The allegation levelled by the prosecution that the accused strangled the victim and then threw the dead body into the well is totally contradicted by the medical evidence. If this sequence was to be accepted, then undoubtedly, significant number of injuries noticed by the Board would be post-mortem in nature. Thus, the prosecution failed to tender reliable evidence to establish that the accused suffocated/strangled his wife Smt. Chhoti Devi and then threw the dead body in the well.
The last circumstance on which the prosecution relied upon was in form of motive. At the outset, we may note that the sole circumstance of motive can never be considered sufficient so as to bring home the charge of murder. Despite that, we proceed to (Downloaded on 11/01/2023 at 11:32:59 PM) (15 of 25) [CRLA-201/2016] examine the evidence of material prosecution witnesses on this aspect.
PW.1 Pusi Devi being the sister-in-law of the accused appellant categorically denied the prosecution story and stated that the appellant did not indulge in maltreating the deceased.
PW.2 Smt. Chhoti Devi, being the mother of the accused stated on oath that there was no quarrel whatsoever between the appellant and his wife. Significantly enough, Chhoti Devi was not declared hostile but was allowed to be cross-examined by the Public Prosecutor wherein, she denied having given statement (Ex.D/2) to the police. Apparently, as the witness was not declared hostile, her entire examination-in-chief cannot be discarded. Even in the cross-examination conducted by the Public Prosecutor, the witness was only confronted with portion A to B of her previous police statement wherein, it was recorded that Ashok Kumar and his wife used to quarrel with each other because she did not prepare food for her husband and thus, sometimes Ashok would have food with them. The prosecution gave no suggestion whatsoever to the witness Chhoti Devi (PW.2) that the accused was involved in any kind of illicit extra-marital affair with Smt. Teeja Devi. Omission on part of the prosecution to cross-examine the witness on this aspect is severely adverse to the prosecution case.
The first informant Asha Ram was examined as PW.4. He stated that Ashok used to maltreat Chhoti Devi and that he had (Downloaded on 11/01/2023 at 11:32:59 PM) (16 of 25) [CRLA-201/2016] illicit relations with his sister-in-law Smt. Teeja Devi. Upon getting a call that Chhoti Devi was missing, he, Tulchha Ram, Ratna Ram, Uda Ram and Girdhari went to the village of the accused and launched a search. Ultimately, they could find the body of Smt. Chhoti Devi inside the well which was covered by stones. The most important circumstance which is noticeable from the examination- in-chief of the witness is that he did not state that any intervention in form of panchayat etc. was ever resorted to for resolving the matrimonial disputes allegedly thriving between the accused and the deceased on account of the so-called illicit relations. Another significant fact which is evident from the statement of Asharam is that he did not utter a single word that Chhoti Devi ever made a complaint to him regarding her maltreatment by the accused on account of his illicit affairs with Smt. Teeja Devi. Apparently thus, there is nothing in the prosecution case which can even suggest that the issues arising from the alleged extra-marital affairs of the accused and his sister-in-law were highlighted in the community or amongst the family members so as to get the same resolved. The witness admitted that they reached the village of the accused on the very day of the incident. He claimed that the accused did not meet them and was not involved in the search proceedings.
PW.8 Ramnath being the cousin brother of Smt. Chhoti Devi also alleged that the accused was indulged in an illicit affair with his sister-in-law Teeja Devi. He and some other family members went to the matrimonial home of Chhoti Devi and tried to counsel Ashok on this aspect. The witness further stated that Sampu Devi (Downloaded on 11/01/2023 at 11:32:59 PM) (17 of 25) [CRLA-201/2016] called Jairam and informed that Chhoti Devi had not returned home. They went to the village Rajapura and made enquiry and also searched for Chhoti Devi. Ashok also participated in the search operations which continued for two days. On the second day, when despite efforts, Chhoti Devi could not be found, they told Ashok to report the matter to the police. They accompanied Ashok to the police station where he lodged the missing person report. Thereafter, Ashok stayed back at the police station and they continued the search. They saw an iron frame covering the well constructed in the field which was weighed down by stones. On taking a close look inside the well, a dead body was seen floating therein and they immediately informed the police. However, by the time the police officials arrived, darkness had fallen and thus, they were advised to return to their homes. The police took out the dead body in the morning at about 9:00-9:30 which was identified to be of Chhoti Devi. Thus, from the statement of this witness, it becomes clear that the accused continuously participated in the search proceedings. It is also relevant that the maternal family members of Chhoti Devi directed Ashok to lodge the missing person report. The witness was confronted with his previous police statement (Ex.D/8) and many contradictions and omissions were highlighted with reference to his sworn testimony.
