Suresh Alias Sonu And 2 Others vs State Of U.P.
2018 Latest Caselaw 3051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 4
 

 
Case :- CRIMINAL APPEAL No. - 392 of 2014
 

 
Appellant :- Suresh Alias Sonu And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- S.S. Shah,Bhuvnesh Kumar Singh,Pawan Singh Pundir
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble B. K. Narayana, J.)

Heard Sri Pawan Singh Pundir, learned counsel for the appellants and Sri J. K. Upadhyay, learned A.G.A. for the State.

This criminal appeal has been filed by the appellants against the judgement and order dated 10.01.2014 passed by Additional Session Judge, Court No. 3, Bijnor in S.T. No. 936 of 2011 (State of U.P. Vs. Suresh alias Sonu and others) arising out of Case Crime No. 239 of 2011, P.S.- Kotwali Dehat, District- Bijnor, by which all the appellants have been convicted and sentenced to imprisonment for life and a fine of Rs. 20,000/- and in case of default in payment of fine, one year additional imprisonment u/s 302/34 I.P.C., seven years imprisonment and a fine of Rs. 5,000/- and in case of default in payment of fine, three months additional imprisonment u/s 201 I.P.C., six months imprisonment and a fine of Rs. 500/- and in case of default in payment of fine, 15 days additional imprisonment u/s 342 I.P.C. All the sentences have been directed to run concurrently.

The prosecution story in brief is that on 28.08.2011 at about 1.10 p.m., informant Smt. Indra Devi gave a written report (Ext.Ka.1) at P.S.- Kotwali Dehat, District- Bijnor alleging therein that her son, Bheem Singh had left his home on 26.08.2011 at about 10 a.m. for Nagina from village- Dharamsha Nagli. Same day at about 5 p.m., Bheem Singh informed Sudesh by telephone that he had been trapped in village- Ibrahimpur by Smt. Shobha Devi (A2) who had called him there and asked for help. On 27.08.2011 at about 11 a.m., he sent his brother Devender Singh, relatives Udai Singh, Rajesh Kumar, Vijay, Kripal and others to village- Ibrahimpur in order to verify the information given to him by Bheem Singh. When the aforesaid people reached there, they learned that the accused namely Suresh alias Sonu (A1), his wife Smt. Shobha Devi (A2) and father-in-law Sukh Dev (A3) had murdered her son in their house and had disappeared with the dead body. They had also floated a rumour in the village that Bheem Singh who had been illegally confined by them, had succeeded in escaping from their clutches during the night.

On the basis of the written report (Ext.Ka.1), check F.I.R. no. 108/2011 (Ext.Ka.18) was prepared and a case under Section 302, 201 and 342 I.P.C. was registered against the accused at Crime No. 239 of 2011.

The investigation of the matter was entrusted to P.W.7 S.I. Guru Charan Singh who proceeded to the place of occurrence and after inspecting the same, prepared the site plan (Ext.Ka.16). The accused-appellants were arrested on the same day on the pointing out of accused Suresh alias Sonu (A1). The dead body of Bheem Singh was recovered from a field. Site plan of the place of recovery of dead body was also prepared by the Investigating Officer (Ext.Ka.15). Inquest on the body of deceased was held on the same day. After the completion of inquest proceedings, inquest report (Ext.Ka.2) was prepared. Recovery memo of one knife which was allegedly used in committing the offence from a place outside the appellants house, plain and simple earth collected by the Investigating Officer from the place of recovery of dead body, earth extracted from the sugarcane field of Sukhdev where the body of deceased had been buried, deceased's mobile, one bicycle, one gunny bag, one plastic bag, piece of cloth, 3 metre plastic cord of green colour, deceased's diary, purse, one pair of black colour socks, handkerchief stained with blood were recovered on the pointing out of the accused Suresh alias Sonu (A1) and marked as (Ext.Ka.8, 9, 10, 11, 12 and 13). The photograph of the dead body was prepared on the spot and was marked as (Ext.Ka.3).

