Deo Pal Yadav vs State Of U.P.
2018 Latest Caselaw 1354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										AFR
 
Court No. - 40
 
Case :- CRIMINAL APPEAL No. - 373 of 2012
 
Appellant :- Deo Pal Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajul Bhargava,Jitendra Singh,K. Kumar Tripathi,Ramanuj Yadav
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Amreshwar Pratap Sahi,J.

Hon'ble Bachchoo Lal,J.

This appeal is against the judgment dated 11.01.2012 passed by the learned Sessions Judge, Mahoba in S.T. No. 2 of 2008 arising out of case crime no. 1005 of 2006, P.S. Kotwali Mahoba whereby out of the four accused, the appellant who is the husband of the deceased has been convicted under Section 302 I.P.C. for having committed the murder of his wife and has been sentenced to undergo life imprisonment with Rs. 5000/- as fine and in default of payment of fine to undergo six months additional imprisonment. By the same judgement, the other three co-accused namely, Prasad Yadav, the father of the appellant, Smt. Mannu, the mother of the appellant and Munna, the brother of the appellant, have been acquitted of all the charges.

The incident is said to have taken place on 24th September, 2006, which according to the prosecution was sometime between afternoon and evening of the said date. The incident was reported through a First Information Report lodged on 25th September, 2006 at 8.30 a.m. by P.W. 1, Devi Deen, brother of the deceased. The First Information Report discloses that the appellant and other co-accused subjected the deceased to harassment occasionally and as a consequence thereof, the deceased committed suicide by hanging herself to death on the fatal day. The written report was tendered through one Bharat Singh Yadav and the check F.I.R. was transcribed by Onkar Nath who has been examined as P.W. -5.

The investigation commenced and the inquest report was prepared in the presence of Naib Tahsildar Gulab Singh who was examined as P.W.-4. A recovery memo of the rope utilized for the commission of the said offence was prepared which has been exhibited as exhibit -Ka-8. The dead body was dispatched for postmortem on 25th September 2006 which was carried out on 26th September, 2006 under the joint supervision of P.W.3, Dr. R.P. Mishra and Dr. Anurag Purwar. The postmortem report is exhibited ka-2. The appellant along with the two other co-accused namely his father Prasad and brother Munna were arrested on 30th September, 2006.

After having recorded the statements it appears that an affidavit was filed by the informant stating therein certain other facts whereupon further investigation was carried out. The charge sheet exhibited Ka-13 was filed on 16th November, 2006. The said charge sheet was filed against all the four accused under Section 306 I.P.C.

It is almost after three years that the charges were framed by the learned Sessions Judge on 29th July, 2009 where the first charge framed called upon the accused to answer the alleged offence having been abeted under Section 306 I.P.C. The second charge was having committed the offence under Section 498-A I.P.C. and in the alternative, the learned Judge proceeded to frame charges against all the accused under Section 302/34 I.P.C. read with section 201 I.P.C. thereof.

The trial proceeded and the informant and P.W. 1 Devi Deen was the first to depose on 1st October, 2009. This was followed by the deposition of Mathura Prasad, the father of the deceased on 26.2.2010 who was examined as P.W.-2. These are the only two witnesses of fact examined by the prosecution. It is necessary to mention this inasmuch as this is a case of circumstantial evidence relating to the alleged offence for which all the accused were tried but no other witness of fact was produced or examined by the prosecution.

Dr. R.P. Mishra, the Medical Officer who conducted the autopsy, was examined as P.W.-3 on 22nd May, 2010 and Gulab Singh, Naib Tehsildar in whose presence the inquest report was prepared, was examined as P.W.-4. P.W.-5 Onkar Nath is the constable scribe who registered the check F.I.R. and Anar Singh, P.W.-6 is the Investigating Officer. The statement under Section 313 Cr.P.C. of the four accused was recorded which is part of the paper book.

