Allahabad High Court
Rajendra Sharma vs State Of U.P. on 6 September, 2022
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 45 Criminal Appeal No. 1087 of 2016 Rajendra Sharma ..........Appellant Vs. State of U.P. .......Respondent For Appellant : Anil Kumar Rai,Abhishek Mayank,Durgesh Kumar Singh,Noor Mohammad,Yogesh Kumar Tiwari For Respondent : Sri HMB Sinha, AGA Hon'ble Pritinker Diwaker,J.
Hon'ble Surendra Singh-I,J.
Per : Surendra Singh-I, J.
(06.09.2022)
1. This appeal arises out of judgment and order of conviction and sentence dated 27.01.2016 passed by Additional Session Judge, Court No. 6, Aligarh, in Sessions Trial No. 604/2013, State of Uttar Pradesh Vs. Rajendra Sharma, arising out of Case Crime No. 1161/2012, Police Station- Gandhipark, District- Aligarh, convicting the appellant, Rajendra Sharma, u/s 302, 201 I.P.C. and sentencing him to undergo imprisonment for life and a fine of Rs.20,000/- u/s 302 I.P.C. and imprisonment of 3 years and a fine of Rs.5,000/- u/s 201 I.P.C. with default stipulation in both sections.
2. According to prosecution case, informant, Radhey Lal, son of late Uttam Chandra Sharma, submitted written report (Ext.Ka.1) on 21.12.2012 in Police Station- Gandhipark, District- Aligarh, to the effect that accused-appellant, Rajendra Sharma, son of Roshanlal, ran a dye factory on Ravanteela road. The informant's son, Suraj, visited the factory for getting training in the dyeing work. The accused-appellant, Rajendra Sharma, often visited the house of informant, for calling his son to the factory. During course of such visits, accused-appellant, Rajendra Sharma, and informant's daughter, Rani, fell in love with each other. The informant, his wife and his son had no knowledge that accused-appellant, Rajendra Sharma, was earlier married to Ballo. Accused-appellant left his wife, Ballo, and seduced his daughter, Rani, and married her in some temple about three years earlier to her murder. The informant's daughter, Rani, started living with accused-appellant, Rajendra Sharma. Their marital relation was cordial for one year. After this period, accused-appellant, Rajendra Sharma, started torturing and beating his daughter, alleging that she is characterless. The informant's daughter, Rani, requested the informant on phone that he may save her from the accused-appellant otherwise he will murder her as he has expelled his first wife, Ballo, after beating her. Two days earlier in the evening at 7 p.m., accused-appellant, Rajendra Sharma, had informed the informant's son, Suraj, that Rani had left his home. If she has reached her parental home, she may be sent back. After getting this information, informant Radhey Lal, visited the residence of accused-appellant, Rajendra Sharma, and enquired about his daughter, Rani, but Rajendra could not give any satisfactory explanation about the disappearance of Rani. After not getting proper explanation from the appellant about the whereabout of her daughter, Rani, the informant searched for his daughter, Rani, at different places. On 21.12.2012 at 2 p.m., on getting information, he visited village- Bhadesi, with his son, Suraj, and son-in-law, Deepak, where he found the dead body of his daughter, Rani. After murdering his daughter, her face was burnt to make her unidentifiable.
3. On the written report of the informant, a first information report against accused-appellant, Rajendra Sharma, was registered on 21.12.2012 at 16.10 hours in Police Station- Gandhipark, District- Aligarh (Ext.Ka.4) as Case Crime No. 1161 of 2012 u/s 302, 201 I.P.C. The lodging of the first information report was mentioned in the G.D. of the case at the same time which is as (Ext.Ka.5).
4. The inquest proceedings of the dead body of Rani was conducted on 21.12.2012 at 1700 hours and inquest report was prepared as (Ext.Ka.2).
5. The postmortem on the dead body of Rani, wife of Rajendra Sharma, was done by P.W.3 Dr. K.R. Ahmad, Deputy D.D.O. (T.B. Abolition), District- Aligarh, on 22.12.2012 at 03.30 p.m. He prepared the postmortem report as (Ext.Ka.3). The deceased was average body built. Rigor mortis had passed the dead body. During postmortem proceedings, following antemortem injuries were found on the body of deceased Rani :-
(i) Incised wound 14 cm x 12 cm x bone deep present over face. Most of the facial bone, frontal bones and mandibles are fractured. Both eyes with eyeball and socket of eyeball, most of the facial bones, muscles of face and skin are missing. Grey matter of brain is visible and coming out from wound.
