Smt. Suman vs State Of U.P.
2017 Latest Caselaw 1552 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										   A.F.R.
 
Court no. 40
 
Case :- CRIMINAL APPEAL No. - 1240 of 2006
 

 
Appellant :- Smt. Suman
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sanjay Kumar Srivastava,Apul Misra,Ganesh
 
Pandey,K.P.S. Yadav,Mahesh Kumar,Rajul Bhargava
 
Counsel for Respondent :- Govt. Advocate,D. Singhal,D. Yadav
 

 
Hon. B.K. Narayana, J.

Hon. K.P. Singh, J.

Heard Sri Abhai Raj Singh, learned counsel for the appellant and Sri Sagir Ahmad learned A.G.A. for the State.

This appeal has been preferred by the appellant Smt. Suman against the judgement and order dated 28.2.2006 passed by the Additional Sessions Judge/F.T.C. Court no. 3, Azamgarh in S.T. no. 453 of 1999 (State vs. Smt. Suman), arising out of Case Crime no. 765 of 1999, under Section 302 I.P.C., P.S. Kotwali, district-Azamgarh, by which the appellant has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life and a fine of Rs. 3000/- and in default of payment of fine one year additional R.I.

The prosecution case in brief is that P.W.1 Laharu Prasad Yadav, son of Jhuri Yadav, resident of village-Sikraur, police station-Kotwali, district-Azamgarh lodged a written report (Ext.Ka-1) at police station- Kotwali, district-Azamgarh on 28.5.1999 at 00:30 hours, stating therein that on 26.5.1999 at about 9 p.m. Champion, son of the appellant came to his house and told his son Hansraj that his grandmother Mati wanted to meet him in her house, on which Hansraj left for the house of Mati with Champion. The informant and his family members went to sleep and when they woke up in the morning they found that Hansraj had not returned on which the informant and his other family members went to the house of Mati and Suman and inquired from them about the whereabouts of Hansraj on which they expressed their ignorance. The informant suspected that his son had been murdered by the appellant, Smt. Suman, her mother Mati and her brother Rajneti and his dead body concealed by them inside their house. He went to police station and gave a written report of the occurrence (Ext.Ka-1) which was registered as Case Crime no. 765 of 1999 at police station-Kotwali, district-Azamgarh under Section 302 I.P.C. against the appellant and two other persons. Chek F.I.R. Ext. Ka-2 was prepared by PW4 Head Moharrir A.P. Singh. The investigation of the case was entrusted to PW6 Ram Prasad Tiwari S.H.O. police station-Kotwali. During the course of investigation of the aforesaid case the Investigating Officer visited the place of occurrence, got the dead body recovered by breaking open the lock of the house and after inspecting the same prepared its site plan Ext.Ka-12, conducted the inquest and prepared inquest report Ext.Ka-7 and other documents challan lash Ext.Ka-6, photo lash Ext.Ka-11 and letters addressed to RI and CMO Ext.Ka-8 & Ext.Ka-9 and police form no. 13 Ext.Ka-10. He also seized blood stained and plain earth, blood stained 'kathri' and rope from the place of occurrence and prepared recovery memo of the aforesaid articles Ext.Ka-7. The seized articles were sent to Forensic Lab, Lucknow for forensic examination. The reports of the forensic lab were brought on record as Ext.Ka13 and Ext.Ka-14. After completing the inquest he got the dead body of Hansraj sealed and dispatched the same to the district hospital for conducting the post mortem. The post mortem of the cadaver of the deceased was conducted by PW3 Dr. J.P. Gupta on 28.5.1999 at about 2:15 PM who also prepared his post mortem report Ext. Ka-5. PW3 Dr. J.P. Gupta noted following antemortem injuries on the dead body of the deceased:-

"1- dVk gqvk ?kko 8 lseh- X 01 lseh- X ekal rd frjNh xnZu ds nkfgus rjQA nkfgus dku ls 2 lseh- uhpsA

2- dVk gqvk ?kko 7 lseh- X 01 lseh- X ekal rd frjNh xnZu ds nkfgus rjQ pksV la0 1 ls 1&[email protected] lseh- uhpsA

3- dVk gqvk ?kko 7 lseh- X 01 lseh- X ekal rd frjNk xnZu ds nkW, fgLls ij pksV la0 2 ls 4 lseh- uhpsA

4- dVk gqvk ?kkWo 3 lseh- X 1 lseh- X gM~Mh rd iM+h gqbZ FkhA ekaFks ij nka, rjQ 3 lseh- nkfgus Hko ls mij fnekx [kqyk gqvk FkkA

5- dVk gqvk ?kkWo 3 lseh- X 1 lseh- X gM~Mh rd frjNk psgjs ds ckW, fgLls ij fupyh vksB ls 2 lseh- uhpsA mlds uhps dh gM~Mh dVh gqbZ ikbZ x;hA

