Allahabad High Court
Smt. Sarman vs State Of U.P. on 28 March, 2017
Author: Ramesh Sinha
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 15.02.2017 Judgment delivered on 28.03.2017 Court No. - 36 Case :- CRIMINAL APPEAL No. - 312 of 2013 Appellant :- Smt. Sarman Respondent :- State Of U.P. Counsel for Appellant :- Dharmendra Singhal Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2787 of 2003 Appellant :- Sheo Ram Respondent :- State Of U.P. Counsel for Appellant :- K.D. Tiwari,Ankit Agarwal.C Counsel for Respondent :- A.G.A.,R.K. Gupta Hon'ble Ramesh Sinha,J.
Hon'ble Krishna Pratap Singh,J.
(Delivered by Hon'ble Krishna Pratap Singh,J.)
1. Heard Sri Dharmendra Singhal, learned counsel for the appellant in (Criminal Appeal No. 312 of 2013), Sri Yajuvendra Singh, Advocate holding brief of Ankit Agarwal, learned counsel for the appellant in (Criminal Appeal No. 2787 of 2003) and Sri Ashish Pandey, learned A.G.A. for the State. Sri R.K. Gupta, learned counsel for the complainant is not present though the matter has been taken up in the revised list.
2. These two criminal appeals are directed against the judgment and order order 12.06.2003 passed by the learned First Additional Sessions Judge, Mahoba in Session Trial No. 23 of 2002 (State vs. Smt. Sarman Devi and one other) arising out of criminal Case Crime No. 153 of 2001, Police Station Kulpahar, District Mahoba.
3. Both the accused-appellants have been convicted under Section 302 I.P.C. and sentenced to life imprisonment along with fine of Rs. 2,000/- and in default of payment of fine to further undergo an imprisonment for a period of six months. Both of them have also been convicted under Section 201 I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years. Learned trial Judge has further directed that all the aforesaid sentences of each one the appellants-accused shall run concurrently.
4. Since both the appeals arise out of a common judgment. Hence, both the appeals are being decided by this common judgment.
5. Briefly facts of the case are as follows:-
6. Informant Smt. Bati Devi PW-1 is mother of the deceased Sadhu Ram. Accused-appellant Smt. Sarman is wife of the deceased Sadhu Ram. Accused-appellant Sheo Ram is said to have illicit relations with accused-appellant Smt. Sarman. They all are resident of Mohalla Takiyapura, Town Belatal, Police Station Kulpahar, District Mahoba. Informant Smt. Bati Devi PW-1 lodged an F.I.R. at Police Station Kulpahar, District Mahoba on 27.05.2001 at 13 hours alleging therein that the deceased Sadhu Ram was her only son. The wife of the deceased Sadhu Ram, accused-appellant Smt. Sarman had illicit relations with accused-appellant Sheo Ram who resided in front of their house. Deceased Sadhu Ram had rebuked accused-appellant Sheo Ram and his wife accused-appellant Smt. Sarman and had prohibited them from meeting her. Thereafter, accused-appellant Sheo Ram had issued threat in presence of Desh Raj PW-7, Sundar and Deena @ Deen Dayal PW-2 saying "you are an irritant between Smt. Sarman and me. I will feel relaxed only after sending you to heaven." The illicit relations between accused-appellant Sheo Ram and accused-appellant Smt. Sarman was a talk of the locality. On 11.02.2001 the informant Smt. Bati Devi had gone to in-laws place of her brother Leela, resident of village Maharajpur, Madhya Pradesh and his son deceased Sadhu Ram along with his cousin Sankar (PW-5) son of Teeka Ram had gone to the village Singone under police station, Ajnar, to bring the bride of Govind Das son of Ram Prakash Kachhi of his village. At the house the wife of the deceased accused-appellant Smt. Sarman was present. It is further narrated in the first information report that on 12.02.2001 deceased Sadhu Ram along with Sankar PW-5 had returned to his house in the evening. On 16.02.2001 informant returned to her house from Maharajpur and on not finding the deceased Sadhu Ram at house, she asked her daughter-in-law accused-appellant Smt. Sarman about the deceased. Accused-appellant Smt. Sarman told her that he (Sadhu Ram) had gone to Delhi on 13.02.2001 to earn money. After 7-8 days, daughter-in-law