Allahabad High Court
Surendra Kumar And Another vs State Of U.P. And Another on 12 March, 2019
Bench: Bachchoo Lal, Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.12.2018 Delivered on 12.03.2019 A.F.R.... IN Chamber. Case :- CRIMINAL APPEAL No. - 346 of 2009 Appellant :- Surendra Kumar And Another.. Respondent :- State Of U.P. And Another Counsel for Appellant :- Onkar Singh,Dharmendra Singhal,Nazrul Islam Jafri,P.K.Srivastava,S.K.Chaubey,Sudhir Kumar,Surendra Kumar Chaubey,Vinod Tripathi Counsel for Respondent :- Govt.Advocate,A.K.Singh,Javed Habib,V.K.Singh And Case :- CRIMINAL APPEAL No. - 447 of 2009 Appellant :- Rajveer & Another Respondent :- State Of U.P. Counsel for Appellant :- Veer Singh,Noor Mohammad Counsel for Respondent :- Govt. Advocate.. Hon'ble Bachchoo Lal,J.
Hon'ble Suresh Kumar Gupta,J.
Per: Hon'ble Suresh Kumar Gupta,J.
1. Both of these appeals have been filed questioning the legality and correctness of the order dated 21.01.2009 passed by Additional Sessions Judge., Court No. 1, Meerut convicting and sentencing the appellants and therefore, the same have been heard and are decided by means of this common order.
2. By these criminal appeal u/s. 374(2) CrPC appellant accused Surendra preferred the appeal against the judgement and order 21/01/2009 passed by Additional Session Judge, court no. 1, Meerut in session Trial no. 255/95 convicting and sentencing to the appellant, Surendra life imprisonment & fine of Rs.5000 in default 1 year simple imprisonment ,u/s. 302/34 I.P.C & appellant accuse Rambir was convicted under Section 120B I.P.C convicting & sentencing to the life imprisonment & fine of Rs.5000 in default 1 year simple imprisonment. Appellants accused Shiv Kumar @ Pappu & Rajveer was convicted u/s. 394 of I.P.C for 10 year rigorous imprisonment & u/s. 302 of I.P.C life imprisonment & Rs.5000 fine in default 1 year simple imprisonment.
3. Prosecution story in brief is that the complainant he had married his daughter Kamla rani on dated 13.5.1993 who was 20 years old to Ramveer son of Omprakash @ Mallu resident of Mahal Thana Inchauli dist. Meerut. On 8.8.1993 in evening at 4:30 pm the brother-in-law of Kamla Rani take her from his mother's home to his in laws home on scooter. After that half an hour it was informed that Kamla Rani was taken into the sugarcane field of Quasim Ali by two unknown miscreants between Village- Phlawada and Bathnor. When people of town area found the dead body of Kamla Rani in Kasim Ali's field which was on the east side of the road there were many marks of bullet injury on Kamla's face. It seems that the bullet shot were fired from very closed range & her gold hasli, silver mangalsutra & earrings were not present on the dead body but remainings two gold rings( one of them was silver ring but having a layer of gold colour) & third silver ring, silver pajib & bichue were present at her body.
4. Kamla's suitcase was found closed having her clothes , cash & watch found intact inside it. There were no injury marks on Kamla's Brother-in-law, Surendra. Complainant has submitted that he have full confidence that behind the death of Kamla there is a conspiracy of his husband Ramveer, brother- in- law Surendra and other in laws family member because she was not beautiful, as well as lean & thin. It was also submitted by the complainant that her in-laws doesn't eat food cooked by Kamla & earlier she was also threatened by her in laws that they will kill her. Husband Ramveer never came to the Kamla's home to take her after marriage. Kamla's dead body was lying at the spot hence F.I.R. Exbt Ka-4 was lodged by Baldeo, father of the victim against husband Ramveer, brother-in-law Surendra and other in law family member under Section 302, 394 I.P.C.
5. On the information of complainant F.I.R against Ramveer, & Surinder u/s. 302/394 of I.P.C in P.S Phlawda district Meerut at 5:30 p.m. on 8.08.1993 was lodged. The distance between the place of occurrence & police station is about 1.5km. On the basis of written report of Baldev Singh exhibit KA16 F.I.R exhibit KA4 was lodged after lodging the F.I.R police of the P.S Phlawada rushed to the spot and preliminary investigation is done by S.I Ramachandra Singh PW5, Panchnama of dead body Exbt Ka-7 is prepared by PW5 and dead body was sealed on the spot and sent for autopsy. In the presence of witnesses jewellery of the deceased was taken into the custody and recovery memo of jewellery exhibit KA15 & at the place of occurrence locked suitcase was also found near the spot. I.O PW5 prepare recovery memo of suitcase & recovery memo of plain earth & blood-stain earth exhibit KA13 was also prepared on the spot afterward on 9.08.1993 recovery memo of scooter Exbt Ka-2 was prepared by 2nd I.O Amrat Lal
6. Autopsy of dead body of Kamla Rani was done by PW3 N.K Maheshwari on 9.08.1993 at 4:30 pm during examination of dead body following anti-mortem injury were found on her body; 1- Firearm wounds of entry 2.0 cm X 2.5 cm on right side of neck blackening & tattooing 8.0 cm X 8.0 cm on upper side of wounds; 2- Firearm entry bound of 2.0 cm X 2.5 cm into muscle deep with blackening & tattooing around 2.0cm, mandible bone was also broken;
7. 3- Firearm wounds of exit 5.0 cm x 8.0 cm margin irregular at the left side of Upper face on external examination of dead body post mortem staining present on the back side rigour mortis was absent on upper side and present on lower side of the body. Post mortem report exhibit KA1 prepared by Dr. N.K Maheshwari PW3, in the view of PW3 that the cause of death was hemorrhage & shock as a result of anti mortem injury. During investigation on the basis of some eye witnesses name of accused Shiv Kumar and Rajveer came into light After completion of investigation CHARGESHEET Exbt Ka-3 against the Ramveer and Omprakash u/s. 120B & accuse Surinder Kumar u/s. 302/34 and Rajveer and Shivkumar @ Pappu u/s. 302/394 of I.P.C submitted by I.O, afterwards the case was committed to court of session & charge was framed by session court against the Shivkumar and Rajveer u/s. 302/394 of I.P.C against Om Prakash and Ramveer u/s. 120B & against Surinder Kumar u/s. 302/34 of I.P.C.
