Om Kar Singh vs State Of U.P.
2015 Latest Caselaw 452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 5879 of 2009
 

 
Appellant :- 	Omkar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajiv Lochan Shukla, V.S. Rajpoot, Arun Kumar Srivastava, Arun Srivastava.
 
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 dated 26.8.2009 and order of sentence dated 28.8.2009 passed by Additional Sessions Judge/F.T.C. Court No. 16, Bulandshahr in Sessions Trial No. 625/2006, State Vs. Omkar Singh and others, case crime no. 18/2006, under section 498-A, 304-B, 120-B IPC and section 3/4 of Dowry Prohibition Act, p.s. Aurangabad, Bulandshahr and Sessions Trial No. 626/2006, State Vs. Omkar Singh, case crime no. 19/2006 under section 25 of Arms Act, p.s. Aurangabad, Bulandshahr.

2.Prosecution case in brief has been that complainant Indrapal Singh is resident of Khalikpur, p.s. Ahar, Bulandshahr. His daughter Lalitesh aged about 20 years was married on 17.2.2005 with Omkar son of Man Singh, resident of Surjawali, p.s. Aurangabad, Bulandshahr. In this marriage complainant had given sufficient dowry. But he was informed that his daughter was harassed because of demand of dowry. Therefore on 5.2.2006 at about 8:00 p.m. in night complainant proceeded from village Ilna to Surjawali with his maternal cousin brothers. They were going through eastern road of Ilna canal, then at about 8:30 p.m. in evening they heard the sound of fire from western road of canal. They ran directly in the canal and saw that Hero Honda motorcycle no. UP 13 3898 was standing and near it complainant's son-in-law Omkar Singh was standing with country-made pistol. They had seen him in the light of torch and called him. On it Man Singh recognized them and fled away. Then in the light of torch complainant saw that the dead body of his daughter Lalitesh was lying there near motorcycle. She had died due to shot of fire. Thereafter complainant Indrapal Singh got the report written from one Rameshwar son of Veer Singh, resident of Khalikpur and gave it in police station Aurangabad where case crime no. 18/2006, under section 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act was registered against single accused Omkar Singh on 5.2.2006 at about 10:10 p.m. Thereafter police party, along with S.O. Yashpal Singh raided the house of accused Omkar Singh son of Man Singh in village Surjawali and searched it. They found that Omkar was hidden beneath the cot in his house. When he was searched at about 23'O clock (11:00 p.m. in the night) then a country-made pistol of 315 bore was found from his pocket which was smelling with fresh smell of fire. Then police had taken possession of country-made pistol and fired cartridge, sealed it, prepared its memo and recovery; and took accused Omkar in custody. On the basis of this recovery case crime no. 19/2006 under section 25 of Arms Act was registered in police station Aurangabad on 6.2.2006 at about 00:05 a.m. (night). The dead body of Smt. Lalitesh was sent by the police for post-mortem, which was conducted on 6.2.2006 and post-mortem report (Ex. Ka-2) was prepared. During investigation country-made pistol recovered from accused was sent for testing in Forensic Science Laboratory.

3.After completion of investigation charge-sheet was submitted by police for case crime no. 18/2006 against accused Omkar Singh and his three brothers namely, Suresh, Naresh and Raj Kumar for offences under sections 498-A, 304-B, 120-B IPC and section 3/4 of Dowry Prohibition Act. Charge-sheet was also submitted against Omkar Singh for case crime no. 19/2006 for offence punishable under section 25 of Arms Act. Both the cases related to same incident, so their trials were carried out jointly. Sessions Court had framed charge against accused Omkar Singh for offences punishable under section 498-A, 304-B IPC and section 3/4 of Dowry Prohibition Act, and separate charge of section 25 of Arms Act against him. Sessions Court had also framed charge of offence only section 120-B IPC against three accused Naresh, Raj Kumar and Suresh. All accused have denied charges against them and claimed to be tried.

