Allahabad High Court
Shanu vs State Of U.P. on 4 July, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:104498-DB Court No. - 44 Case :- JAIL APPEAL No. - 382 of 2021 Appellant :- Shanu Respondent :- State of U.P. Counsel for Appellant :- Ajay Kumar Mishra,Ravi Anand Agarwal Counsel for Respondent :- A.G.A. Hon'ble Saumitra Dayal Singh,J.
Hon'ble Madan Pal Singh,J.
1. Heard Shri Ajay Kumar Mishra, learned counsel for the appellant and Shri Nagendra Kumar Srivastava, learned A.G.A.-I for the State.
2. At first, learned counsel for the appellant pressed the first bail application. However, since paper book is ready, the appeal has been finally heard with the consent of both the parties.
3. Present criminal appeal arises from the judgment and order dated 30.03.2021 passed by Shri Harbansh Narayan, learned Additional Sessions Judge, Court No. 18, Meerut, in S.T. No. 830 of 2015, State of U.P. Vs. Shanu, whereby the learned court below has convicted the present appellant for offence under Section 302 IPC for the murder of his sister. He has been sentenced for life together with fine of Rs. 20,000/- with default sentence one year additional imprisonment.
4. The prosecution story emerged on the FIR dated 09.06.2015 registered at P.S. Lisari Gate, Meerut lodged by Afsha, sister of the deceased and the present appellant (examined as P.W.-1 at the trial). In that, it was alleged that the appellant had strangulated the deceased inside their house with a tippet/'dupatta' on 09.06.2015 between 5 p.m. to 6 p.m. It was also disclosed that the deceased was in the company of her family members including her sisters-in-law, Smt. Rahil wife of Shanu and Rukhsar wife of Dilshad as also her mother Smt. Ishrat Jahan, the present appellant and the first informant Afsha. During such time, some quarrel erupted for reason of objections raised by the family of the deceased to her love relationship formed with a person belonging to another community. Since the deceased did not heed to the advice and restrain offered by her family members, the appellant is described to have taken the deceased aside to another room of their house ostensibly to drive sense into her. At that time, he is described to have bolted the door (of that room), from inside. In that circumstance, he strangulated the deceased with her tippet/'dupatta'. Later, he opened the room and informed his family that no more trouble would arise. Thereafter, he fled from the place of occurrence. The FIR is Ex.Ka-12 at the trial.
5. Upon that FIR being registered, the tippet cloth/'dupatta' with which the deceased was strangulated was recovered on 09.06.2015. That Recovery Memo is Ex.Ka-9 at the trial. Also, on the same day inquest was completed. That Inquest Report is Ex.Ka-3 at the trial. The Autopsy Examination was conducted on 10.06.2015 by Dr. B.P. Singh Kalyani at about 01:45 p.m. In that, following ante-mortem injuries were noted :
"(1) Abraded ligature mark 15.0 cm x 2.0 cm on front and both sides marks 05.0 cm below from right ear 06.0 cm from chin and 05.0 cm from left ear. Subcutaneous tissue and muscle area ecchymosis. Mark present in upper part of neck.
(2) Abraded contusion 9.0 cm x 2.0 cm on right side neck 3.0 cm below from injury No. (1) in middle part of neck, on-exploration underlying tissue and muscles congested superior cornea of Hyoid bone found fractured and bleeding at fractured site."
6. As to the cause of death, it was recorded as asphyxia due to ante-mortem strangulation. The Autopsy Report is Ex.Ka-2 at the trial.
7. Upon completion of investigation, I.O. Pramod Kumar Singh (P.W.-7 at the trial) submitted charge sheet on 07.07.2015. It is Ex.Ka-11 at the trial. Upon the case being committed for trial to the Court of Sessions, the learned court below framed the following charges :
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8. At the trial, besides the above documentary evidence, the prosecution led oral evidence through 9 witnesses namely the first informant Afsha (P.W.-1)-to establish the manner of occurrence as narrated in the FIR. During her examination-in-chief itself, she offered a completely different version of the occurrence. In that, it was disclosed that the dead body of the deceased was found hanging from a ceiling fan at about 06:00 to 06:30 p.m. on 09.06.2015. As to the reason for that occurrence, she disclosed that a person of another community used to harass the deceased but the deceased had no love relationship with him. As to the manner in which the FIR was registered, she proved that the Written Report was written by one Gulsher Rana (Ex.Ka-1 at the trial). However, she denied that the appellant had strangulated the deceased with her body cloth/tippet/'dupatta'. She further added that the said Written Report was not written on her dictation and the same was written by Gulsher Rana himself and had not been read out to her. At this stage, she was declared hostile.