8. In order to prove his case prosecution has orally examined PW1 Dhanshingh (EW) PW2 Karamveer PW3 Dr. N.K Maheshwari PW4 S.I Amrat lal PW5 S.I Ramchandra singh PW6 Santri devi PW7 Nain Singh. After closing of prosecution evidence two witness were examined. By Defence DW1 Zamir Hasan & DW2 Veer Singh.
9. The prosecution relied upon the following documentary evidence:- (1) Written report- Exbt- Ka-16,(2) Recovery Memo- Exbt- Ka-15,(3) Recovery Memo Suit Case- Exbt- Ka-14,(4) Recovery Memo of plain earth and blood stain earth- Exbt- Ka-13,(5) Post Mortem Report- Exbt- Ka-1, (6) Recovery Memo Scooter- Exbt- Ka-2, (7) Chik R & R- Exbt- Ka-4, (8)General Diary of Case- Exbt- Ka-5, (9) Site Plan- Exbt- Ka-6,(10) Inquest Report- Exbt- Ka-7, (11) Photo dead body Exbt- Ka-8 (12) Letter C.M.O. Exbt. Ka-9 (13) Letter C.M. Exbt Ka-10, (14) Letter RR Exbt- K-11, (15) Challan Cash Exbt-Ka13 and (16) Material Exbt 1 to 22.
10. In order to prove his case prosecution has orally examined P.W.-1 Dhan Singh. He is so called eye witness and chance witness, who reached the spot after the incident and they deposed in his statement that accused Pappu and Rajveer was taking of jwellery from dead body. P.W.-2 is Karamveer is the native of complainant village is also chance witness and he deposed that accused Rajveer and Pappu after death of the deceased was taking off the jwellery. P.W.-3 Dr. N.K. Maheshwari has conducted the autopsy of the dead body. P.W.-4 Amrat Lal, who is the Second Investigating Officer, who conducted entire investigation of this case. P.W.-5, S.I. Ram Chandra Singh, First Investigating Officer of this case preliminary has investigated the case preliminary. P.W.-6 Santri Devi is the Bhabhi (Brother's wife). P.-7 Nain Singh is the brother of the deceased.
11. After conclusion of the prosecution evidence accused was examined under Section 313 Cr.P.C.
12. In his statement they denied the prosecution case and alleged that false case has been instituted against him. The accused Rajveer in his statement has submitted that he is labour and due to party bandi in the village he has falsely been implicated in this case due to Pradhani Election. Shiv Kumar @ Pappu in his statement has stated that they have been falsely implicated in this case due to party bandi and due to being caste by Harizan. It has further been stated that he and his family member had not cost their votes to Pradahan Zamir Hasan but he cost their votes to Hoshiyar Singh. Due to this reason they have falsely been implicated in this case.
13. Appellant-accused Surendra is the 'Devar' of the deceased. He deposed in this statement recorded under Section 313 Cr.P.C. that at the fateful day he had gone to his sister in law home in village Phalauada to bring her when he along with deceased Kamla was returning from Phalauada to Mahal by scooter and when they reached near the village - Vadnaur then near the forest of Vadnaur two unknown miscreants pointed country-made pistol and stopped the scooter dragged away his Bhabhi to sugar cane field and shot dead his sister in law (Bhabhi) and looted away the jewellery worn by her. After this incident he informed the same to father of deceased Baldeo Singh. This incident has also been informed to brother, Ramveer and also informed to his father. After that along with Gram Pradhan father and brother he returned to police station Phalauada where police arrested his brother, father and himself. It is also stated that he left the scooter on the house of Baldev Singh.
14. Accused Ramveer in his statement has stated that Kamla was my wife. At the time of incident he was sick and while his brother, Surendra was returning from the matrimonial home of his wife some miscreants kidnapped his wife and looted her and murdered. His brother, Surendra informed him about the incident then he, himself and his brother and his father and residents of villages arrived at P.S.-Phalauada . At P.S.- Phalauada he, his brother and father were detained in the police custody. He and his family member have no complain about the deceased Kamla. He has no concern with appellant, accused Rajveer and Shivkumar.
15. After recording the statement under Section 313 Cr.P.C. D..W.-1, Zamir Hasan and D.W.-2, Veer Singh was produced by Defence Counsel.
