Allahabad High Court
Hub Lal Saroj vs State Of U.P. on 24 November, 2017
Author: Prashant Kumar
Bench: Prashant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED AFR Case :- CRIMINAL APPEAL No. - 1675 of 2006 Hub Lal Saroj, S/o Baij Nath Saroj, R/o Village Saraiya, H/o Sakardaha, Police Station Baghrai, District Pratapgarh. ............ Appellant (In jail) Versus State of U.P. ................... Opposite parties Counsel for Appellant :- Dev Kumar Tripathi,Anupam Dixit,P.K. Srivastava,Sharavan Kumar Shukla Counsel for Respondent :- Govt.Advocate Hon'ble Prashant Kumar,J.
Hon'ble Anil Kumar Srivastava-II,J.
(Delivered by Hon'ble Anil Kumar Srivastava-II, J.)
1. Instant appeal has arisen against the judgment and order dated 04.7.2006 passed by learned Additional Sessions Judge/FTC Pratapgarh in S.T. No.500/2001, arising out of case crime no.287/97, Police Station Baghrai, District Pratapgarh, whereby the accused appellant has been convicted and sentenced under section 302 IPC for imprisonment for life and fine of Rs.1000/- with default stipulation of two months' imprisonment.
2. According to the prosecution case, a first information report was lodged on 18.9.1997 by one Ram Bahadur Saroj at Police Station Baghrai, stating that his sister Ramjasi was married to the accused Hub Lal about four years back according to Hindu rituals. Dowry was also given as per the financial capacity of the father of the deceased but the in-laws of Ramjasi were demanding Rs.10000/-. Whenever she used to come to her parental house, she informs about the demand being made by her in laws. It was also informed by her that her father-in-law Baijnath, 'jeth' Chhangu and Nanbachcha, 'jethani' and husband are torturing her for demand of dowry. Complainant received an information on 18.9.1997 that his sister Ramjasi has been ablazed by the accused on 17.9.1997. When complainant alongwith fellow villagers reached Nazirpur Saraiyya, he found that the burnt dead body of Ramjasi was lying in the house of Hub Lal. First information report was lodged and the case was registered under section 498 A, 304 B IPC. Inquest proceedings were conducted. Dead body was sealed and sent for postmortem which was conducted on 20.9.1997 at 01:50 PM by Dr. P.K. Singh wherein the cause of death was found as asphyxia as a result of strangulation. Hyoid bone was found fractured. Postmortem superficial to deep burn were also present. After investigation Investigating Officer submitted a charge sheet under section 306 IPC against the accused-appellant.
3. Initially, the learned trial court framed a charge on 14.02.2002 under section 306 IPC against the accused who denied the charges and claimed trial. After recording the statement of the witnesses at the time of judgment learned trial court recorded a finding that in view of the statement of PW-4 Ram Bahadur and PW-5 Dr.P.K. Singh charge under section 302 IPC should be framed against the accused. Accordingly, charge under section 302 IPC was framed and charge under section 306 IPC was deleted on 14.12.2005. An opportunity of cross examination of the witnesses was also given to the accused. Accused denied the charges and claimed trial.
4. In order to prove its case prosecution has produced PW-1 Prahladi (declared hostile), PW-2 Deokali (declared hostile), PW-3 Prabhavati Devi (declared hostile), PW-4 Ram Bahadur complainant and brother of the deceased, PW-5 Dr P.K. Singh who has conducted the postmortem of the dead body of the deceased wherein the cause of death was found strangulation. Postmortem burn injuries were also found. PW-6 SI Shyam Bahari Singh Investigating Officer, PW-7 Dy. S.P. Lal Bahadur Investigating Officer.
5. Learned trial court has also summoned Baijnath as CW-1 and Shanti Devi as CW-2. In the statement under section 313 CrPC accused has stated that the deceased has committed suicide as she was under depression due to the death of her children. Accused was not present at the place of incident.
6. After appreciating the evidence on record, learned trial court has recorded a finding of conviction against the accused-appellant. Learned trial court has based its judgment mainly on Section 106 Indian Evidence Act.
7. Feeling aggrieved, accused-appellant has preferred the appeal.
8. We have heard Shri Shrawan Kumar Shukla, learned counsel for the appellant and learned A.G.A. and perused the record.
9. Initially, the first information report was lodged under section 498-A and 304 B IPC but after investigation chargesheet was submitted against the accused persons under section 306 IPC. Learned trial court has recorded the entire evidence, statement of accused under section 313 CrPC. After framing a charge under section 306 IPC but before delivery of judgment, learned trial court has observed that on the basis of the statement of PW-4 Ram Bahadur Saroj and PW-5 Dr.P.K. Singh case under section 302 IPC is made out. Accordingly, charge was amended under section 302 IPC.
10. Now it is to be seen as to whether the prosecution has been able to successfully prove the charge under section 302 IPC against the accused ?