4.Prosecution side had examined PW-1 Indrapal Singh, PW-2 Shyodan Singh, PW-3 Dr. Rajesh Kumar, PW-4 Constable Tribhuwan Swaroop, PW-5 S.I. Yashpal Singh, PW-6 S.I. Rajkumar Tyagi, PW-7 S.I. Mansingh Nagar, PW-8 C.O. Pawan Kumar (I.O.), PW-9 Dy. S.P. Shafiq Ahmad (I.O.) and PW-10 Gyanchandra Gupta. These witnesses had proved prosecution documents Ex. Kha-1 to Ex. Ka-21.

5.After closure of prosecution evidence statement of accused persons under section 313 Cr.P.C. were recorded. Thereafter defence side had examined DW-1 Constable Sohanpal Singh and DW-2 Chief Pharmacist Devendra Kumar as defence witnesses, who had proved documentary evidences of defence side.

6.After completion of evidences of both side, the learned Sessions Judge had afforded opportunity of hearing to parties and thereafter passed the judgment dated 26.8.2009, by which accused Raj Kumar, Naresh and Suresh were acquitted from the charged of section 120-B IPC But accused Omkar Singh was convicted for the charges of offences punishable under section 498-A, 304-B IPC, section 4 of Dowry Prohibition Act and section 25 of Arms Act. Thereafter trial court heard accused Omkar Singh and his counsel on point of quantum of sentence and passed order dated 28.8.2009 by which accused Omkar Singh was punished with imprisonment of life for offence under section 304-B, he was convicted for three years rigorous imprisonment and fine of Rs. 10,000/- (in default of payment 10 months additional imprisonment) for charge under section 498-A, he was sentenced with two years rigorous imprisonment and Rs. 6,000/- as fine (in default of payment, 6 months additional imprisonment), for the charge u/s 4 of Dowry Prohibition Act; and he was also punished for three years rigorous imprisonment and fine of Rs. 5,000/- (in default of payment, 6 months additional imprisonment) for charge under section 25 of Arms Act. Trial Court had also directed that all sentences would run concurrently. The order of sentence was passed by trial court on 28.8.2009. Aggrieved by judgment of conviction dated 26.8.2009 and order of punishment dated 28.8.2009, present appeal has been preferred by accused Omkar Singh.

7.PW-1 Indrapal Singh is resident of village Khalikpur, p.s. Ahaar, district Bulandshahr. He stated that his daughter Lalitesh was married on 17.02.2005 with Omkar Singh and from the dowry given in this marriage Omkar Singh and his family members were unhappy and used to demand Rs. 35,000/- and refrigerator, and on not fulfilling this demand, they used to harass Lalitesh with cruelty. Lalitesh used to narrate these facts when she visited complainant's house or when complainant went to her house. These accused used to tell that if their demand of Rs. 35,000/- and refrigerator is not met then they would continue harassing her and will kill her. On 05.02.2006 he (PW-1) visited the house of his maternal uncle in village Ilna, and from there he started with his maternal cousin brothers Sheoraj and Naresh for village Surjawali at 08:00 p.m. in evening. They were going on foot from eastern path-way of canal towards village Surjawali when they heard sound of fire at about 08:30 p.m., then they flashed the torch and saw that Omkar had fired at Lalitesh by country-made pistol. Since canal was dried therefore they run towards spot of fire through canal. After seeing them, Omkar ran away with country-made pistol, but he had left his motor-cycle on spot. Then they examined Lalitesh and found her dead. Report of this incident was written by Rameshwar on his dictation then he signed this report Ex-Ka 1 gave in the police station. PW-1 had stated in cross-examination that the distance between village Surjawali and village Khalikpur is about 25 kms. For catching the bus of Surjawali, one has to go at Karakat Shivansi on foot for four kilometers. There is a bus route from Khalikpur to Ilna. The distance from Ilna to Surjawali through canal Road is about 4 kms. PW-1 had admitted that he had not mentioned the names of his maternal cousins in the FIR, and he could not tell any reason for it. In cross-examination he had stated that on 05.02.2006 that is on the date of incident he was informed at about 03:00 p.m. by his sister that if he would not take her daughter Lalitesh with him then she (his daughter) would be killed by accused persons. His sister is also married in village Surjawali. PW-1 had also stated that distance of Ilna and Surjawali through canal road may be 7-8 kms. The distance between eastern and western road of Ilna canal is about 50 feet. The distance of spot from the place they had heard fire may be 100 feet. PW-1 had further stated that they had heard only one sound of fire. They could not recognize Omkar from eastern pathway of the canal. When they reached western road of canal they were able to recognize Omkar from 25-30 feet. PW-1 had also admitted that at the time of incident there was telephone, in his house and in his village, and also in Aurangabad and Ilna. He had not heard the voice of his daughter before fire. PW-1 had denied the suggestions that Omkar was going on his motor-cycle with his wife Lalitesh and in the way robbers had committed robbery and on protest they had shot Lalitesh, and when he reached to police station for reporting the matter, police had detained him and challaned.