16. Heard Sri Omkar Singh and Sri S.K. Chaubey, learned counsels for the appellants assisted by Sri Sudhir Kumar Kesarwani, learned counsel and Sri Om Prakash Mishra, learned A.G.A. for the State. None is present for the complainant even in the revised list.
17. Learned counsel for the appellants contended that there was no eyewitness to the occurrence. All the witnesses are based upon the circumstantial evidence but prosecution failed to prove any circumstances against the appellants. It has also been contended by the learned counsel for the appellants that there is no evidence regarding conspiracy against Om Prakash and Ramveer. Prosecution utterly failed to prove any conspiracy regarding murder of Kamla. There is no incriminating evidence against the Ramveer. On this score Ramveer is liable to be acquitted.
18. It has also been contended by the learned counsel for the appellants that prosecution has developed a different story that Dhan Singh, P.W.-1 and other witnesses have seen the occurrence. If they have seen the occurrence then this fact must also be appeared in the First Information Report. P.W.-1 and P.W.-2 are chance witnesses. They have never seen the occurrence so reliance cannot be placed regarding statements of P.W.-1 and P.W.-2. It has also been contended by the learned counsel for the appellants that P.W.-2 in his statement has clearly stated that he does not know Ramveer and Pappu so no reliance may be placed on the statement of P.W.-2.
19. It has also been contended by the learned counsel for the appellants that conduct of the witness are quite unnatural. Presence of the so called eyewitness is highly doubtful in this case. There is no direct as well as circumstantial evidence against the appellants, Surendra. Prosecution has failed to produce any reliable circumstantial evidence and material evidence. Witnesses Ghasita and Harchanda was not produced by prosecution. It has also been contended that name of any witness was not present in the F.I.R. What is the genesis of this case is not mentioned in the F.I.R. Learned counsel for the appellants has submitted that F.I.R. is anti-dated and anti time. It has also been contended by the learned counsel for the appellants that Rajveer and Shiv Kumar is the native of the accused, Surendra and Ramveer. There is not any occasion to show how the P.W.-1 and P.W.-2 were known to accused persons. P.W.1 and P.W.-2 has clearly stated that after the occurrence complainant was present on spot and has also stated that all the incident was narrated by him to the complainant but no such discussion in the First Information Report. It is also argued that accused Rajveer and Shiv Kumar were not named in the F.I.R. and they have also been falsely implicated in this case. It has also been argued by the learned counsel for the appellants that delay in recording the statements of eyewitness in case diary makes whole prosecution case doubtful and therefore, learned counsel for the appellant prays that the appellants are liable to be acquitted.
20. Learned A.G.A. vehemently opposed the prayer of the learned counsel for the appellant and submitted that although there is no direct evidence against the appellants but every circumstance is against the accused. The chain of circumstantial evidence is totally complete. Circumstantial evidence and prosecution witness have successfully proved the case against the accused so the appeal of the accused-appellants is liable to be rejected and conviction and sentencing order should be maintained. Prosecution has also established the motive behind the incident.
21. In State of Uttar Pradesh v. Mohd. Iqram and another, (2011) 8 SCC 80, the Apex Court has made the following observations in para 26 therein;
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial Court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
22. It is found that accused was present at the place of occurrence and it is he and he alone who has perpetrated and committed the crime by firing at the deceased. Accused was under an obligation to the rebut this burden but he has failed to do so and, therefore, also we have to hold that the accused was the person who had perpetrated the crime.
23. In the light of the decision rendered by the Apex Court in R. Shaji Vs. State of Kerala, AIR 2013 SC 651, it would be relevant for us to not only refer to the testimony of witnesses but also to give our finding on the aspect where guilt is proved to the hilt or not. In that decision, the Apex Court held that in the matter of appreciation of evidences of witnesses, it is not the number of witnesses but, the quality of their evidence, which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove a fact. It is a time honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise.
24. The prosecution in support of their versions examined P.W.-1 Dhan Singh, who is eye witness but not named in the F.I.R. Thus P.W. 1, is the chance witness has solemnly stated that-he knew Kamla, daughter of Buldeva of his town; on fateful day; he was coming to Phalawada by bicycle from Mehlaka Village; it was about quarter to five in the evening, when he came near Qasim Ali's field and heard the sound of firing, where Ghasita of his town was shouting; he left the bicycle over there and went to the place, from where the sound of firing had come; Karmveer & Harchanda also went with him in that direction; when they reached the sugarcane field, they saw that accused Rajveer & Pappu were taking off the jewels from Kamla, who was lying dead.
They challenged them, on which they pointed country made pistol at him and fled in the sugarcane field; They chased them; the accused fled via the field and they could not apprehend them, whereafter they returned to the spot; by that time, many people of Phalawada town had come there; the girl's father Baldeva had also come over there; he narrated all the facts seen by him, to Baldeva (First Informant).
25. Karamveer was examined as P.W.-2 as prosecution witness. He is alleged to be eye witness although this witness is not named in the F.I.R. Exbt- Ka- 4. He is also a chance witness solemnly stated that he know Kamla.
On fateful day around quarter to five, he and Harchanda were grazing grass; they heard sound of scream, followed by sound of firing; when they heard the sound from inside the sugarcane field, they proceeded in the sugarcane field and saw that Rajveer & Pappu were taking off jewellery from ear & neck of Kamla; one of the said accused, Rajveer, is present in Court today was present on spot on the fateful day; the accused pointed country made pistol to him, on which they moved back a bit; then accused started to flee in the standing crop; they raised alarm and chased them; Dhan Singh P.W.-1 also arrived; he was also accompanying him; they chased them for quite some time, and when the accused could not be apprehended, they returned; by that time, many people had gathered near the deceased.
