HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 46 AFR
Case :- CRIMINAL APPEAL No. - 3538 of 2005 (Reserved)
Appellant :- Kamta Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Prashant Kumar Singh, Ved Kant Mishra
Counsel for Respondent :- Govt. Advocate
Hon'ble Arvind Kumar Tripathi, J
Hon'ble Pramod Kumar Srivastava, J.
(Delivered by Hon'ble Pramod Kumar Srivastava, J.)
1.This appeal has been preferred against the judgment of conviction and sentence dated 5.8.2005 passed by Addl. Sessions Judge, Court No. 1. Kanpur Nagar in S.T. No. 1337 of 2000, State v. Kamta Singh under section 498-A, 304 B, 302 IPC, crime no. 391 of 2000, p.s. Naubasta, Kanpur Nagar by which sole accused-appellant was convicted for charge under section 498-A and 302 IPC.
2.The prosecution case before trial court in brief was that complainant Durga Singh lodged an FIR on 10.5.2000 at 18:50 am with the averment that he had married his daughter Madhu on 5.5.1996 with Kamta Singh. Soon after the marriage Madhu was treated with cruelty for dowry and demanded Rs. 20,000/- and a motorcycle and for this her husband Kamta Singh, mother-in-law, father-in-law and sister of husband used to beat her. Then Madhu after taking particulars left the house of her husband and came to complainant's house at 182/23 K-Block, Kidwai Nagar, Kanpur Nagar. There Madhu told about her harassment for demand of dowry. Madhu continued to reside with complainant Durga Singh. One day before Holi his son-in-law Kamta Singh came to his house and expressed regret and told that he would not demand dowry and would stay with complainant's family and work there. Then complainant permitted accused Kamta to live there. 2-4 days before the incident, Kamta Singh had again demanded Rs. 20,000/- for doing some work and also threatened of dire consequences if he was not paid the amount. But his words were not taken seriously. On 9.5.2000 anytime in night Madhu screamed, hearing which complainant went there and saw that Kamta Singh was hitting Madhu with brick. On alarm complainant's son Rajesh and wife also came there and raised alarm, then Kamta Singh fled away from the spot. Then complainant saw that Madhu was lying dead, and her body was socked with blood. Madhu was murdered for not fulfilling the dowry demand. Thus complainant Durga Singh had lodged a written report (Ex. K-1) after getting it written by scribe Raj Hans Singh, his son in law. On the basis of this written report case crime no. 391 of 2000 under section 498-A and 304 B was registered and investigation started.
3.The proceeding of inquest were performed by PW-5 Sri OP Singh, Addl. City Magistrate, Kanpur Nagar on 10.5.2000, who prepared inquest report Ex. K-5 and other documents Ex. K-6, 7, 8 and 9 and sent the dead body of Madhu for postmortem. Postmortem was conducted by two doctors on 10.5.2000 at 4.00 pm. Initially investigation was conducted by circle officer Nilesh Kumar. But after inclusion of section 302 IPC, the investigation was conducted and concluded by RP Singh, S.O. who had submitted charge sheet in the court against Kamta Singh.
4.Trail Court had charged accused appellant Kamta Singh for the offence punishable under sections 498-A, 304-B, 302 IPC. Accused pleaded not guilty of charges and claimed to be tried.
5.In support of the charges prosecution side had examined PW-1 Durga Singh, the complainant. PW-2 Radha Singh (complainant's wife), PW-3 Head Moharrir Ganga Charan, PW-4 Dr. O.N. Dwivedi, PW-5 O.P. Singh, Addl. City Magistrate, and PW-6 SR.P. Singh HO (IO). These witnesses had proved documentary evidences of prosecution side.
6.After closure of prosecution evidence statement of accused Kamta Singh was recorded in which he had denied his marriage with Madhu and stated that she used to live with him without marriage. Accused had denied the prosecution evidence and stated that witnesses had given false statement. Accused further told that he had never lived at the house of complainant. When he came Kanpur then came to know about murder of Madhu. The defence side had not adduced any oral or documentary evidence.
7. We have heard the argument of learned counsel for the appellant and learned AGA and perused the record and available evidence.
