Allahabad High Court
Smt. Radha Devi vs State Of U.P. on 8 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1077, 2019 (109) ACC (SOC) 44 (ALL)
Bench: Sudhir Agarwal, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 13.05.2019 Delivered on 08.07.2019 Court No. - 34 Case :- JAIL APPEAL No. - 3825 of 2013 Appellant :- Smt. Radha Devi Respondent :- State Of U.P. Counsel for Appellant :- From Jail Counsel for Respondent :- A.G.A. Hon'ble Sudhir Agarwal,J.
Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This Jail Appeal under Section 383 Cr.P.C. has been filed by accused-appellant Smt. Radha Devi through Jail Superintendent, Agra against the judgment and order dated 03.06.2013 passed by Sri Vinay Kumar Mishra, Additional District and Sessions Judge, Court No.11, Agra. By the impugned judgment, learned Additional District and Sessions Judge has convicted and sentenced accused-appellant under Section 302 I.P.C. to undergo life imprisonment along with fine of Rs. 5,000/-. In case of default in payment of fine, she has to undergo rigorous imprisonment for 6 months.
2. Factual matrix of the case as emerging from First Information Report (hereinafter referred to as "F.I.R.") as well as evidence available on record may be stated as follows :-
3. On 31.03.2010, a written report (Ex.Ka.-1) was presented in police station Dauki, District Agra by Informant, PW-1 Srinivas Sharma, alleging that he was resident of residential block in Moti Lal Inter College, Saiya (Agra). Mukesh Chandra Sharma aged about 38 years, younger brother of Informant, PW-1, had been residing in village Petikhera along with his wife Smt. Radha. Informant's brother's wife Radha is a short-tempered lady and often used to quarrel with her husband (Informant's brother) and also used to beat her children. On account of her rude behaviour, Informant had kept both the children, Pawan and Madhav, aged about 8 and 6 respectively with him and was getting them educated. On the fateful day i.e. 31.03.2010, Informant's elder brother Ramnivas Sharma and cousin Jitendra Kumar Sharma went to village Saiya and informed complainant that last night Radha was indulged in quarrel and hurling abuses with Mukesh at about 11.00 to 12.00 midnight. Both were persuaded by villagers and matter was reconciled. In the morning, Mukesh was found dead on the cot. Blood was oozing from his head and face. Blood stained spade was lying on the spot and youngest female child aged about one and half year was crying beside the cot. On account of scuffle taken place in night, Radha had killed Mukesh by inflicting spade. When Informant went to the spot, he himself witnessed that his younger brother's dead body was lying on the cot in the pool of blood. Many villagers were present near the dead body. On making query about Radha, he came to know that Radha had gone out of the house at about 7.00 AM in blood stained clothes. Information about absconding of Radha was given to Informant by his uncle Chhote Lal Sharma and nephew Chandra Shekhar Sharma. F.I.R. further states that motivated by anger Radha had murdered Informant's younger brother.
4. On presentation of written report as Ex. Ka.-1, PW-5 Constable Pritam Singh present at Police Station Dauki prepared Check F.I.R. (Ex. Ka.-4) at 12.20 PM on 31.03.2010. Relevant entry of the incident was made by PW-5 in general diary as report No. 20.
5. Investigation of the aforesaid case, after lodging of F.I.R., was entrusted to PW-6 S.I. Ahibaran Singh on 31.03.2010. Investigating Officer (in short "I.O.") recorded statement of Informant PW-1 and visited place of occurrence and on pointing out of PW-1, he prepared site plan (Ex. Ka-6). Thereafter, he recorded statements of witnesses and prepared recovery memo (Ex. Ka-3) in respect of weapon (spade). Initially, case was registered under Section 304 I.P.C. but after recording statement of witnesses, I.O. converted the case into Section 302 I.P.C. and thereafter, investigation was undertaken by Station Officer himself. Station Officer continued investigation, recorded statements and sent dead body to District Hospital for postmortem. He also arrested the accused-appellant Radha Devi on 01.04.2010 at about 11.30 AM from Wajidpur Crossing.