PW.9 Panchi Devi being the mother of the deceased stated that Chhoti Devi was married to the appellant in childhood. She started going to the matrimonial home about 11-12 years ago. For two years, she was happy in the matrimonial home but thereafter, (Downloaded on 11/01/2023 at 11:32:59 PM) (18 of 25) [CRLA-201/2016] she realized that the appellant and Smt. Teeja Devi were indulged in an extra-marital affair. They tried to counsel the accused but he did not mend his ways. Information was received regarding Chhoti Devi having gone missing on which, all family members came to the Village Rajapura and participated in the search operations. The dead body was recovered inside the well of Ashok. The witness was confronted with her previous police statement (Ex.D/4). In portion A to B thereof, it was recorded that Chhoti Devi never complained regarding any kind of illicit affair between Ashok and the sister-in-law Teeja Devi. The witness denied having given any such statement to the police. She admitted in her cross- examination that Chhoti Devi resided separately with the husband whereas Teeja Devi used to reside with her father-in-law.
The witness Hari Ram (PW.10) stated that he was called to the village Rajapura for taking out a dead body from the well of Ashok. He used a lowering machine to extract the dead body out of the well. In cross-examination, the witness admitted that the body was old and swollen. The well was not covered and was open. It is clear from the evidence of this witness that the portrayal made in the evidence of the first informant PW.4 Asha Ram and PW.8 Ram Nath that the accused concealed the dead body of Smt. Chhoti Devi in the well and covered it up by an iron frame and stones and that they could not see the body because the well was covered up is nothing but a bundle of lies.
The witness Uda Ram (PW.13) stated that he went to the village Rajapura for counselling the accused in relation to his (Downloaded on 11/01/2023 at 11:32:59 PM) (19 of 25) [CRLA-201/2016] extra-marital affair. However, Ashok and his sister-in-law Smt. Teeja Devi rebuked them. On this, a suggestion was given that Chhoti Devi would be taken back to her father's village. Durga Ram, Sarpanch took responsibility upon himself and assured that nothing wrong would happen to Chhoti Devi. However, Ashok and Teeja Devi murdered Chhoti Devi. In cross-examination, the witness was confronted with his previous police statement (Ex.D/5) wherein, numerous contradictions and admissions were elicited in context to his sworn testimony. He admitted that Ashok also accompanied them in the search operations which went on for the entire night. Similar statement was given by the witness Tulchha Ram (PW.14).
PW.15 Jakir Akhtar was the SHO of the Police Station Degana at the relevant point of time. He stated that the report (Ex.P/4) was submitted before him by Asha Ram (PW.4) on which FIR No.41/2012 was registered. The site inspection plan was prepared. Panchayatnama lash of the dead body of Chhoti Devi was prepared. Various material objects were also seized from the place of incident. The accused made a disclosure statement in furtherance whereof, a bore (ornament worn on head), neck-collar and a Patedi of Chhoti Devi were recovered. In cross- examination, the witness proved the missing person report (Ex.D/1) submitted by Ashok. He also proved previous police statements of material prosecution witnesses. In cross- examination, the witness admitted that it was mentioned in the report (Ex.P/4) that after the dead body had been seen by the informant, the police was informed and that the dead body was (Downloaded on 11/01/2023 at 11:32:59 PM) (20 of 25) [CRLA-201/2016] taken out in the morning in presence of the police officials. However, he could not state as to who were the police officials which were involved in taking out the dead body from the well.
Bhanwar Lal (PW.16) also stated that Chhoti Devi complained to him regarding the alleged maltreatment being meted out to her by the accused. However, this statement of the witness is gross improvement from his previous police statement (Ex.D/7) with which he was confronted in cross-examination.
Ratna Ram (PW.17) being cousin of the deceased gave evidence on the same lines as Asha Ram (PW.4). He stated in his examination-in-chief itself that Ashok accompanied them in the search proceedings. He also stated that they threw light in the well and noticed the dead body. The police came there in the afternoon but the body could be taken out in the morning because night had fallen. This witness was also confronted with his previous police statement (Ex.D/8) wherein there is no allegation regarding the accused being involved in an extra-marital affair with his sister-in-law.
Smt. Teeja Devi was examined as defence witness. She made an emphatic deposition on oath that the accused Ashok and his wife Smt. Chhoti Devi used to live in a separate abode for the last ten years. She used to treat Ashok as her son and they were not involved in any illicit affair. Chhoti Devi never implored her regarding this so-called affair. She and Chhoti Devi were on good terms with each other. She used to reside with her mother-in-law (Downloaded on 11/01/2023 at 11:32:59 PM) (21 of 25) [CRLA-201/2016] and uncle-in-law and had two children, aged 14 years and 10 years respectively. In cross-examination, the witness denied the suggestion given by learned Public Prosecutor regarding existence of an illicit affair with the accused Ashok.
