Allahabad High Court
Munnu Lal Son Of Baldeo Prasad Alias ... vs State Of U.P. on 17 July, 2007
Author: K.S. Rakhra
Bench: K.S. Rakhra, S.K. Jain
JUDGMENT K.S. Rakhra, J.
1. The instant Appeal relates to Case Crime No. 535 of 1990 of Police Station Auraiya District Etawah. The appellant Munnu Lal has filed this appeal under Section 374 Cr.P.C. against the judgment and order dated 2nd May 2000 passed by Special Judge (Essential Commodities Act) Etawah in Sessions Trial No. 694 of 1996 whereby the appellant has been convicted under Section 302 & 201 IPC and sentenced to life imprisonment under first count and to five years rigorous imprisonment under second count.
2. The factual matrix of the case in short is that victim Usha Devi sister of first informant Krishna Babu resident of village Waraila within the circle of police Station Ajitmal of District Etawah was married two years ago to appellant Munnu Lal of village Kakhatoo of Police Station Auraiya He was earning his livelihood by working as tailor at Delhi. The prosecution alleges that Munnu Lal was not happy with the aforesaid marriage as Usha Devi was an illiterate ,uncultured and dark complexioned lady. He therefore, entertained a desire to desert her and contract a second marriage. For this reason he used to ill-treat and torture her. She visited her parents home in village Waraila two/three times after marriage and used to narrate the above attitude of her husband.
3. The incident is alleged to have taken place on 4.12.1970. The prosecution claims that about 7 or 7'1/2 months prior to the incident in the month of Jeth (corresponding to the month of May) Munnu Lal along with his wife Usha Devi came to village Waraila to her in laws house and left her there on the pretext that he was going to attend a marriage in his relation. Krishna Babu and Suresh Chandra both brothers of Usha Devi also accompanied Munnu Lal to the said marriage. At that time Munnu Lal had told them that when they return back after attending marriage, he will take his wife Usha Devi with him to Delhi. However, after the aforesaid marriage which they had gone to attend, Munnu Lal did not go to village Warailla to take Usha Devi with her. He went back to Delhi. Usha's brother Krishna Babu then wrote a letter to Munnu Lal in reply to which he wrote that he does not want to keep Usha Devi as his wife. With a view to solve this problem Usha Devi's mother took her to appellant's house in village Kakhatoo but there parents of Munnu Lal did not talk to them and did not accept Usha Devi. The prosecution claims that Krishna Babu then wrote another letter to Munnu Lal at Delhi to settle the differences between him and Usha and if he did not want to keep her, he should return articles given in dowry and should make provision for maintenance of Usha.
4. The prosecution story further is that on 1.12.1990 Munnu Lal visited village Waraila and expressed his regrets to the first informant and his family members for his conduct and assured them that he will keep Usha as his wife. After staying there for 2/3 days Munnu Lal along with Usha left his in laws house. After about 20 days Krishna Babu went to village Kakhatoo to find out welfare of Usha. On reaching there he was told by the parents of Munnu Lal that Munnu had not come to them nor was Usha there. They also did not give any clue of their whereabouts.
5. When Krishna Babu was returning from village Kakhatoo to his village Waraila which was about 16 miles away ,he happened to pass through village Baramoopur where some people told him that a dead body of a young lady of the description of Usha was found in that village on 5.12.1990. Krishna Babu then returned to his village and narrated above facts to his brother Suresh Chandra. Next day morning i.e. On 6.12.1990 Krishna Babu along with his brother wSuresh Chandra and his relation Badlu Prasad ex-pradhan of the village contacted police at police station Auraiya. The police had shown them photographs and clothes of the dead body of an unidentified lady which was found on 5.12.1990 at village Baramoopur. On the basis of photographs and the cloths etc. Krishna Babu and his brother identified that the lady whose dead body was found was their sister Usha.
6. Admittedly when dead body of an unidentified lady was noticed by the people of village Baramoopur the village Chaukidar Ganga Ram informed the police at police station Au raia of the same and this information was registered in the G.D. at serial No. 21. Since the body when found was unidentified and no claimant came forward, the police sent it for post mortem examination. Dr. R.A. Goyal P.W.3 performed the autopsy on 6.12.1990 at 4.00 p.m. He found multiple abrasion in an area of 6 cm x 5 cm on the upper part of the right side of the neck, multiple abrasion in an area of 4 cm x 3 cm on the upper part of front of neck below the chin and multiple abrasion in an area of 2 cm x 1 cm on left side of neck of the deceased. The doctor opined that the death had occurred due to asphyxia as a result of throttling. He further mentions in his report that the deceased was pregnant having six months female foetus in her uterus.