8. Prosecution case after evidence in brief was that elder daughter of complainant Durga Singh was married to elder brother of Kamta Singh. Due to this relationship Kamta Singh and Madhu were introduced and wanted to marry each other, but neither complainant nor his son Rajesh were in favour of said relationship and they had opposed it then Madhu had left the house of complainant and married with Kamta Singh in a temple and started living with him. The marriage of Madhu and Kamta Singh was not attended by complainant or his son.
9. The FIR in this case was lodged on 10.5.2000 at 8.50 am in police station Kidwai Nagar, Kanpur Nagar. Thereafter case was registered and investigation started during which proceedings of inquest was carried out. Original Investigating Officer Nilesh Kumar, C.O., was not examined by prosecution side, who had conducted most of the investigation in this case. Dr. O.P. Singh the then Addl. City Magistrate had proved the inquest report Ex.K.5 and stated that on 10.5.2000 he had visited the spot got the inquest report prepared and after getting the dead body of Madhu sealed sent it with document Ex. K 5 to K-9 for postmortem for which he had handed over documents to constables.
10. PW-4 Dr. OP Singh was posted on 10.5.2000 in UHM Hospital, Kanpur Nagar as Orthopedic surgeon and he conducted postmortem of dead body of Madhu with help of Dr. Manoj on that date at 4:00 pm. He had proved post mortem report Ex.K-5 and also proved that on external examination they had found following ante mortem injuries on the body of Madhu.
(i) Abraided contusion 3 cm x 2 cm at base of nose. Nazal bone fractured.
(ii)Lacerated wound 1 cm x 5 cm x muscle deep left side of lower lip.
(iii)Scratched contusion 5 cm x 3 cm right side of jaw.
(iv)Contused swelling 8 cm x 5 cm right side of face. (v)Contused swelling 8 cm x 2 cm right side of skull 2.5 cm above right ear. On external examination during post mortem they found that depressed fracture of right partied bone, Nazal bone was fractured. PW-4 proved that cause of death of deceased Madhu was anti mortem head injuries and time of death was approximately ½ day before the post mortem. He opined that injuries found on body of the deceased were sufficient for causing her death and these injuries could have been caused in the night of 9.5.2000 by blow of brick.
11. The inquest was performed at 128/23, K-Block, Kidwai Nagar, Kanpur Nagar at the residence of Durga Singh, the complainant. The IO had collected broken tooth and one rolled-gold tops of ears from spot on 10.5.2000 and prepared its memo of recovery Ex. K-10. On same date, the IO had collected blood stained portion of floor of the room, below the cot of the deceased and prepared its memo of recovery as Ex. Ka-11. On the same date, IO had recovered one blood stained brick and one blood stained pillow from spot and prepared its memo of recovery Ex. Ka-12. These evidences alongwith evidence of PW-4 and PW-5 have believably proved that complainant's daughter Madhu was murdered and her dead body was found at Kidwai Nagar, the residence of complainant. It is also proved from these evidences that cause of death of Madhu was deliberate hitting over her head and facial region by brick which sent her to coma and then to death. Nature of injuries proved that they cannot be accidental. Therefore, from the prosecution evidence it is proved that complainant's daughter Madhu was murdered anytime in night of 9/10.5.2000 at the residence of complainant though charge has been framed for murder on 9.5.2000 but in postmortem conducted at 4:00 pm on 10.5.2000 approximate time of death was about 1/2 day earlier and in his cross examination PW-4 doctor had said that this time could vary on either side between 3 to 6 hours. Therefore, we are of the considered opinion that fatal injuries and death were caused to Madhu at night on 9/10.5.2000. It is also proved from evidence that it was a case of murder.
