Rajendra Prasad Sharma @ Toni @ Sonu vs State Of U.P. on 25 May, 2022

[Cites 16, Cited by 2]

Allahabad High Court

Rajendra Prasad Sharma @ Toni @ Sonu vs State Of U.P. on 25 May, 2022

1. We have heard Sri Vikram Singh Srivastava as an Amicus Curiae, appointed under order dated 18.05.2022, for the appellant, who is in jail; Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record.

2. This appeal is against the judgment and order dated 29.03.2007/30.03.2007 passed by the 16th Additional Sessions Judge, Kanpur Nagar in S.T. No.216 of 2005 thereby, convicting and sentencing the appellant under Section 302 IPC to imprisonment for life.

INTRODUCTORY FACTS

3. The prosecution case, in brief, is that the appellant was a tenant of a one room accommodation owned by PW-1 (Ashok Kumar Tiwari). On 02.06.2004, when foul odour was sensed, the lock of the room was broke open to notice dead body of a girl dressed in a bridal attire lying on a cot. From that room a Sindurdan, Bindi, Lipstick, Broken bangles and few metal articles were recovered of which a seizure memo (Ex. Ka-2) was prepared. A piece of blanket over which the dead body was lying was also seized of which seizure memo (Ex. Ka-3) was prepared. Blood stained floor and plain floor of the spot from where the body was recovered was also lifted of which seizure memo (Ex. Ka-4) was prepared. Inquest was conducted on 02.06.2004, at about 11.45 am. An inquest report (Ex. Ka-5) was prepared. The body was thereafter sealed and sent for autopsy. The autopsy was conducted on 03.06.2004 at about 12.15 pm by PW-5. The autopsy report (Ex. Ka-8), inter alia, recites as follows:-

Body description Aged 15 years. Average built body. Rigor mortis passed off both the extremities. Both eyes bulging out, mouth open, tongue protruding out, abdomen distended, skin peeled off at places. Skull hairs loose, nails loose. Maggots present, 1 cm long all over the body.

Ante-mortem injuries:-

Incised wound 9 cm x 6 cm front of neck, 3 cm below chin, skin, muscles, trachea absent. Both carotid arteries cut.

Internal Examination:-

Stomach contained 20 ml water fluids. Small intestine half full with gases. Large intestine contains faecal matter with gases.

Opinion:- Death due to haemorrhage and shock as a result of ante-mortem injuries Estimated time of death:- Two days before.

4. Prior to the inquest, a written report (Ex. Ka-1) dated 2.6.2004 in respect of discovery of the body from that room was made at Police Station Kalyanpur, District Kanpur Nagar by Guru Prasad Sharma (PW-2), which was registered as Case Crime No.338 of 2004, at 9.45 am of which a chik FIR (Ex. Ka-6) was prepared by PW-4. In this written report, it was alleged that the room from where the body was recovered was in the tenancy of the accused-appellant (Sonu) whose owner was Ashok Tiwari (PW-1). It was alleged that the accused-appellant used to work as a carpenter and used to stay alone in that room though he was a permanent resident of village Naruwa Kohawa, P.S. Kakwan, District Kanpur Nagar. It was also alleged that the appellant and Km. Seema (the deceased) were related to each other. Despite being related to each other, they had developed an intimate relationship which was not acceptable to Chhotey Lal (not examined), the father of the deceased, and when this relationship was discovered, people had objected to it and made Seema and Sonu understand that they should stay away from each other. The report also alleges that in the night of 30.05.2004, Sonu (the appellant) had invited Km. Seema (the deceased) to his room and in the morning of 31.05.2004, like usual, locked the room and went away, whereafter, on 02.06.2004, when foul odour emitting from the room was sensed, tenants including the landlord got the lock broken to discover the body.

5. After investigation, PW-6 submitted a charge sheet (Ex. Ka-9) against the appellant. After cognizance on the charge sheet, the matter was committed to the court of session where the appellant was charged for the offence of murder punishable under Section 302 IPC, vide order dated 16.07.2005. The appellant pleaded not guilty and claimed for trial.