of the informant accused-appellant Smt. Sarman gave a letter to the informant and told her that her son (Sadhu Ram) had sent this letter from Delhi. Informant got the letter read in her locality. The letter was dated 14.02.2001 wherein he had said that in case, he could not come by the month 'Chaitra', she should get a labourer hired for reaping the crops. Deceased did not return even after the crops were reaped. Informant kept asking accused-appellant Smt. Sarman and accused-appellant Sheo Ram about her son (Sadhu Ram) and his address in Delhi. Informant also asked about any other letter from him but both of them kept diverting her from the subject. On 20.05.2001 an unknown person gave a letter to Gauri Shankar son of Dalpat Kachhi a resident of her village, at railway station Harpalpur, wherein it was written that her son Sadhu Ram had died in Delhi. On getting this letter, informant again asked her daughter-in-law accused-appellant Smt. Sarman about Sadhu Ram's address in Delhi but she did not tell her anything. On 25.05.2001 residents of locality of informant and informant put pressure on them for telling her son's (Sadhu Ram) address in Delhi, but in vain and from that day accused-appellant Smt. Sarman and accused-appellant Sheo Ram disappeared from their houses. Informant suspect that her daughter-in-law accused-appellant Smt. Sarman and accused-appellant Sheo Ram conspired and killed her son (Sadhu Ram) in the night of 12.02.2001 and hidden his dead body somewhere. To distract her, they kept writing fake letters after designing a plot. Informant inquired in her locality and town Belatal but cannot confirm the fact that Sadhu Ram had gone to Delhi from the house. On a written complaint Exhibit Ka-1 a Case on Crime No. 153 of 2001, under Sections 302 and 201 I.P.C. was registered Constable Balak Ram PW-8 registered the crime by preparing chick FIR Exhibit Ka-10 and G.D. Entry Exhibit Ka-11.
7. After registration of case Investigating Officer Jai Shankar Pandey CW-1 in whose presence the offence was registered in police station commenced investigation into the crime and recorded the statement of informant and also arrested the accused-appellant Smt. Sarman and went to the place of occurrence. Investigating Officer Jai Shankar Pandey CW-1 after taking keys from the accused-appellant Smt. Sarman, police got the lock opened the room straw and grains packed in the sacks which were kept there were taken out of the room. On being pointed out by the accused-appellant Smt. Sarman, buried skeleton of the Sadhu Ram wrapped in the cloth was taken out after digging the floor of same room. Other relevant papers challan lash, photo lash, letter to R.I. Letter to C.M.O. Exhibit Ka-4 to Exhibit Ka-7 were also prepared by the police Sub-Inspector Swami Ramswaroop PW-6 on the direction of Investigating Officer Jai Shankar Pandey CW-1. Investigating Officer took the skeleton in possession and attires of the deceased and performed the inquest on the skeleton of deceased and prepared inquest memo Exhibit Ka-3. Investigating Officer also prepared recovery memo Exhibit Ka-12 and Ka-13 after collecting straw and grains. Investigating Officer collected the plain earth and hair found near the skeleton and recovery memo Exhibit-14 thereof was prepared. Spot inspection was also conducted by the Investigating Officer and site plan Exhibit Ka-16 was sketched and thereafter statement of Shankar Kachhi PW-5 was recorded. Investigating Officer also collected the two letters given by the informant and prepare memo Exhibit Ka-8. On 31.05.2001 accused-appellant Sheo Ram was apprehended and on his pointing out the spade (phawra) which was used in digging the earth of floor of the room where the dead body was buried, was recovered and recovery memo Exhibit Ka-9 was prepared and statement of witness Suresh was recorded. Investigating Officer had recorded the statement of Shankar Lal, Shabir Ali, Sundar, Dassu, Sundar Singh, Halkai and Ram Bahadur respectively on 02.06.2001 and 14.07.2001. After completing investigation charge-sheet Exhibit Ka-15 was forwarded against both the accused-appellants.