He had earlier seen the accused, when he had gone to mahal to bring Kamla; he know the accused since then; the place of incident belongs to Quasim Ali of his village.
26. P.W.- 3, Dr. N.K. Maheshwari examined on 18.1.2005. On 9.8.93, he was posted on the post of Medical Officer, Pyare Lal Hospital, Meerut; on that day at 4:30 p.m., he and his colleague O.P. Chaddha had conducted post-mortem of the body of Smt Kamla Rani w/o. Ranveer, r/o. Mahal, P.S.-Inchauli, District-Meerut, which had been brought in sealed state by Con.36 Alok Kumar, Con.1362 Ratanpal, P.S.-Falawada, district- Meerut; the body had been identified by them; the specimen seal was matching with the seal on the body; the following ante-mortem injuries were found on the body at time of post-mortem:
1. One gunshot entry wound 2 cm. x 2.5 cm. muscle deep, on right side of neck, upwards, blackening & tattooing present over 8 cm. x 8 cm.
2. One gunshot entry wound 2 cm. x 2.5 cm. x muscle deep; this wound was corresponding with the gunshot exit wound; alongside blackening & tattooing present over 10 cm.; (Mandilla) bone was fractured.
3. Gunshot exit wound with edges ruptured; wound of 5 cm. x 8 cm. on left side of face, upwards and by side of the nose; the left bone of face was fractured.4. 3 wads and 41 (forty one) small pellets were found in Injury No.1, which were sealed and sent to the S.S.P In external examination of the deceased, the post-mortem staining was present on back of the body; the rigor-mortis was absent in upper arm; was present in the lower leg and there were no signs of decomposition.
In internal examination of the deceased, juglar vessel, carotid vessel were punctured from both sides; base of skull was fractured; larynx was ruptured; stomach was empty on upper side; the lower jaw, maxilla bone was fractured on left side; stomach was empty; urinary bladder was empty; the death of deceased was caused due to shock and hemorrhage, which were caused due to ante-mortem injuries.
Post mortem report marked as Ext.KA-1; the death of deceased is possible to have occurred on 8.8.93 between 5 to 5:30 p.m.
27. P.W.-4, Inspector is the second Investigating Officer and on his statement dated 30.3.2005 he took over the investigation of this case on 9.8.93 and went to the house of the case complainant, and in presence of witnesses-Harkesh, Kutni, took in custody, Bajaj Super Scooter No.DL 25S-5193, which had been used in the incident and by which the accused Surendra had taken deceased Kamla, prepared fard marked Ext.KA-3. Thereafter, he recorded the statements of the witnesses of Memo as also of Kamal Singh, Kanti, Hardesh, Rajpal, Smt Santari, Sundar, Dharmveer, Ghasita in the C.D. On 10.8.83, he recorded the statement of Santram Saini in the C.D. On 12.8.93, he had arrested accused Om Prakash; also arrested accused Ramveer alongwith him and recorded their statements in the C.D. On 13.8.93, he recorded the statements of Rajendra Singh, Dhan Singh, Harchandra in the C.D. On 28.8.93, he filed charge-sheet as Exbt-Ka-3 against accused Surendra, Ramveer, Om Prakash @ Mallu, Shiv Kumar @ Pappu and filed charge-sheet against absconding Rajveer.
28. P.W.-5 Ram Chandra is the Ist Investigating Officer in his statement dated 12.5.2005 he has stated that on 8.8.93, he was posted at P.S.-Falawada. On that day, this case was instituted in his presence on basis of complainant Baldev's report, chik no.69/93 was prepared by C/C Maharaj Singh in his presence; he recognize his handwriting & signature; the true copy of G.D. prepared with the original by placing carbon, in the file & in the handwriting of C/C Maharaj Singh; it is marked Ext.KA-5. He recorded the statement of C/C Maharaj Singh at the police station. Thereafter, came to the spot with the complainant; inspected the spot at the instance of the complainant; prepared the site-plan, Ext.KA-6. Thereafter, prepared the Inquest Report Exbt- KA-7 from 6:30 p.m. to 7:30 p.m. The Inquest Report besides this, prepared other documents related with the body, viz. body photo, letter for C.M.O., another letter for C.M.O., letter for R.I., body challan, and other documents are marked as Ext.KA-8 to KA-12. The body of the deceased was sealed and handed over for P.M. Apart from this, took blood-stained & plain earth, grass & leaves from the spot and sealed them in separate boxes, and prepared their Memos in his handwriting & signature, marked Ext.KA-13. Took in custody, a suitcase lying by side of the deceased; it had in all 13 items prepared memo as Ext.KA-14. He took in custody, one gold ring, one ring with gold (plated), one silver ring and one pair silver anklet from the body of the deceased, and sealed them on the spot and prepared their Memo Ext.KA-15. He, then, recorded the statement of complainant Baldev; entered the Memos & Inquest Report in the C.D. Thereafter, the investigation was conducted by S.O. Amrit Lal himself.