7. Since the post mortem report indicated the commission of homicide, police on 7.12.1990 registered a case as Crime No. 537 of 1990 under Sections 302/201 IPC vide entry at serial No. 17 of GD.
8. On 26.12.1990 when Krishna Babu and his brother came to know that their sister Usha was dead and the body found by the police on 5.12.1990 at Baramoopur was that of Usha, he gave written report Ex-Ka. 1 to the police at police station Auraiya (addressed to D.I.G). In the report he mentioned that Usha was married to Munnu Lal two years ago and Munnu Lal after staying with them at Waraila for two days had left on 4.12.1990 for his house along with Usha Devi but he killed her and dropped her body behind Munsifs Court building at Auraiya. This report was silent about the motive for commission of crime as well as about matrimonial differences if any between Munnu Lal and Usha Devi It was also silent about any exchange of correspondence between Krishna Babu and Munnu Lal on the above subject as also with regard to any confession made by Munnu Lal before Badlu Ptrasad Ex. village Pradhan P.W. 5.
9. It may be mentioned here that the prosecution in this case has come out with a version that Badlu Prasad Ex. Pradhan of the village was maternal uncle of the father of Usha Devi and Munnu Lal after commission of crime had approached him after about 20 days and confessing his guilt, he had sought help of Badlu Prasad to save him from police.
10. At police station Auraiya after the case was registered as Crime No. 537 of 11990 investigation was taken over by S.I. M.K. Shukla which was subsequently transferred to S.I. Sahab Singh and then it came in the hands of S.I. Ram Singh Rathore P.W. 7.who on the basis of investigation conducted by his predecessors, filed charge sheet against Munnu Lal.
11. In the trial court charge under Section 304B, 302, 201 IPC was framed against Munnu Lal who pleaded not guilty. In order to prove charges, prosecution had examined seven witnesses in all. Two of them namely Pramod Kumar P.W. 1, and Ganga Ram P.W. 2 are formal witnesses. Ganga Ram is Chaukidar of village Baramoopur who had given information about the dead body to police at police station Auraiya and Pramod kumar was head constable of Police Station Auraiya who had made entries in the GD of the police station and later on registered case Crime No. 537 of 1990 on 7.12.1990 and had also made other corresponding entry in the G.D. Dr. R.A. Goyal P.W. 3 had conducted autopsy and had issued his report Ex. Ka.2. He opined that the victim had died on account of asphyxia as a result of throttling. This death could have occurred on 4.12.1990 in the after noon. He also stated that the victim was carrying pregnancy of about six months. The testimony of this witness was not challenged by the defence.
12. Out of the remaining four witnesses, S.I.R.S. Rathore P.W. 7 is the investigating officer who had submitted charge sheet. His deposition is also of formal nature as he had neither recorded the statement of any of prosecution witness nor had he tried to find out the letters which were exchanged between Munnu Lal arid Krishna Babu. He also did not collect any evidence with regard to Bidai of Usha with Munnu Lal on 4.12.1990 nor did he try to find out who in village Barmoopur had informed Krishna Babu about recovery of a dead body of young lady, in the village on 5.12.1990.
13. The remaining witnesses are Krishna Babu P.W. 1, first informant and brother of the deceased and Suresh Chandra P.W. 6 and other brother of the deceased. Both these witnesses have supported prosecution version that Munnu Lal had been stating that Usha was an illiterate uncultured and dark complexioned lady and therefore, he would not keep her as his wife and was bent upon to desert her. They have also supported the prosecution story that about seven months before the incident Munnu Lal had left Usha at their house but thereafter breaking his promise he did not take her back and went back to Delhi alone. They have deposed about correspondence between Munnu Lal and Krishna Babu and stated that Munnu Lal was asked to return dowry and make provision for maintenance of Usha if he does not want to keep her. Their testimony is to the effect that on 4.12.1990 Usha was sent by them in the company of Munnu Lal for her matrimonial home and thereafter she was found dead.
