Smt. Vijai Kumari vs State Of U.P.
2012 Latest Caselaw 5816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
		        Criminal Appeal  No.4551 of 2005
 
Smt. Vijai Kumari 						     ..........Appellant (In jail) 
 
					Vs. 
 
State of U.P. 						          .......Opposite Party.
 
			        Along with connected 
 
			Criminal Appeal No.4538 of 2005  
 
Bansh Gopal and another 				  ..........Appellants. (In jail)
 
					Vs. 
 
State of U.P. 						       ..........Opposite Party. 
 
*******
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard Sri P.K. Singh, Sri R.P. Singh assisted by Sri Ramanuj Yadav, appearing for the appellant, Sri R.Y. Pandey, learned A.G.A. for the State, and perused the record.

These two connected criminal appeals arise out of judgment and order dated 10.10.2005 passed by the Additional Sessions Judge,(F.T.C.) Chitrakoot, who in Session Trial No. 93 of 1996 : State Vs. Bansh Gopal and others in Case Crime No. 573 of 1996 under section 302/34 IPC, Police Station-Karvi, District-Chitrakoot, whereby both the appellants have been convicted under section 302/34 IPC, and sentenced life imprisonment with fine of Rs.2,000/-, and further three months imprisonment in case of default of payment of fine.

The facts culled out from record in a nut shell are that informant-Mathura Prasad, lodged a report on 25.5.1996 at police station alleging that he along with his brother Prem Chandra Singh had come at the District Court, Karvi on the date fixed in a case. His brother Prem Chandra Singh informed him that he was being called upon by the accused Bansh Gopal & Durga Lodh at the vegetable shop of one Vijai Kumari situated in front of Baldevganj Mandi. Harish Chandra & Raja Ram belonging to his village were also with him. After some time when they reached in front of the house of Vijai Kumari while on way to their village, there was no one present at her vegetable shop. At that moment accused Bansh Gopal in a state of perplex came out from the house of Vijai Kumari and went away towards Kashai riding on his three wheeler cycle. They became alert after they saw blood on clothes and person of accused Bansh Gopal. When they went towards the door of the house of Vijai Kumari, accused Vijai Kumari and Durga Lodh came out hurriedly of the house and bolted the door from out side. Their clothes were also smeared with blood and they looked frightened. When the complainant asked them for the whereabouts of his brother, they went away quickly without giving any reply. On being suspicious they opened the front door of the house and saw the dead body of his brother Prem Chandra Singh lying there in a pool of blood. They raised alarm and entered inside the house. An Iron rod, a wooden mugri and a knife were lying near the dead body soaked with blood. The informant in his written statement averred that all the three aforesaid persons had committed the murder of his brother Prem Chandra Singh and the incident had occurred at 2.00 p.m.

On the basis of written report an FIR was lodged on 25.5.1996 at 15.05 P.M. registering Case Crime No. 573 of 1996, under section 302 IPC at Police Station-Karvi, District-Banda against the accused. The investigation was handed over to S.I. Santbux Singh, who conducted investigation and prepared recovery memo of one full sleeve shirt in sky colour with blood stains and a pant of brown colour with blood stains which was washed out, on 26.5.1996. Another recovery memo of blood stained clothes i.e. Petticoat, blouse and sari of the accused Vijai Kumari which she was wearing when she was apprehended near petrol pump on 26.5.1996 was made in presence of the witnesses.

The inquest of the body of the deceased Prem Chandra Singh son of Sri Shyam Lal Kurmi, R/O Village-Balapur Khalsa, Police Station-Karvi, District-Banda in Case Crime No. 573 of 1996 was made on 26.5.1996. In the opinion of the Panch witnesses, deceased Prem Chandra Singh had been murdered and that his death had occurred due to injuries on his body. During inquest, the articles which were recovered from the place of occurrence for which recovery memo was prepared on 25.5.1996, are as under:

1- lsaf.My nks vnn peM+s ds egywd iszepUnz ds fodykax iSjksa ds ,d diM+s esa loZ eqgjA

2- pwM+h ds VdM+ks dks ,d fMfc;k Vhu es j[kdj loZeqgjA

3- QnZ [kwu vkywn rksM+okdj dkyk] yky o lhesUV dyj ds ,d fMfc;k Vhu esa j[kdj loZegjA

4- Q'kZ ds VqdM+s lkns rksM+okdj dkyk yky o lhesUV dyj ds ,d fMfc;k fVu es j[kdj loZeqgjA

