Allahabad High Court
Smt. Nanhi Devi And Another vs State Of U.P. on 29 April, 2022
Bench: Sunita Agarwal, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 15.2.2022 Delivered on 29.4.2022 AFR Court No. - 46 Case :- CRIMINAL APPEAL No. - 3254 of 2005 Appellant :- Smt. Nanhi Devi And Another Respondent :- State of U.P. Counsel for Appellant :- Subodh Kumar,I.H. Ansari,Udit Chandra Counsel for Respondent :- Govt. Advocate,Anurag Sharma (A.C.) Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Justice Sunita Agarwal)
1. At the outset, it may be noted that this appeal has been argued only on behalf of appellant no. 2 Lalta Prasad son of Tara Chand as appellant no. 1 Nanhi Devi has been granted remission by the State Government and no one appears on her behalf to argue the appeal.
As the appellant no. 2 was not represented by a counsel, Sri Anurag Sharma learned Advocate has been appointed as Amicus Curiae to assist the Court. The order dated 13.1.2022 of appointment of Amicus has been intimated to the appellant no. 2 Lalta Prasad who is presently lodged in the Central Jail, Bareilly. The report of the Senior Superintendent, Central Jail, Bareilly in this regard has been received through the CJM, Pilibhit.
Heard Sri Anurag Sharma learned Amicus Curiae for the appellant no. 2 and Sri Rupak Chaubey learned A.G.A for the State respondents.
2. This appeal is directed against the judgment and order dated 19.7.2005 passed by the Additional Sessions Judge, Court No. 3, District Pilibhit in the Sessions Trial No. 537 of 2001, wherein two accused persons namely Nanhi Devi and Lalta Prasad were convicted of the offence under Section 302 readwith Section 34 IPC and sentenced for life imprisonment with fine of Rs. 10,000/- each, as also under Section 201 IPC for rigorous imprisonment of one year with fine of Rs. 1000/- each. The default punishment was three months additional simple imprisonment for each accused. All the punishments are to run concurrently.
3. According to the prosecution story, a report in writing was submitted by the Gram Pradhan, Village Karnapur, on 31.7.2001 at about 9:30 AM, that a resident of the said village namely Taule Ram son of Totaram had committed suicide by tying a knot in his neck and postmortem of his body be conducted to make further enquiry. The said report marked as Exhibit Ka-1 had been proved by PW-1, Gram Pradhan being in his handwriting and signature.
Another report was entered in the Case Diary by the Investigating Officer, the Sub-Inspector posted in Thana Barkhera, District Pilibhit, which was allegedly received by him at the spot of the crime during the course of investigation. This report had been proved to be given by PW-2 Natthu Lal son of Lalaram and is marked as Exhibit Ka-2 bearing signature of the said witness. PW-2 stated that the said report was written by the Gram Pradhan on his dictation and after writing the same the report was read over to him and then he put his signature. As per the said report, deceased Taule Ram son of Totaram was cousin of the first informant Natthu Lal (PW-2). Nanhi Devi wife of Taule Ram was having illicit relationship with Lalta Prasad son of Tara Chand resident of the same village who used to frequently visit the house of Taule Ram. On account of their relationship, Lalta Prasad and Nanhi Devi had killed Taule Ram in the intervening night of 30/31.7.2001 by strangulation and his body was then hanged on the roof in the Khaprail by a rope. All the facts narrated therein were disclosed by Roop Lal son of deceased Taule Ram to the first informant Natthu Lal (PW-2) and his family members.
4. The record indicates that the report (Exhibit Ka-2) was stated to have received by the Investigating Officer at the spot and he proceeded to make investigation of the crime without registration of the first information report, i.e. preparation of the Check report and GD entry. The Case Diary indicates that the said report was entered in the Case Diary on the spot and it was noted by the Investigating Officer in the case diary itself that after making entry, he was proceeding with the investigation and would register the report on reaching the police station. It is an admitted fact that the report (Exhibit Ka-2) was registered as a first information report of the crime on the next day, i.e. on 1.8.2001 at about 6:30 AM, after the Investigating Officer returned to the police station, entry of which was made at GD No. 11. This report was mentioned as a supplementary report given by Natthu Lal son of Lalaram during investigation, in his deposition as PW-11, by the Investigating Officer. PW-11 has deposed that he had kept the said report in the Case Diary and, thereafter, proceeded to record the statement of the first informant Natthu Lal (PW-2) and eye-witness Roop Lal son of deceased. The Investigating Officer in his statement in the examination-in-chief submitted that he had prepared the site plan on the pointing out of Roop Lal. The inquest had commenced at about 11:00 AM and completed by 12:00 (noon). As per the entry in the Case Diary, the report (Exhibit Ka-2) was entered in the Case Diary while proceeding to record the statement of Natthu Lal (PW-2) at about 12:30 PM. The inquest report indicates that panch witnesses though were satisfied that the death was caused due to hanging but opined that the postmortem be conducted to find out the actual cause of death. The inquest report also records that there was a lot of crowd when the officer reached the spot and the family members of deceased were wailing inconsolably. The inquest writer had expressed his opinion that the case of suicide seemed doubtful. The inquest report had been proved as Exhibit Ka-8 being in the handwriting and signature of PW-11, the Investigating Officer.
5. Exhibit Ka-4 is the recovery memo of a plastic rope wherein noose of two meters was found in the neck of the deceased and knot at the other end was found wherein a red Chunri cloth was stuck. This recovery memo had been proved by PW-11 who deposed that after recording the statement of Panch witnesses and other witnesses present on the spot including the Gram Pradhan Ram Autar, the body was sealed and sent for the postmortem. The case was registered as Case Crime No. 275 of 2001 under Sections 302 and 201 IPC against Lalta Prasad and Nanhi Devi at Rapat No. 11 at about 6:30 AM on 1.8.2001 in the General Diary and the same was copied in the Case Diary. PW-11 stated, in cross, that he had received information of suicide in the police station and did not record the statement of Ram Autar, Gram Pradhan at that point of time rather the statement of this witness was recorded at the spot. It is also admitted by PW-11 that till the inquest was completed, which took about one hour, no report was given by Natthu Lal and the report (Exhibit Ka-2) was handed over to him at about 12:10 PM and after copying the same in the Case Diary, the statements of Natthu Lal and Ram Autar were recorded. The postmortem was conducted on 31.7.2001 itself by 4:30 PM. The cause of death reported therein was asphyxia as a result of strangulation. The ante-mortem injuries found on the person of the deceased had been proved by the doctor PW-9.