9. Upon cross-examination by the prosecution, she denied all suggestions thrown at her on the strength of FIR narrations. Thus, she completely denied the FIR narration. As to the manner in which the Written Report came to be prepared, she maintained that she was not present at the time when Gulsher Rana wrote the Written report. She also maintained, that the said Written Report was not read out to her. She further maintained that she only signed the Written Report and nothing more. She also denied that any statement was made by her to the police at the time of making that report. As to the arrest of the appellant, she further disclosed that the appellant had gone to the Police Station to make a report of unnatural death of the deceased but the police arrested him at that time itself. She also denied having made any statement to the Investigating Officer under Section 161 Cr.P.C. She denied the suggestion that she had made a false statement to the Court. Thereafter, she was cross-examined by the defence. In that, she claimed that the appellant had gone out of the house for some work before the occurrence took place. He was called home on a telephonic call made to him. She also maintained that the appellant was arrested when he went to the Police Station to report that the deceased had died by suicide.
10. Upon being further questioned by the Court, she disclosed that the deceased died by suicide in her room that had no window and that there were no external injuries suffered by her. She also described that the dead body of the deceased was found hanging about 4 feet above the ground and that her legs were not touching the bed. She also maintained that at the time of the occurrence, she along with her mother and her sisters-in-law (Bhabhis) were present while her brother, the present appellant was not at home. She denied that she had led false evidence before the Court. She was aware that she could be punished for leading false evidence in Court. She also denied that she had been threatened or coerced to lead such evidence in Court.
11. Thereafter, the mother of the deceased Smt. Ishrat Jahan was examined as P.W.-2. She proved that at the time of the occurrence, the deceased was present at her house along with her daughters-in-law Smt. Rahil and Smt. Rukhsar, younger daughter Afsha and the deceased. At the time of the occurrence, the deceased was studying in her room and her family members were busy with their household work. When they opened the door of the room, the dead body of the deceased was found hanging from a ceiling fan. She denied existence of love relationship between the appellant and the named person belonging to another community. However, she maintained that the said person used to harass the deceased. She denied that the appellant had committed the murder of the deceased. At that stage, she was declared hostile.
12. Upon her cross-examination by the prosecution, she maintained her stand, disclosed in her examination-in-chief. She denied the FIR narration of the occurrence completely. She also denied that she had made any statement to the police under Section 161 Cr.P.C.
13. During her further cross-examination by the defence, she maintained that the present appellant had gone out of the house for work, before the occurrence and that he was called home after the occurrence, on a phone call.
14. On her further examination by the Court, she stated that at the time of the occurrence the door of the room of the deceased was shut but not locked. She denied that she had been threatened or induced or coerced in any manner, to make her statement to the Court.
15. Thereafter, the sister-in-law of the deceased (Bhabhi) Smt. Rahil was examined as P.W.-3. She is the wife of the appellant. During her examination-in-chief, she disclosed that she had common living with her other family members, including the deceased. On the date of the occurrence, the deceased returned from her tuition classes and went to her room, where she died by suicide. She denied that the deceased had formed love relationship with the named person belonging to another community. She also stated that prior to this occurrence, the deceased had left her house but the police brought her back. No police report was made with respect to that occurrence. She also stated that on the date of occurrence, no quarrel had been witnessed between her mother-in-law Smt. Ishrat Jahan (P.W.-2) and the named person of the another community. She denied that on 09.06.2015 the present appellant had taken the deceased to another room, to drive sense into her. At that stage, she was declared hostile.
16. During her cross-examination by the prosecution, she maintained her stand disclosed during her examination-in-chief. She denied having made any statement to the police during investigation.
17. During her further cross-examination by the defence, she claimed that the appellant had gone out of his house for some work before the occurrence took place. He was called home by his mother Smt. Ishrat Jahan (P.W.-2) on a phone call.