8. Postmortem examination on skeleton of deceased was performed by Doctor Chander Shekhar Gautam PW-3 on 25.05.2001 at 2.40 p.m. The skeleton was brought to the Doctor by Constable Warish Ali, police outpost Belatal, Police Station Kulpahar and V.C. (Village Chowkidaar) Radhacharan who had identified the skeleton. Bones of human male skeleton which were brought for postmortem examination Doctor had noted the following facts:-
1. Skull
2. Mandible
3. Both scapulae
4. Both humerous
5. Both radius and both ulna
6. Twenty ribs
7. Twenty vertebrae
8. Sacrum
9. Whole pelvic bone
10. Both femur
11. Both tibia and both fibula Decomposed Few fibrons strands are attached in pelvis and right femur. ¼iwjs dadky esa feV~Vh yxh Fkh½ Following bones were preserved:-
1. Skull
2. Mandible
3. One humerous
4. One radius
5. One ulna
6. One scapula
7. One femur
8. One tibia
9. One fibula
10. One iliac bone Enclosures:
(A) One sealed bundle containing:- ¼1½ ,d cfu;ku ¼2½ ,d Vh 'kVZ ¼3½ ,d v.Mjfo;j ¼4½ nks jLlh ds VqdMs+ ¼mDr lHkh esa feV~Vh yxh Fkh½
9. Cause of death could not be ascertained. Bones preserved as mentioned. Death of the deceased was caused probably in the night of 12.02.2001. Postmortem examination report is Exhibit Ka-2.
10. On the strength of submitted charge-sheet both the accused-appellants were summoned after the registration of criminal case against them and under procedural law (Criminal Procedure Code) their case was committed to the Court of Sessions for trial after observing due formalities.
11. Sessions Judge, Mahoba on 08.02.2002 charged both the accused-appellants under Sections 302 read with Section 34 I.P.C. and Section 201 read with Section 34 I.P.C. Both the charges were read out to the both accused-appellants. They pleaded not guilty and claimed to be tried and consequently their trial commenced to established their guilt.
12. Prosecution in its efforts to prove its case tendered in all nine witnesses out of whom informant Smt. Bati Devi PW-1, Deena @ Deen Dayal PW-2, Dassu @ Desh Raj PW-4, Shankar PW-5 and Desh Raj PW-7 were the witnesses of facts. Rest are the formal witnesses included Doctor Chander Shekhar Gautam PW-3, Sub-Inspector Swami Ramswaroop PW-6, Constable Balak Ram PW-8 and Investigating Officer Jai Shankar Pandey CW-1.