PROSECUTION EVIDENCE

6. During the course of trial, the prosecution examined as many as 7 witnesses.

7. PW-1 - Ashok Kumar Tiwari - landlord. He proved that the room from where the body of the deceased was recovered was given on rent by him to the appellant. In paragraph 2 of his deposition he stated that on 30.5.2004, like usual, Sonu left at 7.00 am for duty but whether he returned that day or not he did not notice. He also stated that he does not know whether on that day, the deceased had come to that room. In paragraph 5 he stated that on 30.5.2004 he did not notice the deceased entering the room of the appellant-accused. In paragraph 10 he stated that when foul door started coming from that room, upon enquiry, he came to know that the accused-appellant never returned after leaving the room in the morning of 31.5.2004. In paragraph 11 he stated that he never saw the accused in the room after 30.5.2004

8. PW-2 - Guru Prasad Sharma (the informant). He spoke about the illicit relations between the appellant (Sonu) and the deceased (Seema) and also stated that they were cousins. Interestingly, he is not an eye witness of any of the incriminating circumstances such as the deceased being last seen alive with the appellant or of the appellant leaving the room from where the body of the deceased was recovered. In fact, he is not a next door neighbour. Notably, his house is 2-3 furlongs away from the complex bearing the room from where the body of the deceased was found. There is another interesting feature in his testimony, as would be apparent from paragraph 25 of his deposition, which is, that Seema's father was addicted to intoxication and was not gainfully employed and that there was no one to look after Seema and, therefore, she used to roam here and there. The exact words used by PW-2 in that regard are reproduced below:-

"lgh ckr ;g gS fd lhek ds cki ulSM+h Fks dqN djrs /kjrs ugh Fks] ?kVuk ds fnu esa og ?kj ij ugh FksA blfy, lhek ekjh ekjh fQjrh FkhA lhek dks dksbZ ijofj'k djus okyk dksbZ ugh FkkA**

9. PW-3 - Radhey Shyam. He is a neighbour and a tenant in the same complex in which the appellant had a room on rent. He proved that the appellant was one amongst many tenants of that complex of which Ashok Tiwari (PW-1) was the landlord. In paragraph 1 of his deposition, PW-3 stated that a girl used to visit Sonu (the appellant) whose name he does not remember. Sometimes that girl used to go back between 10 and 11 pm in the night and sometimes she used to stay over night. He stated that that girl was a relative of the appellant but he is not aware of their relationship. This witness is one of the inquest witnesses. He proved the inquest report. But, interestingly, this witness does not specifically state that he saw the appellant in the company of the deceased whose body was recovered from the room let out to the appellant. He also does not specify a date when he had seen that girl coming and leaving the tenanted accommodation of the appellant. Most importantly, in his deposition, it has come that he had not seen the body because the body was sealed in a cloth when he became a witness to the inquest report.

10. PW-4- HCP Har Charan Singh. He is the head Moharrir of the police station concerned where the written report was submitted and was registered as Case Crime No.338 of 2004. He proves the submission of written report, the registration of the case and the GD entry as well as Chik report thereof, which were all exhibited.

11. PW-5 - Dr. A.K. Gupta, Autopsy Surgeon. He stated that he was posted at the hospital when on 03.06.2004, at 12.15 hours, body of Seema, daughter of Chhotey Lal, was placed for autopsy. He proved conducting autopsy of the cadaver. He proved the injuries noticed in the autopsy report, which was exhibited as Ex. Ka-8. In paragraph 6 of his deposition, he ruled out the possibility of death having occurred by morning of 31.5.2004 by stating as follows:-

"eSxV~l (Maggots) izk;% e`rd dh e`R;q ds Ms<+ fnu ckn cuus izkjEHk gks tkrs gSA e`rdk ds 'ko foPNsnu ls le; iwjs 'kjhj es Maggots fo|eku Fks e`rdk dh e`R;q fnukad 30-5-04 ls 31-5-04 dh izkr% ds e/; gksuk lEHko ugh FkkA** In his cross examination, PW-5 admitted that death of Seema could have occurred around noon of 01.06.2004.

12. PW-6 - Sanjay Kumar, the second investigating officer, who took over the investigation from Mohan Verma (PW-7), the first investigating officer, proved various steps of investigation, particularly, in respect of effecting the arrest of the appellant. He stated that as he could not effect the arrest of the appellant, despite steps, he submitted charge sheet in abscondence. The charge sheet was exhibited as Ex. Ka-9.

13. PW-7- S.I. Mohan Verma, the first investigating officer. He stated that on 02.06.2004, after registration of the first information report, he recorded the statement of the scribe of the FIR, the informant and proceeded to the spot and, after inspecting the spot, prepared site plan. The site plan was exhibited as Ex. Ka.-10. He stated that on the spot he found Sindoor, Bindi, etc of which he prepared seizure memos, which were marked Ex. Ka-2. Ex. Ka-3 and Ex. Ka-4. He also conducted inquest proceeding and prepared report (Ex. Ka-5) and papers for autopsy. He proved dispatch of the cadaver for autopsy and of recording statement of inquest witnesses.