6. Autopsy on the dead body of Mukesh Sharma was conducted by PW-7 Dr. Anand Upadhyay on 01.04.2010 at about 3.20 PM. According to him, deceased was about 38 years of age. His body of average built. Rigor mortis had passed from lower limb. According to Doctor, about 1-1½ day had passed since his death. On external examination, PW-7 found following ante-mortem injuries on the person of the deceased:-
1. Lacerated wound 7 cm x 2.5 cm on left side face.
2. Lacerated wound 4 cm x 1 cm on left side face below left eye.
3. Lacerated wound 6 cm x 2 cm led to mouth outer side.
4. Lacerated wound 4 cm x 1 cm on lower lip.
5. Lacerated wound 7 cm x 2 cm below chin.
6. Abrasion on left side of face, 15 cm x 10 cm and neck.
7. Lacerated wound 1 cm x 0.5 cm on left clavicle.
8. Traumatic swelling on left chest 15 cm x 12 cm.
9. Abrasion 5 cm x 1 cm on left arm.
10. Left arm multiple abrasion, 6 cm x 4 cm.
11. Lacerated wound on right leg 2 cm x 1 cm.
In internal examination, Doctor found sternum and ribs 3 to 6 left side fractured.
7. In the opinion of Doctor, deceased had died due to shock and hemmorhage as a result of ante-mortem injuries. The Doctor has prepared post-mortem report as Ex. Ka.-8.
8. After completion of investigation, I.O. submitted charge-sheet (Ex. Ka.-7) in Court.
9. Cognizance of the offence was taken by Chief Judicial Magistrate, Agra on 29.06.2010 under Section 302 I.P.C. The case being exclusively triable by Court of Sessions, was committed to Sessions Judge for trial on 08.07.2010. The case was registered as Sessions Trial No. 630 of 2010 and learned Sessions Judge framed charge against the accused-appellant Smt. Radha Devi on 11.08.2010 which reads as under :-
"Charge I, Surendra Kumar, Sessions Judge, Agra, hereby charge you :-
Smt. Radha Devi That you some time in the night between 30/31.3.2010 at your house situated at village Peti Khera, within the poilce circle of P.S. Dauki, District Agra did commit murder by intentionally causing the death of your husband Mukesh Chand Sharma, and thereby committeed an offence punishable under Section 302 I.P.C. and within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charge."
10. The charge was read over and explained to the accused-appellant who pleaded not guilty and claimed to be tried.
11. In support of its case, prosecution examined 7 witnesses out of whom PW-1 Informant, Srinivas Sharma, PW-2 Jitendra Kumar Sharma, PW-3 Chhote Lal and PW-4 Deepak Sharma are witnesses of fact. Rest are formal witnesses including I.O. and the doctor conducting post-mortem examination. PW-5 Constable Pritam Singh has proved Chik F.I.R. (Ex. Ka.-4) prepared by him on 31.03.2010 at 12.20 PM on the basis of written report (Ex. Ka.-1) submitted by Informant, PW-1. He has also proved copy of General Diary entry (Ex. Ka.-5). PW-6 S.I. Ahibaran Singh was first I.O. who initially investigated the case and has proved site plan (Ex. Ka.-6) prepared by him. He has also proved charge-sheet (Ex. Ka.-7). PW-7 Dr. Anand Upadhyay who had conducted autopsy on the dead body of the deceased has proved post-mortem report (Ex. Ka.-8).
12. After conclusion of prosecution evidence, statement of accused-appellant under Section 313 Cr.P.C. was recorded by the learned Sessions Judge. She has denied her involvement in commission of offence. She has further stated that Mukesh was married with her and she did not used to quarrel with him and beat the children. No quarrel took place with her husband on 31.03.2010. She denied preparation of various recovery memos placed before her and has stated that she has been implicated falsely in this case. She also stated that elder brother of her husband has usurped her property and also snatched away her children, therefore, he is implicating her falsely in the case. Regarding the testimony of witnesses and recovery of weapons, she pleaded ignorance.
13. After consideration of evidence available before Additional Sessions Judge and hearing submissions of both the sides, learned Additional Sessions Judge recorded verdict of conviction and sentence against accused-appellant as stated above. Trial Court has found that there was no eye-witness of the incident and the prosecution version is founded on circumstantial evidence. In order to show the chain of circumstances leading to only inference that it is the accused-appellant only who has committed offence in question, Trial Court has recorded its findings as under-:
I. F.I.R. version is that Smt. Radha is an arrogant lady used to quarrel with her husband and also beat her children on account whereof both the children were residing with the Informant Srinivas Sharma i.e. PW-1 and he was taking care of their education, etc. II. PW-2 deposed that in the night of 30th/31st March, 2010 at around 11/12 in the night, accused-appellant was quarreling with her husband when villagers came and pacified them.