On external examination, the condition of the body as noted in the postmortem report was:-
"Male body of average built muscular.................Rigor Mortis passed off, from all the four limbs. Body swollen, superficial skin peeled off from several places of body, foul smell present. Eye closed. Mouth open with Tongue protruding out"
The external and internal injuries as described in the postmortem report are:-
"(1) Ligature mark 28cm. long & 1 cm wide present horizontally around upper part of neck. Present all around except on left side back of neck & just behind left ear. It is 6cm. below chin, 4cm. below left ear and 4cm. below Right ear lobule. The ligature mark is like a groove, base of which is pale & margins are congested. There are multiple abrasion on the margins of the groove & area just below the ligature mark on front aspect of neck."
In the report, it has come up that Hyoid bone was fractured at the junction of left greater cornu with its body.
The postmortem report had been proved to be in the handwriting and signatures of PW-9 as Exhibit Ka-6.
6. As per the statement of the doctor in the examination-in-chief, the proximate time of death could be the intervening night of 30/31.7.2001. He, however, stated that there may be difference of four hours on both sides in the estimated period from death. As to the condition of the dead body as reported in the postmortem report, in cross, it was stated by the doctor that he had received the body with the police papers on 31.7.2001 at about 2:30 PM and started postmortem at about 4:30 PM. The rigor mortis normally passed on in 1½ days in the month of July, i.e. in the summer and rainy months. The ligature mark was not found present at the left side of the neck and it was not present at the back side as well. The injury on the neck was in the shape of a groove which could not be caused by Lathi but by a rope, however, on strangulation by Lathi, if the rope is tied, the mark of rope would be superimposed on the mark of Lathi. It was admitted, as indicated in the postmortem report that putrefaction of the body was started as the superficial skin was peeled off from several places. On a suggestion, PW-9 stated that the said situation could appear within 1½ day to 2 days and the death may have been caused in the intervening night of 29/30.7.2001. PW-9, the doctor, however, refuted the suggestion that the death was caused due to hanging and not by strangulation through Lathi.
7. The recovery of Lathi, the alleged murder weapon, was made from the house of the appellant Lalta Prasad. Two persons namely Devaki Nandan and Baburam had been made witnesses of the recovery of Lathi. Exhibit Ka-5, the recovery memo of Lathi was proved by PW-12, the second Investigating Officer, who had arrested appellant Lalta Prasad on 8.8.2001. The charge sheet submitted by PW-12 had been proved as Exhibit Ka-10 in his handwriting and signature. From the statement of PW-12, it is evident that the arrest of Nanhi Devi, the co-accused was made on 5.8.2001 from the house of Hetram located in another village and her statement was recorded in the police station. A perusal of the Case Diary further indicates that Nanhi Devi was found in her paternal house (Maika) and Hetram was his brother whereas the appellant Lalta Prasad was arrested from the Bus stand in the village. A recovery memo Exhibit Ka-3 of recovery of 'Dibbi' kerosene dated 14.8.2001 had been proved being in the handwriting and signature of PW-12 and the witnesses of the recovery were Natthu Lal, Kali Charan and Keshari Lal. The Exhibit Ka-3 also bears left thumb impression of child witness Roop Lal as it was stated to have been handed over to the officer by the child.
8. Amongst the witnesses of fact, PW-1 Ram Autar, the Gram Pradhan had proved the written report given by him as Exhibit Ka-1, noted above, and also proved that the Exhibit Ka-2 was the report scribed by him on the dictation of Natthu Lal (PW-2) after the child witness Roop Lal had narrated the whole story to them. This witness had not been cross-examined by the defence. PW-2 Natthu Lal proved that he was related to the deceased and stated that appellant Lalta Prasad was having illicit relationship with the wife of Taule Ram and on the date of the incident he had seen deceased Taule Ram in good condition. However, on the next morning, wife of the deceased was crying in the house that her husband had committed suicide but later on the child Roop Lal son of the deceased had disclosed that it was a murder committed by Lalta and Nanhi Devi (wife of the deceased). The story narrated by the child witness has been extracted in the examination-in-chief by PW-2 who stated that whatever was disclosed to him by Roop Lal was written in the report Exhibit Ka-2. This witness (PW-2) was also not cross-examined by the defence.
9. PW-3 Kalicharan who is also a witness of the recovery memo (Exhibit Ka-3) the source of light (a dibbi of kerosene oil), stated in his examination-in-chief that on the fateful night at about 9:00 PM, he alongwith Komil Prasad son of Bheem Sen and Devaki Nandan was standing outside his house in the village and while they were talking they saw the appellant Lalta entering into the house of deceased Taule Ram carrying Lathi. Next day, he came to know that Taule Ram had died and his wife was screaming that her husband had committed suicide by hanging himself. Later, the son of the deceased namely Roop Lal had disclosed the murder committed by Lalta Prasad and Nanhi Devi. This witness had also proved his signature on the recovery memo Exhibit Ka-3. The dibbi of kerosene oil had been marked as Material Exhibit-1 at the instance of this witness. In cross, PW-3 stated that the house of Komil and his house were adjacent whereas the house of Devaki Nandan was about 4-5 meters towards the East. The house of Lalta Prasad was located at the eastern side and while coming to the house of deceased Taule Ram from the East, his house (i.e. of PW-3) would fall in between. PW-3 had admitted that there was no source of light where they were standing but asserted that it was a bright night and they could easily identify any passerby. PW-3, in cross, further stated that he was not on talking terms with Taule Ram and he did not use to go to his house and he was not on the talking terms with the appellant Lalta Prasad nor he had ever gone to his house as well. He stated that the appellant Lalta Prasad used to go to the house of deceased Taule Ram. On a suggestion given to this witness, he had admitted that in the village people used to carry Lathi in a routine manner. On another suggestion given to PW-3, he admitted that he had good terms with Natthu Lal, the first informant and Natthu Lal (PW-2) was an influential person in the village. On another suggestion of relationship of appellant Lalta Prasad and Nanhi Devi, PW-3 stated that since Lalta Prasad used to go to the house of Nanhi Devi, and the same according to him, was an indication of their illicit relationship. The house of Natthu Lal was located at a distance of about 4-5 meters towards the South of the house of deceased Taule Ram. It has come up in the cross-examination of this witness that the child Roop Lal was residing with Natthu Lal (PW-2) since after the incident and the entire landed property of deceased Taule Ram was in possession of Natthu Lal who was also keeping all the proceeds of the crop with him and that the deceased was having approximately 11 bighas of land. On a suggestion of enmity with appellant Lalta Prasad, this witness had categorically denied the same. He had also denied that he was giving statement under the influence of Natthu Lal.