29. P.W.6 Santi Devi (Nanad of deceased) is witness of the conspiracy and in her statement recorded on 17.11.2005 she has solemnly stated that her sister-in-law was named Kamla. She was married to Ramveer; after marriage, her in-laws did not behave well with her. Kamla was killed about 12 years ago. Prior to murder, she had stayed for 12-13 days in her matrimonial home and then come to her home. She used to tell him that her husband Ramveer neither used to eat food prepared by her nor allowed her to clean his clothes, and used to say that you are dark complexioned, lean & thin, and that he will not keep Kamla. Kamla had come to my house with her brother-in-law Surendra. Ramveer had said that you have come with brother-in-law, so you live with him, and that he will not keep you, and will shoot you someday. After the marriage, Ramveer had taken Kamla from his home on just two occasions. On the fourth occasion as well, when this incident took place, Kamla had been taken from his home by brother-in-law. When Kamla was going, she was saying that may be I am killed over there. Kamla used to tell all these facts to her. She used to swear her not to tell these facts to anyone. Thereafter, she was killed.
30. P.W. 7 Nain Singh is the brother of the deceased. He is the witness of the conspiracy and has solemnly stated that his sister was named Kamla. She was married to Ramveer. After the marriage, the accused used to harass his sister. Ramveer used to harass her by terming her to be dark complexion and lean & thin, and the parents-in-law of her sister used to taunt her for bringing less dowry. Ramveer had threatened that either he will kill her you or will get you killed. On the day of incident, Kamla was at his home. Kamla's brother-in-law Surendra had taken Kamla from his house around half-past three to 4 'o' clock in the evening by scooter, and about half an hour thereafter, information was received at his home that Kamla had been killed. His father immediately reached the spot. He saw that Kamla's body was lying in Qasim Ali's sugarcane field near the road from Falawada to Batnaur. Jewellery was missing from her body, and a locked suitcase containing clothes, cash & watch was lying near her. His sister Kamla was killed under conspiracy by Ramveer, Surendra, Om Prakash @ Mallu in association with two other accomplices, Rajveer & Pappu. Whenever his sister used to come home, she used to tell about the misbehaviour towards her. His father had got the report of this incident written by him by dictating it. He dictated and he wrote. This report is in his handwriting & signature. It also bears the signature of his father is marked as Ext.KA-16.
31. After conclusion of the prosecution evidence and recording of the statements recorded under Section 313 Cr.P.C. Defence witnesses were examined.
32. D.W.-1,Zamir in the defence witness examined by the appellant.
In the year 1993, he was the Pradhan of Mahal village. Hoshiyar Singh (Harijan) and Vijaipal Saini had contested election against me. He know the accused. viz.Ramveer, Surendra & their father Mallu. Mallu has died. He had heard that Ramveer's wife Kamla had been murdered, whose information was received in his village Mahal. He and many other persons of Mahal village had gone to P.S.-Falawada. Panchayat was held in Mahal village in connection with this incident, in which deceased Kamla's father Baldev Singh r/o. Phalawada, had participated; people of Mahal, Bhagwanpur, Jamalpur & other villages had attended this panchayat. The dowry given by Baldev Singh, bride's father, to the accused, was got returned to him. This panchayat was held at the residence of Deputy Pradhan, Ram Prasad r/o. Mahal. The decision of these panchas was written down by Dharm Singh Marked as Exbt Kha-1. Baldev Singh & the people having come alongwith him from Falawada, were returned their dowry items given to the bride, and they took them away.
33. D.W.-2 , Veer Singh has stated on oath- that he was the Pradhan of Village-Bhagwanpur, P.S.-Inchauli in the year 93. I know Om Prakash @ Mallu and his sons, Surendra & Ramveer, the accused present in Court.
Om Prakash @ Mallu has died. Accused Ramveer was married to Kamla, daughter of Baldev Singh of Falawada. A panchayat was held in Mahal village at the residence of Ram Prasad, Deputy Pradhan for return of her dowry items, which was attended by the Pradhan of Mahal village, people of nearby villages also. The dowry items of girl Kamla had been returned by the accused to girl's father Baldev Singh and prepared Panchayatnama Exbt. Kha-1.
34. So on perusing and appreciation of the evidence of the defence witnesses it transpires that the evidence of these defence witnesses is no use for appellant except the dowry items received by appellant-accused, Ramveer and his family returned to the first informant family.
35. In this appeal charge was framed against Om Prakash and Ramveer under Section 120-B I.P.C. on 28.6.1996. Om Prakash is the father in law of the deceased and his death occurred during the trial. So against him the case is already abated. Ramveer is the husband of the deceased, Kamla. Now question arises that whether prosecution is able to prove the conspiracy against Ramveer to prove the charge under Section 120-B I.P.C. against Ramveer.
36. In this regard learned A.G.A. contended that the contents of conspiracy against the family of in laws is mentioned in the F.I.R. He submitted that in F.I.R. it is clearly mentioned that the First Informant has full confidence that behind the murder of Kamla there is conspiracy of husband Ramveer, brother-in-law,Surendra and other in law's family member because she is not beautiful and she was lean and thin. Her in laws does not want to eat food cooked by Kamla. She was also threatened by her in laws to kill her. This fact about to establish the conspiracy against Ramveer. Prosecution examined Smt. Santri Devi, P.W.-6 and Nayan Singh, P.W.-7. On perusal of statements of Santri Devi in which she deposed that at the time of departure from matrimonial home on the forth occasion when the Surendra had come to take away Kamla from her matrimonial house she told him and in her statement deceased also stated that it may be possible that I may be killed over there. She had also stated these facts to P.W.-6 in her cross examination it has been stated when Surender was going to take her, she was not present in her laws house situated at Phalawada . Previously deceased often told about the cruelty and torture of her in law's family On perusal of statement of P.W.-7, Nayan had stated that accused, Ramveer, Surendra and Om Prakash committed murder of Kamla with two other companion Rajveer and Pappu by doing conspiracy. Now the question arises that finding regarding conspiracy has been produced by prosecution is whether clearly established or not. In other word whether prosecution is able to prove conspiracy against Ramveer and other family member of the deceased in laws.