III. PW-3 Chhote Lal Sharma has also supported this fact that at around 12, in the night, hearing noise of quarrel from the house of accused-appellant, PW-3 along with Srinivas Sharma and Yatendra, accompanied by others, went to the house of Mukesh (deceased) and reconciled the matter by persuading them.
IV. The aforesaid witnesses not only proved presence of accused-appellant in the house along with Mukesh, but also, the factum that a quarrel was taken place around midnight and with intervention of villagers, for the time being, it was reconciled. This also proved the factum of last seen of accused-appellant in the company of her husband, in the same house, around midnight, on the fateful day.
V. Witnesses PW-2 Jitendra Kumar and PW-3 Chhote Lal are residents of village Petikhera whereat the accused-appellant and her husband were residing and Jitendra Kumar is brother of deceased while Chhote Lal is real nephew. Therefore, their visit, after hearing quarrel, to the house of deceased to pacify quarreling couple is quite natural.
VI. Accused-appellant had three children whereof two sons Pawan and Madhav were residing with PW-1 Srinivas Sharma (Informant) and undergoing education while minor daughter, about one and half year old, was residing with accused-appellant and her husband. In the morning, hearing cry of minor daughter, witnesses entered the house of deceased and found him lying in blood bath and a spade was lying near the cot. Minor daughter, aged about one and a half year, was weeping thereat but accused appellant was not present in the house.
VII. On receiving information, Informant reached the house of deceased and found his brother Mukesh dead and there lie a blood stained spade and near cot minor daughter was crying and weeping.
VIII. PW-3 Chhote Lal deposed that around 7 AM in the morning on 31.03.2010, he saw Smt. Radha, going somewhere and there were blood stains on her clothes. Since he was going to purchase milk, he proceeded for the same.
IX. The discovery of blood stained spade from the site of incident by police and recovery memo has been proved by PW-4 Deepak Sharma as also by PW-6 S.I. Ahibaran Singh.
X. Forensic Report verified human blood on the spade and this report is Ex.A-8 which has also been proved by I.O.
XI. In postmortem report, a number of lacerated wounds have been found on the body of deceased. This report has also been proved by PW-7 Dr. Anand Upadhyay who conducted postmortem on 1st April, 2010 at 3.30 PM and according to his opinion, death may have taken place between 11.30 PM on 30th March, 2010 to 7.30 AM on 31st March, 2010. PW-7 has also opined that various injuries found on the body could have been possible due to spade.
14. Taking all the aforesaid evidence and applying the doctrine of last seen and also the fact that besides deceased only accused-appellant was present in the house till midnight on the fateful day, but in the morning she was missing leaving only dead body and one and half year old daughter and reason of her absence from the house having not been explained by her, presumption under Section 106 of the Evidence Act, 1872 (hereinafter referred to as "Act, 1872") was justified to be taken in the matter against accused-appellant that it is she only who has committed crime of murder. Her conduct of leaving the house where her minor daughter of one and half year was also present and her husband was already dead and nobody was there to take care of minor daughter is also unnatural. It supports prosecution version that she absconded after committing crime. It is in these facts and circumstances, Trial Court held accused-appellant guilty of offence under Section 302 I.P.C. and sentenced as stated above.
15. Feeling dissatisfied with the impugned judgment, accused-appellant has come up before this Court through Jail Superintendent, Agra.
16. We have heard Sri Shiv Vilas Mishra, learned Amicus Curiae for appellant and Sri Ratan Singh, learned A.G.A. for State-respondent.
17. Learned Amicus Curiae has assailed conviction and sentence by Trial Court on following grounds :-
(i) Incident is said to have taken place in the night of 30th/31st March, 2010 and Informant also admits to have received information of the death of his brother in the morning itself but report was lodged at 12.20 PM on 31st March, 2010 though police station is just about eight kilometers from the place of occurrence and therefore F.I.R. is highly belated and has been lodged with due consultation to falsely implicate accused-appellant.
(ii) There is no eye-witness of incident and appellant has been convicted on mere conjectures and surmises.
(iii) Serological Report dated 14th March, 2012 states that blood was found disintegrated and therefore it did not verify that blood on the spade, whether was a human blood or not, and that of deceased. Therefore, reliance on the alleged weapon of crime is not based on any trustworthy evidence.