8.Another witness of fact is PW-2 Shyodan Singh who is resident of village Khalikpur, which is also the village of complainant. He stated that two days before the incident he along with one Vijendra Singh had visited her sister's house in Surjawali. When they reached at the door of Omkar Singh, they overheard talks between Omkar, Rajkumar, Naresh and Suresh. Rajkumar, Suresh and Naresh were telling to Omkar that Indrapal (complainant) cannot fulfill their demand of dowry, so they told Omkar Singh to take Lalitesh on motorcycle to somewhere and murder her in the way. After that they will arrange second marriage of Omkar Singh. They were also telling that they had good influence in the police department and they can manage the things after. In cross-examination PW-2 Shyodan Singh stated that the distance between Khalikpur to Surjawali is about 15 Kos (one Kos = 2 miles; 15 Kos = 30 miles; and 15 Kos will be equal to 48 Kms). One Pappi is married in village Surjawali who happens to be his sister, but he does not know the name of husband of Pappi. PW-2 had further stated that he had overheard the conversation of conspiracy between accused from the gate of house of accused when the accused were talking to each other in a room, which was 60 yards away from road. He had stayed for about 10 minutes at the gate of house of Omkar Singh. At that time main gate was closed and in front of it passers by were coming and going. After hearing said conversation between accused persons he had not gone to house of Pappi and went two kilometers away to Janaura. But he had not told any person about talk of conversation heard by him.

9.PW-3 Dr. Rajesh Kumar was posted in women's hospital, Bulandshahr on 06.02.2006 and was assigned post-morten duty that day. That day at about 04: 15 p.m. he had received sealed dead body of Lalitesh wife of Omkar Singh and performed post-mortem of it, in which he found following ante-mortem injuries on the dead body:

1. Firearm entry wound 3 cm X 3 cm X brain cavity deep at left part of head.

2. Beneath left whose margins inverted. On opening head left temporal and left parietal bone was found broken and brain as well as it's membrane were torn and metallic pellet was found from brain cavity.

10.In internal examination, he has found 100 m.l. semi-digested food in stomach and one Male faetus of about 12 cm, whose age was about 14 weeks. No blackening and charring was found near the wound. PW-3 Dr. Rajesh Kumar had proved post-mortem report as Ex-Ka 2 and opined that there is probability of death of Lalitesh by firearm injury on 05.02.2006 at about 08:30 p.m.

11.PW-5 S.I. Yashpal Singh was posted as S.O. of police station Aurangabad on 05.02.2006. After registration of case crime no. 18 of 2006, u/s 498A, 304B IPC and 3/4 D.P.Act against accused Omkar Singh, he proceeded for village Surjawali for search of accused Omkar Singh. He raided the house of Omkar Singh where he was hidden under a bed and a country-made pistol of 315 bore was recovered from his pant, in which there was an empty cartridge and on smelling, there was smell of fresh fire. Then accused Omkar Singh was taken into custody at about 23:00 O'clock (11:00 p.m.), thereafter he prepared memo of recovery of pistol and cartridge as Ex-Ka-7 and sealed it. Then he got the case registered against accused Omkar Singh for offence punishable u/s 25 Arms Act. Later on fired pistol and cartridge was sent to Forensic Science Laboratory for testing.

