Reena vs State
2011 Latest Caselaw 16 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?RESERVED. 
 
CRIMINAL JAIL APPEAL NO. 5459 of 2007.
 
Reena. VS. State of U.P. 
 
Connected with
 
Criminal Appeal No. 5461 of 2007.
 
Kalmi Vs. State of U.P.
 
Hon?ble Amar Saran,J.

Hon?ble N.A. Moonis, J.

(delivered by Hon'ble N.A. Moonis,J.)

The aforesaid criminal jail appeals have been preferred by the appellants against their conviction under Section 302/34 I.P.C. whereby they have been sentenced for life imprisonment and a fine of Rs. 10,000/- each and in default of payment of fine one year simple imprisonment in S.T. No. 463 of 2005 by the learned Additional Sessions Judge, Court No.2, Bijnor vide order dated 5.9.2006.

The prosecution case as unfolded in the first information report by Kresh Pal Singh is that on 16.11.2004 at about 10 A.M. his daughter Kavita aged about 17 years went along with her bhabhi (sister-in-law) Reena and her mother Smt. Kalmi in the jungle for threshing sugar cane. At about 3 P.M. his younger daughter Pravesh returned back. Then his wife enquired about Kavita from her sister-in-law Reena and her mother Kalmi as to why they had not returned. His younger daughter told her that they had not gone to the field at all. Thereafter his daughter came to the sugar cane field and told him that they were not in the house. The complainant and his family members went around the village to trace out her daughter but her dead body was found in the sugar cane field of Vijay Singh. Her dupatta was found around her neck with which she was throttled by his daughter-in-law Reena and mother of Reena Smt. Kalmi. They are residents of the State of Bihar. Eleven months earlier Mahipal Singh got the marriage of his son Sanjay with Reena but her daughter-in-law had tried to run away from the house several times, therefore, the complainant's daughter Kavita was asked to keep her an eye upon her and to remain with her. The marriage of Reena was performed by Mahipal as Reena's elder sister was with him and the appellants have conspired with Mahipal to commit the murder of his daughter.

The report of the aforesaid incident was scribed by Shiv Charan Singh, which was registered at police station Kotwali Dehat, Nageena, district Bijnor as Case Crime No.609 of 2004, under Sections 302 and 120-B I.P.C. After lodging of the first information report the police got into motion and reached at the spot and after conducting inquest on 16.11.2004, sent the dead body to the mortuary where the post mortem was conducted (Exhibit Ka. 3). During investigation the Investigating Officer recorded the statements of the witnesses, inspected the place of occurrence and prepared the site plan (Ex. Ka.2) and after completing investigation, charge sheet was submitted against the accused/appellants. The charges were framed against the accused/appellants under Section 302 read with Section 34 I.P.C. The accused/appellants abjured their guilt and pleaded to be tried. In support of the prosecution case witnesses of facts, namely, Kresh Pal who is the father of the deceased and who lodged the first information report was examined as P.W.1. Nirmala who is mother of the deceased was examined as P.W. 2, Dal Chand who was the witness of last seen was examined as P.W. 3. Formal witnesses have been examined in support of the prosecution case. Dr. V.K. Shukla as P.W.4 who had conducted the post mortem of the deceased on 17.11.2004 at 2.45 P.M. proved the post mortem report Exhibit Ka. 2. Surendra Singh Rana, Sub Inspector was examined as P. W. 5 who had conducted the investigation and submitted the charge sheet against the accused/appellants. Muni Dev Yadav, Constable who has taken the dead body for post mortem along with the papers of inquest etc. was examined as P.W.6. After the examination of the formal witnesses the statement of the accused/appellants were recorded under Section 313 Cr.P.C. wherein they have stated that they have been falsely implicated in the case. The mother of the appellant Reena was informed after death of the victim on phone call. The accused/appellant Kalmi has stated that she was called after the death of Kavita by giving her a phone call. No other witness was led by them in evidence.

We have heard the learned counsel for the appellants, amicus curiae Sri Manish Chand Umrao and Sri A.N. Mulla, learned A.G.A. on behalf of the State and perused the record.