(ii) Incised wound 5 cm x 3 cm present on right side of face, underlying bone fractured.
(iii) Incised wound 3 cm x 2 cm x bone deep present on right ear, underlying bone fractured.
(iv) Incised wound 3 cm x 2 cm x bone deep present on head in midline, underlying bone fractured.
According to the opinion of the doctor conducting postmortem, the death was caused due to coma as a result of antemortem injuries.
6. The Investigating Officer, P.W.6 S.I. Jitendra Pal Singh, visited village- Bhadesi and on the pointing out of informant, Radhey Lal, prepared the site plan of the place where the dead body of Rani was found in the mustard field of Suresh Chandra. The site plan proved as (Ext.Ka.7). Accused-appellant, Rajendra Sharma was arrested on 27.12.2012. He told the Investigating Officer that he was heavily indebted to money-lenders who used to harass him for refund of money. His wife, Rani, taunted him and spoke ill towards him. He became enraged with her ill-spoken words. He administered diazepam laced tea to her. When she became unconscious, then at 2 o' clock at night, he smashed her face against the floor and murdered her. After murdering her, he inflicted incised wounds on her face and disfigured her face so that she could not be recognized/identified. He carried her dead body in Maruti Zen car, bearing registration no. U.P. 14 F-8105 and threw it in the mustard field in village- Bhadesi.
7. On the pointing out of accused-appellant, Rajendra Sharma, on 27.12.2012 at 6.40 a.m. in his rented house in Mohalla- Dharmpuri, Vikasnagar, District- Aligarh, from below his mattress, a strip of diazepam containing 8 pills was recovered as well as one knife as a weapon of assault from the terrace of the room. Accused-appellant led the police party to the house of Vishnu Sharma, son of Rampal Sharma, situated at Qwarsi, Aligarh, where Maruti Zen car bearing registration no. U.P. 14 F-8105 of sky blue colour was recovered on his pointing out. Accused-appellant told that he had carried the dead body of his wife on the back-seat of Maruti Zen in the night of 18.12.2012 and threw it in the mustard field of village- Bhadesi.
8. After investigation, the Investigating Officer P.W.6 S.I. Jitendra Pal Singh submitted charge-sheet (Ext.Ka.5) u/s 302, 201 I.P.C. against accused-appellant, Rajendra Sharma.
9. On 12.09.2013, Additional Sessions Judge, Court No. 6, Aligarh, framed charge u/s 302, 201 I.P.C. against the accused, Rajendra Sharma. The accused denied the charge and claimed trial.
10. To prove the charge, the prosecution examined P.W.1 Radhey Lal, who proved the written report as (Ext.Ka.1), P.W.2 Suraj and P.W.7 Yagyadutt Sharma as witnesses of fact and P.W.3 Dr. K. R. Ahmad, who proved the postmortem report as (Ext.Ka.3) and P.W.4 Yashvir Singh, proved the first information report (Ext.Ka.4) and G.D. relating to lodging of F.I.R (Ext.Ka.5), P.W.5 R.P. Chaudhary proved the recovery memo of weapon of offence, knife (Ext.Ka.6) and P.W.6 Jitendra Pal Singh, who proved the site plan of place of occurrence (Ext.Ka.7), site plan of place of recovery of diazepam (Ext.Ka.9) and Maruti Zen car (Ext.Ka.10) and the charge-sheet, he also proved the cloth in which the knife was wrapped as material Ext.1 and knife as material Ext.2 and clothes worn by the deceased as material Exts.3 to 9, were examined as formal witnesses.
11. On 06.10.2015, the court recorded the statement of the accused, Rajendra Sharma, u/s 313 Cr.P.C., who stated that the witnesses were giving false evidence and they have falsely proved the documentary and material exhibits. He was wrongly prosecuted due to enmity.
12. Accused-appellant further stated that his wife, Rani, was a college student where she got involved in bad company. The goon students killed her and he was falsely implicated due to his being her husband.