12.PW-6 S.I. Raj Kumar Tyagi was posted on 06.02.2006 at police station Aurangabad in his presence on the basis of Ex-Ka-7 memo of recovery case u/s 25 Arms Act was registered; then he had investigated the matter and prepared the site-plan (Ex-Ka-8); and after completion of investigation had submitted the charge-sheet (Ex-Ka 9) u/s 25 Arms Act. This witness had also proved Ex-Ka-10 prosecution sanction of District Magistrate.

13.PW-7 S.I. Man Singh Dagar was posted on 05.02.2006 at police station Aurangabad. He stated that on that day case crime no. 18 of 2006 under sections 498A, 304B IPC read with 3/4 D.P. Act was registered in his presence. Then he went on spot with station-officer Yaspal Singh; after that he went with other police personnel in village Surjawali at the house of Omakar Singh and found him in his house beneath of his bed, and caught him with one country made pistol. After that he prepared Ex-Ka-7 recovery memo of country-made pistol. After that they again visited the spot and taken Hero Honda Motor cycle of accused Omkar Singh in custody and prepared its recovery memo (Ex-Ka-11).

14.PW-4 Tribhuwan Swaroop was posted as constable on 05.02.2006 at police station Aurangabad. He stated that on that day he had prepared Chik-report Ex-Ka 3 on written report Ex-Ka-1 of complainant Indrapal Singh. Thereafter he prepared G.D. Ex-Ka-4. Then on 06.02.2006 he had prepared chik-report as Ex-Ka 5 on recovery of S.O. Yashpal Singh, G.D. of which is Ex.-Ka-6.

15.PW-8 was investigating officer of case crime no. 18/ 2006 at P.S. Aurangabad who had proved site plan Ex-Ka 13 in cross examination. This witness PW-8 I.O. had stated that during investigation complainant Indrapal Singh had not given any statement against Rajkumar and Suresh, and he had given statement of only against Omkar Singh, husband of Lalitesh. He had specifically stated that complainant had not told him during investigation that any person other than Omkar Sing used to beat or harass the Lalitesh for the demand of dowry. PW-8 had also stated that during statement u/s 161 Cr.P.C. the complainant had never told that he had seen Omkar Singh was firing on Lalitesh in the light of torch. This investigating officer had also stated that complainant had not given any such statement that before the incident Lalitesh had informed him about demand of Rs. 35,000/- and refrigerator.

16.PW-9 Shafiq Ahmad was also investigating officer of the case of recovery of country-made pistol and proved its memo of recovery as Ex-Ka-14, site-plan of recovery of pistol Ex-Ka-15, and the charge-sheet of 25 Arms Act.

17.PW-10 Gyan Chandra Gupta, Nayab Tehsildar was posted on 06.02.2006 at tehsil Syana, district Bulandshahr. He visited the spot of death of Lalitesh, wife of Omkar Singh on the day of inquest. He had proved Ex-Ka-16 inquest report, and Ex-Ka-17 to Ex-Ka-20 documents prepared during inquest report for sending the dead body for post-mortem. In cross-examination this witness had stated that place of incident of this case is 6-7 Kms. away from police station.

18.After closure of the prosecution evidence statement of accused persons under section 313 Cr.P.C. was recorded. They had denied the allegations levelled against them. In this statement accused Omkar Singh said that on 05.02.2006 he was going on his motor-cycle Hero Honda no. DL 3898 with his wife Lalitesh. He was coming from the house of his brother-in-law Natthi Singh from village Ishanpur; when they reached village Balka of p.s Aurangabad at about 6-6:60 p.m. in evening then Jafar resident of Bakaura and Sonu resident of Balka had stopped his motor cycle on gun point and snatched Rs. 11,180/- from his pocket and beaten him. They had also snatched ornaments and ear-rings of Lalitesh and on her opposition they murdered her by firing. For this incident he had lodged report at police station, where the case crime no. 18-A of 2006 State Vs. Sonu and Others u/ss 302 and 304 IPC was registered. The accused had pleaded to be innocent and not guilty.