12. Initially FIR was lodged for offence under section 498-A and 304-B. In FIR nothing of this sort was written by complainant that Madhu had married with Kamta Singh without his consent. On the contrary complainant had written that he had married his daughter Madhu with Kamta Singh on 5.3.1996, after which Madhu had started residing in house of her in-laws, and her harassment for demand of dowry was started, and she was beaten by her husband and in-laws and husband's sister. But these averments are not supported by prosecution evidence. Original IO, who had recorded statement of witnesses of fact under section 161 Cr.P.C. was not examined. PW-1 complainant had not said in his examination-in-chief that he had married his daughter Madhu with accused. During his cross examination PW-1 had stated that he had not married Madhu with Kamta, and he cannot tell the date, month or year of her marriage. This marriage was not performed at his house. He had neither arranged this marriage nor performed ritual of Kanyadan. He or his son Rajesh had not even attended this marriage. His elder daughter was married with Kamta's elder brother Naurang, due to which Madhu used to go there and these visits developed illicit relation between Madhu and Kamta. His son Rajesh was not happy and disapproved the relationship of Madhu and Kamta therefore he went to Saharanpur, and later Madhu had left his house and started living with Kamta. Thus from statement of PW-1, this FIR averment has been proved wrong that complainant had married his daughter Madhu on 5.5.1996 with Kamta Singh. Complainant was never in favour of this marriage and opposed it and had not even attended this marriage. On his opposition Madhu had left his house and started living with Kamta.
13. PW-2 Radha Singh is wife of complainant and the mother of the deceased. She had stated that her daughter Madhu was married with Kamta Singh of village Balhapara in Kudaha Devi temple, after which she started residing in her in-laws house in village Balahapara. Later on Madhu came to know that Kamta had illicit relationship with his Bhabhi, the wife of his elder brother, so she left her in-laws' house and started living with her (PW-2). PW-2 had not stated anything about ever visiting to village Balahapara, i.e. in-laws house of her daughter Madhu or at house of appellant Kamta Singh. PW-1 complainant had already specifically stated that he had never visited village Balahapara. There is no evidence to prove that Madhu had ever resided at Balahapara. During cross examination PW-2 had stated that Kamta had already informed Madhu about his illicit relationship with his Bhabhi (elder brother's wife) and promised to break this relationship after his marriage. This statement of further cross examination indicates that this earlier statement of PW-2 was incorrect that after her marriage Madhu came to know about illicit relationship of Kamta with his Bhabhi. In her cross examination PW-2 had stated that Madhu was married with Kamta at Kudha Devi temple. In this marriage her daughters were present but none of other family members have attended the marriage. She had further stated that her son Rajesh was not in favour of marriage of Madhu and Kamta. Therefore after marriage, he had made excuse of his mother's illness and called Madhu to his house. Though PW-2 had stated that she attended the marriage of Madhu and Kamta in temple, away from her house and also away from village of Kamta Singh, but had not stated as to what ceremony were performed in said marriage and how the marriage was formally performed. These facts supports this statement of accused under section 313 CrPC that he had not been married with Madhu though she used to reside with him without marriage. The defence case was not of marriage but of live-in-relationship of Madhu and Kamta against wishes of family members of complainant. From evidence it is proved that the complainant, his son and other family members were opposed this relationship but Madhu had started living with Kamta Singh without formal marriage. Therefore, as stated by PW-2, on last date of her cross-examination, that Rajesh did not want the solemnization of marriage of Madhu and Kamta. So he had given false reason for calling Madhu at his house and falsely informed about illness of his mother. From the available evidence this prosecution is not proved that complainant's daughter Madhu was ever been formally married with accused appellant Kamta Singh. On the contrary from the evidence it is proved that deceased Madhu and accused Kamta Singh had developed extra marital relationship and therefore against wishes of her brother and parents, Madhu had left her parental abode and started residing in live-in relationship with Kamta Singh. Since complainant, his son were opposed such relationship therefore complainant's son Rajesh had sent false massage of illness of her mother PW-2 and called Madhu to his house at Kidwai Nagar, Kanpur Nagar and during her continuance of this living in Kidwai Nagar, Madhu was murdered in the night of 9/10.5.2000.