14. Last witness Badlu Prasad Ex. village Pradhan deposed that on 25.12.1990 Munnu Lal had come to him and made a confession and wanted his help to be saved from police. This Badlu Prasad is a person who had accompanied Krishna Babu and Suresh Chandra to police station Auraiya on 26.12.1990 to identify the dead body on the basis of photographs and clothes etc. found by the police on the dead body of the young lady on 5.12.1990.
15. No defence evidence has been led but the stand taken by the accused was that he had not taken victim from the house of Krishna Babu on 4.12.90 with him. To the contrary he claims that Usha Devi was living with her brothers in village Auraiya and therefore, it is for them to explain how she died.
16. We have heard Sri S.N. Singh Amicus Curaie for the appellant and Sri Sudhindra Kumar Agarwal AG A for the State and also carefully examined the evidence on record. Admittedly nobody had seen the appellant Munnu Lal committing the offence and the evidence on which prosecution is relying is circumstantial evidence that she was married to Munnu Lal who was not inclined to keep her and she had left on 4.12.1990 with Munnu Lal and thereafter was not seen alive. With regard to circumstantial evidence Apex Court in the case of Padala Veera Reddy v. State of A.P. and Ors. have laid the following principles:
i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established.
ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused.
iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
17. This case was followed in State of Madhya Pradesh v. Sanjay Rai 2004 (5-6) SBR 416 by the Apex Court. Again in Ramreddy Rajesh Khanna Reddy and Anr. v. State of A.P. (2006) 3 SCC (Cri) 512 the Apex Court had held that to base conviction on circumstantial evidence prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. It was observed that suspicion, however grave, cannot be a substitute for a proof and the courts should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. Again in State of Hariyana v. Ved Prakash , the Apex Court observed that the courts should take utmost caution for basing conviction on circumstantial evidence.
18. Examining the prosecution evidence on the above principles, we find that the circumstance from which an inference of guilt is sought to be drawn in this case are not cogently and firmly established. The circumstances are not of such a definite tendency which unerringly point towards guilt of the accused. All the circumstances of the case taken cumulatively, fail to form a chain so complete to form a conclusion that within all human probability crime was committed by accused and none else. We do not find it to be a case where circumstances are incapable of explanation of any other hypothesis than that of the guilt of the accused and inconsistent with his innocence.
19. First of all there is no previous complaint, panchayat or documentary evidence to show that Munna Lal was not ready to keep Usha Devi. It is significant to note that in statement under Section 313 Cr.P.C. he claimed that the family member of the deceased were not ready to send her to the appellant. It is significant to note that Krishna Babu and Suresh Chandra brothers of the deceased had claimed that Krishna Babu and Munna Lal had exchanged letters in the above matter and Munna Lal had written in his letter that he was not inclined to keep Usha with him as she was an illiterate, uncultured and dark complexioned lady. The prosecution had not produced the said letter and an excuse has been made by saying that the that the said letter has been lost or misplaced. One of the brother has said that it was kept in the suitcase of Usha and when she left with Munnu Lal on 4.12.1990, the said letter was also carried away by her. Whatever explanation they gave but the fact remains that the documentary evidence which could have been possible was not produced in the case.
20. The prosecution story of extra judicial confession by Munnu Lal before Ex. Pradhan Badlu Prasad on 25.12.1990 is also not proved by cogent evidence. To the contrary there are circumstances to indicate that theory of extra judicial confession is concocted one. First of all Badlu had accompanied Krishna Babu and Suresh to the police station on 26.12.1990 when identification was made by them on the basis of photograph of the deceased as well as from her clothes etc. Badlu or two brothers of the deceased did not disclose to the investigating officer that Munnu Lal had made any extra judicial confession before Badlu Prasad. Written report Ex. Ka.1 given by Krishna Babu on 26.12.1990 at police station Auraiya is also silent about extra judicial confession. As stated earlier it was also silent about the matrimonial differences between Munnu Lal and Usha Devi and also did not mention about any correspondence entered into by Munnu Lal indicating that he was not inclined to keep Usha Devi. Further Badlu Prasad was related to the father of the deceased and he was not a relation or friend of Munnu Lal The testimony of Badlu Prasad who was an Ex. Village Pradhan is that Munnu Lal had come to him on account of the fact that Badlu Prasad was maternal uncle of the father of deceased. In the above circumstances we find the that conduct of Munnu Lal to have confessed before Badlu Prasad is wholly improbable.