13. Informant Smt. Bati Devi PW-1 mother of the deceased and mother-in-law of the accused-appellant Smt. Sarman. She has stated that she knew accused-appellant Sheo Ram and accused-appellant Smt. Sarman. Smt. Sarman was the wife of her son Sadhu Ram. The occurrence took place around one year ago. Smt. Sarman had illicit relations with accused-appellant Sheo Ram who was present in the Court when her statement was recorded. She further stated that to meet each other Smt. Sarman used to go to house of Sheo Ram and Sheo Ram also used to come to the house of Smt. Sarman. Her son Sadhu Ram was opposing the meeting of Smt. Sarman with Sheo Ram. On this Smt. Sarman and Sheo Ram both of them had threatened her son Sadhu Ram that if he ever objected their meeting with each other he would be sent to the heaven. He would be killed. In the presence of witnesses Deena, Sundar and Desh Raj, the aforesaid threat was given to her son Sadhu Ram. She has further deposed that before the occurrence she had gone to her parent's house in Maharajpur to attend marriage of her brother's daughter. She had taken along with children Sadhu Ram, Geeta and Surender with her to her parent's house. In the house Smt. Sarman, Sadhu Ram and their two years old child remained. She returned to her house from her parent's house fourth day. Sadhu Ram was not in the house. She inquired about the Sadhu Ram with Smt. Sarman. Smt. Sarman told her that he had gone to Delhi to earn livelihood. Accused-appellant Sheo Ram and accused Smt. Saram had also threatened to kill her also. After eight days Smt. Sarman gave her a letter which she has filed, wherein it was written that her son would come to the house in the month of 'Chaitra' at the time of reaping of crops. But in case he did not come back, she should get a labourer hired for reaping the crops. After the reaping of the crops, Smt. Sarman gave her an other letter and told her that Sadu Ram had died in Delhi. She has also deposed that she inquired about the address of her son Sadhu Ram in Delhi, but Smt. Sarman did not tell her. On more interrogations Smt. Sarman and accused-appellant Sheo Ram fled off from the village. Dictating words to Ramswaroop, she got the 'Darkhast' (complaint report) written and after hearing it's contents, she put her thumb impression on it and filed the same paper at the police station. Police apprehended Smt. Sarman and taking keys from her, they got the lock opened and straw, grains packed in sacks were taken out from the room. On being pointed out by the accused-appellant Smt. Sarman, the buried skeleton of Sadhu Ram wrapped in cloth was taken out from same room. On the basis of Baniyan (vest) and knickers she identified the skeleton. The witness was read over the paper number 5Ka and she stated that it was the report that she had submitted at the police station and it also bears here thumb impression. It is marked as Exhibit Ka-1. As accused-appellant Smt. Sarman kept her misled the report could not be filed in time. She had given both the letters, given by Smt. Sarman, to the police which were put on record. These letters are marked as paper no. 15-Ka-1 and 15-Ka-2. She had only one son and one daughter. Her daughter is married.
14. Deena @ Deen Dayal PW-2 and Dassu @ Desh Raj PW-4 have deposed that they knew accused-appellant Sheo Ram. He is resident of their village. They also know the accused-appellant Smt. Sarman. Her husband's name was Sadhu Ram. More than one year has passed since the death of Sadhu Ram. Smt. Sarman had illicit relations with accused-appellant Sheo Ram. The deceased Sadhu Ram knew about the illicit relations between accused-appellant Sheo Ram and accused-appellant Smt. Sarman. Deceased Sadhu Ram had objected accused-appellant Sheo Ram. Accused-appellant Sheo Ram in their presence had issued threat to Sadhu Ram "you are an irritant in our relations, I would kill you." Both the witnesses have further deposed that when Sadhu Ram disappeared, Sheo Ram and Smt. Sarman said that he had gone to Delhi. Deena @ Deen Dayal PW-2 further deposed that both accused-appellants also kept sending fake letters. Around 11-12 months before police had brought the accused-appellant Smt. Sarman in their presence. Accused-appellant Smt. Sarman had told to the police that straw is kept in the room. Grains packed in sacks are also kept there. There is a platform in a corner, the body of the Sadhu Ram is buried underneath. Jaage, Har Narain, Dassu, Sundar, Shabir Ali, Ramesh, they and others had removed the husk and had dug the earth at the very place. At that place during the digging, the skeleton of deceased Sadhu Ram was found. On this skeleton a shirt, baniyan (vest), underwear and a rope around the neck were found. The Inspector had got the aforesaid body identified by her mother (Smt. Bati Devi PW-1) and did paper work (Likha Padhi) in respect of body. The recovery memo, paper no. 12-Ka was prepared and they put their signature on it.