6- dVk gqvk ?kkWo 5 lseh- X 2 lseh- X gM~Mh rd xgjk ekWFks ds ckW, fgLls ij 2-5 lseh- ckW, Hko ls mij iM+k gqvk FkkA fnekx ckgj ls fn[kk;h ns jgk FkkA

7- dVk gqvk ?kkWo 6 lseh- X 1-5 lseh- X gM~Mh rd xgjk iM+k gqvk ¼gkfjtkUVy½ ekaFks ds ckW, fgLls ij pksV la0 6 ls mij ckgj ls fnekx fn[kk;h ns jgk FkkA

8- dbZ la[;k esa dVs gq, ?kko tks la[;k esa 04 FksA tks ckW, dku o lj ij ckW, rjQ iM+ gqvk 8 lseh- X 6 lseh- ds {ks= esaA lcls NksVk ?kkWo 4 lseh- X [email protected] lseh- X ekal rdA lcls cM+k ?kkWo 5 lseh- X 1 lseh- X ekal rdA

9- dVk gqvk ?kko 3 lseh- X 1 lseh- X gM~Mh rd lj ds ckW, fgLls ij ihNs dh vksj ckW, dku ls 6 lseh- ds nwjh ij fnekx ckgj ls fn[kk;h iM+ jgk FkkA

10- vusd [kjk'k tks 5 dh la[;k eas FksA ckW, glqayh ds gM~Mh ij o lhus ij FksA 9 lseh- X 3 lseh- ds {ks= esa lcls NksVk [kjk'k 2 lseh- X [email protected] lseh- lcls cM+k [kjk'k 3 lseh- X [email protected] lseh-A

According to postmortem report of the deceased he had died as a result of antemortem injuries.

The Investigating Officer arrested the accused-appellant Suman on 29.5.1999 at about 6 A.M. It is alleged that after being arrested the appellant Suman confessed before him that she had committed the murder of Hansraj and expressed her willingness to get the crime weapon recovered. Thereafter the Investigating Officer got the spade by which the deceased was murdered recovered from the house of Mati on the pointing out of the appellant Suman and prepared its recovery memo (Ext.Ka-2).

After completing the investigation, the Investigating Officer submitted charge sheet Ext.Ka-6 against the accused-appellant Smt. Suman alone under Section under Section 302 I.P.C. before the Chief Judicial Magistrate, Azamgarh.

Since the offence mentioned in the charge sheet (Ext.Ka-6) submitted against the accused was triable exclusively by the court of sessions, the Chief Judicial Magistrate committed the case for trial of the accused to the court of Sessions Judge/F.T.C., Azamgarh where the same was registered as S.T. no. 453 of 1999 (State vs. Smt. Suman) and made over for trial to the court of Addl. Sessions Judge/F.T.C. Court no. 3, Azamgarh who on the basis of the material collected during investigation and after hearing the prosecution and the accused on the point of charge, framed charge under Section 302 I.P.C. against the accused Smt. Suman.

Accused pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined as many as six witnesses. PW1 Lahura Prasad Yadav and PW5 Hari Shankar @ Shankar were examined as witnesses of fact. PW3 Dr. G.P. Gupta who had conducted the postmortem on the dead body of Hansraj and prepared the postmortem report, PW2 Subhash Chandra who had prepared the chek F.I.R. and relevant G.D. entry as Ext.Ka-2 & Ext.Ka-3, PW4 A.P. Singh, second I.O. of the case and PW6 Ram Prasad Tiwari, the first I.O. of the case were examined as formal witnesses.

The accused-appellant in her statement recorded under Section 313 Cr.P.C., denied the prosecution case and alleged false implication. She further stated that on the night of the occurrence she was in her matrimonial home and she has been falsely implicated in the present case by the informant at the behest of her collaterals between whom and her mother a civil litigation with regard to the immovable property was pending. The defence also examined Vinod Chauhan as DW1, who deposed that neither the appellant nor her mother Mati were residing in the house from where the dead body of the deceased was recovered as they had shifted to another house in village-Shrikantpur in the year 1999 and ever since then they had been residing in their house in village-Shrikantpur.

Learned Additional Sessions Judge/F.T.C. Court no. 3, Azamgarh after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant under Section 302 I.P.C. and awarded aforesaid sentence to her.

Hence, this appeal.

Learned counsel for the appellant submitted that the implication of the appellant in the present case is based upon circumstantial evidence and there was no direct evidence against the accused-appellant indicating that she had committed the murder of Hansraj and thereafter concealed his dead body. He next submitted that as far as the accused-appellant is concerned, there is neither any circumstantial nor direct evidence against her on record indicating at her complicity in the commission of murder of the deceased Hansraj. Alleged recovery of the crime weapon on her pointing out is proved to be fabricated in view of the facts deposed by PW1 informant Laharu Prasad Yadav in his examination-in-chief. The conviction of the appellant in the instant case is based solely upon surmises and conjunctures and such being the state of evidence the recorded conviction of the appellant and the sentence awarded to her can not be sustained and are liable to be set aside.