14. The incriminating circumstances emanating from the prosecution evidence were put to the appellant for recording his statement under Section 313 CrPC. In the statement recorded under Section 313 CrPC the appellant though denied the allegations but admitted that the room from where the body of the deceased was recovered was in his tenancy and it was owned by PW-1. Interestingly, by question no.9, the statement of PW-5, Dr. A.K. Gupta (the Autopsy Surgeon), was put to the appellant in a manner which was at variance with what PW-5 had actually stated as a witness. The question put, read, as if, PW-5 stated that the deceased had died between 30.05.2004 and morning of 31.05.2004 when, in fact, from paragraph 6 of PW-5's statement it appeared that he had ruled out the possibility of her death between 30.05.2004 and morning of 31.05.2004. Further, no question was put to the appellant in respect of his alleged abscondence as disclosed by PW-6.

15. The defence, however, examined no witness.

TRIAL COURT FINDINGS

16. The trial court while recording conviction took notice of the following circumstances as proved: (i) that in the evening of 30.05.2004 the deceased was seen entering the room of Rajendra Prasad alias Sonu and thereafter she was never seen alive; (ii) that on 02.06.2004 her body was discovered from that room, after breaking open the lock put on that room; (iii) that autopsy disclosed a homicidal death; (iv) that room was let out to the accused-appellant therefore, he was under an obligation to explain the presence of her body in that room; and (v) that the appellant did not return to his room and remained absconding. The trial court held that these circumstances constitute a chain so complete that it pointed to the guilt of the appellant and ruled out involvement of a third person. As there was no good explanation coming from the appellant, the trial court drew an inference in respect of appellant's guilt.

SUBMISSIONS ON BEHALF OF THE APPELLANT

17. Assailing the judgment and order of the trial court, learned counsel for the appellant has submitted that PW-1 (the landlord), in paragraph 2 of his deposition, had specifically stated that on 30.05.2004, at about 7 am in the morning, the appellant had left the room to attend to his duty, as usual, and whether he returned thereafter or not, he was not aware. Learned counsel for the appellant further pointed out that in paragraph 5 of his deposition, PW-1 specifically stated that on 30.05.2004, he had not seen Seema (the deceased) going to the room of the accused-appellant. It has been submitted that neither PW-1 nor PW-3 (the neighbour) stated that they saw the deceased entering the room in the tenancy of the appellant on either 30.05.2004 or 31.05.2004 and none of the witnesses had stated that in that room when the deceased entered, the appellant was present. It has been urged that the prosecution evidence is completely silent as regards the deceased being last seen alive with the accused-appellant in that room. It has also been urged that since there is a positive stand in the prosecution evidence, namely, the testimony of PW-1, that the accused left the room in the morning of 30.05.2004 and there is a categorical statement of the doctor (PW-5), vide paragraph 6, that the deceased could not have died in the intervening night of 30.05.2004/31.05.2004 and there being no evidence whatsoever that after leaving the room in the morning of 30.05.2004, as stated by PW-1, the appellant returned back to his tenement, there exists no reliable evidence that soon or before the probable time of death of the deceased was seen alive in the company of the appellant. It has also been urged that the incriminating circumstance, that is, on 30.05.2004 the deceased was seen entering the room of the appellant, on which the trial court has placed reliance, is, firstly, not proved and, secondly, the trial court has misread the evidence that there is statement of the witness that on 30.05.2004 the deceased was seen entering the room in the tenancy of the appellant. It has been submitted that this is a case where there is no motive for the crime and in so far the lock allegedly put on the door of the room is concerned, there is no evidence that the lock was of the appellant or that its key was recovered from the appellant. Further, there is no seizure memo of that lock. In so far as the alleged conduct of the appellant relating to abscondence is concerned, it has not been put to the appellant while recording his statement under section 313 CrPC. It has thus been prayed that the appeal of the appellant be allowed and the judgment and order of the trial court be set aside.