5- cksjh ds VdM+s dks ftlesa [kwu yxk Fkk rFkk xn~nk es [kwu yxs fgLls dks dVokdj [ky dk dqVuk yksgk [kwu vkywn yEckbZ djhc ¼1½ ckfyLr 6 vaxqy xksyk ydM+h ewBnkj yEckbZ djhc ,d gkFk [kwu vkywn pkdw VwVh [kwu vkywn ¼NksVh½ ,d jLlh lu [kwu vkywn yEckbZ djhc 24 gkFk ,d ih<+k VwVk [kwu vkywn bu lHkh dks ,d diMs es j[kdj loZ eqgj fd;k QnZ fctyh dh jks'kuh esa eqjRrc dj okn lqukus etewu QnZ vykekr cuok;s tk jgs gSA eky uewuk lhy rS;kj fd;sA

After the inquest, the body of the deceased was sent for post mortem to the District Hospital through Constable C/126 Shiv Kumar and Constable C/570 Kanchan Singh, Police Station-Kotwali Karvi, District-Banda. The post mortem was conducted by Dr. R.K. Gaur on 26.5.1996 at 11.30 A.M. He recorded that deceased was aged about 30 years, who had died about one day earlier. He was average built, rigour mortis was present over lower limbs and over fingers. The ante mortem injuries recorded in the post mortem are thus:

1.Lacerated wound present over left side of upper lip divided into two, left lateral and central incision teeth broken, wound 2 cm x 1 cm x mouth cavity deep, Both lips swollen.

2.Incised wound present on the front of neck, 7 cm long, 1/4 cm wide airway deep, extending on the left side.

3.Incised wound on the front of neck. 3 cm x 1/4 cm below injury no. 2 trachea deep.

4.Incised wound on the front of neck 2 cm x 1/4 cm adjacent to injury no. 3.

5.Lacerated wound present on the left side of forehead 3 cm x 1/2 cm x scalp deep, 2 cm above left eyebrow.

6.Lacerated wound 2 cm x 1/2 cm x scalp deep, 2 cm above left eyebrow related to injury no. 5.

7.Contusion on the right side of cheek, adjacent to mouth 3 cm x 4 cm.

8.Contusion on the front of neck, below the wound no. 2, 3, 4, 8 cm x 4 cm.

9.Lacerated wound on the left side of scalp parietal region, 3 cm x 1 1/2 cm x bone deep.

10.Lacerated wound on the scalp occipital region, in mid line, 3 cm x 1 cm, scalp deep.

11.Lacerated wound on the scalp, in occipital area, 2 cm x below injury no. 10, scalp deep.

12.Lacerated wound present on the right side of scalp parietal region 2 cm x 1 cm x scalp deep.

13.Contusion on the right wrist, 8 cm x 1 cm.

In the internal examination, the doctor. found that left parietal and occipital bone were broken, Membranes were congested. Pleura and right and left lungs were congested, air way in Larynx was divided at the level of trachea and was congested. The heart was found empty both sides having weight of 210 gm. Left lower carotid vessels was divided. Food material was found in the stomach and small intestine contained faecal matter and gasses.

In the opinion of the doctor, cause of death was Syncope due to ante mortem injuries noted above.

On conclusion of investigation and submission of charge sheet, following charge was framed by the Additional Sessions Judge on 22.2.1997:

";g fd fnukad 25-5-1996 dks le; djhc 2 cts fnu Jherh fot; dqekjh ds edku fLFkr eksgYyk cynkm xat vUrxZr Fkkuk dksrokyh dohZ] ftyk ckWank es vki yksxksa us leku vk'k; dh iwfrZ esa e`rd isze pUnz flag dh gR;k dkfjr dj nh vkSj blds }kjk vki yksxks us ,slk d`R; fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 302 lifBr /kkjk 34 ds v/khu n.Muh; vijk/k gS rFkk tks bl U;k;ky; ds izlaKku es gSA

The accused denied the charge, aforesaid, and claimed to be tried on each count.

The prosecution in support of its case examined Mathura Prasad- P.W. 1, Harish Chandra-P.W. 2, Arvind Kumar Dubey-P.W. 3, Dr. R.K. Gaur-P.W.4, Ram Naresh Singh-P.W. 5, S.B. Singh-P.W. 6, whereas accused Bansh Gopal, Durga Lodh and Vijai Kumari, were examined under section 313 Cr.P.C. The accused also produced Partabi the mother of Vijai Kumari as D.W. 1 in support of her case to prove her alibi.