13. Accused-appellant, Rajendra Sharma, examined D.W.1 S.I.(m) Hargovind Singh and D.W.2 S.I.(m) Harishankar Sharma in his defence.
14. It has been argued on behalf of the appellant that the prosecution case is based on circumstantial evidence which does not complete the entire chain of evidence to convict the accused. The medical evidence collected by the Investigating Officer does not corroborate the prosecution case. The appellant has already discharged his burden u/s 106 of the Evidence Act in order to prove his innocence. The prosecution has not proved the motive of the appellant to kill deceased, Rani.
15. Sri HMB Sinha, learned A.G.A. for the State has argued that, admittedly, deceased, Rani, was the wife of the appellant, Rajendra Sharma. She was staying with him. On 21.12.2012, the dead body of Rani was recovered from village- Bhadesi, at a distance of 2-4 kms. from the house of accused-appellant. Thus, it was the responsibility of the appellant u/s 106 of the Indian Evidence Act to explain as to under what circumstances the deceased left her home and soon thereafter, her dead body was recovered. The appellant has not given proper explanation how after leaving her house, Rani, was killed and her dead body was recovered thereafter. It has also been argued on behalf of the State how the prosecution has proved the case against the appellant through firm and convincing circumstantial evidence. The prosecution has proved that soon before her disappearance and death, Rani had informed her father that appellant, Rajendra Sharma, tortured and beaten her and she has apprehension that she would be killed by the appellant. The prosecution has proved all the circumstances forming the chain on the basis of which, the conclusion can be drawn against the appellant that he must have committed the murder of the deceased, Rani. It was also being argued on behalf of the State that as the chain of circumstantial evidence, the prosecution has proved the recovery of weapon of offence i.e. knife, and strip of diazepam containing 8 pills on the pointing out of the appellant which was used in first making Rani unconscious by giving her diazepam laced tea and thereafter, disfiguring her face by assaulting it with the knife. It has further been argued on behalf of the State that the prosecution has proved the important chain of circumstantial evidence that by recovery of Maruti Zen car bearing registration no. U.P. 14 F-8105 of sky blue colour which was procured by the appellant, Rajendra Sharma from its owner P.W.7 Yagyadutt Sharma for driving test before purchasing it, which was used by him for carrying the dead body of Rani from his residence and throwing it in the mustard field of village- Bhadesi, from where it was recovered. Thus, the prosecution discharged its duty in proving, by circumstantial evidence, to the guilt that appellant, Rajendra Sharma, committed murder of his wife, Rani and threw her dead body and disposed it of.
16. We have heard learned counsel for the parties present and perused the entire lower court record.
17. Admittedly, there is no eye-witness who has seen the appellant, Rajendra Sharma, murdering and disposing of the dead body of Rani. The prosecution has produced circumstantial evidence to prove the charge framed against the appellant.
18. The prosecution has proved the confession given by the appellant, Rajendra Sharma, to the Investigating Officers, P.W.5 R.P. Chaudhary and P.W.6 Jitendra Pal to the effect that he has committed the murder of his wife and disposed of her dead body accordingly.
19. Law in respect of circumstantial evidence has been well-settled by a catena of decisions of Hon'ble Supreme Court which are as follows :-
In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210, the Hon'ble Supreme Court, while dealing with circumstantial evidence, observed as under :.
"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:
"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
"(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."
13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(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."
In Satpal Vs. State of Haryana, (2018) 6 SCC 610, the Hon'ble Supreme Court has observed as under :
"If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
In Devi Lal Vs. State of Rajasthan, in Criminal Appeal No. 148 of 2010 decided on 08.01.2019, the Hon'ble Supreme Court, while dealing with circumstantial evidence, observed as under :
14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made:
"Certainly, 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 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 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."
15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013 (12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015 (11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused."
In Digamber Vaishnav Vs. State of Chhattisgarh, AIR 2019 SC 1367, decided on 05.03.2019, the Apex Court has held as under (with respect to circumstantial evidence) :
15. One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt.
16. This Court in Jaharlal Das v. State of Orissa, (1991) 3 SCC 27, has held that even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:
i.) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and iii.) 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
In Anjan Kumar Sarma and Ors. Vs. State of Assam; (2017) 14 SCC 359, the Hon'ble Supreme Court has observed as under :
"14. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are:
(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. (See: Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 (para 185 & 153); M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 (para 18).