37. Conspiracy has been defined in the Section 120-A and Punishment is desired under Section 120-B I.P.C.. The provisions of Section 120-A and 120-B reads thus:-Section 120A of Indian Penal Code. "Definition of Criminal Conspiracy" When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.Section 120B of Indian Penal Code. "Punishment for Criminal Conspiracy" ) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
38. In Rajeev Kumar Vs. State of U.P. (2017) 8 SCC 791 it was held that (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy.
39. In Firozuddin Basheeruddin & Ors vs State Of Kerala 2001 SCC Criminal Page 1341 it has been held that "the conspirator invariably deliberately, plan and act in secret over a period of time. It is not necessary that each one of them must have actively participated in the commission of the offence or was involved in it from start to finish. What is important is that they were involved in the conspiracy or in other words, there is a combination by agreement, which may be express or implied and in part implied.
40. In another case of Hon'ble Supreme Court in State of Maharastra Vs. Somnath Thapa and others (1996) 4 SCC 659 " for a person to conspire with another, he must have knowledge of what the co-conspirators were wanting to achieve and thereafter having the intent to further illegal act take recourse to course of conduct to achieve the illegal end or facilitate its accomplishments."
41. In Subramanian Swamy v. A. Raja, (2012) 9 SCC 257 it was held that Suspicion, however, strong, cannot take the place of legal proof and the the existence of meeting between the accused persons is not by itself sufficient to infer the existence of criminal conspiracy.
42. In criminal Conspiracy standard of proof is the same as that of any other criminal offence that is beyond reasonable doubt that must be met by prosecution.Although in this case there is no direct evidence regarding conspiracy of appellant Ramveer but in this case circumstance against Ramveer which clearly show their involvement.On perusing the Tahiri report in which it is clearly mentioned that Ramveer, Surendra and other family members of the in-laws conducted conspiracy of murder of Kamla because she was not beautiful and having no fair complexion as well as she was lean and thin. Appellant Ramveer never came to the house of the deceased matrimonial house after marriage with deceased Kamla. He hated Kamla since marriage and in-laws does not want to eat food cooked by Kamla and earlier she was also threatened by family members of in-laws that they will kill her. Conspiracy for murder of deceased Kamla is also determined by the conduct of the accused. One of the circumstance against the Ramveer is that if he was innocent then, in what circumstances,FIR was not lodged by the husband of deceased Kamla.
43. Appellant Ramveer was the husband of the deceased but after knowledge of the incident he never bothered to go to the place of occurrence where dead body of Kamla was lying. After this incident Ramveer was fled away from his house and his conduct is relevant under Section 8 of the Evidence Act, which clearly shows his involvement in the murder of the deceased. Accused was also not present when inquest report was prepared. Ramveer was remain absent during last ritual of his wife. Accused Ramveer was arrested by police on 12.8.1993.PW-6 and PW-7 is also the witness of conspiracy that last time deceased had stayed for 12-13 days in her matrimonial home and tell to PW-6 that Ramveer neither used to eat food prepared by deceased nor allowed her to clean cloths and used to say that you are not beautiful and you have a dark complexion and you are lean and thin and he always threatened to kill her. On perusing the statement of PW-6 Santri Devi and PW-7 Naian Singh the husband of the deceased Ramveer has plotted a conspiracy to carry out the murder of the deceased with his brother Surendra and to send his brother to bring his wife from her matrimonial home. In this case the death of the deceased occurred within three months from the date of her marriage in unnatural and unbelievable circumstances. So the prosecution is able to prove the circumstances against the appellant to commit conspiracy for murder of his wife. Prosecution is able to prove the charge against Ramveer (Rambir) u/s 120B IPC. So for in respect of Rambir his appeal u/s 120B IPC is dismissed and affirmed the judgment of Sessions court.
44. In this appeal the accused appellant Surendra was charged under Section 302/34 IPC and convicted by Sessions Court against aforesaid. Now the question arises that the conviction of accused is justified or not. Following fact is undisputed that the marriage between deceased and appellant Ramveer was solemnized on 13.5.1993. This fact is also undisputed that appellant Surendra gone to sister-in-law's parental home to bring her back to his village by scooter on 8.8.1993 at 4:30 PM. This fact is also admitted by both parties that when, scooter was reached between Phalawada and Bathnor Kamla was murdered by gun shot injury near agriculture field of Quasim ali and jewelry worn by deceased was looted and it is also undisputed fact that locked suitcase of deceased found near the place of occurrence. This fact is also undisputed that no mark of injury found on the body of the accused Surendra.
45. This fact is also undisputed that death of the Kamla occurred in presence of accused Surendra. In other words, we may say that death of the deceased occurred when he was accompanied with accused Surendra. No direct evidence is available regarding the murder of the deceased. This appeal is totally based on circumstantial evidence, as there exists no eye witness to the occurrence.