After hearing counsel for the parties and on perusal of record, the Court convicted and sentenced the accused-appellants in each two criminal appeals as stated above. Aggrieved appellants have preferred these appeals against the judgment impugned.

The accused Vijai Kumari has challenged the order passed against her in S.T. No. 93 of 1996 on the ground that conviction of the appellant is improper, illegal and against the weight of evidence on record; that the appellant in any way is not related to other co-accused and has nothing to do with them; that there is no eye-witnesses against her except she was seen coming out from her house by the witnesses; and that only evidence against her is recovery of certain blood stained clothes. According to her counsel, blood on the clothes of the deceased have been implanted by the police. The order of the Court below impugned in the appeal is also challenged on the ground that the appellant Vijai Kumari was not present in the house as she had gone to attend the marriage ceremony of her brother-in-law; that she is innocent and has not committed any offence as such the punishment awarded to Vijai Kumari is too severe and harsh.

The connected criminal appeal filed by Bansh Gopal and Durga Lodh challenges the judgment and order dated 10.10.2005 on the ground that the appeal is good on merit and is likely to succeed as the judgment impugned in this appeal is against the evidence on record and the sentence of the appellants is too severe.

Learned counsel for the appellant has argued that Bansh Gopal son of Baij Nath, R/O Mohalla-Baldev ganj, Karvi, Police Station-Karvi, District-Banda was allegedly arrested from the house of his maternal grand father (nana) on 25.5.1996 after he is said to have committed the crime. He has further argued that case of the prosecution that after making arrest of Bansh Gopal and while returning they received a message that Vijai Kumari was seen hiding near petrol pump at the bus-stand in order to flee away from the place of occurrence is concocted one. It is stated that the police party on the information went there and arrested Vijai Kumari from behind a tree. He submits that there are no independent witnesses to the factum that the arrest of two accused, aforesaid, who are said to have been wearing clothes which had been washed but still contained blood stains. It is stated that it was only the police party which has planted the blood stained clothes for making a false arrest of the appellants; that Bansh Gopal could not had been caught from the residence of his maternal grand-father because if he had committed any such offence under section 302 IPC, he would have run away. Similarly, Vijai Kumari was claimed to be going to participate in the marriage of the son of her brother when she was caught near petrol pump of bus-stand. Therefore, not only their arrest is doubtful, but the police had also planted blood stained articles upon these accused persons to falsely implicate them in crime which they had not committed.

It is urged that the prosecution witnesses at the most are chance witnesses. The house from where dead body of the deceased was recovered has two entrances in opposite directions. There are rooms in between, therefore, it is not improbable that some unknown or other person could have done away with the deceased Prem Chandra Singh. It is lastly argued that there is no motive reflected from the FIR or from any other evidence that the accused has committed this crime.

Sri R.P. Singh along with Sri Ramanuj Yadav, appearing in connected criminal appeal, have adopted the arguments of Sri P.K. Singh, counsel for the appellant-Vijai Kumari. In addition, it is argued that case against the accused appellants is based on circumstantial evidence, as no direct evidence to the incident is available on record. According to him the only evidence is that he came out from the house of Vijai Kumari and ran away on his three wheeler cycle; that Durga lodh and Vijai Kumari are said to have been seen coming out from her house and the front door was bolted by them. They went away without giving any reply to the queries made by the complainant-Mathura Prasad and the two persons along with him regarding whereabouts of his brother. He has also argued that Bansh Gopal being 100% disabled person cannot be expected to overcome the deceased and do away with him in the manner in which he was brutally killed after tightly tying him with rope from shoulder to foot and that accused Bansh Gopal cannot even walk, therefore, his presence on the place of occurrence is not only doubtful, but he also appears to have been falsely implicated in this case; that there is no motive or evidence against him. As regards evidence against Bansh Gopal and Durga Lodh is concerned they had also been seen to come out from the house of Vijai Kumari and bolted the front door, therefore, no case is made out against any other three accused persons even on basis of circumstantial evidence.