10. PW-4 Chhotelal had proved his signature on the recovery memo of the plastic rope Exhibit Ka-4 and stated that the body of deceased Taule Ram was found hanging by the said rope and the knees of the dead body were touching the floor. This witness had also identified the rope seized by the Investigating Officer marked as Material Exhibit-2. In cross, this witness stated that the Investigating Officer had left the village at about 12:00-1:00 PM after the postmortem of the body was conducted.
11. PW-5 Komil Prasad reiterated the version of PW-3 Kalicharan of having seen the appellant Lalta Prasad entering inside the house of deceased Taule Ram and stated that it was a moonlit night. This witness admitted, in cross, that he used to go to the house of Taule Ram but had never seen Lalta Prasad and Nanhi Devi in any objectionable state. This witness stated that they had seen Lalta entering inside the house of the deceased Taule Ram while he and Kalicharan were standing near the house of Devaki Nandan and they kept talking while standing at the same place for about two hours. Lalta came from the side of his house which was at the East. This witness (PW-5) stated that the police had interrogated him on the next day of recovery of the dead body and he was called in the police station. The appellant Lalta was doing labour work and the suggestion of enmity of PW-5 with Lalta was denied by him.
12. Devaki Nandan (PW-6) had entered in the witness-box as a witness of recovery of Lathi, proved his signature on the recovery memo Exhibit Ka-5. the Lathi was identified by him and marked as Material Exhibit-3. PW-6, in his deposition, did not say anything about having seen appellant Lalta entering into the house of deceased Taule Ram on the fateful night though he was standing with other two witnesses namely Kalicharan (PW-3) and Komil Prasad (PW-5) as stated by them.
13. PW-8 is a witness named as Gulabi son of Ugrasen who stated on oath that he knew appellant Lalta Prasad and Nanhi Devi who were residents of the same village. The deceased Taule Ram was husband of Nanhi Devi. On the fateful night, at about 11:00 PM, while he alongwith one Jhhabbu Lal was coming back from their field, as soon as they reached in front of the house of the deceased, they witnessed Lalta coming out of the house of the deceased carrying Lathi in his hand. The appellant Lalta was shaken and tying a shirt in his head while coming out of the house of Taule Ram and went towards his house. Next day, Taule Ram was found dead and later his son Roop Lal narrated the whole story of murder. In cross, this witness gave the reason of him crossing the house of Taule Ram (deceased) and stated that his house was located near the house of Taule Ram. An observation is noted at the end of the cross-examination of this witness that on a suggestion given to this witness instead of giving an answer he kept mum, though he had denied the suggestion of making a false deposition on the instructions of Natthu Lal.
14. PW-7 is the child witness. His statement was recorded by the Court after recording satisfaction that he understood the questions well and was in a position to give answers to the same. PW-7 Roop Lal stated that deceased Taule Ram was his father. On the fateful night, he was sleeping at the roof of his house in a cot alongwith his sister Brijmati. His mother, one brother Anil and another sister Dayawati were also sleeping nearby. A dibbi was lit up. His father Taule Ram was sleeping in the room on the roof. His mother had cooked 'Khichdi' in the evening and they all ate it and slept. His father and mother had a fight three days prior to the incident and his father had beaten his mother and as such they were not on talking terms. On the fateful night, his father did not have food. After sometime, accused Lalta came on the roof while PW-7 was awake. Lalta told his father to come down with him to take woods and took his father downstairs. His mother Nanhi Devi also went behind them and PW-7 followed all of them. One dibbi was lit up at the ground floor. The appellant Lalta dragged his father in a room and threw him on the floor and then strangulated him by Lathi while sitting over his father. His mother Nanhi Devi was catching hold the legs of his father. PW-7 stated that he tried to save his father and confronted Lalta who slapped and threatened him that he would also be killed. His father then died. At that point of time, his father (deceased) was wearing a shirt and Bermuda. Then his mother changed the clothes of his father and made the dead body wear black pant and red shirt. Lalta then carried the deceased to the roof through the stairs, he and his mother both also went upstairs. His mother then gave a rope to Lalta by which their goat was being tied. Lalta then hanged his father through the rope in the Khaprail. Both the accused persons namely his mother Nanhi and Lalta, thereafter, went downstairs. PW-7 states that he, thereafter, slept and in the morning, his mother was crying that his father had committed suicide. PW-7 stated that all the above stated facts were disclosed by him to his uncle (Tau) Natthu Lal, Devaki Nandan and Ram Dayal. In cross, PW-7 stated that he came to the Court for deposition with his uncle Natthu Lal and on each date fixed, he came with him. He was studying in class IV and since after the death of his father, he was residing with his uncle Natthu Lal. PW-7 also admitted, in cross, that his father had two fields and both were in the possession of his uncle Natthu Lal who was also keeping the proceeds of the crop. A suggestion was given to this witness that he was under the control of his uncle Natthu Lal which had been denied categorically.
PW-7 stated, in cross, that on the next morning, his mother woken him up but he could not tell the time when he got up. He then stated that on the fateful day, he ate 'roti' and slept when there was a little dark. When in the morning, his mother woke him up, he saw that the dead body of his father was hanging and his mother was crying. Amongst all his siblings, PW-7 was the eldest. PW-7 had denied the suggestion that his father was taking any intoxicating substance but stated on his own that his father used to remain out of the house frequently for about two-two months. He lastly stated that the entire story was narrated by him on his own and the police personnel did not ask him to make any statement. PW-7 had denied the suggestion of false deposition made at the instance of his uncle Natthu Lal and that he did not witness anything.
15. Placing the statements of all the prosecution witnesses and the documentary evidence, it is argued by the learned Amicus that the star witness of the prosecution is a child witness namely PW-7 whose testimony is not trustworthy. The fact that the child witness was in the custody of PW-2/Natthu Lal, a relative of the deceased, shows that he was a tutored witness. This fact is further evident from the contradictions and improvements in the testimony of the child witness. PW-2 is the beneficiary of the situation as there was no one in the family of the deceased as is evident from the statement of the Gram Pradhan. After the incident, PW-2 got possession of the land owned by the deceased and was keeping the proceeds thereof. Other three children of the deceased had become orphan and no arrangement has been made by PW-2 for securing the future of the children of the deceased. The story brought by the prosecution of strangulation by appellant Lalta by Lathi is concocted one, inasmuch as, apart from the recovery of Lathi from the house of the appellant Lalta, there is no evidence to point towards the guilt of the appellant. In the medical evidence, though there is a suggestion of the death caused by strangulation but the same cannot be said to a definite opinion as it was based merely on the fact that the hyoid bone was found fractured, which could also be the result of hanging. The position in which the dead body was found at the place of incident as is reflected from the inquest clearly suggests that it was a case of hanging. The trial court without proper appreciation of the evidence on record, solely upon opinion of the expert, had held that it was a case of death caused by strangulation and ruled out the possibility of hanging. The opinion of the expert was required to be considered in the surrounding circumstances of the case.