46. Learned counsel for the appellant contended that no direct evidence produced by prosecution although PW 1 and PW 2 produced by prosecution but in his statement he clearly denied that they are the eyewitness of occurrence of murder but both of them deposed that when he reached the place of occurrence they saw the dead body of deceased Kamla, was lying in field of Quasim Ali. So this is the case solely based on circumstantial evidence.
47. So it is not in dispute that the case against the appellant rests on circumstantial evidence and, therefore, before adverting to the prosecution evidence against the appellant it would be advantageous to recall to the memory, law relating to appreciation of evidence in a case based on circumstantial evidence.
48. The evidence tendered in a court of law is either direct or circumstantial. Evidence is said to be direct if it consists of an eye-witness account of the facts in issue in a criminal case. On the other hand, circumstantial evidence is evidence of relevant facts from which, one can, by process of intuitive reasoning, infer about the existence of facts in issue. In dealing with circumstantial evidence there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion, however, strong cannot be allowed to take place of proof and, therefore, the Court has to be watchful and ensure that conjectures and suspicions do not take place of legal proof. Human agency may be faulty in expressing picturisation of actual incident, but the circumstances cannot fail. Therefore, many a times it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually.
49. In case of circumstantial evidence, chain of circumstance must be linked with each other. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. 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.
50. In Padala Veera Reddy v. State of A.P. And Ors.;AIR 1990 SC 79, it was laid down that 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 be consistent with the guilt of the accused but should be inconsistent with his innocence.
51. These are circumstances against the accused that one of the circumstances is that the deceased was returning from home by scooter along with accused, Surendra when the murder of the deceased occurred then only Surendra was present there. So, the accused and deceased was last seen together. There is no time gap between the last seen together but at the time of death of the deceased accused was within the custody of the appellants.
52. In the case of State of Goa Vs. Pandurang Mohite A.I.R. 2009 it was held that Circumstances of "last seen together" do not by themselves and necessarily lead to the inference that it was accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. The time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.
53. The last seen theory comes into place where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased was found dead is so small that possibility of any person other than accused being author of the crime becomes impossible. It would be difficult in some cases to establish that the deceased was last seen with the accused when there is long time gap and other possibility of other persons coming in between accused only absence of positive evidence to conclude that the accused and the deceased were last seen together. It would be hazardous to comes to the conclusion on the guilt in those cases.
54. Prosecution is fully established his case that at the time of the death deceased and Surendra was present on the spot. Defence is taken on behalf of the appellants that some two unknown persons pointed country made pistol and stopped the scooter and shot her Bhabhi Kamla in the sugar cane field and her suit case, jwellery worn by her was looted away. Kamla was died on the spot and he immediately given information of the incident to the father of the deceased, Baldev Singh but this fact is not proved by any such evidence adduced by accused. Appellant Surendra is only eye-witness account of this murder but the statement given by the Surendra is not believable because he has not any injury, even single abrasion was not found on the body of the Surendra. Last seen theory propounded by the appellant, Surendra is wholly concocted and false because if loot has actually happened then suit case with watch, money and cloth would also be looted. Here it is also pertinent to mention that only hasli and ear rings worn by deceased were missing but other jewellery was found on the deceased body. Appellant takes defence that two unknown miscreants in order to facilitate the robbery commit murder of deceased. So in what circumstances appellants never tried to file any F.I.R. against the two miscreants, is not explained by the appellant. Although appellant-accused take the defence that he informed this incident to Baldev, father of the deceased but this fact is not proved by the appellant. After this incident he was fleeing away from the spot. Neither appellant nor his brother was present during the inquest report or at the time of last rituals of the deceased.
55. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. so it is bounden duty of the appellant to prove this fact that how the death of the deceased occurred. So all the circumstances pointed out the guilt of the accused and it is pre-plannned murder by the appellant. So the appellant Surendra has rightly been convicted by sessions against the charge levelled on him. Hence appeal against the Surendra is dismissed.
56. So far as in CRIMINAL APPEAL No. - 447 of 2009 appellants accused, Rajveer and Shiv Kumar @ Pappu, who were convicted by the trial court under Section 394 and 302 I.P.C., it is stated that to prove this fact prosecution examined P.W.-1, Dhan Singh and P.W.-2, Karamveer. Dhan Singh in his statement has clearly stated that when he was coming to her native village Phalawda by cycle from Mahalaka about 5:15 p.m. and when he reached near the filed of Quasim Ali he heard the sound of firing and at that time Ghasita, a resident of his village was shouting and when Dhan Singh proceeded towards the sound of firing then he along with Harchanda and Karamveer went to the direction near the dead body, where Karamveer and Shiv Kumar @ Pappu were taking off the jewellery of Kamla and at that time Kamla was lying dead. They chased the accused Rajveer and Shiv Kumar but both fled away through the field. For these accused-appellants P.W.-2 has also corroborated the evidence of P.W.-1 and has stated that when he reached at the spot, he saw the Kamla dead body was lying on the field of Quasim. So on the perusal of the statements of P.W.-1 and P.W.-2 it appears that they never stated that Rajveer and Shiv Kumar @ Pappu committed the murder of Kamla. They saw the accused appellant when they were taking off the jewellery from the dead body of Kamla. They were taking off the jewellery of neck and ear of the dead body. First of all this question arises whether the witnesses have seen the occurrence or not.