19.First defence witness D.W.-1 constable Sohan Pal Singh proved FIR of case crime no. 18A of 2006 under sections 302 and 304 IPC versus Sonu and others as Ex Kha 1, which was registered on 14.05.2008 at police station Aurangabad on the direction of Judicial Magistrate, Bulandshahr.

20.D.W.-2 Devendra Kumar is Chief Pharmacist of the district hospital Bulandshahr who had stated that Dr. R.K. Dabre was posted in district hospital Bulandshahr with him. He has proved Ex.-Kha-2 injury report of accused in secondary evidence.

21.Learned counsel for the appellant contended that there are only two witnesses of facts out of that which one was related to incident of alleged conspiracy hatched two days earlier to death of Lalitesh, and another witnesses of fact is complainant himself. The evidence of both these witnesses are unnatural, unbelievable and not supported by any other evidence. Prosecution side had concealed a lot of best evidences and failed to discharge burden in regard to charged incident. The FIR was lodged for the offence of murder but case was registered for dowry death. No witness was named by complainant in his FIR but he (as PW-1) had taken two names during his statement which is improvement. No incident of cruelty or harassing was proved by prosecution side but conviction for dowry death has been ordered through impugned judgment, which is erroneous, therefore, this appeal should be allowed and appellant should be acquitted.

22.Sri A.N. Mulla, leaned AGA had refuted the arguments of appellant's side and contended that Lalitesh had been put to unnatural death within one year of her marriage with the appellant. There is evidence of cruelty against her for the demand of dowry soon before her death. He contended that soon after incident the appellant was caught with murder weapon. The case against appellant regarding cruelty for the demand of dowry and dowry death is proved, therefore the appeal should be dismissed.

23.We have considered the rival contentions in the light of evidences available on record.

24.It is admitted case of the appellant and respondents side that appellant Omkar Singh was married to Lalitesh daughter of complainant on 17.02.2005 and she died in unnatural circumstances within one year of marriage on 050.2.2006. The FIR lodged against appellant includes, inter alia, offence of murder punishable under section 302 IPC, but the charge for the same had not been framed. Charges relating to sections 498-A, 304-B IPC and section 4 of Dowry Prohibition Act were framed against the appellant and for them appellant were convicted and punished. Therefore, it has to be seen as to whether there was any act of cruelty against victim Lalitesh due to demand of dowry soon before her death and whether dowry death was caused.

25.In FIR complainant had noted that it was informed to him that appellant used to demand dowry from his daughter and harass her, but source of this information was not revealed by him in his report. In FIR it is not written that any particular person or the victim/deceased had ever informed the complainant about alleged harassment for the demand of dowry. It is also not mentioned in FIR as to when the complainant came to know about alleged harassment of Lalitesh for the demand of dowry. So it is apparent that there is very vague and general statement in FIR regarding alleged harassment due to demand of dowry. In FIR complainant had written that on 5.2.2006 he was going to Surjawali from village Ilna at about 8:00 p.m. with sons of his maternal uncle. It is not written in FIR as to how many maternal cousins were accompanying and what were their names. In evidence it was found that there were eight maternal cousins of complainant but the name of none was mentioned in FIR and reasons for non-mentioning the name of witness was not explained by PW-1 complainant during his cross-examination.