The witnesses of last seen produced by the prosecution to prove the involvement of the appellant Lalta are not trustworthy. They were planted at the instance of PW-2 who is the ultimate beneficiary of the whole scenario. In any case, on the mere evidence of last seen, it would be unsafe to convict the appellant.
16. Lastly placing the statement of the child witness, it is submitted that, in cross, this witness had admitted that in the morning he was woken up by his mother and then he saw his father hanging in the Khaprail while his mother was crying. This fact itself is sufficient to prove the appellant innocent, inasmuch as, the version of this witness about the occurrence becomes false and tutored one. There is no witness of last seen of the deceased alive with the appellant. There are different sets of witnesses who had deposed that they had seen appellant Lalta entering in the house of the deceased and also coming out of the same. The manner in which the prosecution had introduced witnesses for each circumstance shows that the entire prosecution story was concocted. No motive has been assigned to the appellant Lalta, except the plea of illicit relationship of Lalta with the wife of the deceased (Nanhi Devi), which the prosecution has failed to prove. The recovery of the dead body was in the house of the deceased and there is no other incriminating circumstance than the witnesses of last seen to connect the appellant (Lalta) with the crime. The entire prosecution story was carefully constructed at the instance of the relative of the deceased so as to eliminate the wife of the deceased in order to grab his landed property or as a result of his own imagination.
The time of death is also disputed as the postmortem report indicates that rigor mortis had passed on, putrefaction of the body had begun and foul smell was present. As per the opinion of the doctor, the estimated time of death could be 1½-2 days and death could have been caused in the intervening night of 29/30.7.2001. The witnesses of last seen had also been introduced as inquest witnesses which show the zeal on the part of the Investigating Officer to solve the crime in a hurry. There is complete silence about Nanhi Devi being present in the house when the Investigating Officer reached at the spot after receipt of the report of the Gram Pradhan.
17. Reliance is placed on the decision of the Apex Court in Nathiya vs. State Represented By Inspector of Police, Bagayam Police Station, Vellore1; Digamber Vaishnav and another vs. State of Chhattisgarh2 and Jagdish and others vs. State of Haryana3 to assert that if two views are possible, the weight of evidence would tilt in favour of the accused. On the fractured evidence of the prosecution, conviction cannot be sustained.
18. Learned AGA, in rebuttal, submits that the prosecution witnesses had fixed the presence of appellant Lalta in the house of the deceased in the intervening night of 30/31.7.2001 between 9PM to 11PM. PW-3 Kalicharan and PW-5 Komil Prasad who were neighbours witnessed the accused Lalta entering in the house of the deceased at about 9:00 PM, whereas PW-8 Gulabi who was also living nearby witnessed appellant Lalta coming out of the house of the deceased carrying Lathi at about 11:00 PM. There is categorical version of the witnesses regarding the motive which was illicit relationship of appellant Lalta with the wife of the deceased namely Nanhi Devi. The child witness had described the entire occurrence in a categorical version in his examination-in-chief. His testimony cannot be discarded terming him as a tutored witness.
As regards the interest shown by PW-2 Natthu Lal, cousin of the deceased in the whole occurrence, it is submitted by the learned AGA that after death of the father of PW-7, the child witness, and arrest of his mother there was only one relative left in the village namely Natthu Lal who could have looked after the child and the landed property of the deceased. This fact, in any case, would not go against the prosecution as the evidence collected in relation to the crime at the time of the occurrence has to be seen. The medical evidence also corroborates the prosecution version that it was not a case of hanging rather the death was caused by strangulation, homicidal death had occurred in the house of the deceased, wherein presence of the appellant Lalta had been fixed by the prosecution witnesses.
19. In addition to the above, the recovery of murder weapon Lathi had also been made at the instance of appellant Lalta from his house which was proved by PW-12.
20. In the totality of the facts and circumstances of the case, it is established that the prosecution had brought the circumstances in relation to the commission of crime which when put together formed a complete chain which unerringly point towards the guilt of the accused persons Lalta and Nanhi Devi. No infirmity at all can be found in the decision of the trial court. The appeal, thus, deserves to be dismissed.
21. Having considered the submissions of the learned counsels for the parties and perused the record, we find that the prosecution case rests mainly on the evidence of the child witness namely PW-7 Roop Lal who was aged about 8 years on the date of the incident.
22. To test the submission of the learned Amicus Curiae for the appellant that the evidence of the child witness is unreliable or not trustworthy, we deem it apt to discuss the law relating to appreciation of evidence of a child witness.
23. It is trite in law that the evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child is a competent witness within the meaning of Section 118 of the Evidence Act. A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attending circumstances do not show that the child was acting under the influence of someone or was under any threat or coercion.
24. The settled principle is that a child witness can be a competent witness provided the statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The Court in such circumstance can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored.
The evidence of a child witness can be relied upon if the Court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. The Courts have consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. There is no rule or practice that in every case the evidence of a child witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable.
It is almost always safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the Court. [Reference K. Venkateshwarlu vs. State of Andhra Pradesh4; Alagupandi alias Alagupandian vs. State of Tamil Nadu5; Shivasharanappa and others vs. State of Karnataka6 and Digamber Vaishnav and another vs. State of Chhattisgarh (supra).
25. While considering the evidence of a child witness, in his legendary way, the Chief Justice Y.V. Chandrachud (as he then) in Suresh vs. State of U.P.7 said that:-
"(11)......xxxxxxxxxxxxxxxxxx....... Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray. The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life."
26. Keeping in mind the above rule of prudence, we proceed to evaluate the evidence of the child witness, PW-7, who is the star witness of the prosecution.
27. We may note that before proceeding to record the statement of PW-7, the trial court had satisfied itself about the competence of the child witness.