15. Sankar PW-5 is also witness of fact who deposed that the mother of the deceased had given two letters to the police before him. These letters are marked as paper no. 15-Ka-2. He also deposed that police had brought the accused-appellant Smt. Sarman in his presence. Accused-appellant Smt. Sarman had told to the police that straw is kept in the room, grains packed in the sacks are also kept there. The body of the Sadhu Ram was buried underneath. Sundar, Dassu, Har Narain and he had removed the straw and dug the earth at very place. At that place during the digging, a skeleton of deceased Sadhu Ram was found. Key of the room was also given by the Smt. Sarman to the police. On the skeleton a shirt, baniyan underwear and a rope around the neck were found. Police had got the aforesaid body and did paper work (likha padhi) in respect of the body. The recovery memo paper no. 12-Ka-2 and 13-Ka-2 were prepared. Police had also collected plain earth and hair of the head found at place of occurrence and recovery memo paper no. 10-Ka was prepared and witness had put his signature on it.
16. Desh Raj PW-7 has deposed that on the pointing out accused-appellant Sheo Ram police had recovered a spade (phawda) and prepared recovery memo Exhibit Ka-9. This witness has proved the recovery memo of phawda. Desh Raj PW-7 has also deposed that before him accused-appellant Sheo Ram had confessed to the police that he had committed murder of the deceased and buried the dead body.
17. After evidence of prosecution, statements of both accused-appellants were recorded under Section 313 Cr.P.C. In their statement under Section 313 Cr.P.C. the common defence of both the accused-appellants were that of denial and false implication at the instance of witnesses Deena @ Deen Dayal PW-2 and Shankar PW-5 because they wanted to grab her property. The accused-appellant Sheo Ram has stated that Suresh Kachhi has falsely implicated him due to enmity.
18. Sundar Singh DW-1 has been examined as defence witness. Sundar Singh DW-1 had deposed that there was enmity between the Suresh Kachhi and accused-appellant Sheo Ram. About two years before police had come to his village and had interrogated accused-appellant Sheo Ram and Suresh Kachhi. Police had took away the accused-appellant Sheo Ram to the police station and thereafter falsely implicated him in this case. He knows the accused-appellant Sheo Ram. He has further deposed that he had not heard that accused-appellant Sheo Ram had illicit relations with accused-appellant Smt. Sarman.
19. After appreciating evidence on record, the trial Court convicted both the accused-appellant as above, hence instant appeal.
20. Learned counsel for both the accused-appellants has submitted that accused-appellants are innocent and have been falsely implicated in the present case due to property dispute and enmity. So called witnesses of facts are interested inimical and have given contradictory statement which go to falsify the whole prosecution story. It is also submitted that that the prosecution has fully failed to prove it's case beyond reasonable doubt. The recovery shown by the police is also false and concocted. Lastly it is submitted that the judgment and order passed by the trial Court is not sustainable in the eye of law and is liable to be set aside.
21. Learned A.G.A. for the State has submitted that the accused-appellants have come with vague defence of property dispute and enmity. No specific enmity and property dispute have been brought to the notice of the Court to show that such defence of false implication has any substance. It is also submitted that the accused-appellants are the person who had committed the murder of the deceased. So the case of the prosecution stands fully proved and appeals are liable to be dismissed.
22. We have heard learned counsel for the parties and perused the impugned judgment of the trial Court and the record.
23. The reason for delay in lodging FIR has been explained by Smt. Bati Devi PW-1. She has stated that her daughter-in-law accused Smt. Sarman had given her false information that deceased had gone to Delhi for his livelihood. Accused Smt. Sarman had also tried to distract her and kept diverting her from subject by writing fake letters. In present case prosecution has satisfactorily explained the delay in lodging FIR, when the prosecution has explained the delay in lodging the FIR, the prosecution case cannot be doubted.