P.W.6 Dr. Gyan Chand, who was posted at District Hospital, Bijnor on 29.08.2011, had conducted postmortem on the body of deceased Bheem Singh at 8 p.m. and prepared his postmortem report (Ext.Ka.14). He noted following ante-mortem injuries on the dead body of Bheem Singh :-

(1) Incised wound 4 cm x 1.0 cm x bone deep of lower part of right side of chin.

(2) Incised wound 15.0 cm x 3.0 cm x bone deep at upper part of front of neck above thyroid cartilage. Trachea, vessel and oesophagus are cut.

In the opinion of P.W.6 Dr. Gyan Chand, the case of death was haemorrhage and shock as a result of ante-mortem injury.

The Investigating Officer, after completing the investigation, submitted charge-sheet (Ext.Ka.17) against all the accused-appellants u/s 302, 201, 342 I.P.C. before Chief Judicial Magistrate, Bijnor.

Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Bijnor committed the case for trial of the accused-appellants to the Court of Sessions Judge, Bijnor where it was registered as S.T. No. 936 of 2011 (State of U.P. Vs. Suresh alias Sonu and others) and made over for trial from there to the Court of Additional Sessions Judge, Court No. 3, Bijnor, who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge, framed charge against the accused-appellants u/s 302/34, 201 and 342 I.P.C. The accused-appellants abjured the charges and claimed trial.

The prosecution in order to bring home the guilt of the accused, examined as many as eight witnesses of whom P.W.1 informant Indro Devi, P.W.2 Rajesh Kumar, P.W.3 Sudesh Singh were examined as witnesses of fact while P.W.4 Constable Bijendra Singh, P.W.5 S.I. Ulfat Singh, P.W.6 Dr. Gyan Chand, P.W.7 S.I. Guru Charan Singh and P.W.8 Constable Raj Singh were produced as formal witnesses.

The accused in their statement recorded u/s 313 Cr.P.C. denied the prosecution case and alleged false implication. The accused-appellants produced D.W.1 Constable Ajai Singh as defence witness.

The Learned Additional Sessions Judge, Court No. 3, Bijnor after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted all the appellants and awarded aforesaid sentences to them.

Hence, this appeal.

Sri Pawan Singh Pundir, learned counsel for the appellants submitted that the present case is based upon circumstantial evidence and the prosecution has miserably failed to support the circumstances from which the conclusion of the guilt was sought to be drawn and the circumstances in this case not being of conclusive nature and tendency and there being no chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellants, recorded conviction of the appellants cannot be maintained. He next submitted that the alleged recovery of the crime weapons and the personal belongings of the deceased on the pointing out of Suresh alias Sonu (A1) were apparently fabricated by the police to procure the conviction of the appellants as the same were not witnessed by any member of public and moreover, the said recovery could not be used in evidence against other two appellants. He further submitted that the prosecution having failed to mention in the F.I.R. and prove the motive which assumes considerable relevance in a case based upon circumstantial evidence for the appellants to commit the murder of the deceased. The appellants conviction is per se illegal. He further submitted that the failure of P.W.1 informant Indro Devi, her family members and P.W.3 Sudesh Singh to immediately rushed to village where the deceased according to the information received by P.W.3 Sudesh Singh from the deceased on phone and later furnished by him to the informant puts a big question mark on the reliability of the prosecution case as spelt out in the F.I.R. Under such a situation, in normal human reaction, not only P.W.3 Sudesh Singh but P.W.1 informant Indro Devi and her family members would have immediately taken every possible step to save the life of the deceased. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellant nor the sentences awarded to them can be sustained and are liable to be set-aside.

Per contra Sri J. K. Upadhyay, learned A.G.A. appearing for the State submitted that it is proved from the circumstances of the case and the evidence on record that the appellants had committed the murder of the deceased and had thereafter buried his dead body in the sugarcane field of Sukh Dev (A3). Moreover, there is clinching evidence of P.W.3 Sudesh Singh on record conclusively establishing that the deceased after being called to village by Smt. Shobha Devi (A2), was trapped by all the appellants in their house who later committed his murder. This appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties at great length and scrutinized the entire lower court record.

