Bhanwar Singh & Others vs State
2014 Latest Caselaw 4553 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved									A.F.R.
 

 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 723 of 1991
 

 
Appellant :- Bhanwar Singh & Others
 
Respondent :- State
 
Counsel for Appellant :- Virendra Singh,Vishnu Sahai
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

(Delivered by Hon'ble Akhtar Husain Khan, J.)

Present appeal has been filed by accused-appellants Bhanwar Singh, Smt. Daryai and Rajendra under Section 374 Cr.P.C. against judgement and order dated 12.04.1991 passed by 3rd Additional Sessions Judge, Muzaffarnagar in Sessions Trial No. 196 of 1986, State of U.P. Vs. Bhanwar Singh and 4others, under Sections 302/149 and 201 I.P.C., P.S. Jhinjhana, District Muzaffarnagar; whereby learned 3rd Additional Sessions Judge, Muzaffarnagar has convicted accused-appellants Bhanwar Singh, Smt. Daryai and Rajendra for offence punishable under Section 302/34 I.P.C. and sentenced each of them to undergo life imprisonment.

Accused-appellant Smt. Daryai is reported dead. Appeal abated in respect of her.

Sri Virendra Singh, learned counsel appeared on behalf of appellants and Sri Narendra Kumar Yadav, learned A.G.A. Appeared on behalf of State.

We have heard both the parties and perused the record.

In brief, according to F.I.R. Exhibit Ka.02 version of prosecution is that Omwati, niece of complainant Sahdeo Singh and daughter of Harpal Singh was married with accused-appellant Rajendra, Resident of Village Malendi, P.S. Jhinjhana, District Muzaffarnagar 9 year ago. From the date of marriage the accused-appellant Rajendra and his family members started to demand dowry. They asked complainant and his family members that no ornaments or dowry has been given at the time of marriage, therefore, they should give Rs. 25,000/- as dowry. Complainant and his family members tried to convince them but ultimately conceded to give dowry of Rs. 25,000/-. They paid Rs. 5,500/- and 2,000/- to the accused-appellant Rajendra and his family members in pursuance of their demand of dowry but the demand of dowry was continued and in furtherance of demand of dowry accused-appellant Rajendra and his family members started to harass Omwati married wife of accused-appellant Rajendra. About one and half or two months before occurrence Ompal, nephew of complainant went to Village Malendi to meet Omwati. At that time accused-appellant Rajendra, his sister, mother Smt. Daryai and father Bhanwar Singh demanded remaining money from Ompal and told him to make payment soon otherwise they shall not keep Omwati in their house. In furtherance of demand of dowry several times they assaulted Omwati. Thereafter, on 10.02.1986 letter of Omwati was received by complainant Sahdeo Singh in which she told her father, uncle or brother to come with remaining money otherwise her life is in danger. After receipt of letter of Omwati, complainant and his family members tried to collect remaining Rs. 17,500/- and after having collected Rs. 17,500/- complainant went to the house of accused-appellants with remaining Rs. 17,500/- but when he reached there he came to know that his niece Omwati has been murdered on 05.02.1986 by her husband Rajendra, father-in-law Bhanwar Singh, mother-in-law Smt. Daryai, dewar Yashpal and dewrani Smt. Sudesh w/o Ompal and her dead body has been cremated.

According to F.I.R. Exhibit Ka.01, Dhooli s/o Buddu, Sukhveer s/o Baljeet, Sukhveer s/o Mukhkara, Rajveer Veni Singh Jaath and several other persons of village have seen the occurrence as well as cremation on 05.2.1986 at about 3:00 p.m.

On 12.02.1986 complainant Sahdeo Singh presented written report in P.S. Jhinjhana, District Muzaffarnagar at 7:00 p.m. On the basis of which chik F.I.R. Exhibit Ka.02 was written by Constable 911 Mangal Das P.W.-7 and Crime No. 41 of 1986, under Sections 302, 201/498A I.P.C. & 4 Dowry Prohibition Act was registered in P.S. Jhinjhana, District Muzaffarnagar against accused Rajendra, Bhanwar Singh, Yashpal, mother-in-law of Omwati and wife of Ompal. Thereafter police concluded investigation in accordance with law and submitted charge sheet against accused Bhanwar Singh, Smt. Daryai, Yashpal, Rajendra and Smt. Sudesh for offence punishable under Section 302, 201 I.P.C., whereupon concerned Magistrate took cognizance and after compliance of Section 207 Cr.P.C. committed the case to the Court of Sessions for Trial of all accused. Thereafter, Sessions Trial No. 196 of 1986 State of U.P. Vs. Bhanwar Singh and 4 Others was registered in the Sessions Court of District Muzaffarnagar. Later on, said Sessions Trial was transferred to the Court of 2nd Additional Sessions Judge, Muzaffarnagar, who framed charges against all accused for offences punishable under Section 302 read with Section 149 I.P.C. and Section 201 I.P.C. All the accused pleaded not guilty and claimed to be tried.