14. Prosecution side had tried to prove that Madhu and accused Kamta Singh had arranged marriage and after this Kamta Singh and his family members were demanding dowry Rs. 20,000/- and a motorcycle for which they had been treating Madhu with cruelty; but from above discussion, these averments had been proved incorrect. From available evidence it is proved that any formal marriage of deceased Madhu and Kamta Singh was never performed, and both were living in live-in-relationship without formal marriage which was not liked either by complainant or his son. So complainant's son Rajesh had sent incorrect message of illness of mother Radha Singh which resulted in returning of Madhu at her parental house in Kidwai Nagar, Kanpur, where she was murdered. From the statement given by PW-1 and PW-2 in their cross examination it is proved that there was no demand of dowry was ever made by accused Kamta Singh or his family members from deceased Madhu. PW-1 complainant Durga Singh had never visited residential place of appellant Kamta Singh, and witnesses of fact namely PW-1 and PW-2 had never stated that any family member of appellant Kamta Singh had ever demanded any dowry. These facts prove that prosecution case is based on incorrect averments and at least substantial part of written FIR of complainant is incorrect.
15. During his cross examination PW-1 had stated that his son Rajesh was unhappy with illicit relationship of Madhu and Kamta and therefore he went to live at Saharanpur. PW-2 Radha Singh had also stated that her son Rajesh wanted to marry Madhu at another place and was not agreeable with relationship of Kamta Singh and Madhu, but when Madhu had not accepted his point of view then Rajesh had left his house and went to Saharanpur for doing job there. At another place in her cross examination PW-2 had stated that Kamta Singh is employed in a factory at Saharanpur which manufactures buckets. He was employed there for 1½-2 years. Her son Rajesh has also worked in that factory for 2-3 months. These facts prove that complainant's son Rajesh had not left his house because of being angry with relationship of Kamta Singh and Madhu. On the contrary these facts had supported this contention of learned counsel for the appellant that Kamta Singh was employed in Saharanpur in a bucket factory and he had helped the younger unemployed brother of Madhu, and arranged the employment for him in the same bucket factory at Saharanpur where he was working. Appellant Kamta Singh had reason to help Rajesh (real brother of Madhu) because Rajesh was unemployed. This prosecution case has not been proved that allegedly Rajesh was opposed to relationship of Madhu and Kamta Singh and therefore he left his house and started working in same factory of bucket at Saharanpur where appellant Kamta Singh was employed for more than 1½ years. True facts relating this point could have been proved by Rajesh but prosecution side had deliberately not examined him without any explanation. Prosecution side had attempted to establish that Madhu was married with appellant Kamta Singh and after sometime appellant Kamta Singh and his family members have started demanding dowry, but these facts were not proved from evidence. On the other hand, it is proved that Madhu and Kamta Singh were not formally married and were continuing their live-in relationship without formal marriage, during which appellant had helped the unemployed brother of Madhu to get job at Saharanpur in the same bucket factory where he was working. It is also not proved that the deceased had left house of Kamta Singh because of any ill treatment or harassment for demand of dowry or because of alleged illicit relationship of Kamta Singh with his Bhabhi. These very important facts had not been considered by the trial court in its impugned judgment. Learned Sessions Judge had not meticulously gone through evidences adduced by witnesses of facts namely PW-1 and P'w-2, and after going through FIR containing false facts, as well as portion of statement of PW-1 and PW-2, he had considered the solemnization of marriage of Madhu and Kamta Singh and the factum demand of dowry by appellant. In present case neither marriage of appellant Kamta Singh was proved with deceased Madhu nor any incident of fact of demand of dowry or harassment for the same was substantiated from the evidence. Therefore, finding of trial court to the contrary are unacceptable and finding regarding cruelty or harassment for demand of dowry is found incorrect.
16. It is prosecution case that appellant Kamta Singh was residing in the house of complainant for which he was permitted about one month earlier to the incident of 09.05.2000. It is also alleged in FIR that 2-4 days before the incident accused Kamta Singh had demanded Rs. 20,000/- for starting any business and also threatened of dire consequences in case of non-fulfillment of this demand, but these facts were not stated either by PW-1 or by PW-2 in their statement. On the contrary PW-1 had stated that Kamta Singh had requested him and his wife for permission to live there with them and promised not to demand any money or motorcycle. Prosecution case had not even tried to prove this fact noted in written FIR that appellants had demanded any money even for starting any business. Contrary to that PW-2 had stated in her statement, a referred earlier, that Kamta Singh was employed in Bucket factory at Saharanpur for about 1-1½ years. Therefore, this part of FIR and prosecution case is also incorrect that soon before the incident appellant had demanded any dowry for money or given any threat in that regard. Prosecution had failed to explain as to why such incorrect facts had been written in FIR by complainant. These facts raise doubts on prosecution story.