It is after assessing the entire evidence on record that the trial court concluded firstly, that allegation of motive relating to harassment or torture arising out of any demand of alleged dowry in the shape of a gold chain was not established and therefore, the trial court further came to the conclusion that there did not appear to be any complicity of the three co-accused namely Prasad Yadav, father-in-law, Smt Mannu, mother-in-law and Munna, brother-in-law of the deceased. Consequently, the trial court acquitted all these three accused but on the alternative charge under section 302 I.P.C. only proceeded to analyze the status of cause of death of the deceased by examining the inquest report, the statement of Naib Tehsildar and other witnesses coupled with the statements of P.W. 1 and P.W.-2 to conclude with the aid of evidence on record including the post mortem report, that it could not be a case of suicide and therefore, it was homicide. By taking recourse of Section 106 of the Indian Evidence Act 1872, the trial court further proceeded to infer the fact relating to the involvement of the appellant being husband of the deceased and held that the appellant appears to have committed the murder of his wife on the strength of the deposition of P.W. -1 and P.W.-2 specially because of the fact that he used to harass and torture his wife by occasionally commenting upon her inability to discharge her duties as a house wife. This presumption of the trial court coupled with the posture in which the dead body was found hanging led the trial court to believe that it was a case of murder and that the appellant being responsible and liable for it, inferred that the appellant is guilty of the offence and ultimately convicted and sentenced him to suffer life imprisonment coupled with fine. Thus, the convicted appellant is before us in this appeal.

Sri Rajiv Lochan Shukla, learned counsel for the appellant while advancing his submissions has urged that the prosecution began with the story of suicide by disclosing this basic requirement in the F.I.R. itself where P.W. -1 the informant did not raise any suspicion of murder and rather indicated the case to be an abetment of suicide. He therefore, submitted that the later development of the case into an offence of intentional murder for the sake of and demand of dowry was a clear transformation in the basic case of the prosecution by two of the witnesses, P.W. 1 and P.W.-2 who proceeded to depose before the court for the first time about the allegation of dowry for which neither the appellant nor other co - accused were found guilty. The trial court according to Sri Shukla has rightly found that there was no evidence to conclude that there was any demand of dowry or otherwise was the motive for the alleged incident. Even if it is homicide, in the absence of motive or direct evidence the question of inferring murder having been committed by the appellant does not arise and therefore the conclusion drawn by the trial court can be said to be based on surmises and conjectures, and not on any evidence existing on record. Sri Shukla then urged that even the case of abetment of suicide was not established, inasmuch as the statement of P.W.1 and P.W.-2, the brother and father of the deceased are in conflict in themselves and against each other as well. Sri Shukla submits that the statement of these witnesses read as a whole fails to establish the case of harassment for dowry and harassment or torture by the husband for not performing the duties of a house wife, inasmuch as if the prosecution has failed to adduce any evidence relating to suicide or its abetment by the appellant, then even otherwise, there is no scope for any inference about the case of the appellant having abeted the same. It is further argued that the charge framed in the alternative under section 302 I.P.C. was aided with section 34 I.P.C., and if the trial court has acquitted the other three co-accused and has not found a joint liability on the strength of section 34 I.P.C., then acquittal of the other three co-accused should be read in favour of the appellant to the extent that the appellant could not have been convicted without there being any specific or independent charge simplicitor under section 302 I.P.C. He therefore, submitted that evidence which has come forth clearly indicates that an incorrect charge having been framed and no offence having  been established on the basis of evidence adduced, it was neither a case of abetment of suicide or of murder.

He also advanced his submissions regarding delay in lodging of the F.I.R. on the basis of the description given by P.W.-1 in his statement and has further submitted that keeping in view the aforesaid circumstances of the case the conviction of the appellant rests on some speculations and possibilities and not on any concrete probability. The submission therefore, is that if the case does not disclose any clinching evidence of the existence of any fact to prove the commission of the offence by the appellant, it does not amount to a fact which can be said to have been proved beyond reasonable doubt and therefore, the inference of the trial court for convicting the appellant on the strength of section 106 of the Evidence Act. is absolutely unfounded. Thus, the entire premises on the basis whereof the conviction that was sought to be brought home is not based on evidence but is on mere inferences.