Per contra, Sri Sagir Ahmad, learned A.G.A. submitted that it is proved from the evidence on record, both oral as well as documentary, that the murder of the deceased Hansraj was committed by the appellant. On account of the recovery of the dead body of the deceased from the house of the appellant a very heavy burden was cast on her to explain the circumstances under which the dead body of the deceased was recovered from her house which she failed to discharge and hence the trial court rightly convicted the appellant for the murder of the deceased Hansraj by invoking aid of section 106 of the Indian Evidence Act. Moreover the appellant had admitted in her statement recorded before the Investigating Officer after her arrest that she had committed the murder of the deceased with the spade which was later recovered from her house on her pointing out, which was another clinching circumstance which pointed at her guilt. The finding of guilt recorded by the trial Judge in the impugned judgement against the accused-appellant is based upon cogent evidence and the sentence awarded to her is supported by relevant considerations requiring no interference by this Court. This appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties and very carefully scrutinized the entire lower court record.

At the very outset it may be noted that prosecution case is that the deceased was taken from his house by one Champion, son of the appellant on 26.5.1999 at about 9 p.m. on the pretext that Mati his grandmother wanted to meet him. Hansraj did not return back to his home till next morning whereupon it is alleged that informant went to the house of Mati and inquired from Mati and Suman about the welfare of his son Hansraj and his whereabouts on which they feigned ignorance. The informant suspected that his son had been murdered by the appellant, her mother Mati and her brother Rajneti and his dead body concealed by them in their house. After the written report of the incident was lodged, the lock of the alleged house of Mati was broken by the Investigating Officer and the dead body of Hansraj was found lying inside the house on a cot. The prosecution case further is that appellant Suman was arrested on 29.5.1999 and thereafter the spade by which she had committed the murder of the deceased Hansraj was recovered on her pointing out from the house of Mati at about 9:15 P.M. pursuant to the disclosure statement made by her before the Investigating Officer.

Record shows that the trial Judge while convicting the appellant has relied upon the following circumstances which according to him stood proved from the evidence adduced by the prosecution before him and the proved circumstances were consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence;-

(i) recovery of dead body of Hansraj from a deserted house allegedly belonging to the appellant.

(ii) recovery of crime weapon (spade) in this case on her pointing out from the house from where Hansraj's dead body was recovered following her disclosure statement made by her before the police after her arrest on 25.9.1999 on the same day.

As already noted, the prosecution in order to prove the aforesaid circumstances had examined PW1 informant Laharu Prasad Yadav, PW5 Hari Shankar @ Shankar and PW6 Ram Prasad Tiwari, the first Investigating Officer of this case. A perusal of the statements of PW1 Laharu Prasad Yadav and PW5 Hari Shankar @ Shankar indicates that none of them had deposed that they had seen the deceased in the company of appellant Suman at any point of time between his leaving his house with Champion till the recovery of his dead body. Their evidence further shows that the dead body of Hansraj was not recovered from the house allegedly belonging to appellant's mother Mati either pursuant to any disclosure statement made by her before the Investigating Officer after her arrest or in her presence. The prosecution case further is that the house from where the dead body of Hansraj was recovered belonged to the appellant. However, Sri Sagir Ahmad, learned A.G.A. has failed to draw our attention to any evidence on record which may even remotely suggest that either the house from where the dead body of Hansraj was recovered belonged to the appellant or she was residing therein. There is further no evidence on record indicating that the appellant was seen inside or near the house from where Hansraj's dead body was recovered at any point of time after Hansraj had left his house with Champion for going to the house of Mati. On the other hand the appellant examined one Vinod Chauhan as DW1, who in his examination-in-chief categorically deposed that Mati Devi, mother of the appellant who was married in village-Sikraura was residing in her matrimonial home in village-Sikraura but after the death of her husband, on account of being threatened by Jethu and other relatives of her husband who wanted to grab her portion in the ancestral house of her husband and had started litigating with her, she had purchased a piece of land in Mauja Srikantpur, police station-Kaptanganj, Azamgarh from one Ram Shakal for a sum of Rs. 15,000/- about nine years before and had built a house on the aforesaid land and about eight years before she had shifted to her house in Mauja Srikantpur and ever since then she has been living there. She had locked her house in Sikraura after removing all her belongings from there. Neither she nor any other member of her family had visited Srikanpur thereafter. DW1 was cross-examined by the D.G.C. (Criminal) on behalf of the prosecution at great length but he failed to elicit anything adverse to the defence from him. From the evidence of DW1 it is proved that some portion of the house from where the dead body of Hansraj was recovered belonged to Mati, mother of the appellant which she had abandoned about eight years before and on the date of incident she was living in her house in Mauja-Srikantpur. Thus, at the most it can be said that the house from where the dead body of Hansraj was recovered belonged to Mati, mother of the appellant but there is no evidence on record indicating that either Mati or the appellant were residing in or seen near the aforesaid house at the time of occurrence. Thus, even if, it is believed that the dead body of Hansraj was recovered from the house belonging to Mati, mother of the appellant it does not point out at the guilt of the appellant.

