Mahesh vs State
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 Court No.3
 
Criminal Appeal  No. 2256 of 1986
 

 
Mahesh							---- Appellant 
 

 
Vs 
 
State Of U.P. 						---- Respondent 
 

 
For Appellant		:	Shri Akhilesh Srivastava, Advocate. 
 
For Respondent/State	:	Shri Amit Sinha, A.G.A. 
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Umesh Kumar, J.

Per: Pritinker Diwaker, J

1. This appeal arises out of the impugned judgement and order dated 05.06.1986 passed by Additional Sessions Judge/Special Judge, Meerut in Sessions Trial No. 345 of 1984 (State vs. Mohammed Saeed and Another.), convicting the accused-appellant, Mahesh under Section 302/34 of IPC and sentencing him to undergo imprisonment for life and further convicting the accused-appellant under Section 394 of IPC and sentencing him to undergo three years' rigorous imprisonment.

2. In the present case, name of the deceased is Murari Lal. The said Murari Lal was having his dry-cleaning shop and in the first floor of the said shop, Murari Lal had put certain machines for dry-cleaning and ironing of clothes.

3. Absconded accused-Mohammad Ali was initially working in the shop of Murari Lal and just few days prior to the incident, he introduced appellant-Mahesh with Murari Lal and appellant-Mahesh started working with him.

4. As per prosecution case, on 27.11.1981, absconded accused-Mohd. Ali, appellant-Mahesh and Murari Lal were working in the first floor of the shop in question, till 1:00 am. At about 1:30 am, Ram Katori, mother of the deceased, woke up to ease herself and saw the accused-appellant on the ground floor, who too was attending nature's call. Upon being questioned, the accused-appellant went back to the first floor and his conduct created some suspicion in the mind of Ram Katori. She immediately called Ram Kishan-PW-4 and also called brother and sister-in-law of Murari Lal, who were deaf and dumb and one Sharad Kumar @ Bunty-PW-I, aged about 10-11 years. While all these persons gathered in the house, they saw accused-appellant Mahesh and absconded accused-Mohd. Ali, getting down from the first floor of the house carrying bundles (potalies) in their hands and soon thereafter, walking fast, they fled away from the spot. When all these persons entered the first floor of Murari Lal's dry-cleaning shop, they noticed that a woollen scarf (cap) in the mouth of the deceased Murari Lal and one Tahmad (Lungi) tied up on his neck. They immediately, removed those clothes, but by the time, deceased had already expired. It was noticed that certain clothes, including Sarees, cash and ornaments were missing from the premises of Murari Lal.

5. A prompt report was lodged on 27.11.2981, vide Exhibit Ka.5, at 2:40 am by PW-2, Ram Babu, cousin brother of the deceased based on which, offence under Section 460 of IPC was registered against the appellant and absconded accused-Mohd. Ali. Post-mortem on the body of the deceased was conducted on 27.11.1981, vide Exhibit Ka.4, by PW-7, Dr. Vijay Singh.

6. As per autopsy report, following injuries were sustained by the deceased:

"1. Multiple abraded contusions on RT side of neck anterio lateral side in an area of 10 cm x 6 cm.

2. Multiple abraded contusions left side neck anterio lateral part in an area of 6 cm x 3 cm.

3. Inner side of both lips was lacerated along & corresponding to the margins of teeth on front 1 to 2 mm deep and 1 mm wide. Lips swallow and congested."

7. The cause of death of the deceased was due to asphyxia as a result of strangulation and smothering.

8. As the police could not arrest Mohd. Ali, a charge-sheet was filed against the accused-appellant-Mahesh and one Saeed, showing Mohd. Ali to be absconder.

9. While framing charge, the trial Judge has framed charges against the accused persons under Sections 120-B, 302/120-B, 394/120-B of IPC and in alternative, under Sections 302/34 and 394 of IPC.

10. So as to hold the accused persons guilty, prosecution has examined eleven witnesses. Statements of the accused persons were also recorded under Section 313 Cr PC in which, they pleaded their innocence and false implication.

11. By the impugned judgment, the trial Judge has acquitted the co-accused-Saeed of all the offences, whereas the appellant-Mahesh has been convicted, as mentioned in paragraph 1 of this judgment.

12. Hence this appeal.

13. Counsel for the appellant submits:

(i) that there is no eye witness to the incident and the appellant has been convicted solely on the basis of circumstantial evidence.