In addition to the said submissions, he contended that the other circumstances should also be taken into account namely that the State did not file any appeal against the acquittal of the three co-accused. There is no recovery of any instrument or weapon at the pointing out of the appellant which according to him is a necessary ingredient in order to prove a case of murder and further that there are no independent witnesses in spite of the fact that incident is a broad day light incident. He elaborated his submissions by contending that the issue relating to Section 106 of Evidence Act as discussed by the trial court does not take into account the fact that the incident has taken place in a cattle shed beyond the residential premises of the appellant and therefore, there is no reason to presume that the premises where the incident has taken place was in the exclusive occupation of the appellant. He contends that all such infirmities in the case of the prosecution and the circumstances aforesaid, nowhere by any stretch of imagination lead to the inference that the appellant may have been involved in the murder of his wife much less there being a probability of the same.

To substantiate his submissions he relied upon decisions in the case of Gurdial Singh Vs. State of Punjab AIR 1995 SC 2468 and the decision in the case of Limbaji Vs. State of Maharashtra 2001(10) SCC 340. He has further invited attention of the Court to a couple of passages from the commentary of Parikh Text Book of Medical Jurisprudence Forensic Medicine And Toxicology 7th Edition by Subrahmanyam published by CBS publisher and distributors to demonstrate that the posture of the body as in the present case reflect on the cause of death being suicidal.

Countering the said submissions, learned counsel for the State Sri Ajit Ray submitted that the motive part in so far as the appellant is concerned was clearly established and is evident from the statement of P.W.-1 as well as P.W.-2 which supports the version contained in the First Information Report. His contention is that had there been no motive, the possibility of suicide would not have arisen for no reason at all. He contended that in the ordinary course of human nature it was not possible for a wife with two children having born from the wedlock to have taken an immediate decision for ending her life. He contended that the trial court was fully justified in arriving at a conclusion that it was not a suicide inasmuch as the posture of the body as was recovered and was detailed in the inquest report and also in the deposition of P.W.4 Gulab Singh, in whose presence the inquest report was prepared, clearly indicated that it was not possible for the deceased to have hung herself in the manner in which the body was found to be floating above the ground with her stomach touching the floor.

Sri Ajit Ray then submitted that as a matter of fact, it was not a case of development in the statement of witnesses about any harassment but it was a further elaboration of the actual treatment meted out to the victim not only by the appellant but by the entire family members. He however, submitted that in particular the husband specifically harassed his wife about which there is a clear recital in the first information report and in the statement of P.W.-1 deposed before the court. He therefore, submitted that the motive on the part of appellant having surfaced after collecting the evidence, the prosecution has rightly proceeded to file a charge sheet under section 306 I.P.C. as well. He submitted that upon further investigation when additional material was brought before the court, the court proceeded to frame an alternative charge as referred to herein above and which is also borne out from the evidence. Consequently the conviction of the appellant to the extent that he was liable for the murder of his wife is also corroborated by the fact that the defence has been unable to dislodge the burden shifted on it under Section 106 of the Indian Evidence Act 1872.

Sri Ajit Ray on the finding recorded by the trial court with regard to conclusion drawn on the basis of posture of the body submits that this probability can not be ruled out and therefore, the finding of the trial court cannot be reversed merely because the view taken by the trial court is one of the probable views. He therefore, submitted that the trial court has rightly relied on the statement of P.W.-1 to conclude that motive is made out as against the appellant for having committed the offence, even if there is no direct evidence with regard to the commission of murder itself. He further submitted that even if the State has not filed an appeal against the acquittal of other three co-accused, no such benefit can be claimed by the appellant against whom an independent evidence is forthcoming on the basis whereof conviction can be sustained. His argument is that in the fact and circumstances of the present case the onus had clearly shifted on the appellant who is the husband of the deceased who has been unable to afford any explanation or adduce any evidence relating to the suicide as alleged nor is there any explanation forthcoming as to how the deceased met her death when she was living with the appellant continuously even on the fatal day. There is therefore no doubt about the complicity of the appellant who has failed to afford any explanation before this Court.

We have gone through the lower court records and the entire evidence and material which has already been discussed by the trial court in the impugned judgment.