(iv) Panchayatnama shows that deceased was found lying dead on the cot with mouth towards sky. There was nothing found to show that he made any attempt to save himself and it is very unnatural that after receiving first blow, deceased would not have attempted to defend himself.
(v) The story that it is appellant who murdered her husband while he was sleeping is only conjectural and very unnatural.
(vi) There is contradiction in the statement of witnesses and it is very unnatural that PW-3 Chhote Lal saw appellant in the morning at around 7 AM going on the road and her Saree was blood stained still he did not stop or check appellant to inquire about the reason of presence of blood stains and his evidence is manufactured and wholly untrustworthy particularly when PW-3 is the real uncle of deceased and very well knew both of them i.e. deceased and appellant.
(vii) Witnesses are mostly relatives of deceased and therefore their evidence is not trustworthy.
(viii) Prosecution has miserably failed to prove its version beyond reasonable doubt.
(ix) Informant has motive to implicate appellant that is to usurp property of deceased and had already taken away two children of appellant. This shows that Informant's evidence is motivated and others are relatives, therefore, they are also supporting Informant in false implication of appellant.
18. Learned A.G.A., on the contrary, submitted that though it is a case of no eye-witness but chain of circumstances is so complete and perfect that it satisfies the requirement of proof beyond reasonable doubt that it is only appellant who has committed crime in question and none else. She was seen last present in the house along with deceased and minor daughter and their presence in the house till about midnight has been proved by PWs-2 and 3. In the cross-examination, nothing could have been extracted to discredit these witnesses. PW-3 has also proved that appellant leaving her husband, went somewhere, in the morning wearing a saree with blood stains and on this aspect also nothing otherwise could have been extracted in cross-examination. The appellant was last seen in the company of deceased and in the morning when her husband was found murdered, appellant was not present in the house and there was nobody to take care even of minor daughter and this conduct of appellant was wholly unnatural. She has not explained any reason for her absence in the morning. Therefore, judgment of conviction is based on due appreciation of credible and trustworthy evidence which could not have been dislodged by defence, in any manner, and no explanation has come in the statement under Section 313 Cr.P.C. Even in her statement under Section 313 Cr.P.C., though she has said that neither she quarrelled with deceased nor murdered him, but she did not say that she was not present in the house along with deceased in the night of 30th/31st March, 2010 and has not explained as to how her husband was murdered and why she was not present in the morning or herself did not give information of death of her husband.
19. After hearing learned counsel for parties and perusal of record, we find that here is a case which is based on circumstantial evidence and we have to examine, "whether evidence on record is sufficient to satisfy the degree of proof in the case in hand so as to convict accused-appellant for murder of her husband".
20. The place of death and cause of death is virtually admitted in this case. Nothing has been argued on this aspect by learned counsel for appellant. Deceased was found lying dead in his house in the morning of 31st March, 2010. He was lying dead on a cot and bleeding from his head and face. A minor daughter of deceased and accused-appellant, about one and half year, was also found near the cot, alone, and weeping and crying. Accused-appellant was not present in the house when dead body of deceased, the blood stained spade and weeping daughter was found by PW-2, who claims to be the first person to reach the house and discover murder of Mukesh and when Informant PW-1 reached there, all the three were found in the same condition. On these aspects also, no argument has been advanced by learned counsel for appellant.
21. Dead body of deceased contain a number of lacerated wounds and as per autopsy report and statement of PW-7 death has occurred due to hemorrhage on account of injuries mentioned in autopsy report. This is also not disputed and is evident from record.
22. Though it is argued that the blood stained spade found at the place of incident, whether contained human blood and that too of deceased has not been proved by forensic report but in our view, that is not very relevant for the reason that discovery of spade along side the dead body by the first person who discovered dead body in the morning is duly proved and forensic report dated 03.02.2012 (Ex.-8) proved that the spade has blood stains. Therefore, to prove the fact that a blood stained spade was found near the dead body, the evidence is very clear and learned counsel for appellant could not adduce any argument or place any document to discredit the above facts.
23. Now the question would be "whether it is appellant who has committed above crime or not".
24. In absence of eye-witness a conviction can be held on the basis of circumstantial evidence, though in the matter of circumstantial evidence, Court has to be careful enough to see that the chain of circumstances are complete and is such that it leads the only inference that it is accused-appellant only who has committed crime and none else.