(ii) that the chain of circumstantial evidence is not complete and, therefore, the appellant could not have been convicted.

(iii) that the court below has erred in law in relying upon the statement of child witness, PW-I, Sarad Kumar @ Bunty.

(iv) that the said witness does not appear to be trustworthy and has been brought subsequently in the picture.

(v) that the deceased Murari Lal was having illicit relation with one Razia and for whom, he had spent lot of money.

(vi) that off late, the relations between said Razia and Murari Lal were strange and Murari Lal was also threatened by Razia for dire consequences and, therefore, possibility of Murari Lal being murdered by Razia cannot be ruled out.

(vii) that there is no memorandum of accused nor there is any seizure pursuant to any disclosure statements and, therefore, the conviction of the appellant under Sections 302/34 and 394 of IPC is bad in law.

(viii) that the dry-cleaning shop in question, and in particular, the place where the dead body of deceased Murari Lal was found was accessible to any one and, therefore, possibility of some third person killing the deceased cannot be ruled out.

(ix) that had there been any intention on the part of the appellant to commit the murder of the deceased, he could have caused injuries to the deceased and would not have merely inserted a piece of cloth in his mouth.

14. On the other hand, supporting the impugned judgment, it has been argued by the State counsel as under:

(i) that in the night in question, i.e. 26/27.11.1981, undisputedly, the appellant and absconded accused-Mohd. Ali were in the premises of Murari Lal and they were found working there till late night. They slept together in the said shop. In between 1.30 to 2.00 am, the deceased was found dead, the appellant and absconded accused-Mohd. Ali were seen by the witnesses coming out from the premises in question, carrying bundles (potalies) in their hands and apprehending some queries, they immediately ran away from the spot. Thus, it is apparent that the deceased was killed by the accused-appellant and the absconded accused.

(ii) that no explanation whatsoever has been offered by the appellant in his statement recorded under Section 313 of Cr PC, nor he has led any defence evidence.

(iii) that the statement of child witness-PW-1, Sharad Kumar @ Bunty is fully reliable; he appears to be a mature witness and, therefore, question of doubting his statement does not at all arise.

15. We have heard counsel for the parties and perused the record.

16. PW-1- Sharad Kumar @ Bunty is a son of Laxmi Chand and nephew of the deceased. He stated that the deceased was having a business of dry-cleaning and he also used to iron the clothes. Dry-cleaning work was being carried out by the deceased on the first floor in a Tin Shed. Earlier, absconded accused-Mohd. Ali was also working with the deceased and it is he, who introduced appellant-Mahesh with him just 7-8 days prior to the date of incident and the appellant was also working with the deceased.

17. On 27.11.1981, in the evening, Mohd. Ali came to his house and showed his desire to work with appellant and Murari Lal and in the said night, he stayed in his house itself. In the night, his grand mother woke up along with other family members and then in the bulb light, she saw the appellant and Mohd. Ali, getting down from the house in the stairs, carrying bundles (potalies) in their hands. When all family members reached to the first floor, they noticed woollen scarf (cap) in the mouth of the deceased and that his neck was also tied up by a Tahmad (Lungi). On the first floor, they found locker and cash box open and that cash and ornaments were missing. That apart, about 10 Sarees were also found missing. He stated that there was only one entry point in the house and no other entry or exit point was there. He has further stated that till 9.15 pm, the accused-appellant, absconded accused-Mohd. Ali and the deceased were watching Television and then all of them have gone on the first floor to sleep.

18. In the cross-examination, he has reiterated that he saw the accused appellant and the absconded accused coming out from the house carrying bundles (potalies) in their hands and, at that time, the other witnesses were also there.

19. PW-2, Ram Babu, is the informant. He was also residing in the same premises in a separate wing. He too has stated that he saw the accused persons and the deceased working till 1:00 night and at about 1:30 am, Ram Katori woke up and informed about the suspicious conduct of the accused persons and then they saw the accused persons coming out from the house and then, they also noticed the dead body of the deceased.

20. PW-3, Mitthan Lal, is a younger brother of the deceased, who was residing about four furlangs away from the house of the deceased. He has stated that prior to twenty five days of the incident, there was some quarrel between Razia and she also threatened the deceased for dire-consequences. However, in paragraph 11, he has stated that the said quarrel had not taken place in his presence and he was informed about the same. He admits that he did not like the conduct of his brother when he helped Razia financially.