At the very outset we may proceed to record that the conviction of the appellant has been brought about on the strength of the statement of P.W.-1 and P.W.-2 who are the only witnesses of fact. There is no evidence on record to indicate that the deceased at the time of commission of the alleged offence which was a day time incident had raised any hue or cry or any such evidence was collected and adduced before the court by the prosecution to demonstrate any sign of struggle by the deceased when she was allegedly murdered or committed suicide. From the site-plan that was a document of the prosecution itself, we find that the said cattle shed, in the premises whereof the incident occurred, is surrounded by the residence of several neighbours. Even though the case diary indicates the recording of statement of a couple of the neighbours, namely Bablu and Radhey Shyam, yet they were not produced as witnesses during trial. There was nothing to indicate that during this time of the day when people usually assemble for having meals had even heard of any such disturbing noises so as to give rise to any suspicion of the commission of an offence that too even by the appellant who was not even seen either going out or entering in to the premises of the cattle shed which is admittedly not immediately connected with the residence of the appellant. It has come in the statement of P.W.-1 that the premises is situated in front of residence but the site plan as produced by the prosecution nowhere indicates the existence of the residence of the appellant in front of the cattle shed. In such a situation it would be difficult to presume that the appellant was actually present at the scene of occurrence unless it can be shown by any other corroborating material. Thus there is no other evidence apart from the statement of P.W.-1 and P.W.-2 in order to implicate and involve the appellant in the alleged offence of murder.

It is therefore, necessary for us now to assess the status of the deposition of P.W-1 and P.W.-2 in order to test its veracity and probative value so as to construe it to be believable beyond reasonable doubt.

The statement of P.W.-1 who is the brother of the deceased levelled two allegations relating to motives. The first is about the allegation relating to the harassment of the deceased by the accused and beating by the appellant. This is contained in the examination-in-chief of P.W.-1. The second part of the statement is that the appellant demanded a gold chain from the deceased and in continuation thereof the allegation is that all the four accused had committed the murder of the deceased. In his cross examination he has stated that he had made a statement before the concerned Investigating Officer about the demand of a gold chain by the appellant from the deceased. He has further stated that he does not know as to why the Investigating Officer did not record it in his statement under Section 161 Cr.P.C. whereafter he filed an affidavit and then proceeded to state that all the four accused used to orally impute motives against the deceased. He further states on cross examination that he had not made any statement before the Investigating Officer about any shortcoming on the part of his sister in not performing daily duties of cooking and adding salt to food. He further stated that if the Investigating Officer had written this he has no explanation to afford as to why this was done.

On an analysis of this statement what we find is that P.W.-1 has tried to level the allegation of demand of a gold chain by the appellant from his sister whereas he has practically denied any personal allegation relating to performance of her daily duties as a house wife. This assumes importance inasmuch as the trial court has segregated the case of the appellant from the other three accused on this evidence and has concluded that the appellant had harassed the deceased that was evident from the said statement. What we find is that if the prosecution was relying on such evidence and it was an evidence relating to the commission of the offence of suicide, then we are unable to gather as to how the trial court transformed and inferred otherwise on this basis that the statement was sufficient to conclude a motive for committing murder by the appellant. This part of the finding of the trial court in relation to the conclusion of motive, therefore, is not based on any sound reasoning and we are unable to find ourselves in agreement with the same on any logical principle. Coming to the other part of the statement relating to the demand of a gold chain, the trial court itself had disbelieved such demand having been raised.

It is here that we may mention in the statement of P.W.-2 who is the father of the deceased. The parents are best persons in whom the child would confide particularly such intimate matters of harassment. P.W.-2 who is the father has nowhere in his statement even remotely stated that the appellant ever harassed the deceased on any account of daily performance of her duties as stated by P.W.-1. The father, therefore, does not corroborate this part of the story as set up in the statement of P.W.-1 and this therefore, does not appear to be a natural course of conduct which leaves us to believe that there was no such allegation of harassment disclosed by the deceased to her parents. The statement of P.W.-2 therefore, virtually does not corroborate the story set up by P.W.-1 and is therefore, not credible.