Upon an overall appreciation of evidence of all material prosecution witnesses and the defence witness, we are of the firm view that the prosecution theory regarding existence of illicit affairs inter se between the accused and Smt. Teeja Devi is a sheer piece of exaggeration. If at all, there had been an iota of truth in the allegation that the accused was involved in an extra-marital affair with his sister-in-law Smt. Teeja Devi and that he would harass and maltreat his wife, the deceased Smt. Chhoti Devi on this count, then, no sooner had the maternal relatives got wind of the fact that the lady had gone missing, then they would not wait for almost two days before lodging the report. The conduct of the accused in being present at the place of incident and participating in the search for his missing wife and in lodging the missing person report is a strong indicator of his innocence.
The theory put-forth in the statement of material prosecution witnesses that the police was informed on 02.06.2012; that the police officials came to the place of incident in the afternoon and that the dead body could not be taken out at that point of time because darkness had fallen is another piece of fabrication because neither was any such police official who came to the spot on 02.06.2012 examined by the prosecution nor could the IO Shri Jakir Akhtar identify any such police official. Furthermore, if at all (Downloaded on 11/01/2023 at 11:32:59 PM) (22 of 25) [CRLA-201/2016] the police had been informed on 02.06.2012 itself, then this fact was bound to be recorded in the daily diary being maintained at the police station. No such entry was proved during trial.
The theory put-forth in the evidence of the material prosecution witnesses that the accused first strangled Smt. Chhoti Devi and then threw the dead body in the well is belied and contradicted by the medical evidence referred to supra. The theory of last seen as portrayed in the statement of Sampu Devi (PW.5) is not convincing and seems to have been developed after consultation amongst the prosecution witnesses. The allegation that the accused was involved in an extra-marital affair with Smt. Teeja Devi is also not proved by convincing evidence. There is no reason for this Court to discard the evidence of Smt. Teeja Devi (DW.1) and the evidence of PW.3 Chhoti Devi, who totally denied the existence of any such relationship.
There is a serious question mark on the conduct of the material prosecution witnesses viz. Asharam (PW.4), Smt. Sampu Devi, Ram Nath (PW.8), Uda Ram (PW.13) and Ratna Ram (PW.17) all of whom are close relatives of the deceased. As per the statements of these material witnesses, the accused appellant was involved in an extra-marital affair with his sister-in-law Smt. Teeja Devi and when Chhoti Devi, the deceased protested against this illicit affair, she was maltreated and beaten. It is further claimed that Sampu Devi (PW.5) saw the accused following the deceased towards the field and thereafter, she was not seen alive. Had there been any iota of truth in these allegations then, no sooner, the (Downloaded on 11/01/2023 at 11:32:59 PM) (23 of 25) [CRLA-201/2016] maternal family members reached the Village Rajapura, the first focus of these witnesses would be to make a search for the deceased in and around the field where she was seen going by Sampu Devi. On the contrary, the witnesses stated that they kept on searching for the victim for a long duration at different locations and only in the late hours of 02.06.2012, they realized that the dead body was lying in the well. As the accused was suspected of maltreating the deceased and was allegedly seen following her towards the field/well, the family members of the victim would not have relied upon the accused to help in the search operations. Rather, natural human conduct required that they should have immediately lodged the FIR after reaching Rajapura and consulting with Smt. Sampu Devi. The failure on part of the close family members in lodging a prompt FIR despite having all relevant inputs from Sampu Devi clearly shows that the story as portrayed above is nothing but a sheer piece of concoction.
It is clear that the prosecution case is based purely on conjectures and surmises. Law is well settled by a catena of precedents that in a case based purely on circumstantial evidence, the prosecution is required to prove every link in the chain of circumstances by leading clinching evidence so as to complete the chain pointing infallibly towards the guilt of the accused and incompatible with his innocence.
Reference in this regard may be had to the Supreme Court judgment in the case of Sharad Birdichand Sarda vs. State of (Downloaded on 11/01/2023 at 11:32:59 PM) (24 of 25) [CRLA-201/2016] Maharashtra, reported in AIR 1984 SC 1622 wherein it was held as below:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved". It is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
2. The facts so established should be consistent with the hypothesis of guilt and 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."
Having regard to the discussion made hereinabove, we are of the firm opinion that the prosecution has failed to prove even a single incriminating circumstance so as to bring home the guilt of the accused. The findings recorded by the trial court in the impugned judgment for holding the accused guilty of the charges are based on surmises and conjectures and hence, the impugned judgment does not stand to scrutiny. Consequently, the judgment (Downloaded on 11/01/2023 at 11:32:59 PM) (25 of 25) [CRLA-201/2016] dated 12.01.2016 is hereby quashed and set aside. The accused appellant is acquitted of the charges. He is in custody and shall be released from prison forthwith, if not wanted in any other case.
However, keeping in view the provisions of Section 437-A Cr.P.C., the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court.
The appeal is allowed in these terms.
Record be returned to the trial court forthwith.
(KULDEEP MATHUR),J (SANDEEP MEHTA),J
Sudhir Asopa/-
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