Prosecution examined PW1 Sukhveer Singh s/o Baljeet Singh, PW2 Dhooli s/o Dookram, PW3 Sukhveer Singh s/o Mukhtar Singh, PW4 Rajveer s/o Deviram, PW5 Sahdeo s/o Ratan Singh, PW6 Mahak Singh s/o Lal Singh, PW7 Constable 911 Mangal Das and PW8 S.I. Omveer Singh and closed his evidence.

After prosecution evidence statements of all the accused were recorded under Section 313 Cr.P.C. in which all the accused stated that they have been falsely implicated. Accused-appellants Rajendra, Bhanwar Singh and Smt. Daryai adopted statement of co-accused Yashpal recorded under Section 313 Cr.P.C. Co-accused Yashpal has stated in his statement under Section 313 Cr.P.C. that Omwati died due to heart-attack Dr. Rajendra Singh was called for treatment of Omwati. He has stated that he went and informed father of Omwati and her family members. He has further stated in his statement under Section 313 Cr.P.C. that father of Omwati came and participated in cremation of Omwati.

Accused examined DW1 Rajendra Singh in support of his contention. Thereafter, after hearing both the parties, learned 3rd Additional Sessions Judge, Muzaffarnagar passed impugned judgement and order and convicted accused-appellants Bhanwar Singh, Smt. Daryai and Rajendra for offence punishable under Section 302/34 I.P.C. and sentenced each of them to undergo imprisonment for life.

Learned counsel for the accused-appellants contended that the judgement and order passed by Trial Court is against evidence as well as against law.

Learned counsel for the accused-appellants contended that the burden is on prosecution to prove that the accused-appellants have committed murder of Omwati but the prosecution has failed to discharge his burden and evidence on record is not sufficient to hold accused-appellants guilty for offence punishable under Section 302/34 I.P.C.

Learned counsel for the accused-appellants prayed that appeal should be allowed and accused-appellants should be acquitted.

Learned A.G.A. Contended that evidence on record is sufficient to hold the accused-appellants guilty of offence punishable under Section 302 read with Section 34 I.P.C. He further contended that conviction recorded by Trial Court is based on evidence and appeal has no merit.

Learned A.G.A. Prayed that appeal should be dismissed.

We have considered the submissions made by the parties. According to prosecution, the marriage of Omwati with accused-appellant Rajendra took place 9 years ago from the date of occurrence, therefore, Section 304 B I.P.C. and Section 113 B of the Indian Evidence Act are not applicable. Therefore, accused-appellants have been charged with offence punishable under Section 302 read with Section 34 I.P.C.

We have perused the entire evidence adduced by the parties before Trial Court. PW1 Sukhveer Singh s/o Baljeet Singh, PW2 Dhooli s/o Dukram, PW3 Sukhveer Singh s/o Mukhtar Singh and PW4 Rajveer s/o Deviram have turned hostile, they have not supported version of prosecution in their statement on oath.

PW5 Sahdeo Singh is complainant. In his statement he has supported the allegations made in F.I.R..

PW6 Mahak Singh has proved letter Exhibit Ka.1 written by Omwati to complainant Sahdeo and his brother Harpal Singh on 04.02.1986.

PW7 Constable 911 Mangal Das is scribe of chik F.I.R. He has proved chik F.I.R. Exhibit Ka.02 and copy of G.D. of entry relating to registration of crime Exhibit Ka.03.

PW8 S.I. Omveer Singh is I.O. and he has proved site plan of place of occurrence Exhibit Ka.04, recovery memo of bones and ashes of Omwati Exhibit Ka.05, site plan of place from where bones and ashes were taken Exhibit Ka.06 and charges Exhibit Ka.07.