Coming to the allegation of demand of gold chain by the appellant it was urged by the learned counsel for the appellant that this was the story developed with the aid and advice of a counsel after an affidavit was filed during post investigation. An affidavit was filed after the initial investigation was over and chargesheet had been filed on 16.11.2006. According to the learned counsel for the appellant this affidavit is not even part of the exhibit nor it was produced or proved before the court. He has further pointed out that this affidavit may have paved the way for the subsequent investigation which commenced on 30.11.2006 and no fresh formal report was filed but a memo was prepared and tendered on 14.1.2007 reiterating the same status of the investigation conducted earlier. The trial court has nowhere investigated this aspect of the matter.

The first information report nowhere discloses any suspicion of murder and rather the basic requirement of the F.I.R. to disclose the nature of the offence committed is categorically stated as suicide, the abetment whereof was alleged against the accused. In our opinion, if the affidavit was not part of the prosecution papers before the court then the statement made for the first time before the court has to be assessed accordingly. The statement of P.W.-1 and P.W.-2 as discussed above in relation to demand of a gold chain is consistent but there was no corroborating evidence in respect of such demand of dowry and consequently the trial court even at the stage of framing of charge proceeded to frame an alternative charge under section 302 I.P.C. read with section 34 I.P.C. The trial court then proceeded to examine this material and then arrived at the conclusion that there was no corroboration of the aforesaid statement of witnesses to conclude that there was any harassment for dowry and it is for this reason that the trial court acquitted all the accused on that count and did not convict the appellant for any such offence of harassment for dowry. We find no other material so as to take a different view from that of trial court on the above score and consequently on the motive part we find that the story of harassment for a gold chain appears to be a clear development at the stage of trial through the statement of P.W.-1 and P.W.-2 without any corroborating material and is therefore untrustworthy.

Coming to the issue of motive of murder what we find is that burden was presumed to have been shifted on the appellant by the trial court in terms of section 106 of the Indian Evidence Act. It may again be reiterated that this is a case of circumstantial evidence and not a case of direct evidence in order to assess as to whether the burden was fully discharged by the prosecution in terms of section 106 of the Evidence Act brought on record that has to be measured with the aid of Section 3 of the Indian Evidence Act read with Section 101 thereof. The fact which has to be found in existence or presumed to be in existence is the involvement of the appellant with a high degree of probability and with the elimination of any other probability.

The distinction between a possibility and a probability has been discussed by a Division Bench of this Court in the Reference no. 01 of 2016 along with Capital case No. 602 of 2016 and 844 of 2016 Jaikam and anr. Vs. State of U.P. And Smt. Nazra and 3 others Vs. State of U.P. decided on 18.5.2018 where the following passage is worth extracting;

"..............................To gather intention, at times one has to attempt travelling into the mind of the accused but to gather concrete facts the investigation has to cross real bridges and the evidence proved in a trial can then form the basis of any opinion to be formed by the court. If this process is not complete, then without evidence and proof of facts, the court cannot convict on the basis of a spun imagination. There is a distinction between possibility and probability."

............................................ We may record in our line of logical reasoning to express our doubt as noted above with the aid of the meaning of the words possibility, preponderance and probability to support our conclusions on the involvement of Smt. Nazra. The word possibility reflects a certain degree of uncertainty, something that may or may not happen. A scientist conducts his experiments with great care, but he knows that an error is possible. Sometimes we have to choose between two possible courses of conduct, and it is possible that afterwards we may regret our choice. Between two or more possibilities, if one of them preponderates over the other, that is to say that is is superior or heavier than the others with a capacity to turn the scales of a balance, then an element of certainty sets in, and such a possibility from it's uncertain status of a mere possibility advances into a realm from "may or may not" to "may have".