SUBMISSIONS ON BEHALF OF STATE

18. Sri J.K. Upadhyay, learned AGA, who has appeared for the State, has submitted that as it is admitted by the appellant that he was a tenant of the accommodation, continuity of his possession over the accommodation would be deemed and therefore, as the body of the deceased was recovered from that accommodation of which he was in possession, the burden was on the appellant to specifically disclose that he was away at the relevant time and could not have been there when Seema was killed. He submits that as there is no explanation of the appellant as to when he left the room and as to why he could not, or did not, return back to his room, which was admittedly in his tenancy, an inference with regard to his guilt was a logical inference from the proven circumstances. He further submitted that the deceased was in a relationship with the appellant therefore, in the facts of the case, there could be multiple reasons for the murder including the pressure being built by the deceased upon the appellant to marry her. Hence, absence of evidence of a motive, in the facts of the case, is not relevant. He thus submitted that the proven circumstances taken together, constitute a chain so complete that points towards the guilt of the appellant and rule out all other hypotheses consistent with the innocence of the appellant therefore even if the trial court misread a portion of the testimony that, by itself, would not be sufficient to set aside the judgment and order passed by the trial court. He thus prays that the appeal be dismissed and conviction recorded by the trial court be upheld.

ANALYSIS

19. Having noticed the prosecution case, the entire prosecution evidence and the rival submissions, before we proceed to evaluate the prosecution evidence, we must remind ourselves that this a case where there is no direct evidence of the offence. It is a case based on circumstantial evidence. In a case based on circumstantial evidence as to when conviction can be recorded, law is well settled by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116 where, in paragraph 153, it was observed:-

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

"19. .....Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

20. A three-judge Bench of the Apex Court in case of Shatrughna Baban Meshram Vs. State of Maharashtra (2021) 1 SCC 596 reiterating the legal principles set out in the case of Sharad Birdhichand Sarda (supra), in para 42, observed:-

".....42. Before we deal with the second submission on sentence, it must be observed that as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], a case based on circumstantial evidence has to face strict scrutiny. Every circumstance from which conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. The decision in Sharad Birdhichand Sarda V. State of Maharashtra [(1984) 4 SCC 116] had noted the consistent view on the point including the decision of this Court in Hanumant v. State of M.P. [1952 SCR 1091] in which a bench of three judges of this Court had ruled (AIR pp 345-46, para 10):-

"10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

21. In addition to above, we must bear in mind the most fundamental principle of criminal jurisprudence, which is, that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (vide Shivaji Sahabrao Bobade & Another v. State of Maharashtra, (1973) 2 SCC 793). These settled legal principles have again been reiterated in a three-judge Bench decision of the Supreme Court in Devi Lal v. State of Rajasthan, (2019) 19 SCC 447 wherein, in paragraphs 18 and 19 of the judgment, it was held as follows:-

"18. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.

19. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."

22. At this stage, it would be useful also to examine as to when a conviction could be sustained with the aid of section 106 of the Evidence Act. In respect of conviction with the aid of section 106 of the Evidence Act of a person on death of his or her spouse due to injuries, the Supreme Court in the case of Shivaji Chintappa Patil Vs. State of Maharashtra, reported in 2021 (5) SCC 626, in paragraph 23, observed:-

"23. It could thus be seen, that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused."

23. Further, in the case of Satye Singh and others Vs. State of Uttarakhand 2022 SCC Online SC 183, after analysing earlier decisions, in respect of applicability of Section 106 of Evidence Act, the Supreme Court, in paragraph 16, observed:-

"16. Applying the said principles to the facts of the present case, the Court is of the opinion that the prosecution had miserably failed to prove the entire chain of circumstances which would unerringly conclude that alleged act was committed by the accused only and none else. Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the accused. In Shambu Nath Mehra vs. State of Ajmer, AIR (1956) SC 404, this court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

"9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an accused person to show that he did not commit the crime for which he is tried. These cases are Attygalle v. Emperor [AIR 1936 PC 169] and Seneviratne v. R. [(1936) 3 All ER 36, 49]."

24. The Apex Court in Nagendra Sah Vs. State of Bihar (2021) 10 SCC 725 observed in paragraphs 22 and 23 as:-

"22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.

23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused."

25. Further, in the case of Shivaji Chintappa Patil (supra) in paragraph no. 25 it was observed:-

"25. Another circumstance relied upon by the prosecution is, that the appellant failed to give any explanation in his statement under Section 313 Cr.P.C. By now it is well-settled principle of law, that false explanation or non-explanation can only be used as an additional circumstance, when the prosecution has proved the chain of circumstances leading to no other conclusion than the guilt of the accused. However, it cannot be used as a link to complete the chain. Reference in this respect could be made to the judgment of this Court in Sharad Birdhichand Sarda (supra)."