28. The story narrated by the child witness (PW-7) about the occurrence in his examination-in-chief, extracted in the foregoing paragraphs of this judgment, was conveyed to his uncle Natthu Lal, Devki Nandan and Ram Dayal in the afternoon on 31.7.2001 when the Investigating Officer was present on the spot. In cross, this witness stated that he came to the Court to depose alongwith his uncle Natthu Lal (PW-2) and on each date fixed, he came with him. PW-7 was studying in Class IV and was living with his uncle (PW-2) after death of his father. It has come in the evidence that the fields of his father were in occupation of Natthu Lal (PW-2) who was keeping the proceeds of the same with him. All the expenses of PW-7 were being borne by his uncle Natthu Lal. On a suggestion, PW-7 stated that on the date of the incident, he was woken up by his mother but he did not remember the time and that on the day of the incident, he slept after eating 'roti' while there was a little dark and in the morning when his mother woke him up, he saw the dead body of his father hanging and his mother crying. Amongst all siblings, PW-7 was the eldest. He had denied that the incident narrated by him was based on the suggestion of the police and asserted that he narrated the whole story on his own. He also stated that his father was not taking intoxicating substance but he used to remain out of the house for 2-2 months. PW-7 denied the suggestion of the deposition being made at the instance of Natthu Lal.
Analysing his testimony, PW-7 is a witness who was aged about 8 years on the date of the incident. In his narration of the story about the occurrence and participation of appellant Lalta and his mother Nanhi in the crime, pertinent is to note that there apparent contradictions in his version in the examination-in-chief and cross-examination with regard to his being an eye-witness of the whole occurrence from the beginning till the end. His statement that he slept after the occurrence, i.e. after death of his father at the hands of his mother and co-accused Lalta, does not seem to be natural. For a child of 8 years seeing his father being killed and hanged by his own mother must be a moment of great shock. However, from his reaction to the whole occurrence, it cannot be assumed that he was lying. There are other circumstances which need to be appreciated to evaluate the truthfulness of the testimony of PW-7, the child witness. One of the said circumstance is the entry of appellant Lalta in the house of deceased during night hours and reason given for the deceased to accompany him to go downstairs. It is difficult to believe that on the asking of a labour Lalta, the deceased would go to bring woods alongwith him that too in the night hours when there is also a suggestion of his wife having illicit relations with Lalta. It has come in the evidence of PW-7, the child witness, that both his parents, the deceased and Nanhi Devi had a fight three days prior to the occurrence and they were not on talking terms. In a situation like this, this part of the statement of PW-7 could not be corroborated from the prosecution evidence.
The second circumstance is the narration by PW-7 that appellant Lalta had dragged his father (the deceased) in the room and threw him on the floor and then strangulated him with the Lathi while his mother was catching hold of the legs of his father and his father died. In this statement, there is no narration of any struggle or resistance put by his father (the deceased), who was a young man of 30 years with strong built as is evident from the postmortem report. It cannot be accepted that when the deceased was awake and was not under any intoxication, why would he not resist and make efforts to save himself. The co-accused Nanhi and appellant Lalta could not be said to be persons of such a built or background that the deceased could not have fought while his child was standing besides him and fighting for him. There is a statement of the child that when he fought for his father, Lalta slapped and threatened to kill him. It is not acceptable that a father even after seeing threat to the life of his child would not react or resist. From the postmortem report, absolutely no sign of struggle or fight could be seen on the body of the deceased. It is difficult to accept that the accused persons were so strong that they could overpower the deceased to the extent that he could not show any resistance or struggle for his life or of his child. There is no mark at all of dragging of the body or any sign of throwing the deceased on the floor. No external injury was found by the doctor apart from the only ligature mark on the neck of the deceased.
Further the child witness (PW-7) stated that when his father had died, he was wearing a shirt and Bermuda and his clothes were changed by his mother and the dead body was made to wear a black pant and red shirt. It does not stand to reason as to why the clothes of the deceased would be changed by the accused persons when they were creating a scene of suicide as in that case, it would be irrelevant as to what was the deceased wearing. The narration of the dead body having been carried by the appellant Lalta on the first floor and then hanged in the Khaprail from the rope is also unacceptable. In case, the appellant with the co-accused planned to project it a case of hanging, they could have hanged the dead body anywhere in the house which was a two storey house. It is not understandable as to why would the accused take the risk of carrying the body upstairs just to hang it. There is also no sign of dragging of the deceased upstairs. A further contradiction in the statement of PW-7 is found from the postmortem report, where semi digested food was found in the small intestine of the deceased and the large intestine was full of gases and faecal matter. The statement of PW-7 that his father did not have dinner on the fateful day is, thus, belied.
29. A further perusal of the inquest report indicates the position in which the dead body was found hanging in the house. It is noted therein that the dead body was found hanging on the first floor of the house (which was a two storied house) in Khaprail from a rope. Both the hands of the deceased were towards the ground and his both legs were on the ground, folded from both the knees. The tongue of the deceased was caught between teeth and blood was coming out of the right ears and eyes. While describing the injuries on the body in the inquest report, it is noted that the body was turned over to note any signs of injury but apart from the mark of the rope on the neck, there was no other injury. The inquest was prepared by PW-11 Surendra Kr. Singh, the Investigating Officer. He has proved the inquest report as Exhibit Ka-8 being in his handwriting and signatures and stated that he had also prepared the site plan, Exhibit Ka-7 and the recovery memo, Exhibit Ka-4. Apart from these three papers, all other papers on record namely Challanlash, Photolash etc. have been admitted to be genuine documents. In the inquest report itself, PW-11 had raised a doubt about the cause of death being suicide. It has also been noted therein that when PW-11 reached the spot, two constables of the nearest Chauki were already present there. The body was hanging in the 'Balli' of Khaprail at the first floor. There was a lot of crowd and the family members and relatives of the deceased were crying. The inquest had commenced at about 11.00 AM and ended at 12:00 PM.
30. A perusal of the case diary further indicates that the statement of the first informant (PW-2) namely Natthu Lal was recorded at 12:30 PM after making entry of the written report Exhibit Ka-2 given by him. The Parcha no. 1 of Case Diary, however, began with the information provided by the Gram Pradhan Ram Autar in writing which is Exhibit Ka-1 that Taule Ram, a resident of the village had committed suicide. It then narrates that on receiving the said information, carrying necessary papers, the Investigating Officer PW-11 came at the house of the deceased Taule Ram. Two Constables from nearest Chauki were present there and the dead body was hanging in the Khaprail. Raising suspicion about the cause of death being of suicide, body was sealed and sent for the postmortem and recovery memo of rope was prepared.