21. There is yet another circumstance which creates doubt about making of confessional statement. Prosecution story as well as statement of Krishna Babuand Suresh Chandra was that Munnu Lal did not want to keep Usha only because she was illiterate and dark complexioned. Contrary to this according to Badlu Prasad P.W. 5 Munnu Lal told him that he had killed Usha because she was a lady of loose character. There is no evidence that Badlu Prasad was so influential or important person of the village that Munnu Lal could confess his guilt before him. According to Badlu Prasad he had told about this confession only to Krishna Babu the informant.
22. In view of the discussions made above, the prosecution story about extrajudicial confession is highly doubtful.
23. This leaves us with the testimony of Krishna Babu and Suresh Chandra, two brothers of the deceased who claimed that the deceased had left with Munnu Lal on 4.12.1990. They are interested witnesses. No other person from the village, may be any lady or child from the neighbourhood was examined by the prosecution to corroborate the fact that Usha had left with Munnu Lal on 4.12.1990. It is significant to note that as per prosecution story she was living at her parents house since last 7 or 7'1/2 months and Munnu Lal was not inclined to take her back. In such circumstances when "Bidai" takes place normally ladies or children from the neighbourhood in the village gather and witness the Bidai Not coming forward of any such witness to corroborate above fact creates doubt.
24. Further no cogent evidence has been led to prove that on or shortly near Raksha Bandhan Usha Devi was taken by her mother to the house of appellant Munna Lal where appellant's parents refused to talk to them and they had to come back. Even the mother who had gone with Usha on that occasion was not examined by the prosecution for the reasons best known to them. Another circumstance which creates serious doubt is that Usha was carrying pregnancy of about six months at the time of death while significantly she had not met her husband since last 7 or 7'1/2 months as husband had left her at her parental house on a false pretext. The argument of learned Counsel for the appellant was that the lady while staying at her parents house had developed illicit relation with some third person and became pregnant. After six months when the pregnancy became to obvious on account of physical changes, brothers or family members of Usha might have killed her to save the family from ignominy and particularly so when she was being deserted by her husband. This argument of learned Counsel for the appellant is based on the circumstances as the autopsy report cannot be brushed aside holding it baseless.
25. The prosecution has also not produced anybody from village Barmoopur who had told first informant on 25.12.1990 that body of an unidentified young lady was recovered in the village on 5.12.1990. Not only this the informant in his deposition did not disclose name of a single person of village Barmoopur from whom he got such information.
26. In addition to this, prosecution has also withheld S.I. M.K. Shukla the investigating officer and S.I. Sahab Singh the second investigating officer who had recorded the statement of the witnesses. S.I. R.S. Rathore P.W. 7 who had submitted charge sheet only upon examination of the case diary had also deposed only on the basis of material contained in it. According to him on 15.1.1991, appellant's father Baldeo Prasad alias Baldoo had come to village Waraila and in the presence of Khyali Ram and Shobha Ram told Suresh Chandra that Munnu Lal had killed away Usha and wanted a compromise to be arrived at. The prosecution has not examined Khyali Ram and Shobha Ram before whom this was done and further this version is inconsistent with the prosecution story that Munnu Lal had confessed before Badlu Ex. Village Pradhan. As per testimony of this investigating officer Munnu Lal had made extrajudicial confession on 17.1.1991 whereas Badlu P.W. 5 had stated that twenty days after the incident i.e. On 25.12.1990 the said confession was made.
27. In view of the discussions made above and taking cumulatively facts and circumstances of the case into consideration cumulatively we are of the view that no case is made out against appellant The trial court committed illegality and gross error in placing reliance on the evidence which was wholly insufficient and incomplete.
28. Resultantly the appeal is allowed. The conviction of the appellant under Section 302/201 IPC and sentences passed on him by the trial court are set aside. The appellant is on bail. His personal surety bonds are discharged. He need not surrender.
29. We would like to place on record our appreciation for the assistance rendered by Sri Shiv Nath Singh Advocate as amicus curiae and order that he shall be paid a sum of Rs. 4000/- as fee, from the State/State Legal Fund.
30. Let a certified copy of this judgment be certified to the trial court.