26. In Rajasthan Vs. Kashi Ram, (2006) 12 SCC 254, the Supreme Court in paragraph 26 of the judgment, clarified the law with regard to the provisions of Section 106 of the Evidence Act in the following words:-

"It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd."

27. In our considered view, the legal principle deducible from the decisions noticed above is that in a case based on circumstantial evidence the prosecution must fully establish the circumstances from which the conclusion of guilt is to be drawn; the circumstances so established should be conclusive in nature and tendency; they must form a chain of circumstances so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution. If the chain of circumstances by itself is not complete, lack of explanation, or false explanation tendered, by the accused is not sufficient to complete the chain. Thus, the ordinary rule that applies to criminal trials is that the burden lies on the prosecution to prove the guilt of the accused, this burden is not in any way modified by the rule of evidence contained in Section 106 of the Evidence Act. It is only in cases where facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted and that such inference can be negatived by proof of some fact which can only be within the special knowledge of the accused, the court can take the aid of Section 106 of the Evidence Act to take the failure of the accused to adduce an explanation as an additional link to the chain of circumstances. But if the proven circumstances by themselves do not indicate that in all human probability it is the accused who has committed the crime in question and those proven circumstances do not exclude a reasonable ground for a conclusion consistent with the innocence of the accused, it would not be legally justified to absolve the prosecution of its burden to prove the guilt by taking recourse to the provisions of Section 106 of the Evidence Act. Ultimately, it is a matter of appreciation of evidence and, therefore, each case must turn on its own facts.

28. In the instant case, the circumstances proved by the prosecution beyond reasonable doubt are: (i) the deceased was a relative (cousin) of the appellant and used to visit the appellant; (ii) the dead body of the deceased was recovered on 02.06.2004 from a room which was let out to the appellant; and (iii) the autopsy report, dated 3.6.2004, indicated that the deceased died a homicidal death two days before the autopsy. At this stage it be noted that the autopsy surgeon (PW-5) ruled out possibility of death occurring between 30.5.2004 and the morning of 31.05.2004. According to the autopsy surgeon death probably occurred around noon on 01.06.2004. Another important feature to note is that the prosecution has failed to prove that the deceased was last seen alive with the accused, either on 30.05.2004 or any time thereafter, till recovery of her body on 02.06.2004.

29. In this case the prosecution has led no evidence to substantiate that the appellant and the deceased lived either as husband and wife or as a live-in couple. The evidence is that the deceased used to come and go. When we carefully scrutinise the prosecution evidence, we would find that the prosecution does not allege continuous presence of the deceased in that room from where her body was recovered. As to when she came, there is no admissible evidence; yet, the trial court recorded a finding that she came on 30.5.2004. What is important to note is that it is not the case of the prosecution that the deceased had no other abode than the place from where her body was recovered. The evidence of the prosecution witness is that she used to come and go. Thus, at best she could be considered a visitor of the place from where her body was recovered but not a resident of that place. The other aspect which assumes importance is that the prosecution has failed to disclose any motive for the crime. In a case based on circumstantial evidence, motive assumes importance. If the accused had been in a relationship with the deceased, there was no reason for the accused to commit her murder. But, interestingly, from the statement of PW-2, this relationship was not palatable to other relatives of the deceased as the deceased and the accused were cousins. In these circumstances, there existed a motive for others, who were not happy with that relationship, to commit the crime.

30. In so far as presence of the body of the deceased in the room of the appellant is concerned, that would have been a gravely incriminating circumstance, if it had been proved, firstly, that the room was under the lock and key of the accused-appellant, secondly, that the deceased entered the room, when the accused was present, and, thirdly, that the appellant had not left the accommodation before the probable time of her death.