17. In written FIR (Ex. K-1) it is mentioned that on screaming of deceased in the night at unknown time complainant (PW-1), his wife and his son Rajesh had reached on spot and saw that Kamta Singh was hitting Madhu with brick. After that on their alarm Kamta Singh ran away, and then they found Madhu dead. It is material to note that time of incident was not mentioned in the FIR. Reason of non-mentioning of the time of incident in FIR could not be explained by prosecution side. The incident of murder was allegedly seen by PW-1 and PW-2 and their son Rajesh, then reason for non-examination of Rajesh was not explained by prosecution. Had the incident been occurred in front of three witnesses they would have informed the police immediately and told about the incident of heinous crime of murder and its time, but nothing of this sort was done either by complainant or his wife or adult son Rajesh. The delay in lodging of FIR its effect had also been emphasized by appellants.
18. In Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1 Hon'ble Apex Court had describle reason for FIR as:
"84. The insertion of sub-section (3) of Section 154, by way of an amendment, reveals the intention of the legislature to ensure that no information of commission of a cognizable offence be ignored or not acted upon which would result in unjustified protection of the alleged offender/accused.
85. The maxim expressio unius est exclusio alterius (expression of one thing is the exclusion of another) applies in the interpretation of Section 154 of the Code, where the mandate of recording the information in writing excludes the possibility of not recording an information of commission of a cognizable crime in the special register."
In this ruling (''Lalita Kumari v. Govt. of U.P.' supra) Hon'ble Court had further emphasized the importance of prompt FIR as :
"The FIR is a pertinent document in the criminal law procedure of our country and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty."
"The obligation to register FIR has inherent advantages:
(a) It is the first step to "access to justice" for a victim.
(b) It upholds the "rule of law" inasmuch as the ordinary person brings forth the commission of a cognizable crime in the knowledge of the State.
(c) It also facilitates swift investigation and sometimes even prevention of the crime. In both cases, it only effectuates the regime of law.
(d) It leads to less manipulation in criminal cases and lessens incidents of "antedated" FIR or deliberately delayed FIR."
"Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
In ''Kishan Singh v. Gurpal Singh, (2010) 8 SCC 775' Hon'ble Supreme Court held:
"22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."
In ''Shankarlal v. State of Rajasthan, (2004) 10 SCC 632' the Apex Court had held :
"Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW 6 then there is no other material to base a conviction on the appellant, hence we are of the opinion that the appellant is entitled to the benefit of doubt, therefore, this appeal succeeds and is allowed."
In ''Ramdas v. State of Maharashtra, (2007) 2 SCC 170' Hon'ble Apex Court had held:
"Counsel for the State submitted that the delay in lodging the first information report in such cases is immaterial. The proposition is too broadly stated to merit acceptance. It is no doubt true that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and in a given case the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them."
19. According to FIR and prosecution case in present case the complainant (PW-1), his wife and mother of deceased (PW-2) and their son Rajesh (brother of deceased) had been eye-witness of the charged incident at any time in night. They had neither tried to stop/ nab the accused, nor made attempt to inform the police immediately so that law may promptly be set into motion. They allegedly waited till 8.50 am in that morning/day, called scribe and other persons, got prepared a written report (Ex. Ka-1) and then handed it over in police station. Even in FIR they had not mentioned time of incident allegedly happened before them. Without any doubt the FIR is much delayed and explanation of its delay has not been given. It is very unbelievable that incident of murder of a girl that had happened before family members of victim but they could not tell its time. This fact had been considered in the light of other facts and circumstances of the case, and in present case we are satisfied that the delay in lodging the report has been totally unexplained. In the light of the totality of the evidence, the delay in lodging the report adversely affects the case of the prosecution.