A written report was given on the spot by PW-2 Natthu Lal which was also extracted in the Case Diary and the Investigating Officer had then proceeded to record the statement of PW-2 which began at 12:30 PM. The statement of child PW-7 was recorded at 12:45 PM as evident from the Case Diary. In the entire sequence of event uptill recording of the statement of Natthu Lal (PW-2) and the child witness Roop Lal (PW-7), there is complete silence about the presence of co-accused Nanhi, wife of the deceased in the house. The Investigating Officer in the inquest noted that the family members of the deceased were wailing but in the Case Diary at Parcha No. 2, it was noted that when he looked to arrest Nanhi Devi she was not met as she had left the house clandestinely alongwith her other children.
31. As per the prosecution story, the Gram Pradhan Ram Autar who had entered in the witness-box as PW-1 went to lodge the written report about the death of Taule Ram as he had seen the wife of deceased Taule Ram wailing in her house saying that her husband had committed suicide. In his statement in chief as PW-1, the Gram Pradhan stated that as the deceased had no parents and real brothers and as no relative of the deceased went to the police station, he being the Gram Pradhan went to give information in writing. PW-1 though had not been confronted in cross but his statement in the examination-in-chief is reiteration of his first version recorded in the Case Diary (Section 161 statement). From the statement of PW-1, at least, it is evident that he was the first one to reach at the spot and he had seen the wife of the deceased wailing in her house.
32. As noted above, in the inquest, presence of wife of the deceased has not been specifically indicated though it is noted that the family members of the deceased were wailing. The prosecution version about the presence of the wife of the deceased at the time when the police reached at the spot is completely missing. Further from the extract of the inquest noted in the Case Diary as also the narration of the position of the dead body while hanging, it is noteworthy that both the legs of the deceased were found folded from the knees while the body was hanging. Both the hands of the body were also hanging towards the ground. Apart from the ligature mark, no other injury or any sign of struggle was found on the person of the deceased as is clear from both the inquest and the postmortem report. In such a situation, looking to the position in which the dead body of the deceased was found hanging by the Investigating Officer who was the first one to reach the spot on receipt of the report of suicide, the part of the statement of PW-7 that the deceased was first killed by strangulating his neck and then his body was taken to the first floor and hanged from a rope does not seem to be correct. There is no indication in the inquest report nor it can be assumed that the legs of the dead body after the deceased was killed, were folded and tied. It cannot also be visualized that after death, both the legs of the body would be folded from the knees on its own when it was hanged on the Khaprail. We may also note that the body was hanging from a plastic rope, the possibility of it getting loose due to the weight of the dead body, resulting in the knees touching on the ground cannot be ruled out.
33. Furthermore, in cross, PW-7 stated that in the morning on 30.7.2001, he was woken up by his mother and then he saw that the dead body of his father hanging from the Khaprail and his mother was crying. PW-7 also stated that he slept early in the evening (when there was little dark) after having dinner and was woken up in the morning by his mother. His statement that his father did not have food that night is found false.
34. From the above, the narration of the story of the occurrence by PW-7 does not inspire confidence of the Court. However, before reaching at any conclusion, other evidence on record i.e. surrounding circumstances of the case are also to be appreciated.
35. At this stage, it needs to be mentioned that two witnesses PW-4 and PW-5 namely Chhotelal and Komil Prasad; respectively, stated that both legs of the deceased were folded from the knees and touching the floor while the body was hanging from the Khaprail by a plastic rope. PW-4 had been produced as witness of recovery of the rope and is not a Panch witness. He has proved his signature on the memo of recovery of rope Exhibit Ka-1 and the rope having been sealed in his presence as Material Exhibit-2.
36. We may note that the purpose of inquest, the object of the proceedings under Section 174 Cr.P.C., is to investigate into and draw up a report of the apparent cause of death, whether a person has died under suspicious circumstances or an unnatural death and if so, what is apparent cause of death. The officer preparing inquest has to describe such wounds as may be found on the body of the deceased and state in what manner by what weapon or instrument, if any, such wounds appear to have been inflicted. The position in which, the dead body was found at the spot may be a material circumstance in a particular case, as in the present case and the said position can only be ascertained from the inquest report prepared under Section 174 of the Criminal Procedure Code as the said report is the only evidence of narration of the position of the dead body found on the spot. In the instant case, the position in which, the dead body was found to be hanging is relevant to ascertain as to whether the death was caused by hanging or the deceased was first done to death and his body was hanged.
The statement of the Investigating Officer in the inquest with regard to the position of the dead body, while it was hanging from the Khaprail roof of the house, is based on his actual observation at the spot and is admissible under Section 60 of the Evidence Act as such. While considering the impact of the statement in the inquest report, site plan, seizure list, i.e. papers prepared by the Investigating Officer at the spot, it was held by the Apex Court in Rameshwar Dayal v. State of U.P.8 that the documents like the inquest report, seizure lists or the site plan consist of two parts:- (i) one which is admissible and; (ii) the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act. Whereas, the other part which is based on the information given to the Investigating Officer or on the statement recorded by him in the course of investigation, is inadmissible under Section 162 Cr.P.C. except for the limited purpose mentioned in that section.
37. For the above discussion, we are of the opinion that the statement of the Investigating Officer with regard to the position of the dead body while it was hanging from the Khaprail by a plastic rope, i.e. both legs of the body were folded from the knees while the knees were on the ground becomes admissible in evidence and has to be read and analyzed alongwith the other evidence on record.
38. From the postmortem report, the injuries found on the person of the deceased are only ligature mark which was though horizontal but not continuous. It was present all around the neck except on the left side base of the neck and just behind the left ear. The ligature mark was in the shape of a groove, base of which was pale and margins were congested. Multiple abrasions were present on the margins of the groove and the area just below the ligature mark on the front part of the neck. The larynx and trachea were congested and hyoid bone was fractured at the junction of the left larger Cornu with its body. The opinion of the doctor that it was a death caused by strangulation, seems to have been arrived only for the reason that the hyoid bone was found fractured. It is not the case of the prosecution that the deceased was strangulated by ligature rather the use of wooden stick to compress his neck has been suggested by the prosecution. There was nothing before the doctor to opine that Lathi (wooden stick) was used to strangulate the deceased.