Then comes probability which means likely to occur or prove true. It is something reasonably expected to happen. When the evidence upon which a statement is based is incomplete, but reasonably satisfying, it is best to qualify that statement with the word probably. It has more evidence for, than against. It out-weighs the other and is credible. In Roman Catholic theology, probabiliorism is a theory which propounds that in cases of conflicting authority, the evidence or opinion that preponderates, or is more likely to be right should be followed. Another Roman Catholic theory, probabilism enunciates that in matters of conscience, when the authorities differ as to the right course of action, any course that is probably right may be followed, even if another has better authority. Probability of an event, therefore against possibility, is travelling the distance from "may have" to "must have".

The trial courts have immeasurable advantage of seeing and hearing the witness delivering the evidence - their demeanour - which transforms into a conclusion on assessment that outweighs other probabilities."

We may further point out that prosecution has to prove its case beyond reasonable doubt. As to what is a reasonable doubt has been considered recently by other Division Bench of this court in the case of Krishna Pal and another Vs. State of U.P. Reported in 2018 (3) ALJ 122 (42 to 46) thereof. Noting the Apex Court decisions it has been held that the doubt which has to be assessed has to be a fair doubt in order give the benefit thereof to an accused and not a mere imaginary doubt, but at the same time it has been held that a reasonable doubt is one where hesitancy coupled with not being able to arrive at a decision would constitute a reasonable doubt. It is with this principle in mind that we now proceed to assess the findings recorded by the trial court in respect of the burden having been shifted upon the appellant where the trial court has concluded that the appellant has been unable to offer any explanation with regard to the death of his wife.

In this regard, we may first proceed to record that the First Information Report is the first document which has been proved by the prosecution where the only case set up by the informant P.W.-1 who is the brother of the deceased is that his sister had committed suicide. There is no indication therein about the suspicion of murder. For this we find that the P.W.-1 in his statement before the trial court has narrated his manner of arrival after having received information and he has categorically stated that he saw the dead body whereafter the next day the first information report was lodged by him at 8.30 a.m. Not only this the body was seen by the family members who had arrived. Thereafter the F.I.R. was lodged. Thus it was after having actually seen the dead body that the First Information Report was lodged. It would be worthwhile to mention that even though P.W.-1 and P.W.-2 both have stated that the appellant and other family members had absconded, but P.W.-2 in his statement categorically stated that the father of the appellant was present when they arrived and whereafter he absconded. According to the case diary as available on record arrest of the three accused including the appellant was made on 30.9.2006. The incident is of 24.9.2006. There is nothing to indicate about either the appellant or other family members absconding from the village. Even otherwise, if at the heat of the moment when the family members arrived, the appellant was not seen at his residence, then a mere absence cannot be treated as an evidence of absconding or even as an evidence to assume that the appellant had absconded because he had committed the murder of the deceased. A mere avoidance for sometime cannot be construed as a conclusive proof of an attempt to hide or conceal oneself. Absconding by itself would not be sufficient to draw an adverse inference. Reference be had to para 27 and 28 of the decision in the case of Bipin Kumar Mandal Vs. State of West Bengal 2010 (12) SCC pg 91. We find that first information report which had been lodged after all this happened categorically stated a case of suicide and not of murder much less a suspicion of murder.

Coming to the inquest report and the views expressed by the witnesses to the same, we do not find any suspicion of murder and rather the same indicates the same posture of the body as described in the report prepared under the guidance of Gulab Singh, Naib Tehsildar who is P.W.-4. The statement the Naib Tehsildar also no where indicates that he had heard or even suggested the same to be a case of murder by the appellant and not a case of suicide. It has to be noted that Gulab Singh being Naib Tehsildar is an independent witness and his statement also on its entire perusal nowhere suggests the involvement of the appellant so as to corroborate the allegation of P.W.-1 and P.W.-2 of the offence of murder having been committed by him.

To this we may add that the Investigating Officer who was examined as P.W.-6 has categorically in the concluding part of the cross -examination categorically stated that on the entire investigation it was found to be a case of suicide and accordingly, the charge sheet was submitted before the Court.