20. The trial court in its judgement has relied on following evidence for convicting the appellant Rajendra Sharma :-
(i) After the disappearance of deceased Rani from the house of appellant Rajendra Sharma on 18.12.2012, her dead body was found on 21.12.2012. Thus, soon before her death, Rani was living with the appellant Rajendra Sharma, and he did not explain why she left his house and how she was murdered. Thus, relying on Section 106 of the Indian Evidence Act, the trial court held that an important chain of the incident was proved due to the failure of appellant Rajendra Sharma in giving any proper explanation how Rani left his house and she was murdered.
(ii) On the confessional statement of accused-appellant, Rajendra Sharma, given to the Investigating Officers, P.W.5 S.I. R.P. Chaudhary and P.W.6 S.I. Jitendra Pal Singh to the effect that due to failure of his business and closure of his factory, he was heavily indebted to the borrowers who were harassing him for the refund of their loan and Rani used to taunt on the appellant for his inability to pay the loan amount. Due to her harsh words, he got enraged and murdered Rani and got her body disposed of, disfiguring her face with a knife. The trial court has also relied on the evidence of recovery of material exhibits on the pointing out of appellant, Rajendra Sharma, which included knife as material Ext.2 and strip of diazepam which included 8 pills and 2 pills missing wrongly mentioned as material Ext. 2 and Maruti Zen car no. U.P. 14 F-8105 allegedly used by accused-appellant, Rajendra Sharma, for disposing of the dead body of Rani.
(iii) According to P.W.3 Dr. K.R. Ahmad, who conducted postmortem on the dead body of Rani, the death of Rani was caused due to coma as a result of antemortem injury. P.W.3 Dr. K.R. Ahmad has also stated in his evidence that the face of deceased was not disfigured to the extent that it may become unidentifiable. The trial court has also relied on the evidence of P.W.3 Dr. K.R. Ahmad that the injury found on the body of deceased could have been caused in the manner alleged by the prosecution i.e. by smashing the face of deceased Rani on the floor and then disfiguring her face by scratching it with knife.
(iv) The trial court refused to rely on the defence plea taken by accused-appellant, Rajendra Sharma, that the deceased Rani was studying in degree college. She came in the company of bad students and due to that reason, she was murdered by goons.
21. We find that there is no direct eye-witness to the incident of the murder of deceased Rani by appellant Rajendra Sharma. P.W.1 Radhey Lal, father of the deceased, has only given evidence that her daughter deceased Rani has complained earlier to him about the torture, misbehaviour and beating done by appellant, Rajendra Sharma and she had expressed her apprehension that she may be killed by her husband, appellant, Rajendra Sharma. P.W.1 Radhey Lal Sharma has also given evidence that two days before the recovery of the dead body of Rani, appellant Rajendra Sharma, had phoned to his son, P.W.2 Suraj, that Rani, is missing and if she has gone to her parental home, she may be sent back to him. P.W.1 Radhey Lal has also given evidence that on receiving the phone call of the appellant regarding the missing of Rani from his home, then he along with his son, Suraj, visited the house of the appellant, Rajendra Sharma and inquired about Rani, but he was evasive and could not give any satisfactory answer regarding her whereabout. He has also deposed that the dead body of his daughter, Rani, was recovered about 2-4 kms. away from the place, Vikasnagar, where she was residing with the appellant, Rajendra Sharma. P.W.2 Suraj, has also given evidence similar to that of P.W.1 Radhey Lal. Thus, P.W.1 Radheylal and P.W.2 Suraj have not given any direct or clinching circumstantial evidence about the involvement of appellant, Rajendra Sharma in the murder of deceased Rani.
22. Another witness of fact relied upon by the prosecution P.W.7 Yagyadutt Sharma, whose vehicle was allegedly involved in disposing of the dead body of deceased Rani by appellant Rajendra Sharma, has only deposed in his evidence that appellant, Rajendra Sharma, on 18.12.2012 borrowed his Maruti Zen car U.P. 14 F-8105 on the pretext of prior test drive before purchasing it and he returned the car the next day. P.W.7 Yagyadutt Sharma informed that the appellant refused to purchase the car, as it was much costly. He has given evidence that the aforesaid vehicle was detained by the police being involved in the murder of Rani which was later released by the court on his application in favour of its registered owner, B.M. Agarwal. P.W.7 Yagyadutt Sharma has admitted that when he received back the vehicle, there were no blood stains on it. He has added that it appeared that the vehicle was washed. Thus, there is nothing in the evidence of P.W.7 Yagyadutt Sharma involving the appellant, Rajendra Sharma, in committing the murder of deceased Rani and using Maruti Zen car bearing registration no. U.P.-14 F-8105 in disposing of her dead body.