The second circumstance relied upon by the prosecution is that of the recovery of crime weapon from the house of Mati on the pointing out of the accused-appellant Suman. The prosecution case in this regard is that after appellant Suman was arrested by the Investigating Officer on 29.5.1999 at about 9:15 A.M. she confessed that she had committed the murder of Hansraj and further expressed her willingness to get the crime weapon (spade) by which she had assaulted the deceased recovered from the house from where the dead body of the Hansraj was recovered. Record further shows that thereafter she led the Investigating Officer and the other witnesses of recovery PW1 Lahura Prasad and PW5 Hari Shankar @ Shankar to a room in the back side of the aforesaid house and took out a blood stained spade which was hidden under a heap of mud. The prosecution had examined PW1 Lahura Prasad Yadav, PW5 Ram Prasad Tiwari and PW6 Ram Prasad Tiwari to prove the recovery of crime weapon from the house from where Hansraj's dead body was recovered on the pointing out of the appellant Suman.

But the entire prosecution theory of the crime weapon having been recovered on the pointing out of the appellant on 29.5.1999 at about 9.15 A.M. stands totally falsified and shattered upon a conjoint reading of the facts stated by PW1 Lahura Prasad Yadav in his examination-in-chief on page 10 of the paper book that the spade which was produced during the trial and marked as material Ext.1 and recovery memo whereof (Ext.Ka-2) was prepared by the Investigating Officer was recovered on the same day on which the dead body of Hansraj was found. The D.G.C. (Criminal) neither recalled PW1 Lahura Prasad Yadav to get the aforesaid fact clarified from him nor made any prayer for getting PW1 Lahura Prasad Yadav declared hostile. Another circumstance which demolishes the prosecution case that the recovery of spade was made on 29.5.1999 on the alleged pointing out of the appellant is that the recovery memo of crime weapon does not bear the signature of the appellant and the prosecution has failed to come up with any explanation for the aforesaid omission which gives rise to a very strong suspicion that neither the spade was recovered on the pointing out of the appellant nor the recovery memo of spade (Ext.Ka-2) was prepared in her presence.

Motive to commit the crime assumes utmost significance in a case based upon circumstantial evidence. In the instant case we are constrained to observe that the prosecution has failed to come up with any motive for the accused-appellant to commit the murder of Hansraj.

In a case resting on circumstantial evidence the prosecution has to prove all the circumstances against the accused. The chain of circumstances must be proved beyond all reasonable doubts, mere suspicion or suspicious circumstances can not relieve the prosecution of its primary duty of proving its case beyond reasonable doubt and 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 guilt of any other person. The Apex Court in the case of Change Reddy & others vs. State of U.P. reported in (1996) 10 SCC 193 observed as hereunder :-

"In a case based on circumstantial evidence" the settled law is that circumstances from which the conviction of guilt is drawn should be fully proved and such circumstances must be conclusive in nature more over all the circumstances should be complete and there should be no gap left in the chain of evidence, further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence, we see that prosecution failed in all respects of providing its case against the accused."

Thus, upon a careful appraisal of the facts and circumstances of the case and a thorough evaluation and scrutiny of the evidence on record and the settled law on the issue, we find that the prosecution has miserably failed to prove the circumstances relied upon it against the appellant to establish her guilt by any cogent or reliable evidence.

Thus, the recorded conviction of the appellant and the sentence of life imprisonment awarded to her under Section 302 I.P.C. by the trial court can not be sustained and are liable to be set aside.

Accordingly, this appeal succeeds and is allowed. The impugned judgement and order dated 28.2.2006 passed by the Additional Sessions Judge/F.T.C. Court no. 3, Azamgarh in S.T. no. 453 of 1999 (State vs. Smt. Suman), arising out of Case Crime no. 765 of 1999, under Section 302 I.P.C., P.S. Kotwali, district-Azamgarh is set aside. The appellant is acquitted of the charge under Section 302 I.P.C.

Appellant is in jail. She shall be released forthwith from the jail, unless she is wanted in any other case, subject to her complying with the provision of Section 437(A) of Criminal Procedure Code.

Dt.01.06.2017.

Faridul.