39. As regards the condition of the dead body, it may also be noted that the body was swollen, putrefaction had commenced as the superficial skin was peeled off from several places and foul smell was present, Eyes were closed, Mouth open with tongue protruding out. As per the observation of the Investigating Officer in the inquest as noted above, both legs were folded from the knees while the body was hanging from a plastic rope, the hands were hanging whereas the wrists were clinched, half open.
40. Considering the above part of the medico legal report (postmortem report) and the position of the dead body as per the observation of the Investigating Officer in the inquest, we are afraid to form any definite opinion as to the manner of death of the deceased, whether suicidal or homicidal. No definite opinion can be formed as per the expert report that it was a case of strangulation by use of a wooden stick to compress the neck and then suspending the body by a rope to simulate suicide by hanging. Noticeably enough there was absolutely no mark at all of struggle or violence on the dead body. It cannot be accepted that a man of about 30 years of age could be overpowered by his wife and his paramour (the appellant) in such a manner that he could not offer any kind of resistance that too when his child of 8 years, who was fighting for him, was also threatened to be killed.
41. It is not a case of the prosecution that the deceased was first made unconscious and then killed. The abrasions on the margins of the groove or at the area just below the ligature mark on front part of the neck cannot prove it a definite case of strangulation by a wooden stick as multiple abrasions at the margins of the groove may occur due to use of a plastic rope while hanging. The pattern of the ligature mark as appeared on the neck, however, is very similar to the ligature mark as may occur in the case of hanging. In any case, no groove in the middle of the front of the neck corresponding to the wooden stick used, was found. On a suggestion to the doctor (PW-9), he had tried to explain the same that the marks of Lathi could be superimposed by the marks of the rope which may be correct but the definite opinion formed by the doctor about the death caused by strangulation with the use of wooden stick (Lathi) to compress the neck in absence of any sign of injury corresponding to the same, seems to be confusing, that too when the doctor himself says that the groove mark on the neck was typically caused by the rope and not by Lathi. It may be reiterated that the ligature mark was not continuous as it was not present on the left side back of the neck and just below the left ear. The explanation offered by the doctor that it was missing because of the hair on the back of the neck is only a guess work. Nothing in this regard is mentioned in the postmortem report. Further there is no explanation as to the ligature mark missing from the "just below the left ear". Moreover, it is not a case of strangulation by ligature. Further the fracture of left larger cornu of the hyoid bone stands explained from the knots found in the plastic rope from which the body was hanging. The recovery memo of the rope (Exhibit Ka-4) show that there was 2m. noose (फन्दा) in the plastic rope and one more knot was there at the opposite end and a red piece of chunri gote (shining) cloth was stuck in the noose (फन्दा). The abrasion on the margins of groove can be attributed to the plastic rope whereas the fracture of hyoid bone may have been caused because of the position of the knot in the rope at the time of hanging of the body. In any case, there is no definite evidence on record to prove it a case of strangulation by Lathi (wooden stick).
Besides that, the proximate time of death as estimated by the doctor cannot be fitted in the prosecution story. As per the external appearance of the dead body, rigor mortis had passed on and putrefaction of the body had commenced. The body was swollen and superficial skin was peeled off from several places with the presence of foul smell. The said external appearance of the body seem to be the reason why the doctor had opined in the postmortem report that the proximate time of death was about 1½ days, whereas from the evidence on record, it can be seen that the postmortem of the dead body was conducted within 18-20 hours of the time of death as projected by the prosecution witnesses. This external appearance of the dead body, in view of the opinion of the doctor about the proximate time of death, also creates doubt on the prosecution story about the death caused by strangulation between 9:00PM to 11:00 PM in the intervening night of 30/31.7.2001.
42. We may record that mere fracture of the hyoid bone cannot be a reason to form a conclusive expert opinion of the death caused due to strangulation as is clear from the reading of the Chapter '19' of the Text Book of Modi on Medical Jurisprudence and Toxicology (24th Edition).
43. Now analysing the remaining evidence on record, the evidence of last seen by PW-3 Kalicharan and PW-5 Komil Prasad, we may note that Kalicharan (PW-3) stated that he alongwith Komil Prasad (PW-5) and Devaki Nandan (PW-6) was standing in front of the house of Devaki Nandan and at around 9:00 PM when they had seen appellant Lalta entering in the house of the deceased carrying Lathi. PW-3 Kalicharan had also been introduced as a witness of recovery of dibbi. He admitted that he had good relations with the first informant Natthu Lal (PW-2) and Natthu Lal was an influential person in the village. PW-5 Komil Prasad further stated that while standing at the same place, i.e. in front of the house of Devaki Nandan from where they had seen Lalta entering in the house of the deceased at around 9:00 PM, they kept on talking for two hours. These witnesses (PW-3 and PW-5) are, however, silent as to whether they had also seen Lalta coming out of the house also at around 11:00 PM as per the version of PW-8.
44. To prove the said fact, the prosecution had introduced another witness who is PW-8 Gulabi. He stated that he witnessed appellant Lalta coming out of the house of the deceased at around 11:00 PM. Further, amongst the witnesses of last seen, Devaki Nandan had also been produced as PW-6 but he had only proved the recovery of 'Lathi' from the house of Lalta and identified his signature on the recovery memo as Exhibit Ka-5. PW-6 (Devaki Nandan), in front of whose house, other witnesses of last seen were standing is completely silent about having seen Lalta entering in the house of deceased alongwith the other witnesses namely Kalicharan (PW-3) and Komil Prasad (PW-5).
45. For the above discussion, the evidence of last seen of the appellant Lalta entering and coming out of the house of deceased Taule Ram between 9:00 to 11:00 PM is not found convincing. Even otherwise, mere evidence of last seen, though an important circumstance, cannot be made sole basis for conviction of the accused in absence of any other corroborating circumstance to prove the guilt of the accused. In the circumstances brought before us, it is not possible to shift burden on the appellant Lalta to offer an explanation on the evidence of last seen of the prosecution witnesses (PW-3 and PW-5).
In a recent decision in Nizam and another vs. State of Rajasthan9 considering the importance of theory of last seen, the Apex Court has observed that the evidence of last seen alive, undoubtedly is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty as the last seen theory holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. But it is well-settled that it is not prudent to base the conviction solely on last seen theory. It was held that last seen theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
46. In the instant case, considering the evidence in its entirety before us, even this is doubtful that the deceased had been done to death between 9:00 PM to 11 PM as sought to be proved by the prosecution witnesses namely PW-3, PW-5 and PW-8, inasmuch as, the medical evidence does not support the ocular evidence of these witnesses about the proximate time of death. Lastly, as regards the recovery of Lathi, it is known to all that the villagers ordinary keep Lathi in their houses and often carry it while going to their fields. The proof of recovery of Lathi from the house of appellant Lalta given by PW-6 Devaki Nandan, therefore, will not add any strength to the prosecution case.