DW1 Rajendra Singh has stated in his statement that he is registered Medical Practitioner, he holds degree of B.M.S. During the year 1985-86 he was practicing in Village Malendi. He has stated in his statement that he knows Bhanwar Singh, Yashpal and Rajendra. He knows deceased Omwati also. She was wife of accused Rajendra and was under his treatment, she was often suffering from heart-attack. DW1 Rajendra Singh has further stated that about 5 years two month ago at about 9-9:30 O'clock he was called. He went to the house of Bhanwar Singh. When he reached, Omwati was dead. DW1 Rajendra Singh has stated in his statement that when he declared Omwati dead, Yashpal went to call Harpal, father of Omwati. Thereafter at about 2-2:30 O'clock Harpal came, then cremation of Omwati was done. In her cremation all the villagers participated.

Having gone through whole evidence on record it is apparent that there is no eye witness of alleged murder of Omwati. Prosecution has to prove his case through circumstantial evidence.

Out of 7 witnesses examined by prosecution only PW5 complainant Sahdeo and PW6 Mahak Singh has stated about circumstance leading to alleged murder of Omwati.

PW5 complainant Sahdeo has stated in his statement on oath that Omwati wrote a letter to him a day before her death. In the said letter she asked to come with remaining money otherwise her life is in danger. He has further stated in his statement that after he got the letter read by his son, next day he went to the house of Omwati with Rs. 17,500/- but when he reached Village Malendi of accused he was informed that accused Bhanwar Singh, Rajendra, Yashpal, Smt. Sudesh and Smt. Daryai have murdered Omwati 4 or 5 days ago then he returned back to his village and after making consultation he went along with 1 and 2 other persons to lodge report.

PW5 complainant Sahdeo has stated in his statement that he had paid once Rs. 5,500/- and once 2,000/- to accused in pursuance of their demand of dowry and he was trying to convince them that he shall pay the money gradually.

PW6 Mahak Singh has proved letter sent by Omwati Exhibit Ka.01. Perusal of this letter shows that this letter has been sent by Omwati on 04.02.1986.

Writing on letter Ext. Ka-1 is reproduced below:-

ekySMh

lsok esa pkpk th ueLrs

;gkW ij lc jkth [kq'kh gS vkSj vkxs gky ;g gS fd tc ls ;gkW vkseiky feydj x;k gS rc ls esjs lkFk >xM+k o ekjihV vkSj Hkh T;knk py jgk gSA esjk dksbZ lk pkpk ;k HkkbZ vkseiky os ckdh iSls ysdj rqjUr pyk vkos ugh rks esjh tku [krjs esa gSA

vkseorh

4&2&86

Perusal of statement of PW5 Sahdeo as well as letter Exhibit Ka.01 sent by Omwati a day before her death reveals that one day before her death Omwati was harrased and subjected to cruelty for demand of dowry. But as mentioned above Section 304-B of I.P.C. and Section-113-B of evidence Act are not applicable on the facts of the case. Therefore, no presumption may be made regarding murder of Omwati on the basis of demand of dowry and harassment or cruelty. Demand of dowry and harassment or cruelty a day before occurrence stated by Omwati in her letter Ext.Ka-1, may be cause or motive of alleged murder of Omwati but it shall not be conclusive proof of alleged murder of Omwati. Burden lies on prosecution to prove existence of circumstances leading to inference conclusively that murder has been committed by none else except accused-appellants.

In the case of Krishan Gosh Vs. State of West Benagl; AIR 2009 SC 2279 (SC) Hon'ble Apex Court held that "It has been consistently laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be shown to be closely connected with the principal facts sought to be inferred from those circumstances."

In the case of Musheer Khan Vs. State of Madhya Pradesh AIR 2010 SC 762 Hon'ble Apex Court has held that "The first rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except of guilt of the accused.

The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the accused."

There is not an iota of evidence on record to show that accused appellants were present at the time of death of Omwati and Omwati was in exclusive company of accused appellants or any of them at the time of her death and none other had access to her. In F.I.R. accused Yashpal and Smt. Sudesh were also named alongwith accused appellants Bhanwar Singh, Rajendra and Smt. Daryai (now deceased). The said accused Yashpal and Smt. Sudesh have been given benefit of doubt and have been acquitted by trial court. Against their acquittal State has filed no appeal. Thus, it is apparent from F.I.R. version that accused Yashpal and Smt. Sudesh had also access to deceased Omwati at the time of her death. Therefore, evidence on record is not sufficient to drawn inference conclusively that death of Omwati has been caused by accused appellants or any of them and none else.