57. P.W. 1, Dhan Singh has clearly stated that when after chasing he returned to the spot at that time father of the deceased Baldev Singh was also present at the spot. P.W.-1 and P.W.-2 have stated that the name of the accused-appellants and all facts were narrated to father of deceased. But name of the accused appellant was not mentioned in the F.I.R. Exbt KA-4. Name of the accused-appellants Rajveer and Shiv Kumar @ Pappu came into light after the statement of so called eye-witness. Statement of P.W.-1 was recorded by P.W.-4 on 28.8.1993. After the statement recorded by Investigating Officer name of appellant, Rajveer and Shiv Kumar @ Pappu came into light.
58. Learned counsel for the appellant-accused contended that witnesses is the residents of Village Phalawda but the accused appellant are residents of Mahal. Distance between Mahal and Falauda is about 20 kms. There is no reason to identify the appellant by witnesses P.W.-1 and P.W.-2, as there is no occasion that they can know the accused-appellants Rajveer and Shiv Kumar @ Pappu. Learned counsel for the appellant has specifically submitted that P.W.-1 and P.W-2 are chance witnesses whose presence at the place of occurrence was not natural. The defining attribute of chance witness were explained by Hon'ble Mr. Mahajan in the case of Puran, S/O Sri Ram vs The State Of Punjab AIR 1953 SC 459 it was held that Such witnesses have the habit of appearing suddenly on the scene when something is happening and then of disappearing after noticing the occurrence about which they are called later on to give evidence. Mousam Singha Roy & Ors vs State Of West Bengal (2003) 12 SCC 377 Hon'ble Apex Court discarded the evidence of chance witnesses while observing that the omission of their names in the FIR is not fatal because all details need not be mentioned in the FIR. Thus certain glaring contradictions/omissions in the evidence of PWs.2 and 3 and the absence of their names in the FIR has been very lightly discarded by the courts below. Shankarlal vs. State of Rajasthan reported in (2004)10 SCC 632 and Jarnail Singh & Ors. Vs. State of Punjab 2009 (9) SCC 719 it was held that if the presence of the chance witness is doubtful at the time of occurrence, the their evidence can be discarded.
59. In Harbeer Singh Vs. Sheesh Pal and others in CRIMINAL APPEAL NOS.1624-1625 OF 2013 Hon'ble Supreme Court has held that It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
Thus in view of this case, it is clear that statements of the witnesses P.W.-1 and P.W.-2 regarding involvement of the above appellants were recorded after 20 days of the incident. It is well settled law that only on the basis of the delay in recording the statements of the witnesses it cannot be said that statement is not reliable and only on the basis of delay the statements it cannot said that statements are incredible for the declaration of the incredibility the court must explain their satisfaction in this regard. However in Ganesh Bhavan Patel & Anr vs State Of Maharashtra,1979 AIR 135, 1979 SCR (2) 94 in which it has been held that inordinate delay of several hours on the part of the police in recording the statement which was treated as F.I.R. and further undue delay in recording the statements of the alleged eye-witnesses by the investigating officer, and no credible explanation of these delays was forthcoming. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements were recorded on the following day.
60. In the case of Shahid Khan Vs. State of Rajasthan [2016 (2) JIC 1 (SC)] Hon'ble Supreme Court has held that statements of witnesses and delay in recording the statement by the Investigating Officer casts a serious doubt about their being eye-witness to the occurrence and it may suggest that the Investigating Officer was deliberately marking time with a view to decide about shape to be given to the case and eye-witnesses to be introduced. It was, therefore, held in this case that it unsafe to rely upon this evidence only to base of conviction. In this it is clear that P.W. 1 and P.W.-2 are chance witnesses only. If the P.W. -1 and P.W-2 were present at the spot of occurrence and they saw the occurrence then involvement of Shiv Kumar and Rajveer must be reflected in the F.I.R. because when P.W.-1 returned at the spot after chasing the accused at that time the first informant Baldev Singh was present and P.W.-1 narrated all the incident to Baldev Singh. On the perusal of the statements of P.W.-1 and P.W-2 it is crystal clear that theses statement does not inspire confidence and therefore, no reliance can be placed on these witnesses. Inordinate delay of recording the statements of P.W.-1 and P.W.-2 castes serious doubt about the prosecution story. If we accept the whole evidence and it is presumed that statements of P.W. -1 and P.W.-2 is true then only offence under Section 404 I.P.C. is made out against the appellants Rajveer and Shiv Kumar @ Pappu. But in this Sessions Trial they have not been charged under Section 404 I.P.C. The prosecution have failed to prove this case beyond all reasonable doubt against the accused-appellants Rajveer and Shiv Kumar @ Pappu and therefore, they are liable to get the benefit of doubt and they have been acquitted from the charge levelled against them under Section 302 and 394 I.P.C. The accused/appellants shall be set at liberty provided that they are not required in any other cases. The CRIMINAL APPEAL No. - 447 of 2009 is, accordingly, allowed. The order of conviction of appellants Rajveer and Shiv Kumar @ Pappu is set aside.
61. As the discussed above, appellant Rambir and Surendra have been rightly convicted and therefore, the CRIMINAL APPEAL No. - 346 of 2009 is dismissed and the conviction order of the appellants, Rambir and Surendra is confirmed
62. A copy of this order be communicated to the court below for necessary compliance..
Order Date: 12 .3.2019..
A.Pt. Singh..