It is contended by the learned counsel for the appellants that this is a case of circumstantial evidence and there is no reliable evidence to support the prosecution case. The prosecution has come up with the case that the appellant Reena who is the wife of Sanjay the son of the complainant, had tried several times to run away and to guard her the deceased Kavita was asked to keep constant vigil. Annoyed by this the appellant along with her mother has committed her murder, but there is no evidence on record that the appellant Reena had ever tried to run away from the house. There are contradictions in the statements of the witnesses and there is no reason that the appellant Reena would not get an opportunity to run away at any time. The medical evidence also does not support the prosecution case. The alleged recovery of dupatta around the neck of the deceased and a handkerchief with which she was strangulated to death has been recovered by the police on 17.11.2004, which was exhibited as Exhibit Ka.9 though the investigation was started on the same day after lodging of the first information report. According to the post mortem of the deceased the hyoid bone was found fractured. The appellant no.1 was a pregnant lady and could not have made such an assault by strangulating her to death.

Learned A.G.A. has contended that there is no reason to falsely implicate the accused/appellants. It has come in the evidence of the P. W. 1 and P.W. 2 that the mother of appellant Reena reached to her house seven/eight days earlier to the incident and as the deceased was asked to guard the appellant Reena from running away from the house they both conspired together and took her on the pretext of threshing sugar cane on the fateful day and thereafter she was strangulated with her own dupatta and on account of throttling hyoid bone of the deceased was fractured and anti mortem injuries were found on her body. There is no inconsistency in the medical evidence with the prosecution case. The statement of P.Ws. 1 and 2 who are father and mother of the deceased are consistent with the prosecution case that they never returned back after that. P. W. 3 Daal Chand who is an independent witness has specifically stated that he knew both the appellants and also knew about the marriage of appellant Reena with the son of the complainant and on the fateful day he had seen the appellants along with the complainant's daughter Kavita going towards the sugar cane field of Vijay Pal. Thereafter in the evening he came to know that the dead body of the deceased was lying in the sugar cane field of Vijay Pal. The appellants had absconded after the incident, which itself show that both the appellants have conspired together to commit the murder of the complainant's daughter. The appellant Reena is the daughter-in-law of the complainant whose mother came and was living along with her only seven/eight days prior to the date of the occurrence but ran away after committing the murder and only arrested by the police from village Badhanpur on 19.11.2004. After considering and relying on the evidence on record the trial court has rightly convicted the accused/appellants to suffer life imprisonment.

The trial court founded the conviction of the appellants on the basis of the circumstances established by the prosecution as set out herein below.

The statement of P.W. 1 Kresh Pal has stated that his son was married with he appellant Reena eleven months prior to the incident and on several occasions she had tried to run away from the house on account of which he had asked his daughter Kavita to remain with her. About seven days earlier to the incident mother of Reena Smt. Kalmi came and was staying along with her in the house. On the fateful day at about 9 or 10 O'clock they both went along with Kavita to jungle for threshing the sugar cane but at about 3 P.M. his younger daughter arrived and told him that they never reached at the field and when they tried to find her out, the dead body was found in the sugar cane field of Vijay Pal, but both the appellants were not found anywhere. Her dupatta was wrapped around her neck with which she was strangulated to death. The P.W. 2 who is the mother of the victim, has narrated the same story as P.W.1 had stated. P.W.3 Dal Chand who is said to be an independent witness had last seen the daughter of the complainant in the company of the appellants when they were going towards the field of sugar cane of Vijay Pal. Dr. V.K. Shukla who had conducted the post mortem of the deceased on 17.11.2004 at 2.45 P.M. found the following injuries on her body; (i) contusion 3 cm.x 2 cm. on the left side of face, 5 cm. in front of left ear, (ii) abraded contusion 6 cm. x 2 cm. on the lower jaw left side, below left ear, (iii) faint ligature mark, 30 cm. x 4 cm. all around the neck below the thyroid cartilage, transversely continuous on cut echymosis tissue blood was present. On internal examination of the deceased hyoid bone was found fractured and the cause of death opined by the doctor was asphyxia as a result of ante mortem strangulation. The investigation was conducted by P.W.5 Surendra Singh Rana who had prepared the recovery memo on 17.11.2004 of dupatta and a handkerchief from the place where the dead body was lying. The question for consideration arises whether the aforementioned circumstances are proved beyond doubt.