Defence has examined D.W.-1 Rajendra who has stated that he is a registered Practitioner of Homeopath and he was called to attend Omwati on the date when she died. He has stated in his statement that he was called by accused Yashpal, who has been acquitted by trial court. He has stated that when he reached, Omwati was dead. D.W.-1 has not mentioned in his statement that when he reached the house of Omwati accused appellants were also present there and prosecution has not cross-examined him to ascertain presence of appellants at the time of occurrence. Therefore, presence of accused appellants at the time of death of Omwati is not proved even with the statement of D.W.-1 Rajendra Singh.

D.W.-1 Rajendra Singh has stated that he was a registered Practitioner of Homeopath and he was called to attend Omwati but when he reached, Omwati was dead. Thereafter, Yashpal went to call Harpal father of Omwati. Harpal father of Omwati came at 2 to 2.30 O' clock then cremation of Omwati was done in his presence. He has stated that in cremation of Omwati all the villagers participated.

P.W.-5 complainant Sahdeo has been given suggestion by defence that Harpal father of Omwati was informed about the death of Omwati and cremation of Omwati was done in presence of Harpal. P.W.-5 complainant Sahdeo has denied the suggestion of defence but prosecution has not examined Harpal father of Omwati and Harpal has not denied the fact that he was informed about the death of Omwati and he has participated in cremation. Therefore, the statement of D.W.-1 Rajendra Singh regarding cremation in presence of Harpal father of Omwati may not be discarded.

D.W.-1 Rajendra Singh has stated in cross-examination that when he reached, Omwati was dead, therefore, he could not state reason of her death. Statement of D.W.-1 shows that cremation of Omwati was made in presence of villagers as well as Harpal father of Omwati. There is nothing on record to show that the cremation of Omwati was done otherwise than in ordinary manner. Therefore, we are of the view that there is nothing on record to show that the death and cremation of Omwati has taken place in abnormal circumstances.

At this juncture, it is relevant to mention that the accused appellants have been charged with offence punishable under Section 302 I.P.C. read with Section 149 I.P.C.. Therefore, even if death in abnormal circumstances is proved it would not be sufficient to hold accused appellants guilty of offence punishable under Section 302 I.P.C. read with Section 149 I.P.C.. For offence punishable under Section 302 read with Section 149 I.P.C. culpable domicide amounting to murder should be proved by evidence either ocular or medical or both but there is no evidence on record to prove that culpable homicide of Omwati has been committed.

In view of discussion made above, after having gone through the whole evidence on record, we are of the view that evidence on record is not sufficient to hold appellants guilty of offence punishable under Section 147 and 302 read with Section 149 I.P.C.

P.W.-5 complainant Sahdeo in his statement on oath has stated that he has given Rs. 5,500/- once and Rs. 2,000/- once to accused in pursuance of demand of dowry but he did not disclose the name to whom he has given the dowry. PW5 complainant Sahdeo has not stated specifically as to who made demand of dowry and to whom he made payment. In letter Ext. Ka-1 also specific mention has not been made as to who made demand of dowry or who harassed Omwati for demand of dowry. In F.I.R., it has been mentioned that about one and half or two months before occurrence Ompal Nephew of complainant Sahdeo went to Gram Malendi to meet his sister Omwati then accused Rajendra, his mother and father Kunwar Singh demanded remaining money from him and told him to make payment soon otherwise they shall not keep his sister in their house. Ompal has not been examined by prosecution to prove this version of F.I.R. The statement of Ompal was very relevant because he was the last man before whom demand of dowry is alleged to have been made, therefore, non-examination of Ompal by prosecution makes the version of prosecution doubtful.

Considering the whole facts and circumstances of the case as well as evidence on record, we are of the view that evidence on record is not sufficient to hold accused appellants guilty of any offence.

In view of conclusion drawn above, we are of the view that the trial court has not evaluated the evidence on record properly and in accordance with law. Therefore, conviction as well as sentence recorded by trial court is not sustainable.

In view of above, appeal is allowed.

Conviction as well as sentence recorded against the accused appellants vide impugned judgement and order dated 12.4.1991 passed by 3rd Additional Sessions Judge, Muzzafarnagar is set aside. Accused appellants are acquitted of all charges levelled against them.

Accused appellants are on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged.

Send back records of trial court immediately.

Order Date :- 20.08.2014

M/A.

	(Hon'ble Akhtar Husain Khan, J.)            (Hon'ble Arun Tandon, J.)