11. Admittedly, deceased died in her in laws house in abnormal circumstances. PW-5 Dr. P.K. Singh conducted the postmortem examination on the dead body of the deceased on 20.9.1997 at 01:50 PM wherein it was found that there were superficial to deep postmortem burn all over body. No part of the body is spared. Hyoid bone was also found fractured. Doctor opined that the cause of death was asphyxia as a result of strangulation. PW-5 Dr. P.K. Singh has stated that carbon particles were not found in the respiratory system, hence, he opined that the burns were post-mortem. At this stage, it is also very relevant to note that PW-1 Prahladi has stated that he heard a noise that fire has broken out in the Hub Lal's house. He reached at the spot. Door were closed from inside. 'Khaprail' (a moveable soil structure for covering the roof) were removed. Some persons entered into the house from the roof and opened the door. It was found that wife of Hub Lal died due to burn injuries. As per his knowledge she has committed suicide. PW-2 Deokali has also stated that fire has broken in the house of Ram Jasi. She died. PW-3 Prabhavati was also declared hostile and not supported the prosecution version. PW-6 S.I. Shyam Bihari reached at the spot after registration of the case, conducted the inquest proceedings. PW-7 C.O. Lal Bahadur has conducted the investigation and prepared the site plan which is exhibit Ka-6, wherein the dead body was shown as lying at place 'A'. Point 'B', 'C' have been shown in the wall wherein it is mentioned that an attempt was made to break it to enter into the house to open the door which could not succeed. 'D', 'E' is shown the place from where 'khaprail' were removed and after removing the 'khaprail' and entering into the house door was opened. Nothing was found burnt in the house. PW-4 Ram Bahadur is the complainant and brother of the deceased who is not an eyewitness of the incident, neither he has stated about the location of the house of the accused. It is admitted by PW-4 Ram Bahadur that in the room where Ramjasi was burnt to death there was only one door. There was no window. It was a roof of 'khaprail'. PW-4 Ram Bahadur found the dead body outside the room. One Chhotelal informed him that Ramjasi has been set ablazed by the accused. It is further stated by him that villagers told him that she was beaten to death, thereafter she was burnt.
12. It is an admitted position that deceased died in her in laws house. So far as charge of Section 304 B is concerned, it was not framed against the accused. Charge under section 302 IPC was framed. Hence, the burden lies upon the prosecution to prove the charge against the accused beyond reasonable doubt. Accused has stated in his statement under section 313 CrPC that the deceased has committed suicide. He is a rickshaw puller and was not present in the house at the time of incident. CW-1 Baij Nath is the father of Hub Lal, who has stated that at the time of incident Hub Lal was cutting the grass in the field alongwith CW-1. Hub Lal is a rickshaw puller who is residing at Allahabad. He came to the house a day before the incident. Some smoke was seen by the CW-1 Baij Nath then he ran away towards house. Thereafter, Hub Lal also came. The room wherein the deceased was residing there was no window or 'roshandan'.
13. Learned counsel for the appellant submits that the prosecution has utterly failed to prove the charge under section 302 IPC against the accused. PW-1 Prahladi, PW-2 Deokali and PW-3 Prabhawati have turned hostile. It is further submitted that although the PW-5 Dr. P.K. Singh has stated that cause of death was strangulation but at the same time according to PW-7 Lal Bahadur Circle Officer as well as PW-4 Ram Bahadur the room wherein Ramjasi died was having only one door which was bolted from inside. There was no window or 'roshandan'. Some people entered into the room from the roof after removing the 'khaprail'. Hence, even if the statement of PW-5 Dr. P.K. Singh is accepted even then culpability of the accused-appellant could not be proved. Provisions of Section 106 Indian Evidence Act would also not come into play in this case.
14. Per contra, learned A.G.A. submits that the prosecution has successfully proved its case beyond reasonable doubt. Deceased died in her in laws house. Explanation submitted by the accused is not satisfactory.
15. In Jose alias Pappachan vs. Sub-Inspector of Police, Koyilandy and Another, 2017 CRI. L.J. 407 Hon'ble the Apex Court has held that :-
"49. The evidence of the eye-witness when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act."
16. It is trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and commonsense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.
17. It was further held in the case of Jose alias Pappachan (supra) that :-
55. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise "The Law of Evidence" fifth edition by Ian Denis at page 445:
"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimize the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt."
56. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction.
57. This applies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard.
58. Addressing this aspect, however, is the following extract also from the same treatise "The Law of Evidence" fifth edition by Ian Dennis at page 483:
"Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not "merely fanciful", it must follow that there is a reasonable doubt about guilt. There is no rule, however, that Judges must direct Juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure.
The very high standard of proof required in criminal cases minimizes the risk of a wrongful conviction. It means that someone whom, on the evidence, the factfinder believes is "probably" guilty, or "likely" to be guilty will be acquitted, since these judgements of probability necessarily admit that the factfinder is not "sure". It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the "beyond reasonable doubt" standard against wrongful conviction."
18. In Paramasivam and Others vs. State through Inspector of Police, (2015) 13 SCC 300 Hon'ble the Apex Court has placed reliance upon Sucha Singh vs. State of Punjab, (2001) 4 SCC 375 wherein in para 19 it was held that :-
"19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference."
19. Admittedly, accused was not present in the house at the time of the incident. Room was locked from inside. Whatsoever may have happened with the deceased is a different aspect but mere suspicion cannot take place of proof. It was incumbent upon the prosecution to directly connect the accused with the commission of the crime which could not be proved. Information regarding death of Ramjasi was given to him by one Chhotelal, who has not been produced, hence, the testimony of PW-4 Ram Bahadur could not be of any aid to the prosecution. Burden could not be shifted upon the accused under section 106 Indian Evidence Act. Initially, it was for the prosecution to establish that the certain facts were within the special knowledge of the accused. Only then accused could be called upon to explain those facts but the same could not be proved by the prosecution.
20. On the basis of the discussion made above, we are of the considered view that the learned trial court has misappreciated the evidence on record. Burden of proof has wrongly been shifted upon the accused under section 106 Evidence Act. Prosecution has utterly failed to prove the charges against the accused who is entitled for acquittal.
21. Appeal is allowed. Judgment and order dated 04.7.2006 passed by the learned court below is set aside. Accused Hub Lal Saroj is acquitted for the offence punishable under section 302 IPC. He is in jail. He would be released forthwith if not wanted in any other case.
22. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.
Date :- 24.11.2017 mks (Prashant Kumar, J.) (Anil Kumar Srivastava-II, J.)