Allahabad High Court
Salman vs State Of U.P. on 15 February, 2019
Bench: Bala Krishna Narayana, Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 A. F. R. Case :- CRIMINAL APPEAL No. - 570 of 2012 Appellant :- Salman Respondent :- State Of U.P. Counsel for Appellant :- Manoj Nigam,Hari Prakash Mishra,Nazrul Islam Jafri Counsel for Respondent :- Govt. Advocate Hon'ble Bala Krishna Narayana,J.
Hon'ble Rahul Chaturvedi,J.
(1) Heard Sri Nazrul Islam Jafri, learned counsel for the appellant, Smt. Manju Thakur, learned A.G.A. I for the State.
(2) This appeal has been filed by appellant-Salman against the judgment and order dated 3.1.2011 passed by Additional Sessions Judge, F.T.C. No. 5, Etah in S.T. No. 344 of 2009 (State Vs. Salman and another) arising out of Case Crime No. 156 of 2009, under Sections 304B, 316, 302 I.P.C. and Section 3/4 D.P. Act, P. S. Raja Ka Rampur, District Etah by which appellant-Salman has been convicted and sentenced to life imprisonment and a fine of Rs. 5000/- and in default of payment of fine three months additional imprisonment under Section 302 I.P.C. and 5 years rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine one month additional imprisonment under Section 316 I.P.C. Both the sentences were directed to run concurrently.
(3) Briefly stated the facts of this case are that P. W. 1 Sarfaraj, the father of the deceased-khushnuma gave a written report Ext. Ka4 at P. S. Raja Ka Rampur, District Etah stating therein that marriage of his daughter-khushnuma was soleminized with appellant-Salman son of Aquil resident of Mouja Pathnau Kasba and Raja Ka Rampur in February, 2009, at the time of the marriage, he had given a sum of Rs. 10,000/- and other articles to appellant-Salman. A week before the incident, he had demanded a sum of Rs. 1 lakh from him and since he was not in a position to fulfill the aforesaid demand, his daughter-Khushnuma was strangulated to death on 26.4.2009 by her father-in-law, Aquil and his three sons, appellant, Salman and Latif.
(4) On the basis of the written report Ext. Ka4, Case Crime No. 156 of 2009, under Sections 304B I.P.C. and 3/4 D.P. Act was registered against appellant-Salman and his other family members, chek F.I.R. Ext. Ka1 and the relevant G.D. entry vide rapat no. 21 time 16:30 hours dated 26.04.2009 were prepared as Ext. Ka3.
(5) The inquest on the body of deceased-Khushnuma was conducted by the Investigating Officer on 26.04.2009 at about 17 hours who also prepared inquest report Ext. Ka4 and other allied documents namely letter addressed to C.M.O. Ext. Ka5, challan lash Ext. Ka6, letter address to R.I. Ext. Ka7. Thereafter, body of the deceased was sealed and dispatched to the district hospital for postmortem examination. The postmortem on the body of the deceased was conducted by C. W. 1 Dr. Shiv Kumar Upadhyay who also prepared and proved her postmortem report as Ext. Ka2.
(6) The Investigating Officer of the case visited the place of occurrence and after inspecting the same, prepared its site plan Ext. Ka9 and after completing the investigation submitted charge sheet Ext. Ka10 against appellant-Salman and co-accused-Sonu under Sections 304B and 316 I.P.C. and Section 3/4 D.P. Act before C.J.M. (7) Since the offences mentioned in the charge sheet were triable exclusively by the Court of Session, C.J.M. Etah committed the case for the trial of the accused to the Court of Sessions Judge where the case was registed as S.T. No. 344 of 2009 and made over for trial from there to the Court of Additional Sessions Judge F.T.C No. 5, Etah who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused, framed charge under Sections 304B I.P.C. and an alternate charge under Sections 302 and 316 I.P.C. and Section 3/4 D.P. Act against the accused. The accused abjured the charge and claimed trial.
(8) The prosecution in order to prove its case examined P. W. 1 Sarfaraj, father of the deceased, P. W. 2 Dilshad, brother of the deceased and P. W. 3 Sajida Begum, mother of the deceased as witnesses of fact while C. W. 1. Dr. Shiv Kumar Upadhyay was examined as formal witness.
(9) The accused in their statements recorded under Section 313 Cr.P.C. denied the prosecution case as false and alleged false implication. They also examined one Avalok as D. W. 1, neighbour of the appellant, who proved that at the time when the deceased was strangulated to death, no one was present in the house.
(10) Learned Additional Sessions Judge, F.T.C. No. 5, Etah after cosidering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record both oral as well as documentary, convicted the appellant under Sections 302 and 316 I.P.C. and awarded the aforesaid sentences to him while co-accused, Sonu was acquitted of all the charges.
(11) Hence this appeal.