25. In a case, which rests on circumstantial evidence, law postulates, twin requirements to be satisfied. First, every link in chain of circumstances, necessary to establish the guilt of accused, must be established by prosecution beyond reasonable doubt; and second, all circumstances must be consistent only with guilt of accused.
26. In Hanumant vs. The State of Madhya Pradesh, AIR 1952 SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said:
"... 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...... it must be such as to show that within all human probability the act must have been done by the accused."
(emphasis added)"
27. In Hukum Singh vs. State of Rajasthan, AIR 1977 SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or guilt of any other person.
28. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622, Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that chain is complete. Infirmity or lacuna, in prosecution, cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent :-
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (emphasis added)
29. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, AIR 1989 SC 1890, Court said:
"...when a case rests upon circumstantial evidence such evidence must satisfy the following tests :-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and, (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(emphasis added)
30. In C. Chenga Reddy and others vs. State of Andhra Pradesh, 1996(10) SCC 193, Court said:
"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."
(emphasis added)
31. In Bodh Raj @ Bodha and others vs. State of Jammu and Kashmir, 2002(8) SCC 45 Court quoted from Sir Alfred Wills, "Wills' Circumstantial Evidence" (Chapter VI) and in para 15 of judgement said:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (emphasis added)
32. The above principles in respect of circumstantial evidence have been reiterated in subsequent authorities also in Shivu and Another v. Registrar General High Court of Karnataka and Another, 2007(4) SCC 713 and Tomaso Bruno vs. State of U.P., 2015(7) SCC 178.
33. In the present case, one of the important circumstance is the presence of accused-appellant in the house, in the company of her husband i.e. deceased Mukesh, in the night of 30th/31st March, 2010. Both were seen in the company till almost midnight as per the evidence of PWs-2 and 3 which could not be discredited by extracting anything in the cross-examination. Thus, appellant was last seen in the company of deceased till about midnight of 30th/31st March. Thereafter, in the morning at around 8 AM, appellant was not found present in the house and her husband was found dead while minor daughter, about one and half year, was also present near dead body, crying and weeping but there was nobody to take her care. At what time, appellant left house, whether before death of deceased or thereafter and if she has not committed crime who else had committed crime, it is only the appellant who was present in the house could have explained but she has said nothing on this aspect.
34. There are two principles of evidence which are well accepted and recognized i.e. doctrine of last seen and presumption under Section 106 of Act, 1872, which can well be applied in this case.
35. Coming first to doctrine of last seen, law on this aspect is well established. We may examine as to what is the concept of last seen and in what circumstances it is a relevant crucial circumstantial evidence for proving culpability of a person of crime.
36. The circumstance of "last seen" of deceased with accused person, as a relevant circumstantial evidence, when can be taken into account, has been discussed time and again. In Bodh Raj @ Bodha and others vs. State of Jammu and Kashmir (supra) Court said that last seen theory comes into play where the time gap between the point of time when accused and deceased were seen last alive and when deceased is found dead is so small that possibility of any person other than accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that deceased was last seen with accused when there is a long gap and possibility of other persons coming in between exists.
37. Theory of "last seen" is a relevant circumstance when corroborated by other evidence to prove guilt against accused person. In State of U.P. vs. Satish, 2005(3) SCC 114, Court said :-
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
38. The above observation on theory of "last seen" has been followed in Tipparam Prabhakar vs. The State of Andhra Pradesh, 2009(13) SCC 534; Rishi Pal vs. State of Uttarakhand, 2013(12) SCC 551; Krishnan vs. State of Tamil Nadu, 2014(12) SCC 279; State of karnataka vs. Chand Basha, 2016(1) SCC 501; Rambraksh v. State of Chhattisgarh, 2016(12) SCC 251; Anjan Kumar Sarma and others vs. State of Assam, 2017(14) SCC 359; and, Ganpat Singh vs. State of Madhya Pradesh, 2017(16) SCC 353.
39. Above authorities show that term "time gap" is not to be measured in terms of length of period but it has to be seen whether in a given facts and circumstances, the time at which accused and deceased were seen alive together and till detection of death, whether there is any possibility of crime being committed by someone else or not, that is relevant.