26.During his examination-in-chief PW-1 complainant had made major improvement in prosecution story when he had stated that accused Rajkumar, Naresh and Suresh were not pleased with the dowry given in the marriage of Lalitesh and they used to demand of Rs. 35,000/- and fridge in dowry and for which they used to beat Lalitesh and treat with her cruelty. These facts and names were absent in FIR. The FIR did not contain the name of Rajkumar, Naresh or Suresh, and demand of Rs. 35,000/- and fridge was also not mentioned in it. Apart from it, beating of Lalitesh and her harassment for demand of dowry is not mentioned in FIR. PW-1 complainant had stated that Lalitesh used to tell him about harassment, cruelty and demand of dowry, but these facts are not written in FIR the PW-1 complainant had also stated in his examination-in-chief that accused persons used to tell that if Lalitesh would not bring Rs. 35,000/- and fridge then they harass and kill her. These facts are not mentioned in FIR. The FIR contains name of only one accused Omkar Singh but in examination-in-chief PW-1 Indrapal Singh complainant had increased name of Raj Kumar, Naresh and Suresh which is apparent improvement without any explanation. In FIR complainant had not written name of his maternal cousins but in his deposition in Court he had taken name of Shyoraj and Naresh, who were allegedly accompanying him from village Ilna for village Surjawali. These persons, who are also alleged eye-witness of the charged incident, were not examined by prosecution side in evidence. The non-mentioning of important facts in first information report of complainant was never explained by prosecution witnesses, which reveals that prosecution side had made afterthought improvement in his case on important and relevant points. This creates doubts on prosecution theory.

27.PW-1 complainant had specifically noted in his written FIR (Ex. Ka-1) that when he was going from eastern road of Ilna canal he heard the sound of fire at about 8:30 p.m. from western side of canal; then he with others went on spot and saw that accused Omkar Singh was standing there with country-made pistol besides the motorcycle. In his examination-in-chief as PW-1 the complainant had stated that he and other witnesses had seen the Omkar Singh firing by country-made pistol on Lalitesh, and they had seen this in the light of torch and recognized him. During his cross-examination PW-1 had stated that he had heard sound of only one fire and at that time he was on eastern road of the Ilna canal. Therefore, this statement of PW-1 complainant appears incorrect and unacceptable that after hearing the sound of only one fire from western side of the canal while going from eastern road of canal he had seen the accused firing at Lalitesh. In this case, only one shot was fired, and after allegedly hearing it complainant and his companions are said to flash the light of torch, so it was not possible for them to see the accused firing on Lalitesh because by that time the only shot had already been fired. During cross-examination he had also stated that he had reached on spot after 2-3 minutes after firing. This statement makes this prosecution story unbelievable that after hearing sound of only fire complainant reached on spot after 2 or 3 minutes; and in these circumstances, how he could have seen the accused firing on victim Lalitesh. PW-1 had admitted in his cross-examination that distance from where he had heard sound of fire may be 100 ft., and the canal had depth of 5 feet. In these circumstances, it was almost impossible for complainant or his alleged companions to hear the sound of fire, climbed down in 5 feet deep canal, cross its 40 feet breadth and then cover additional about 50 feet distance to reach on spot and recognized the accused, who was still standing there in spite seeing the lights of torch coming towards him and had not tried to run away till he was recognized. In this way, whole statement of complainant PW-1 Indrapal Singh regarding facts of the incident relating to death of Lalitesh, as mentioned in FIR and his statement appears unbelievable and untruthful. Apart from it, without any explanation, the alleged cousin brothers of complainant namely, Shyoraj and Naresh had also not been examined by prosecution side in support of evidence of complainant. Thus prosecution side had suppressed very important and material evidences, which leads to presumption of facts against the prosecution case.

28.PW-1 complainant Indrapal Singh had stated that after seeing the dead body of his sister Lalitesh, he had gone to police station, from where he came back with Sub-Inspector on spot at 11:00 p.m. He had also stated that he came on spot of murder in the jeep of Sub-Inspector alongwith his cousins Naresh and Shyoraj. Police had prepared memo of recovery of motorcycle (Ex. Ka-11) on spot on 6.2.2006 at unknown time. In said memo of recovery name of complainant or Shyoraj or Naresh does not appear as witnesses. At that time I.O. had also taken blood stains and plain soil from the spot and prepared its memo Ex. Ka-12. On that memo also name of complainant or Shyoraj or Naresh does not appear as witness.