18. Upon being questioned by the Court, she claimed that her husband was a manual laborer and that her father-in-law had pre-deceased. She denied knowledge of love relationship formed between the deceased and the named person of another community. She maintained that there was no coercion exercised by her husband (the present appellant) to make that statement. She denied that the police had made any enquiry from her. She also denied that any threat coercion or inducement was practiced on her to make statement. Thereafter, Smt. Ruksar, the other sister-in-law of the deceased was examined as P.W.-4. She made similar statement as Smt. Rahil (P.W.-3). She was also similarly declared hostile by the Court and further she maintained similar statement during her cross-examination by the prosecution, the defence and examination by the Court.
19. Thereafter, Gulsher Rana, the scribe of the FIR was examined as P.W.-5. He proved his writing on the Written Report. He claimed that he had written the Written Report on the dictation of the first informant Afsha (P.W.-1). The same was also read out to Afsha before she signed it.
20. During his cross-examination by the defence, he stated that neither he had seen any occurrence nor he had any knowledge of the occurrence and that at the time of the occurrence he had gone out of his house. In that context, he further stated that he was not known to the deceased or the present appellant and that his house was at some distance from the house of the present appellant. Last, he stated that he had not seen Afsha sign the Written Report.
21. Thereafter, Dr. B.P. Singh Kalyani who conducted the autopsy on the dead body of the deceased was examined as P.W.-6. He proved that the occurrence had been caused by strangulation and not by hanging. He also proved during his cross-examination that there was no other injury suffered by the deceased except the injury suffered due to strangulation. He maintained death had been caused by strangulation.
22. Thereafter, other formal witnesses namely S.I. Pramod Kumar Singh (P.W.-7), Inspector Raj Kumar Singh (P.W.-8) and Constable Kunwar Pal Singh (P.W.-9) were examined as police witnesses to prove the registration of the FIR, recoveries made and the steps taken during investigation as also submission of charge sheet.
23. Thereafter, statement of the accused/present appellant was recorded under Section 313 Cr.P.C. He denied his involvement in the occurrence. As to the reason for the false FIR being lodged, he tried to explain that the same had been lodged by Afsha (P.W.-1) for reason of some property dispute.
24. In such circumstances, order of conviction and punishment has arisen against the accused person.
25. Submission of learned counsel for the appellant is that the FIR and the Written Report are not a piece of substantive evidence. Thus, initially FIR had been registered on which investigation arose. At most narration in the FIR may be relevant for the purposes of offering corroboration of the facts as may be proved before the trial court, through substantive evidence. Here, no witness of fact could establish either the direct role of the appellant in causing the occurrence or his presence inside the house, leave alone the room where the occurrence was caused or the motive to cause the occurrence namely alleged love relationship formed by the deceased with the named person of another community.
26. As to the presumption available to the prosecution under Section 106 of the Evidence Act, it has been submitted that the provision is not to overcome the burden of proof that otherwise rests on the prosecution. Rather, it is a provision to enable the prosecution to prove facts that may otherwise be impossible to prove. Before that presumptuous provision may come into play, essential/fundamental facts have to be proven by the prosecution that the accused person alone was present with the deceased at the place where the occurrence may have caused (inside the dwelling house). Insofar as all prosecution witnesses have completely denied the presence of the present appellant inside the house, leave alone the room where the dead body of the deceased may have been found hanging or lying, the premise to invoke presumption under Section 106 of the Evidence Act does not exist.
27. As to the evidence of Gulsher Rana, it has been submitted, he is not a witness of fact but only the scribe of the FIR as proved by him. He was not aware of the facts narrated in the FIR and he had no knowledge of the facts written by him in the Written Report as his residence was at some distance from the residence of the present appellant.
28. On the other hand, learned A.G.A. would submit, the FIR narration is wholly truthful and corroborated both on the strength of evidence of Gulsher Rana (P.W.-5) and also the evidence led by Dr. B.P. Singh Kalyani (P.W.-6). There is no denial to the fact that the death had been caused inside the dwelling house of the appellant. The manner of occurrence is clearly strangulation as proven through medical evidence. No evidence exists of death by suicide. The FIR has arisen against a specific allegation made by the sister of the present appellant. Merely because such a witness may have not supported the prosecution story at the trial (for obvious reasons of family relations), the prosecution story may not be disbelieved.