40. Presumption to be drawn against accused-appellant which he/she has to explain as provided in Section 106 of Act, 1872 which reads as under-:
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
41. Section 106 says that if a fact could have been within the specific knowledge of a person, it is his responsibility to explain that fact.
42. When we apply above principle, we find that doctrine of last seen is fully applicable in the case in hand inasmuch as only two adult persons were present in the house, i.e. deceased and appellant on the fateful night when the incident took place. Their presence till midnight is duly proved by PWs- 1 and 2. They have also proved that both had a quarrel around midnight and noise was so high that it drawn attention of the people in neighborhood in the village and PWs-2 and 3 and others came to pacify them and got the matter reconciled at that time. After villagers including PWs-2 and 3 left the house, there remained only the couple i.e. appellant and her unfortunate husband who was found dead in the morning. The appellant was last seen and present in the company till the midnight but found absent in the morning when dead body of her husband was discovered. The minor daughter was crying and weeping near the cot where dead body was lying. This fact as to how and in what manner appellant was not present in the house has to be and can be explained only by appellant, since there was none else present in the house except the two adults and one minor child and one of the adult was found dead. Therefore, it is the appellant only who has to explain her conduct that when and in what condition she left the house. Appellant in defence has not stated that she was not present in the house but she has only denied of having committed crime.
43. The last nail to complete the chain is the evidence of PW-3 who has stated in cross-examination that he saw appellant around 7 AM in the morning going on road, wearing saari with blood stains. It is true that PWs-1, 2 and 3 all are relatives of deceased and PWs-2 and 3 are also residents of same village but mere fact that they are relatives will not dilute credibility of these witnesses if there is nothing further to show that they are giving a false statement or Court finds for some reason their evidence untrustworthy. In fact, having gone through the statements of PWs-2 and 3, we find that they are residents of same village, relatives to the appellant and the deceased, their action of attending couple in the midnight to pacify their quarrel and thereafter when they discovered the dead body in the morning is natural and there is no reason to doubt truthfulness of their statement.
44. In State of Punjab Vs Hardam Singh, 2005 SCC (Cr.) 834, it has been held that ordinarily relations of deceased would not depose falsely against innocent persons so as to allow real culprit to escape unpunished, rather such witness would always try to secure conviction of real culprit.
45. In Dalip Singh Vs State of Punjab, AIR 1953 SC 364, it was held that the ground that witnesses being close relatives and consequently being the partisan witness would not be relied upon has no substance. Similar view has been taken in Harbans Kaur V State of Haryana, 2005 SCC (Crl.) 1213; and State of U.P. vs. Kishan Chandra and others, 2004 (7) SCC 629. The contention about branding witnesses as interested witness and credibility of close relationship of witnesses has been examined in a number of cases. A close relative, who is a very natural witness in the circumstances of a case, cannot be regarded as an 'interested witness', as held in Dalbir Kaur vs. State of Punjab, AIR 1977 SC 472. The mere fact that the witnesses were relations or interested would not by itself be sufficient to discard their evidence straight way unless it is proved that their evidence suffers from serious infirmities which raises considerable doubt in the mind of the court. Similar view was taken in State of Gujrat vs. Naginbhai Dhulabhai Patel, AIR 1983 SC 839.
46. In fact, it is the appellant who was present on the fateful night in the house to explain her absence in the morning leaving minor girl alone, but she has not explained anything. When she could have alone in the house, it is appellant only who could have explained all these facts and therefore here is a case where presumption is against appellant vide Section 106 of Act, 1872.
47. In the above facts and circumstances, we find that the chain of circumstances in the case in hand is complete and leads to only one conclusion that it is the appellant alone who has committed crime. Therefore, Trial Court in our view has rightly convicted her finding guilty of committing crime under Section 302 I.P.C.
48. Now we come to question of sentence. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
49. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalized. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
50. In the result, appeal is dismissed. Impugned judgment and order dated 03.06.2013 passed by Additional District and Sessions Judge, Court No.11, Agra convicting Appellant- Smt. Radha Devi, under Section 302 IPC is hereby confirmed/affirmed.
51. Copy of this order along with lower Court record be sent to Court concerned forthwith.
52. A copy of this order be also sent to Appellant through concerned Jail Superintendent.
53. Sri Shiv Vilas Mishra, learned Amicus Curiae has assisted the Court very diligently. We provide that he shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Sri Shiv Vilas Mishra, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.
Order Date-: 08.07.2019 Nirmal