24. As per the prosecution case the accused-appellants had committed the murder of Sadhu Ram and buried the dead body under floor of room of house where accused-appellant Smt. Sarman, the wife of the deceased was living. The murder of the deceased was committed secretly within the safe precincts of a residential house. There was no other eye witness except the wife of the deceased who herself is an accused in the present case. Nobody had witnessed the occurrence and case is based on circumstantial evidence. It has been constantly laid down by the Hon'ble Apex Court that where a case based squarely on circumstantial evidence, the inference of the guilt can be justify only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused-appellants or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
25. In Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR (1984) (SC) 1622, the Hon'ble Apex Court has held that;
i) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
ii) 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.
iii) The circumstances should be of conclusive nature and tendency.
iv) They should exclude every possible hypothesis except the one to be proved and,
v) 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.
26. In the case of C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193, Hon'ble Apex Court while considering a case of conviction based on the circumstantial evidence, held as under:
"21. 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. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence."
27. In the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172, Hon'ble Apex Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
28. In the light of the above pronouncements of Hon'ble Apex Court, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellants had committed the crime. In the present case, the prosecution in order to prove its case, mainly relied on the following circumstances;
(i) The death of the deceased Sadhu Ram was homicidal in nature.
(ii) At the time of incident the deceased Sadhu Ram was living in his house with his wife accused-appellant Smt. Sarman.
(iii) Deceased Sadhu Ram objected to the illicit intimacy of the accused-appellant Sheo Ram with his wife Smt. Sarman, that led to the occurrence.
(iv) Recovery of skeleton of deceased on the pointing out of the accused-appellant Smt. Sarman and recovery of phawda on the pointing out of accused-appellant Sheo Ram.
29. Postmortem examination on skeleton of the deceased was conducted by Doctor Chander Shekhar PW-3, Doctor has noted the following facts:-
1. Skull
2. Mandible
3. Both scapulae
4. Both humerous
5. Both radius and both ulna
6. Twenty ribs
7. Twenty vertebrae
8. Sacrum
9. Whole pelvic bone
10. Both femur
11. Both tibia and both fibula Decomposed Few fibrons strands are attached in pelvis and right femur. ¼iwjs dadky esa feV~Vh yxh Fkh½ Following bones were preserved:-
1. Skull
2. Mandible
3. One humerous
4. One radius
5. One ulna
6. One scapula
7. One femur
8. One tibia
9. One fibula
10. One iliac bone Enclosures:
(A) One sealed bundle containing:- ¼1½ ,d cfu;ku ¼2½ ,d Vh 'kVZ ¼3½ ,d v.Mjfo;j ¼4½ nks jLlh ds VqdMs+ ¼mDr lHkh esa feV~Vh yxh Fkh½
30. Cause of death could not be ascertained. Bones preserved as mentioned. Death of the deceased was caused probably in the night of 12.02.2001.
31. Informant Smt. Bati Devi PW-1, Deena @ Deen Dayal PW-2, Dassu @ Desh Raj PW-4 and Shankar PW-5 had deposed that on the basis of the statement of the accused-appellant Smt. Sarman given to the police led the recovery of skeleton along with articles a shirt, baniyan and underwear belonging to that of deceased by digging the earth of the floor of the room. According to the postmortem examination report recovered skeleton was of a male body. A rope around the neck of the deceased was also found. Death was not shown to be natural or accidental. There was no one else in the house and none other than accused-appellants were seen in the house. Accepting medical evidence, facts and circumstances of the case and condition of the dead body, it is clear that Sadhu Ram suffered a homicidal death.