Sri R.Y. Pandey, learned A.G.A. has submitted that there was no marriage in the family of Vijai Kumari. The marriage card submitted by the accused before the Court below was for marriage card of a tailor. It is argued that motive may not appear on the surface in every case as it is locked in the mind and heart of the accused, but it cannot be denied that chain of circumstantial evidence in this case leads to the conclusion that it was none other than the accused persons who had committed the gruesome murder of Prem Chandra Singh. He has placed before us, the statement of the accused recorded under section 313 Cr.P.C., and submitted that it is apparent from it that there is no denial of the fact that body of the deceased was found in the house of Vijai Kumari whose death was caused just prior to the coming out of the accused persons in blood stained clothes, for which there is no explanation by any of them. He has further argued that it has not been challenged by the accused that body of the deceased was recovered from the house of Vijai Kumari. They were last seen coming out from the place of occurrence in blood stained clothes in a frightened manner; that Bansh Gopal ran away on his three wheeler cycle whereas Vijai Kumari quickly put the door bolted and went on the cycle with Durga Lodh without answering the query of brother of the deceased as to where his brother was. He has also pointed out that there was no one else in the house of Vijai Kumari when body was discovered by Mathura Prasad and others with him immediately after the accused had run away.

In rebuttal, Sri P.K. Singh, counsel for the appellant-Vijai Kumari reiterating his arguments added that initially bail prayer of appellant was refused on 9.12.2007; that second bail application was rejected on 3.4.2008 directing the office to prepare the paper book and list the case on early date for hearing. He submits that 3rd bail application was also rejected on 22.9.2010. He further submits that the appellant is a lady having 5 issues including unmarried daughters; that there is no other lady in her family to look after her unmarried daughters; that the appellant has already languished in jail for more than 6 years. Only on the ground that body of the deceased was recovered from her house which she has failed to provide any explanation as to how it was there. It is stated that firstly the body of the deceased was recovered from the gallery of the house which connects separate accommodations of her brother-in-law, father-in-law and other family members, therefore, the crime cannot be attributed to her only on basis of evidence that she was seen coming out of her house. The presumption of her guilt only due to recovery of body of Prem Chandra Singh (since deceased) from the gallery of the house has wrongly been inferred only against her while there are several other family members were residing. Secondly the appellant was at her mother's house to participate in the marriage of her maternal brother for which she has an alibi, as such the Court may consider her release from jail, where she is languishing for more than six years.

After hearing counsel for the parties, and on perusal of record, we find that appellants have been convicted on appraisal of fact on circumstantial evidence. There is no direct evidence against the accused person or any ocular witness who may have seen the deceased Prem Chandra Singh being done away by the appellant. We have to test as to whether all the links in the chain of circumstantial evidence is complete to unerringly point the fingers of guilt at the accused persons and no one else for testing the settled principle of law;

(a) that the chain of event starts from the written report wherein it has been averred by the complainant that when they were in the district court along with some person of the village, his brother Prem Chandra Singh had come to him and informed him in presence of others with him that he had been called by the accused Bansh Gopal and Durga Lodh at the vegetable shop of Vijai Kumari and that they will find him there when they would be returning to the village. Thus, the names of the accused and the place of occurrence was mentioned by the deceased before he had gone to meet them;

(b) that the second link to the chain of incidents is that when the first informant along with his companions went to see Prem Chandra Singh for taking him along with them to their village, he did not find his brother at the vegetable shop of Vijai Kumari which was in front of her house. Then they saw Bansh Gopal with blood stained clothes coming out from the house of Vijai Kumari, who appeared to be frightened and ran away on his three wheeler cycle;

(c) that immediately, thereafter Vijai Kumari along with Durga Lodh came out from the house in blood stained clothes and bolted the door from out side. On a query being made by the complainant, they said nothing and Vijai Kumari went away with Durga Lodh on his cycle;

(d) that on seeing the aforesaid three accused persons who had come out of the house of Vijai Kumari in blood stained clothes and not being informed about the whereabouts of his brother Prem Chandra Singh, the complainant and other persons along with him became suspicious. They opened the door and saw that body of his brother Prem Chandra Singh was lying in the gallery tied up with rope from neck down and soaked in blood. He was done to death by injuries on his face and back of his head by iron rod, Mugri (a solid heavy piece of wood used in washing of clothes), which were lying near the body;

(e) that there was no other person in the house of Vijai Kumari which is said to have two separate exists except the three accused persons namely Bansh Gopal, Vijai Kumari and Durga Lodh who were last seen on the place of occurrence;

(f) that there was no one else in the house which shows that the acused along with Vijai Kumari knew that there would be no one there in the house when they had called Prem Chandra Singh to the vegetable shop of Vijai Kumari in fron of her house, so that in case the house was not vacant for any reason, they could convey about their plan;

(g) that Prem Chandra Singh the deceased was found dead in the gallery of the house of Vijai Kumari tied with rope;

(h) that the accused Bansh Gopal was arrested from the house of his Nana;

(i) that he was wearing the shirt in which he had committed crime, after he had washed it;

(j) that similarly, Vijai Kumari was also caught at bus-station in the clothes in which she had committed crime while fleeing from the place of occurrence;

(k) that Vijai Kumari could not prove her alibi though she produced Smt. Parbati - her mother.