(12) Sri N.I. Jafri, learned counsel for the appellant has submitted that there being no evidence on record even remotely indicating the presence of the appellant in his house at the time of the incident, the learned trial judge committed a patent error of law in invoking Section 106 of the Indian Evidence Act for the purpose of convicting the appellant. He next submitted that during his examination under Section 313 Cr.P.C., no question was put to him that he was present in his house at the time of the occurrence. He next submitted that the instant case being based upon circumstantial evidence, motive assumes utmost relevance and the prosecution having failed to suggest any motive, the recorded conviction of the appellant under Section 302 and 316 I.P.C. especially in view of his acquittal from the charge under Section 304B I.P.C. and 3/4 D.P. Act which has attained finality, cannot be maintained and is liable to be set aside.
(13) He also submitted that all the witnesses of fact having failed to support the prosecution and declared hostile, the conviction of the appellant cannot be sustained even for a moment. He lastly submitted that such being the state of evidence on record, the appellant is entitled to acquittal.
(14) Per contra Smt. Manju Thakur, learned A.G.A. I submitted that the deceased being the wife of the appellant and she having died in her matrimonial home and her death being unnatural, a very heavy burden was cast upon the appellant to explain the circumstance under which she had died as the fact pertaining to her unnatural death were within the special knowledge of the appellant and he having failed to furnish any explanation, no fault can be found with the approach of the trial judge in invoking the aid of Section 106 of the Indian Evidence Act and convicting the appellant. This appeal lacks merit and is liable to be dismissed.
(15) We have heard the learned counsel for the parties present and very carefully scrutinized the entire lower court record.
(16) Record shows that the marriage between appellant-Salman and deceased-Khushnuma was soleminized sometime in February, 2009. Khushnuma was strangulated to death in her matrimonial home on 26.4.2009. The F.I.R. of the incident was lodged by P. W. 1 Sarfaraz on 26.4.2009 at 4:30 P.M. The written report of the incident has been brought on record as Ext. Ka4.
(17) The postmortem on the body of deceased-Khushnuma was conducted on 27.4.2009 at 3:30 P.M. by Dr. Shiv Kumar Upadhyay who was examined as C. W. 1. He also prepared and proved the same as Ext. Ka2. The postmortem report of the deceased Ext. Ka2 shows following ante-mortem injury on deceased's body :-
Ligature mark including the neck 28 cm x 3 cm at the level of thryoid. Abrasion present around the ligature, ecchymosed subcut tissue. The superior horns of thryoid cartilage.
(18) Cause of death is opined to be asphyxia as a result of ante mortem strangulation, estimated time of death is stated to be about one and half day. He in his cross-examination on page 23 of the paper book denied the suggestion given to him that the death of the deceased was suicidal and categorically deposed that it was homicidal.
(19) Thus, from the evidence of C. W. 1 Shiv Kumar Upadhyay, it is proved that the death of the deceased was homicidal and not suicidal.
(20) The question which thus arises for our consideration in this appeal is that whether there is any evidence on record indicating that it is the appellant who is the author of the ante-mortem injury found on the body of the deceased ?
(21) Before proceeding to analyze the evidence of the prosecution witnesses of fact, we consider it proper to first have a glance at Section 106 of the Indian Evidence Act and the scope of it's applicability as expounded by the Apex Court in its numerous decisions.
(22) Section 106 of the Indian Evidence Act reads as hereunder :-
106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him.
(23) Under identical situation, the Hon'ble Apex Court has in paragraph 52 to 58 of its judgment rendered in the case of Jose @ Pappachan vs Sub Inspector Of Police AIR 2016 10 SCC 519; Supreme 148; 2016 0 Supreme (SC) 775; has observed as hereunder :
52. On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty under Section 498A IPC and that the co-accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of the prosecution.
53. It is a 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 common sense. 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.
54. The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant.
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 Dennis 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 minimise 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 minimises 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."
(24) On the point whether appellant caused the death of the deceased, the prosecution had examined as many as three witnesses of fact but none of them deposed that the appellant was present in his house at the time of the incident. They even failed to support the prosecution case as spelt out in the F.I.R. and were declared hostile. Although all the three prosecution's witnesses of fact were cross-examined by D. G. C. (Criminal) at great length with the permission of the trial Judge but they stuck to the evidence given by them in their cross-examination.
(25) Thus, we find that the prosecution has failed to discharge its initial burden by leading any evidence to show that the appellant was present in his house either at the time of the incident or was seen in his house or around it at that time.
(26) We have also perused the statement of the appellant recorded under Section 313 Cr.P.C. and we find that no question was put to him about his being present in the house at the time of the occurrence.
(27) Thus upon a wholesome consideration of the facts of the case, the attending circumstances, a threadbare scrutiny of the evidence on record and the settled law on the issue, we have no hesitation in holding that the prosecution has miserably failed to prove its case against the appellant beyond all reasonable doubts. The appellant is entitled to benefit of doubt.
(28) The appeal succeeds and is accordingly allowed. The impugned judgement and order are hereby set aside. The appellant is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with the mandatory requirements of Section 437-A Cr.P.C.
(29) There shall be however no order as to costs.
Order Date :- 15.2.2019 SA