29.I.O. had proved Ex.-Ka-7 memo of recovery of country-made pistol 315 bore along with cartridge on 5.2.2006 at 11:00 p.m. from the accused-appellant Omkar Singh, at his house of Surjawali, p.s. Aurangabad. This evidence contradicts other evidence of prosecution side. On one hand PW-1 complainant proves that Investigating Officer and police party had reached on spot on 5.2.2006 at 11:00 p.m. in the night, and on the other hand same I.O. PW-7 Man Singh Dagar had allegedly arrested accused at 11:00 p.m. from his house along with alleged murder weapon. PW-7 had denied this statement of PW-1 complainant that complainant had gone on spot with police. He could not explain his presence at two spots at same time i.e. at 11:00 p.m. PW-7 had stated that he and other police personnel had found accused Omkar Singh hidden beneath his cot along with country-made pistol and fired cartridge, which was smelling the fresh firing. It is not possible for police personnel to be present at two places at same time. It is also not believable that accused was apprehending his arrest, and therefore he was concealing himself beneath the cot, but had not tried to escape from his house or had not tried to dispose off or hide the country-made pistol, which is said to be murder weapon. The alleged presence of complainant on the spot itself is doubtful.

30.PW-2 Shyodan Singh had given statement, the description of which has been given above. His statement is also strange and unbelievable. His name does not appear in FIR as witness. Even PW-1 complainant had not mentioned his name in his statement. He (PW-2) is resident of village Khalikpur, which is also village of complainant. He had stated to be present in village Surjawali before the house of accused and overheard the conversation conspiracy between accused persons. He had not stated date or time of reaching village Surjawali. According to his statement he had visited village Surjawali any time before the death of Lalitesh. He had allegedly overheard the conversation going on between accused and his family members in closed room when he was standing 50-60 yards from that room in open road. Such strange and strong power of hearing is unheard and unbelievable. If accused were hatching conspiracy of murder of Lalitesh in closed room, then it was not possible to overhear their conversation from 50-60 yards even if such conversation was in loud voice. PW-2 had also stated that one Pappi is married in village Surjawali, who happens to be his sister, but he does not know the name of husband of his sister. He had allegedly went in village Surjawali for meeting his sister Pappi and also for inquiry about prospective bride groom for his maternal cousin sister. But he had no knowledge of any boy till that time, who could be prospective bride groom. Apart from it he had further stated that after overhearing the conversation of conspiracy between accused persons he had not gone to the house of his sister Pappi. Such is the strange and unbelievable statement of PW-2 Shyodan Singh, who had allegedly went to meet her sister Pappi in village Surjawali, but after reaching village he had not gone to her house. There is no evidence that any lady of the name of Pappi is actually resides or married in village Surjawali. PW-2 had stated that he had gone to Surjawali with Vijendra Singh, but Vijendra Singh was also not examined. There is no evidence that anyone had ever seen Shyodan Singh in village Surjawali. The place and time of alleged visit of Shyodan Singh is not proved. Most important thing in this matter is that even after hearing the alleged conspiracy between accused persons regarding proposed murder of Lalitesh, the PW-2 Shyodan Singh had not informed anything about it to his neighbour PW-1 complainant Indrapal Singh of his village. The reason of it was also not explained by prosecution side. These facts lead to inference that prosecution side had adduced unbelievable and false evidences.

31.Even PW-1 had stated in his cross-examination that on 5.2.2006 he had received information at about 3:00 p.m., in the day, about the alleged harassment of Lalitesh. This information was given by his sister, who is married in village Surjawali. He had not mentioned the name of his sister or information from his sister in FIR; and even in his examination he had not disclosed the name of his sister or his sister's husband. He had not given any explanation as to why he had not instructed his sister to take care of Lalitesh when he had received such information. His sister was neither named as witness in charge-sheet nor prosecution side tried to examine her. In fact there is no evidence on record to prove that there is any sister of complainant, and she is married in Surjawali. Thus it appears that either statement of PW-1 about information of alleged harassment of Lalitesh by accused, received from his sister is incorrect or the best evidence in this regard has deliberately been concealed and suppressed by prosecution side. For this reason, presumption of fact goes against the statement of complainant and also against prosecution case. There is no evidence on record to indicate that soon before the incident complainant had received any information regarding alleged cruelty or harassment of his sister for demand of dowry. It is proved that two witnesses of fact have been untruthful and unbelievable. During their statements they had concealed relevant information and given such deposition, which is unacceptable. The formal witness of this case relating to investigation had also been unbelievable and untruthful. But these facts were not considered by learned Sessions Judge.