Apart from all the evidences noted above, there are other circumstances which also create doubt on the prosecution story. One of them is that the prosecution witnesses had proved that the wife of the deceased (Nanhi Devi) was present in the house when PW-1, Ram Autar, Gram Pradhan went to lodge the report (Exhibit Ka-1) of the suicide committed by her husband. The Investigating Officer reached at the spot after lodging of the said report at about 9:30 AM. In his examination-in-chief, PW-11 (Investigating Officer) stated that he reached at the spot carrying necessary papers and while doing Panchayatnama (inquest), a suspicion was raised about the death being a case of suicide. During the investigation, another written report was given by PW-2 Natthu Lal (Exhibit Ka-2) reporting murder committed by the wife in the company of the appellant Lalta. PW-11, however, is conspicuously silent about the presence of the wife of the deceased (Nanhi Devi) in the house when he reached at the spot. In the Case Diary (CD I) at page ½, where the written report given by PW-2 (Natthu Lal) was extracted by the Investigating Officer, time of which is mentioned as 12:10, in the margin by the red ink, it is noted that a search for arrest of Nanhi Devi was made but she had left her house alongwith her children clandestinely. From the Case Diary (CD IV) dated 5.8.2001, it is evident that Smt. Nanhi Devi (wife of the deceased) was arrested from the house of her brother Hetram son of late Tarachand, resident of Gram Bhoodha, which was her paternal house (Maika). The prosecution evidence, thus, is not conclusive about the presence of Nanhi Devi in her house in the morning when police had reached at the spot, though all the prosecution witnesses stated that Nanhi Devi was wailing in the morning that her husband had committed suicide. When and how Nanhi Devi had slipped from her house alongwith her children, when the entire village was collected and police was present could not be explained by the prosecution. In the inquest report also, it is mentioned that when police had reached at the spot family members of the deceased were crying. In the statement of PW-1, the Gram Pradhan, it has come that there were no immediate family members of the deceased except his wife and children. The silence of the prosecution witnesses about the circumstance in which Nanhi Devi wife of the deceased had left her house in the presence of villagers and police also creates a deep dent in the prosecution story.
47. In the entirety of the facts and circumstances of the present case, we do not find any definite evidence so as to hold the appellant Lalta guilty for the offence of murder of deceased Taule Ram, the husband of co-accused Nanhi Devi.
48. The evidence of last seen, as discussed above, does not inspire the confidence of the Court so as to shift burden on the appellant Lalta to explain the circumstances being in his special knowledge.
49. It is settled that mere suspicion, however strong it may be, cannot take the place of proof. The prosecution must stand or fall on its own legs and it cannot derive any strength form the weaknesses of the defence. [Reference Anjlus Dungdung vs. State of Jharkhand10 and Nanhar and other vs. State of Haryana11].
50. No motive at all has been assigned to appellant Lalta independent to that of the co-accused Nanhi Devi. The illicit relationship of the wife of the deceased namely co-accused Nanhi Devi with the appellant is not proved. All the prosecution witnesses have stated that they had no knowledge about the relationship of appellant Lalta with the wife of the deceased and simply because Lalta used to go to the house of the deceased, they assumed such a relationship. We must also not loose sight of the fact that the deceased was a well off person, who was having around 11 Bighas of land in his name and a house which was a two storied house in the village. The couple had four children born out of the wedlock and the youngest one was about 2½ years of age whereas the eldest child was 8 years old. To the contrary, the appellant Lalta was only a labour. Even on comparison of the economic status of the appellant Lalta and the deceased, it is difficult to believe that a lady (wife of the deceased) having four children between the age of 8 to 2½ years, the young wife of a well off person in the village, would indulge in an extramarital relationship with a man who was only a labour.
What gain accused Nanhi Devi could have by killing her own husband when only immediate dispute between them was a 'Marpeet' prior to the incident is unexplained.
The motive for the offence as alleged by the prosecution is not at all convincing nor it could be proved.
51. Lastly, in this entire sequence of events, we can clearly see that the sole beneficiary of the whole situation was the first informant namely Natthu Lal (PW-2), who was cousin of the deceased, as he got possession of the landed property of the deceased. In their statement under Section 313 Cr.P.C., both the accused persons stated that they were implicated falsely at the behest of Natthu Lal namely PW-2. Natthu Lal namely PW-2 was an influential person of the village is proved by the prosecution witness Kalicharan (PW-3). The possibility of Natthu Lal (PW-2) being the master mind behind the whole prosecution story, in view of the circumstances brought before us, cannot be ruled out.
52. Be that as it may, the evidence brought forth by the prosecution may give rise to a suspicion but suspicion is not a proof of the guilt particularly when the evidence of the prosecution witnesses do not inspire confidence, for the reasons disclosed above.
53. In the entirety of the evidence on record, we find that the prosecution has not been able to prove the guilt of appellant Lalta for the offence of murder of deceased Taule Ram beyond all reasonable doubt.
The judgment and order dated 19.7.2005 passed by the Additional Sessions Judge, Court No. 3, Pilibhit in Sessions Trial No. 537 of 2001 for conviction of the appellant No. 2 Lalta Prasad is hereby set aside.
The appellant no. 2 Lalta Prasad is in jail. He shall be released from the jail forthwith, if not wanted in any other case.
54. In so far as another appellant Nanhi Devi is concerned, she has been already granted remission by the State Government. As no one has appeared to represent her case the Court desist from forming any opinion on her case in view of the remission of her sentence. The appeal, accordingly, stands disposed of.
It is, however, kept open for appellant Nanhi Devi to move an application to revive her appeal for decision on the merits of the order of conviction, if she so desires.
The office is directed to send back the lower court record along with a certified copy of this judgment for information and necessary compliance.
The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad within one month.
Sri Anurag Sharma learned Amicus Curiae rendered valuable assistance to the Court. The Court quantifies Rs. 15,000/- (Rupees Fifteen Thousand only) to be paid to Sri Anurag Sharma learned Advocate towards fee for the able assistance provided by him in hearing of this Criminal Appeal. The said amount shall be paid to him by the Registry of the Court within the shortest possible time.
(Subhash Chandra Sharma,J.) (Sunita Agarwal, J.)
Order Date :- 29.4.2022
Brijesh