31. In the instant case, though, it is alleged that the lock had to be broke open to retrieve the body but neither the lock has been seized nor its key has been recovered from the appellant to show that the room was in exclusive possession and control of the accused appellant. Importantly, the lock of the room was broke open even before lodging the FIR therefore, it was not proved beyond doubt that the room was locked and in exclusive control or possession of the appellant. In respect of deceased entering the room on any particular day in the presence of the accused appellant, there is no evidence. The evidence is of general nature, that is, the deceased used to come and go. In respect of the presence of the accused appellant on or about the relevant time, as per PW-1, to his knowledge, the accused left the room in the morning of 30.05.2004. But, as per information received by him (PW-1), accused left in the morning of 31.05.2004 and did not return. As the statement with regard to leaving on 31.5.2004 would be hearsay, we would have to accept the first statement, that is, the accused left in the morning of 30.05.2004. No doubt, PW-1 stated that the accused left the room, as usual, after locking the room, but, interestingly, the lock alleged to have been put on the door, which was broke open to retrieve the body, has neither been seized nor produced. No key of that lock is stated to have been recovered from the appellant. In these circumstances, one cannot rule out the hand of some one else who had access to that room from where the body was retrieved. Once that is the position and testimony of PW-1 is clear that the appellant had left the accommodation on 30.05.2004 and there is no evidence of his return or as to when the deceased entered the room, the possibility of somebody else committing the crime is not ruled out by the prosecution evidence. In such circumstances, by relying on the legal principles governing a case based on circumstantial evidence, we have no hesitation in extending the benefit of doubt to the appellant. More so, when the autopsy surgeon's (PW-5's) report (Ex. Ka-8), dated 3.6.2004, and his testimony rules out death between the night of 30.05.2004 and the morning of 31.05.2004.

32. At this stage, we may observe that the investigating officer led evidence in respect of various steps taken by him to effect the arrest of the appellant to demonstrate that the accused was absconding but, unfortunately, those incriminating circumstances were not specifically put to the appellant to elicit his explanation while recording his statement under Section 313 CrPC. Without going into the legal aspect as to whether those incriminating circumstance would have to be eschewed from consideration, we may observe that though the conduct of an accused in absconding immediately after the occurrence is relevant, as an indication of his guilty mind, but, it is not conclusive of that fact because, sometimes even innocent persons, when suspected, may abscond to avoid arrest. In Thimma and Thimma Raju V. State of Mysore, (1970) 2 SCC 105, while giving not much importance to the allegation that the accused absconded after the crime, a three-judge Bench of the Supreme Court, in paragraph 11 of its judgment, observed: "Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct of self-preservation in an average human being. We are therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case."

33. In the instant case, abscondence would have been a gravely incriminating circumstance had it been proved that the deceased was wife of the accused-appellant and the accused-appellant had motive to finish off the deceased. Because, in those set of facts, a presumption in respect of joint living could be drawn. But here marriage or live-in relationship of the deceased with the appellant is not proved by the prosecution. Prosecution evidence only proves that she was a regular visitor. It is not proved that she resided with the appellant as a couple and had no other abode. Notably, except for vermillion (Sindoor), bangles, etc nothing much was recovered to demonstrate that goods or clothes of her or of the appellant were there to suggest their joint living. Interestingly, though the dead body was in a bridal attire but there is no evidence that she recently got married to the appellant. May be she wanted to marry the appellant, and that may be the reason for her murder, but conjectures and speculations cannot take the place of proof in a criminal trial. The prosecution had to dispel all these doubts by leading cogent and coherent evidence. In this case, the prosecution was required to establish beyond reasonable doubt as to when the deceased entered the room and that when she entered the room, the appellant was present. If that was proved, the prosecution might have succeeded in absence of evidence or explanation from the accused regarding him parting company of the deceased before the probable time of her death. Rather, here, the prosecution evidence itself is that accused left in the morning of 30.05.2004 or 31.05.2004 (if the hearsay part of the evidence is accepted), whereas, the autopsy evidence suggests that deceased could have died on 01.06.2004. In these circumstances, it would be unsafe to convict the appellant only on his abscondence. The other reason why we do not propose to give that much weightage to his abscondence is lack of motive for the accused to commit the crime as also the possibility of others' involvement to protect their honour inasmuch as prosecution story accepts that people were objecting to the relationship between the appellant and the accused as they were cousins. For all the reasons above, we are of the view that the prosecution evidence though raises strong suspicion against the accused-appellant but fails to carry the suspicion to the level of proof. Hence, the benefit of doubt must go to the appellant.

34. Consequently, and for all the reasons recorded above, the appeal is allowed. The judgment and order of the trial court convicting and sentencing the appellant is set aside. The appellant is acquitted of the charge for which he has been tried and convicted. The appellant is reported to be in jail. He shall be shall be released forthwith, unless wanted in any other case, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.

35. Let a copy of this order be forwarded to the court below along with the record for information and compliance.

Order Date :-25.5.2022 AKShukla/-

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Allahabad High Court