23. The other evidence relied by the trial court in convicting the appellant, Rajendra Sharma, is his disclosure statement given by him to the Investigating Officers, P.W.5 S.I. R.P. Chaudhary and P.W.6 S.I. Jitendra Pal Singh, while he was in their custody to the effect that since his business collapsed and his factory was shutdown, he fell in great debts and was unable to pay the loan taken by him from the money-lenders.
24. The aforesaid disclosure statement is confessional statement given to police officers which is totally not admissible in evidence being hit by the provisions of Section 25 of the Indian Evidence Act.
25. P.W.5 S.I. R.P. Chaudhary and P.W.6 S.I. Jitendra Pal Singh have only mentioned the alleged disclosure statement in the recovery memo. The Investigating Officers have not proved that they had separately recorded the recovery statement of appellant, Rajendra Sharma, in the case diary as per the provision of law. Thus, the prosecution has failed to prove the disclosure statement of appellant, Rajendra Sharma, as per the requirement of law.
26. According to the evidence of P.W.5 S.I. R.P. Chaudhary and P.W.6 S.I. Jitendra Pal Singh as per the disclosure statement of appellant, Rajendra Sharma, the weapon of offence i.e. knife, strip of diazepam (from which 2 pills were used in making Rani unconscious before committing her murder) and Maruti Zen car, bearing registration no. U.P. 14 F-8105 by which appellant disposed of dead body of Rani, were recovered on the pointing out of the appellant.
27. The Hon'ble Supreme Court has held in Mangal alias Bhanu & others Vs. State of U.P., 2000 (41) ACC 303 that weapon of offence recovered as a consequence of disclosure statement is admissible in evidence, but it only shows that accused had the knowledge of the place where weapons of offence and other recovered items were kept. It does not prove that the weapon of offence and other items were used by the appellant, Rajendra Sharma, in committing the offence. Thus, other than the alleged confessional statement given by the appellant, Rajendra Sharma, to aforesaid police officers, there is no link evidence to connect the appellant with the murder of deceased Rani.
28. It has been argued on behalf of the State that principle of house murder as propounded by Hon'ble Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 shall be applicable and according to the provisions of Section 106 of the Evidence Act, it is the burden of appellant to explain out the circumstances under which Rani left her home and later on, her dead body was recovered.
29. Since the dead body of Rani was not recovered from the house of appellant, Rajendra Sharma, but according to prosecution, from mustard field in village- Bhadesi, which is situated about 2-4 kms. away from Vikasnagar where the appellant was living with deceased Rani, the principle of house murder as propounded by Hon'ble Supreme Court in aforesaid case will not be applicable and in the absence of any convincing explanation by the appellant, no presumption can be drawn that he committed the murder of deceased Rani. The provisions of Section 106 of the Indian Evidence Act becomes appealable only after prosecution has discharged its initial duty of proving that the offence was committed by the accused (here appellant) but since the prosecution has not discharged its duty of proving the charge against the accused by legal, convincing and clinching evidence, there is no burden on appellant, Rajendra Sharma, to explain out the circumstances under which deceased Rani went missing from his house and later her dead body was recovered from mustard field of village- Bhadesi.
30. Taking the cumulative effect of the evidence, we find it difficult to uphold the conviction of the appellant, Rajendra Sharma. He is entitled to get the benefit of doubt.
31. Accordingly, the appeal succeeds and is allowed and the impugned judgement is set-aside.
32. The appellant, Rajendra Sharma, is in jail. He be set free forthwith, if not required in any other case.
33. The appellant, Rajendra Sharma, is further directed to file personal bond and two sureties each in the like amount to the satisfaction of the court concerned in compliance of Section 437-A of the Code of Criminal Procedure, 1973.
34. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
Order Date :- 06.09.2022 KS (Surendra Singh-I, J) (Pritinker Diwaker, J)