32. It is not disputed that at the time of incident deceased Sadhu Ram was living in his house with his wife Smt. Sarman. According to the prosecution there was an illicit intimacy of the accused-appellant Sheo Ram with the wife of deceased that led to the occurrence. The mother of the deceased informant Smt. Bati Devi PW-1 has deposed that accused-appellant Smt. Sarman had illicit relations with the accused-appellant Sheo Ram. Accused-appellant Sheo Ram used to go to the house of Smt. Sarman and accused-appellant Smt. Sarman used to go to the house of the accused Sheo Ram. Her son deceased Sadhu Ram had objected the meeting of the accused-appellant Smt. Sarman with accused-appellant Sheo Ram. On this Smt. Sarman and accused-appellant Sheo Ram both of them had threatened her son deceased Sadhu Ram that if he ever objected their meeting with each other, he would be sent to the heaven. He would be killed. In presence of witnesses Deena @ Deen Dayal PW-2, Sundar and Dassu @ Desh Raj PW-4 the aforesaid threat was given to her son deceased Sadhu Ram. She further stated that the police had apprehended Smt. Sarman and taking key from her, they got the lock opened, straw and grains packed in sacks were taken out of the room. On being pointed out by Smt. Sarman the buried skeleton was recovered. On the basis of baniyan and knicker which were found on the skeleton, she identified the skeleton. Accused-appellant Smt. Sarman kept her misled, so the report could not be lodged in time. Deena @ Deen Dayal PW-2, Dassu @ Desh Raj PW-4 and Shankar PW-5 had stated that they knew the accused-appellant Smt. Sarman and accused-appellant Sheo Ram. They are resident of their village. The name of the husband of the accused-appellant Smt. Sarman was Sadhu Ram. More than one year have passed since the death of the Sadhu Ram. Accused-appellant Smt. Sarman had illicit relations with the accused-appellant Sheo Ram. The house of the Deena @ Deen Dayal PW-2 is situated at the distance of 100 feet from the house of accused-appellant Smt. Sarman. These witnesses have further stated that the deceased Sadhu Ram knew about the illicit relations between the accused-appellant Sheo Ram and accused-appellant Smt. Sarman. Deceased had opposed accused-appellant Sheo Ram in their presence, accused-appellant Sheo Ram had issued threat to the deceased. When the deceased Sadhu Ram disappeared, accused-appellant Smt. Sarman and accused-appellant Sheo Ram had said that deceased had gone to Delhi. Accused persons also kept sending fake letters. In their presence accused-appellant Smt. Sarman had told to the police that straw is kept in the room and grains packed in the sacks also there and the body of the Sadhu Ram is buried underneath. They had dug the floor of the room. During the digging a skeleton of the deceased Sadhu Ram and a rope around the neck were found. Above statement of the witnesses of fact shows that Sadhu Ram was murdered by the accused-appellants and to disappear the evidence the dead body was buried in a room of their house. The aforesaid witnesses have gone lengthy cross-examination but nothing in their cross-examination could be elicited which makes their evidence unreliable. The place of occurrence was inspected on 27.05.2001 by the Investigating Officer and the place "XB" has been shown where from the skeleton of the deceased Sadhu Ram was found. The testimony of these witnesses of fact are consistent and there is no ground to disbelieve them. From the statement of the above witnesses it is fully proved that there was illicit intimacy of accused-appellant Sheo Ram with the wife of the deceased that led to the occurrence. Motive for committing murder of Sadhu Ram was the illicit relations of accused-appellant Sheo Ram with accused-appellant Smt. Sarman who is the wife of the deceased. The spade (phawda) which was used for burying the dead body of the deceased Sadhu Ram was also recovered on the pointing out of the accused-appellant Sheo Ram. Desh Raj PW-7 has stated that on the pointing out of the accused-appellant Sheo Ram, police has recovered the 'Phawda' from his room. Desh Ran PW-7 has also proved the recovery memo Exhibit Ka-9 and stated that he was present at the time of the recovery of 'Phawda'. Version of the witnesses of fact is also fully corroborated with postmortem report and FSL report which are on internal page nos. 11, 12 and 13 of paper book.
33. According to the postmortem report at the time of occurrence deceased was a man of 26 years old. Murder of a man who was of 26 years old could not be committed by one alone. Dead body was recovered from the house of the deceased where at the time of incident the wife of the deceased accused-appellant Smt. Sarman was residing. There is no evidence that any outsider had come in the house. No cogent explanation has been given by the accused-appellants in their statements under Section 313 Cr.P.C. Accused-appellant Smt. Sarman had given false and wrong information to the informant Smt. Bati Devi PW-1 that deceased had gone to Delhi for earning money, which is an additional link is on the record against her, in the chain of circumstances.