In the wake of the aforesaid case of the prosecution, the question as to whether it was a case suicide or homicide can be further gather from the postmortem report. The postmortem report along with statement of the doctor who conducted the autopsy and was examined as P.W-3, we find that there is an 8.00 cm gap in the ligature mark around the neck of the deceased. This wide gap goes unexplained by the prosecution inasmuch as the prosecution did not set up a case of strangulation. Rather it proceeded with the case of suicide. In such circumstances there was no corroborating evidence from the medical report or the statement of doctor that may suggest a suspicion of murder. Thus the medico legal evidence also does not indicate any allegation of murder having been established much less by the appellant before us. This part of the evidence has been completely overlooked by the trial court in arriving at the conclusion that the burden had shifted on the appellant and the trial court drew an adverse inference erroneously. What we find is that finding of the trial court that this was a case of homicide amounting to murder is not supported by any evidence. Therefore, the inference drawn on the strength thereof that the appellant's involvement cannot be ruled out does not appear to be correct. The circumstances and the evidence reflect a clear case of voluntary suicide.

We may point out as indicated earlier that there is no direct evidence either about the appellant having entered the said premises which was not a residential premises of the appellant or having come out after having committed the offence. Thus there is no evidence of even last seen except for the mother-in-law who has been acquitted having accompanied the deceased on that day for some house hold work as disclosed in the statement of Smt. Mannu under Section 313 Cr.P.C. Thus in order to conclude that the provisions of Section 106 of the Evidence Act are attracted, there is no material to establish that the entire cattle shed was in the exclusive possession of the appellant or he was present there on the basis whereof a presumption can be drawn against the appellant for concluding that he had committed the offence.

Consequently, merely because the appellant is the husband, he could not be presumed to have committed the offence unless there is any other material to corroborate the same.

Apart from this, there is no recovery of any incriminating article either from the possession of the appellant or on his pointing out, so as to connect with the commission of the offence. In a case of circumstantial evidence, it would be apt to point out that the golden principles as set out in the decision of the Apex Court in Sharad Birdi Chand Sharda Vs. State of Maharashtra AIR 1984 SC 1622 paragraph 152 are applicable on the facts of the present case and therefore, we have no hesitation to conclude that there is a clear and genuine doubt about the involvement of the appellant in the alleged commission of the offence of murder. The prosecution therefore, has been unable to establish any such case of having travelled the distance from may have to must have to clinchingly establish the involvement of the appellant. The findings and conclusion, therefore, of the trial court can not be sustained on the reasoning detailed in the judgment of trial court which deserves to be reversed giving the benefit of doubt to the appellant.

We now come to the issue of the original case of the prosecution as set up in the First Information Report and in the charge sheet filed merely being a case of suicide. On this aspect after having examined the evidence we have already indicated that there was no such motive proved but at the same time we may also record that there was no evidence relating to any dispute pending between the husband and the wife who had been blessed with two children, the younger child being a male child only three months old. This factor was sufficient to prima facei presume that there existed a fairly good relationship between the husband and the wife and which is an indicator of the conduct of the husband of the deceased. The allegation of beating the wife as alleged in the statement of P.W.-1 was no where proved by any other corroborating material or pointed out by P.W.-2 who is the father of the deceased who has not supported this stand of P.W.-1.

Sri Rajiv Lochan Shukla, learned counsel for the appellant therefore, in our opinion, is right in his submission that no case for abetment in so far as the appellant is made out.

There may be many different causes of frustration but to assume that appellant was responsible for the same due to his harassing attitude does not appear to have been established. The trial court erred in arriving at its conclusions.

Consequently, for all the reasons herein above we are unable to support the conclusions drawn by the trial court to the extent of convicting the appellant for having committed murder of his wife.

We accordingly reverse the judgment of the trial court dated 11.1.2012 whereby the appellant has been convicted and sentenced to undergo life imprisonment with fine and set aside the same. He stands acquitted of the charge under section 302 I.P.C. The appellant since his conviction is stated to be lodged in jail. He shall be set at liberty forthwith and the surety bonds shall stand discharged. The trial court shall ensure the compliance of the provisions of 437-A of Cr.P.C.

The appeal is allowed to the extent indicated above. The record be transmitted to trial court and a copy of the judgment be transmitted to the court below for compliance.

Order Date :- 4.7.2018/Gss