29. Having heard learned counsel for the parties and having perused the record, in the first place, it admits of no doubt or debate that the FIR and the Written Report are not pieces of substantive evidence. At most those may be relied to corroborate the substantive evidence that may be led at the trial. In the present case, the prosecution did not set up its case on the strength of circumstantial evidence, rather it set up the case of direct evidence to the extent the first informant Afsha (P.W.-1) is disclosed to have narrated in the FIR that the appellant had caused the occurrence.
30. As to the direct evidence, the prosecution first sought to rely on four eye-witnesses namely, Afsha (P.W.-1), Smt. Ishrat Jahan (P.W.-2), Smt. Rahil (P.W.-3), Smt. Ruksar (P.W.-4). All are close family members both of the deceased and the present appellant. Whatever wisdom the prosecution agency may have had in wholly relying only on such witnesses, is not for the Court to comment. However, it cannot be disputed that none of the four witnesses supported the prosecution story to any extent, at the trial. Consistently, they maintained - (i) the appellant was not present at the house at the time of the occurrence, he having left for work before the occurrence. (ii) The deceased returned home and went to her room and shut the door of that room. When the door was opened, all the witnesses found the dead body of the deceased hanging from the ceiling fan. (iii) The deceased had not formed any love relationship with the named person of another community. (iv) There had been no quarrel of the deceased with either of those witnesses or between any of the witnesses and the named person of the another community. (v) The named person of the other community used to harass the deceased. Even on the questioning by the Court, all witnesses maintained that they had led evidence without any fear, threat, coercion or undue influence.
31. Thus the direct evidence on which the prosecution case was founded did not arise at the trial. Once there is no substantive evidence, there is no room left with the Court to rely on the FIR or the Written Report or the evidence of the scribe of the FIR to base its conclusion of guilt. To do that, would be dangerous. Once the criminal trial is required to be conducted and conviction is to arise on the test of strict proof, the whole purpose of leading oral evidence through examination and cross-examination would be defeated if the Court were to refer to and rely on the FIR statement not supported at the trial. Adopting such course would be impermissible in law. At most FIR narration may offer independent corroboration to facts that may be first proven.
32. What then survives for consideration is if the conviction may be sustained on the opinion of the medical expert Dr. B.P. Singh Kalyani (P.W.-6). Here, we find that cause of death cannot be disputed. It is asphyxia due to strangulation. The detailed examination of the said medical expert does appear to exclude the possibilities or chances of death by suicide. Since four other family members/inmates besides the appellant were admittedly present inside the house at the time of occurrence, it does not prove that therefore death had been caused by the present appellant.
33. Though the prosecution may not have invoked Section 106 of the Indian Evidence Act, 1872, before the said section may be applied, the basic fact that would have to be proved by the prosecution would remain i.e. that the appellant was present alone with the deceased inside the room where the occurrence was caused.
34. Insofar as the provision of Section 106 of the Indian Evidence Act is concerned, in Shambu Nath Mehra Vs. State of Ajmer AIR 1956 SC 404, the Supreme Court had the occasion to interpret the said provision and examine its applicability. In that regard, it was observed as below:
"10. Section 106 is an exception to section 101.Section 101 lays down the general rule about the burden of proof.
'101. Burden of proof-Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'.
Illustration (a) says-"
(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime".
11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor and Seneviratne v. R.
12. Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc. Now if a passenger is seen in 3 (1956) SCR page 199 a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not he purchased a ticket. On the other hand, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.
13. We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused. This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration. The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts."
35. Here, all prosecution witnesses, namely, P.W.-1, P.W.-2, P.W.-3 and P.W.-4 consistently maintained that the appellant had left the house before the occurrence and that he was called back by his mother Smt. Ishrat Jahan (P.W.-2) on a phone call after the occurrence had been caused. They also narrated that the appellant had gone to the police station to lodge the complaint but that he was arrested there itself. As to the reason of such conduct, the appellant had tried to explain through his statement under Section 313 Cr.P.C. that there were some property disputes between the parties, at the relevant time. For that reason, he was falsely implicated. While we are not in a position to record any positive finding with respect to that property dispute, suffice to note that the prosecution failed to discharge its basic burden to apply Section 106 of the Indian Evidence Act, namely, the presence of the appellant at his house, less so inside the room exclusively with the deceased at the time of the occurrence being caused.