34. Sundar Singh DW-1 who has been examined as a defence witness stated that Suresh Kachhi in collusion with police has falsely implicated accused-appellant Sheo Ram in this case. But this defence story get completely belied as prosecution has proved it's case beyond reasonable doubt. This is a case where Section 106 of Indian Evidence Act is clearly attracted which requires the accused to explain the facts which were in their exclusive knowledge. In a catena of decisions Hon'ble Apex Court had held that no doubt the burden of proof is on prosecution and Section 106 Indian Evidence Act is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for prosecution to establish facts which are strictly within the knowledge of accused-appellants. Recovery of skeleton of deceased from a room of house where the accused-appellant Smt. Sarman was residing and recovery of spade (Phawda) which was used in digging earth to bury the dead body disclosed by the accused-appellants fully established. It casts a duty on the accused-appellants as to why that they alone had the information leading to the recovery of skeleton of the deceased and spade (phawda) which was admissible under Section 27 of the Indian Evidence Act. The prosecution has proved that murder of the deceased was committed by the accused-appellants and in order to screen themselves from legal punishment they buried the dead body of the deceased in a room of house where accused-appellant Smt. Sarman was residing. Skeleton of the deceased was recovered from that room on the pointing out of accused-appellant Smt. Sarman. They were the accused-appellants to offer cogent explanation as to how the deceased was died, but accused-appellants could not offer any explanation.
35. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 Hon'ble Apex Court has held as under:-
"15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
36. In Gajanan Dashrath Kharate vs. State of Maharashtra (2016) 4 SCC 604 Hon'ble Apex Court has held in para-12 as under:-
"As seen from the evidence, appellant-Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the appellant at his home on the night of 07.04.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Indian Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the same."
37. In present case the learned trial Judge has framed charges against accused-appellants under Section 302 read with Section 34 I.P.C. and under Section 201 read with Section 34 I.P.C. and held joint trial but learned trial Judge has convicted and sentenced them under section 302 and 201 I.P.C. only. In the operative portion of judgment Section 34 has not been mentioned. Non mentioning of Section 34 in judgment itself cannot be said to be fatal as it has not been shown that non mentioning of Section 34 I.P.C. in operative portion of the judgment has caused prejudice to the accused-appellants. Section 34 does not create a substantive offence but merely a role of evidence for determination of criminal liability when a criminal act is done by two or several persons in furtherance of common intention of all. In the present case material available on record disclosed that both accused persons shared common intention and due to illicit relations they had committed the murder of the deceased. Section 464 and 465 of the Code of Criminal Procedure state that no finding, sentence or order passed by a competent Court can be reversed or altered on account of error, omission, or irregularity in proceedings, unless it has occasioned in failure of justice. Hence conviction and sentence awarded by the learned trial Judge to the accused-appellants can not be said to be invalid or illegal.
38. We have seen that chain of the circumstances against the accused-appellants is complete. The defence version that they have falsely been implicated in this case cannot be accepted. Considering oral evidence and circumstances of the recovery of skeleton and other incriminating articles on the pointing out the accused-appellants and conduct of the accused-appellants in not offering any explanation for the homicidal death of the deceased, we do not find any reason to interfere with the impugned judgment. Learned trial Court has rightly convicted the accused-appellants. These appeals are liable to be dismissed and the same are accordingly dismissed. Accused-appellants are stated to be in jail. They shall serve out the sentence awarded to them by the trial Court.
39. Let a copy of this judgment be sent to the learned Sessions Judge concerned to take necessary action immediately for compliance of this judgment.
(Krishna Pratap Singh,J.) (Ramesh Sinha, J.)
Order Date :-28.03.2017
A.K.Verma