A perusal of the prosecution evidence goes to show that in all probability the murder took place at about 3 P.M. of Km. Kavita by strangulation as the medical evidence of P.W.4 Dr. V.K. Shukla who had conducted autopsy on 17.11.2004 at 2.45 P.M. has deposed that the death had taken place one day earlier. It is true that there is evidence of P.W.1, P.W.2 and P.W. 3 to the effect that the victim was alive at 9-10 A.M. on 16.11.2004 but there is no definite evidence as to till what time she was seen alive by the prosecution witnesses. This being so, it would be unsafe and unreasonable to draw an inference that the appellants alone are the perpetrator of the crime.

The evidence that the appellants had absconded after committing murder is also shaky and uncertain. The occurrence took place in the jungle of Garatpur P.S. Kotwali Dehat but the appellants were arrested from Badanpur, which falls within the limits of police station Narpur. It has also come in evidence that the appellants were arrested from Railway Station Seohara. Thus there is inconsistency in evidence about the place from where they were arrested. At one stage it has been mentioned that they were arrested from Budhanpur village, which lies within the police station Narpur while at another stage it has been mentioned that on the information of informer they were arrested from Seohara railway station. The dead body is said to have been found from the sugar cane field of Vijay Pal but it was very strange that no statement was recorded. It has also come in evidence that Reena was pregnant for about six months but the case as set up by the prosecution that she was trying to run away from the house does not appear to be convincing reason and the deceased was her obstacle hence the appellants had made a plan to eliminate her. It is also not ascertainable as to who had strangulated the victim. There is no evidence in support of the fact that the appellant Reena had tried to run away from the house. There is also inconsistency as to the manner of arrest of the appellants by the police. If the appellants had any intention to disappear from the scene of occurrence then nothing prevented them to leave the village to some unknown place. There is only speculation when they did not return home that after killing the deceased they had absconded. All that comes from evidence on record is that someone else committed the ghastly murder and when the appellants came to know they out of fear did not return back as named first information report was already lodged against them.

The Apex Court in Matru @ Girish Chandra Vs. The State of U.P., A.I.R. 1971 SC 1050 repelled the submissions made by the State that as after the commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person and observed as under;

"The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the first information report was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."

A similar view has been reiterated by the Apex Court in Rahman Vs. State of U.P. and others, A.I.R. 1972 SC 119 and State of M.P. Vs. Paltan Mallah and others, A.I.R. 2005 SC 733, therefore, absconding by a person against whom first information report has been lodged having the apprehension of being apprehended by the police cannot be said to be unnatural absconding by itself is not conclusive either of guilt or of guilty conscience.

The seizure of green dupatta and a while handkerchief from the neck of the deceased on 17.11.2004 is also not free from doubt. The witnesses are not trustworthy as they have not come out with the real truth as to the cause of death of the deceased and has tried to suppress the material facts to deflect the course of justice. it is unfortunate that a young girl has lost her life but merely on the basis of strong and serious doubts the appellants cannot be held responsible for the same. It would be worse if innocent person is held guilty though unfortunate for the real culprit whosoever may go unpunished.

It is contended by the learned counsel for the appellants that they are very poor persons and resident of different State and they are languishing in jail since the date of their arrest and now more than seven years have been passed while remaining behind the bar.

For the above reasons and considering the submissions of the learned counsel for the parties we have arrived at irresistible conclusion that the circumstances are not clinching to connect the appellants in the commission of the offence and the motive is also not clinching, therefore, the conviction of the appellants under Section 302/34 I.P.C. with sentence thereunder is set aside. The appeal is hereby allowed. It is directed that the appellants Reena and Kalmi convicted and sentenced in S.T. No. 463 of 2005 be released if not required in any other offence. The trial court record be sent to the court concerned forthwith.

Order Date :- 3.3.2011

Shahnawaz