20. In FIR it is written that complainant, his wife and his son had seen the incident that Kamta Singh was hitting Madhu with brick and on their alarm he had fled away from the spot. It is not written in FIR as to how Kamta Singh had escaped from the spot because the spot of incident was second floor of the house and there was only one way to escape, which was stair case. Accused could not have escaped from spot without going near and then crossing the witnesses namely complainant and his family members, but nothing of this sort was stated in FIR. During examination PW-1 had stated that after seeing him, his wife and Rajesh, the appellant accused had threatened and crossed the wall and fled away. This statement appears improbable and unbelievable because in no way accused could have crossed the wall of second floor of house without any stair case or steps. PW-2 Radha Singh had not supported the statement of PW-1 on this point and stated that when they were 15 steps away then accused had climbed from projection of roof and ran away. Her statement proves that there was no wall which was allegedly crossed by accused, as earlier stated by PW-1 complainant. In her cross examination (on 5.4.2002) PW-2 had stated that she had seen the incident from 10-15 steps so she could not see it properly, and when they were 15 steps away then ''assailant' had climbed down from projection of roof. At that time assailant's back was towards her; and after that they reached near the deceased Madhu. The statement of PW-2 indicates that there is every possibility that if any members of complainant's family were not assailant then there is possibility that assailant was not identified by them. Had witnesses seen the incident of murder before them and the escaping of real assailants then they would have been in position to give its description properly. The statement of PW-1 and PW-2 are contradictory to each other. Prosecution case is also not supported by the description of spot mentioned in site plan Ex. Ka-13. It was not possible for any person to jump from the roof of second floor of the house. Neither it was possible to climb down from there without stair case or steps. Had the real assailants escaped from spot in presence of three witnesses they would have been able to mention these facts in the FIR and stated in the court in believable way. Therefore, prosecution case on this point also appears unacceptable and doubtful.
21. PW-2 had stated that after the incident, she had touched the body of Madhu which was very cold and blood clots were present beneath the cot. Had there been incident of murder committed before these witnesses then immediately after the incident it was improbable that the dead-body would have become very cold and blood clotting would have occurred. Considering the nature of injuries and state of dead body without any movement or breathing in cold state and presence of blood clots, it appears that these witnesses of fact are either telling lie or they had not seen the incident and reached on the spot after passing of sufficient time after murder.
22. In the above mentioned circumstances, when other things relating to incident are not proved and are doubtful and statements of witnesses are in contravention to each other and improbable, this case of prosecution is also not proved beyond doubt that at the time of incident appellant was residing in house of complainant for about one month and fled away immediately after the incident by jumping or climbing down from the second floor of the building. In his statement under section 313 CrPC accused had denied that he had ever lived in house of complainant. He had stated that he had come to Kanpur after the death of Madhu. Except PW-1 and PW-2, whose testimony is doubtful and improbable, there are no independent witnesses to state that appellant was ever seen residing in house of complainant. Had the appellant been residing there for about one month then there must have been his clothes and other belonging and proof of his living. During investigation nothing of such kind was found. Neither investigating officer had found any clothes or belong of the appellant at the house of complainant nor witnesses of facts namely PW-1 complainant and his wife PW-2 Radha Singh had stated anything like this that when appellant fled away from the spot after the incident then his belongings had been left at their house. It is not a case of prosecution that before fleeing away from the spot accused appellant had collected his belongings and removed all his evidences of residing there. These are very important evidence which were not considered by the trial court. In these circumstances, this contention of learned counsel for the appellant cannot be disbelieved that nothing relating to prosecution case or facts or written FIR or statement of prosecution witnesses have not been proved beyond doubt. Consideration of totality of prosecution evidences and circumstances of the case, the prosecution story relating to facts of charge are highly doubtful and unbelievable.
23. On the basis of above discussion, we are of the considered opinion that important relevant facts and circumstances had not been considered by the trial court at the time of passing of the impugned judgment, and it is established that prosecution side had failed to prove the charges against the accused appellant beyond reasonable doubt. So judgment of conviction passed by learned Addl. Sessions Judge has been proved erroneous. Therefore, judgment dated 5.8.2005 passed by Trial Court in S.T. No. 1337 of 2000 aforesaid is set aside. The appellant-accused Kamta Singh is acquitted of all the charges of this case. He be released immediately from the custody of this case. Accordingly the present appeal is hereby allowed. Let a copy of this judgment be sent to Chief Metropolitan Magistrate, Kanpur Nagar for ensuring compliance.
Date: 14.7.2015 SKS