21. PW-4, Ram Kishan was also residing near the house of the deceased. He has stated that in the intervening night of 26/27.11.1981, Ram Katori woke up and likewise she also made woke up the other persons residing there and then, they saw the accused persons coming out from the house of the deceased carrying bundles (potalies). He states that thereafter, they also noticed the dead body of the deceased on the first floor.

22. PW-5, Vijay Singh and PW-6, Satish Kumar are formal witnesses.

23. PW-7, Dr Vijay Singh, conducted post mortem on the dead body of the deceased. Cause of death is due to asphyxia as a result of strangulation and smothering .

24. PW-8, Tej Pal, is a Head Constable, who registered the FIR.

25. PW-9, Nazar Husain Naqvi, is first Investigating Officer and has duly started the investigation.

26. PW-10, Ram Prasad Kardam, is second Investigating Officer.

27. PW-11, Suresh Chandra, is a Constable and has assisted in the investigation.

28. Close scrutiny of the evidence, makes it clear there there is no eye witness to the incident, but there exists strong circumstantial evidence against the appellant. The appellant and absconded accused-Mohd. Ali were seen in the company of Murari Lal till 1:00 in the mid night and at about 1:30 am, the dead body of the deceased was found in the first floor of the shop.

29. The appellant has failed to offer any explanation in his statement recorded under Section 313 of Cr PC, nor he has adduced any defence evidence in this respect. Furthermore, the appellant was initially seen by Ram Katori in a suspicious condition and when he was questioned, he just informed her that he had come to ease himself. Soon thereafter, the appellant and absconded accused-Mohd. Ali were seen coming out from the premises in question, carrying bundles (potalies) and then fleeing away from the spot. Number of witnesses immediately entered the first floor and saw the dead body of the deceased.

30. The law in respect of circumstantial evidence is very clear.

31. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra1, the Supreme Court, while dealing with circumstantial evidence, observed as under:

"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:

"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."

13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

32. In S. Govindaraju v State of Karnataka2, the Apex Court, while dealing with circumstantial evidence, observed as under:

"29. It is obligatory on the part of the accused while being examined under Section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR 2013 SC 912).

31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of Section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him."

33. In a case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under Section 313 of the Code of Criminal Procedure nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v State of Maharashtra3 as under:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offeirng no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

34. Further in the matter of State of Rajasthan v Thakur Singh,4 it has been held by the Apex Court as under:

"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22)

"22 Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22)

"22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

35. We find no substance in the argument of the appellant that the child witness is not reliable. PW-1, Sharad Kumar @ Bunty, appears to be a mature witness and, in our considered view, he is fully reliable and trustworthy.

36. The law in respect of the evidence of child witness is also very clear.

37. In Panchi v State of U.P.5, the Hon'ble Supreme Court, while dealing with the issue relating to the evidence of child witness, held as under:-

".....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring."

38. With regard to the testimony of child witness, the Hon'ble Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & Ors.6 had noticed the case law and held as under:

"The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See: Suryanarayana v. State of Karnataka (2001) 9 SCC."

39. In Dattu Ramrao Sakhare v. State of Maharashtra7, it was held as follows: (SCC p. 343, para 5)

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

40. The position of law relating to the evidence of a child witness has also been dealt with by the Apex Court in Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra8 and Golla Yelugu Govindu v. State of Andhra Pradesh9. In the case of State of UP vs Krishna Master & Ors.10, the Hon'ble Apex Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence.

41. It is relevant to note that as per the evidence adduced by the prosecution, there was only one entry point in the dry-cleaning shop of the deceased and thus, it cannot be said that any third person could have gained entry in the said premises from some other source. At least, no such evidence is there on record. We further find no substance in the argument of the defence that possibility of Razia killing the deceased cannot be ruled out. There is absolutely no evidence showing the involvement of Razia in the case. Merely because at some point of time, there was some quarrel between Razia and the deceased and even assuming that the deceased was threatened by said Razia, in absence of any evidence, it cannot be said that it is Razia who could have killed the deceased.

42. Taking the cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant in commission of murder of Murari Lal.

43. The appeal has no substance and the same is, accordingly, dismissed. Appellant is on bail. His bail bond stands cancelled and he be taken into custody forthwith to serve the remaining sentence.

Dated: 29.11.2018

RKK/-RK