36. In Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725, the Supreme Court observed as below :
"19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant.
22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.
24. As we have already held in this case, the circumstances established by the prosecution do not lead to only one possible inference regarding the guilt of the appellant-accused.
25. Therefore, what survives for consideration is only an opinion of the medical practitioner who conducted autopsy and gave a report on the cause of death. As held in Balaji Gunthu Dhule [Balaji Gunthu Dhule v. State of Maharashtra, (2012) 11 SCC 685 : (2013) 1 SCC (Cri) 1121] , only on the basis of post-mortem report, the appellant could not have been convicted of the offence punishable under Section 302 IPC and consequently for the offence punishable under Section 201 IPC."
(emphasis supplied)
37. To accept the prosecution suggestion that the appellant could have caused the occurrence, when it is admitted to the prosecution that the deceased along with five others were residing in the accommodation and when the occurrence is of day time, keeping in mind the relationship between the parties, the appellant being the elder brother of the deceased, no presumption may ever become available with the Court that the appellant had such exclusive company of the deceased where he and he alone may have caused such occurrence to the exclusion of the other persons also present inside the same house, at the same time.
38. As discussed above, though placed inside the house of the parties, the prosecution story was based on direct evidence. A case was set up in that story of the present appellant having caused the occurrence inside a closed room where he alone was in the company of the deceased at the time of the occurrence being caused. Before the trial court, that fact was not proven, to any extent. By placing the accused outside the house before the occurrence was caused and by denying existence of love relationship between the deceased and the named member of another community as also by denying quarrel between the deceased and/or any member of her family with such named member of another community, the whole premise and motive of the prosecution story was destroyed at the hands of the prosecution witnesses, themselves. What therefore survives is how the deceased was done to death inside her house or how the deceased suffered an unnatural death inside her house in a room. While the prosecution witness claimed before the trial court that she died by suicide by hanging from a ceiling fan, the prosecution made no effort to establish by any other means that the deceased had been done to death by the present appellant.
39. Plainly the prosecution witnesses of fact brought to the Court were declared hostile during their examination-in-chief itself. Merely because the scribe of the FIR Gulsher Rana (P.W.-5) proved his writing on the Written Report and also proved that the FIR was written by him on the dictation offered by Afsa (P.W.-1), it did not lead to the proof that therefore the occurrence had been caused by the appellant, as narrated in that FIR. Neither FIR is a piece of substantive evidence nor the first informant Afsa (P.W.-1) proved that the Written Report was read out to her before she signed it. Otherwise, the said scribe Gulsher Rana (P.W.-5) was not a person known to the parties.
40. Therefore, the prosecution miserably failed to eliminate numerous possibilities that existed, how the occurrence of unnatural death of the deceased may have been caused. Those numerous possibilities exist, even though it may not be disputed that the deceased had suffered an unnatural death inside her house. It remained admitted to the prosecution, from beginning to end, that at the time of the occurrence other than the deceased her mother, younger sister and two sisters-in-law i.e. four other persons were present, that besides the presence of the appellant, as claimed in the FIR. Any one of them or some of them or all of them may have caused the occurrence.
41. For the reasons noted above, the benefit of doubt arises in favour of the appellant. Therefore, the order of the conviction cannot be sustained, guilt being not proved beyond reasonable doubt.
42. Accordingly, the appeal is allowed. The impugned judgment and order dated 30.03.2021 is set aside. Let the appellant be released forthwith unless he is wanted in any other case. The appellant is acquitted of all the charges levelled against him.
43. Let a copy of this order be communicated to the learned trial court as also to the learned Judge who may have passed the order dated 30.03.2021 for future reference.
44. Office is directed to send back the original trial court record along with a copy of this order.
45. Let a copy of this judgement be sent to the Jail Authorities concerned for compliance.
Order Date :- 4.7.2025
SA/Prakhar
(Madan Pal Singh, J.) (S.D. Singh, J.)