(l) that no one from her in-laws' house came forward to corroborate her story or the alibi that she had gone to her brother's house in marriage of his son and in fact she was in the marriage and not at her house;

(m) that she was seen at the place of occurrence along with Durga Lodh, immediately after the crime was committed and did not reply to the query of the first informant i.e. brother of the deceased and went away though she had come out of the house where Prem Chandra Singh had been brutally done away in gruesome manner;

(n) that there is no explanation by any one of the accused persons how the body came inside the house tied up with rope and if he had been done away by someone else they did not hear any noise or shouts when the deceased was being beaten to death though he was a healthy person;

(o) that why did the accused persons not informed the police or the brother of the deceased when he specifically asked whereabouts of his brother, whose body was lying in the gallery of the house of Vijai Kumari from where all the three accused had come out one after another.

Considering all the above links of circumstance, the chain of circumstantial evidence is complete to firmly establish the guilt of the accused.

The lodging of FIR by the accused was prompt and the accused persons namely Bansh Gopal and Vijai Kumari were caught by the police party on the following day from two different places at the distance of about 6 to 7 Km on information of an informer. Even though the witnesses of fact produced by prosecution are said to be partisan & chance witnesses. Yet in fact, they are reliable and trustworthy witnesses. Nothing material could be elicited from them in the cross-examination which may support the case of the accused-appellants or make a dent for creating any reasonable doubt about their participation in the crime. These witnesses who were on the spot immediately after crime had been committed knew that they were to meet the deceased and brother of the first informant at the vegetable shop of Vijai Kumari. None of the accused have been able to explain how they were in blood stained clothes. On the contrary, the appellants ran away without giving any explanation to the complainant when he specifically asked about his brother. Hence, there was no one else except the accused persons who were last seen coming out from the place of occurrence. The manner in which body was found shows that it could not have been done in a second. The deceased was average built strong person of ill repute. He could not have been tied up by one man or done away easily by him.

If the case as argued by counsel for the appellant is taken on its face value, the complainant and other had entered in the house of Vijai Kumari within seconds of their going away, there was no time for any other person to have tied up the deceased and done away with him without being seen by the complainant and other with him when they came in. There is no explanation that there was no one in the house at that time as admittedly the house belong to father-in-law of Vijai Kumari in which not only she was living, but other sons were also living and where they were at the relevant time. There is also no explanation why any person from her (Mayka) or any other member of family of Vijai Kumari including her husband had not come forward to say that she was in the marriage of her brother-in-law's son. Even the marriage card on the basis of which she claims to have visited said marriage party, was of some other person. The only explanation is that Bansh Gopal and Vijai Kumari were not at the place of occurrence but somewhere else. Admittedly, FIR was lodged on 25.5.1996 at about 15.05 P.M. Bansh Gopal, Vijai Kumari and Durga Lodh had been seen coming out from the place of occurrence i.e. house of Vijai Kumari, therefore, it is wholly unbelievable that blood of Prem Chandra Singh had not coagulated and that clothes worn by Bansh Gopal and Vijai Kumari were first soaked in blood and implanted by the police after washing them. There is neither any evidence nor the accused in their statement under section 313 have stated so. According to medical jurisprudence the blood coagulates within three minutes. There is no evidence even from the house of the brother that Vijai Kumari had participated in the marriage of her brother's son. In fact, all the proved links which have been narrated above indicate that three accused in this appeal had committed the murder of Prem Chandra Singh for which motive may not be apparent. Any ulterior motive of the accused persons is locked in their mind and heart as to what was the cause for committing the murder of Prem Chandra Singh.

Thus, in view of what have been stated above, we are of the considered opinion that guilt of the accused person is proved beyond doubt on the basis of circumstantial evidence adduced in the case. The appellants have failed to make out any case which may cause any reasonable doubt in our mind to the effect that the appellants had not committed the murder or that they have been falsely implicated or even that incident has not taken place in the manner stated by the prosecution.

In the circumstances, we affirm the view taken by the court below as there is no illegality or infirmity in the judgment and order dated 10.10.2005 passed by it. Accordingly, the order of conviction and sentence of the court below is confirmed and the appeals stand dismissed.

Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.

Dated:03.12.2012

RCT/-