32.Most glaring error committed by learned Sessions Judge is that she had considered the prosecution evidences only and completely ignored the defence evidence and defence case. It was the defence case from the very beginning that when Omkar Singh was going with his wife Lalitesh on motorcycle then he was stopped and robbed. The robber relieved the Lalitesh of her ornaments, and when she protested then robber had fired on her, which resulted to her death. Such suggestion was given to PW-1. Accused persons had stated these facts in their statement under section 313 Cr.P.C. Omkar Singh had specifically stated that Sonu and Jafar had stopped him by showing country-made pistol and snatched Rs. 11,180/- from him and beaten him and also snatched ornaments and ear rings of Lalitesh, and when she protested then they had murdered her by firing. For which he had lodged report relating to case crime no. 18-A/2006 under sections 302, 394 IPC in police station Aurangabad. Investigating Officer had not stated anything about this cross case. DW-1 Constable Sohanpal Singh had proved registration of this case crime no. 18-A/2006 (Ex. Kha-1), the contents of which support the defence version. DW-2 Devendra Kumar, Chief Pharmacist had been posted in district hospital Bulandshahr and proved medico legal injury report of Omkar Singh son of Man Singh, resident of Surjawali as Ex. Kha-2. He had proved this injury report as secondary evidence and in non-availability of doctor proved it. Neither his case was investigated nor explained by prosecution side. Even the injuries found on the body of appellant Omkar Singh were not explained by prosecution side, which could have been caused at the same time, which was the time of incident of this case crime no. 18/2006 of p.s. Aurangabad. It is proved from the evidences that no ornament except 'bichua' (metallic or silver ring of finger of foot) was found on the dead body of Lalitesh. The marriage of Lalitesh was not old and had not completed one year. This defence case of the appellant side cannot be altogether ruled out that being an indian house wife of normal middle class family, it is expected that she would wear some ornaments but absence of any material golden ornament or any ornament except 'bichua' on her body supports this arguments of appellant's counsel that there may be chances of robbery with murder, because on one hand no ornament was found on body of victim and on other hand injuries were found on body of victim and her husband Omkar Singh (appellant). This argument of learned counsel for the appellant cannot be rejected out rightly that all the alleged prosecution witnesses were chance witnesses, their evidences are false and unacceptable, and that the best evidences were suppressed by prosecution side which lead to presumption of facts against prosecution story.

33.In the light of above discussion, we are of the considered opinion that prosecution side had failed to prove that there was any demand of dowry from Lalitesh. It is proved that there was no evidence of harassment or cruelty with victim Lalitesh for demand of dowry, especially soon before the incident. Though victim Lalitesh had died in unnatural circumstances within one year of her marriage but there is no evidence that after her marriage or soon before her death any demand of dowry was made by appellant or that Lalitesh was subjected to any harassment or cruelty for the demand of dowry. We are also of the considered opinion that prosecution side had not only failed to prove charges leveled against appellant but also that defence case of appellants appears probable and believable. Therefore, conviction of accused appellant Omkar Singh for every charge has been found not proved. Learned Sessions Judge had not considered facts, circumstances, and evidences adduced in this case and totally ignored the defence evidences, which shows slackness in judicial work on her part.

34.On the basis of above discussion, this appeal is allowed, the judgment of conviction dated 26.8.2009 and order of punishment dated 28.8.2009 for the charges of section 304-B, section 498-A IPC, section 4 of Dowry Prohibition Act and section 25 Arms Act are set aside and accused-appellant Omkar Singh is acquitted of the aforesaid all the charges.

35.If the appellant is not wanted in any other case, he be released immediately from the custody of this case. Released order be sent immediately to concerned Jail Superintendent and C.J.M., Bulandshahr for ensuring compliance.

Order Date :- 8.5.2015

SR