The only question which arises for our consideration in this appeal is whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ?

Admittedly, the instant case is based upon circumstantial evidence as there exists no eye-witness to the occurrence. The primary issue herein involves determination of the requirements for deciding the case of circumstantial evidence.

The Apex Court, in R. Shaji v. State of Kerala, AIR 2013 SC 651 has held, "the prosecution must establish its case beyond reasonable doubt, and cannot derive any strength from the weaknesses in the defence put up by the accused. However, a false defence may be brought to notice, only to lend assurance to the Court as regards the various links in the chain of circumstantial evidence, which are in themselves complete. The circumstances on the basis of which the conclusion of guilt is to be drawn, must be fully established. The same must be of a conclusive nature, and must exclude all possible hypothesis, except the one to be proved. Facts so established must be consistent with the hypothesis of the guilt of the accused, and the chain of evidence must be complete, so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused, and must further show, that in all probability, the said offence must have been committed by the accused."

Thus, the Court while convicting a person on the basis of the circumstantial evidence, must apply the aforesaid principles.

We now proceed to analyze and appraise the evidence on record in the background of the aforesaid principles.

Before proceeding to examine the evidence of three witnesses of fact produced by the prosecution during the trial, we think it proper to have a glance at the evidence of the formal witnesses.

P.W.4 Constable Bijendra Singh in his statement in examination-in-chief has stated that he and Constable Aman Singh took the dead body of Bheem Singh for autopsy and after the autopsy was done, his dead body was handed over to the family members.

P.W.5 S.I. Ulfat Singh deposed before the trial court that on the pointing out of Suresh alias Sonu (A1), he with the help of family members, recovered the body of deceased which was buried in the field. Inquest memo and other related documents (Ext.Ka. 2 to Ka.7) were prepared by him. He also proved the recovery memo of crime weapon and dead body of Bheem Singh (Ext.Ka.8 and Ka.13 respectively).

P.W.6 Dr. Gyan Chand in his examination-in-chief proved the postmortem report of the deceased as (Ext.Ka.14).

P.W.7 S.I. Guru Charan Singh stated that on 28.08.2011, he had recorded the statement of scribe of the F.I.R. and P.W.1 informant Smt. Indro Devi. On the same day, on the pointing out of Suresh alias Sonu (A1), he seized the plastic cord, cycle, simple and blood-stained earth. He also stated that at the pointing out of Suresh alias Sonu (A1), he recovered the dead body of Bheem Singh which was kept in a sack and all his limbs were tied. He also proved the site plan of the place of recovery as (Ext.Ka.15 and Ka.16). He further stated that the accused-appellants had confessed their guilt before him and has stated that the deceased Bheem Singh had illicit relationship with Smt. Shobha Devi (A2) and the other two appellants had seen them in a compromising position. He also stated that they had tried to remonstrate with Bheem Singh but in vain. Thereafter, Suresh alias Sonu (A1) with the help of his father Sukh Dev (A3) and wife Smt. Shobha Devi (A2) murdered the deceased by slitting his neck with a knife. He also deposed that Smt. Shobha Devi (A2) had also confessed her guilt and told him that her husband discovered her illicit relationship with the deceased who was not ready to leave her. As a result on the date of the occurrence, her husband and her father-in-law, after fastening the limbs of Bheem Singh, committed his murder by a vegetable knife by severing his neck from the rest of his body. P.W.7 S.I. Guru Charan Singh further stated that at the instance of Suresh alias Sonu (A1), body of deceased Bheem Singh was recovered and other articles including the apparels of deceased were sent for chemical examination. He proved the chemical examination report as (Ext.Ka.18). He also deposed that human blood-stains were found on the clothes.

P.W.8 Constable Raj Singh in his evidence tendered before the trial court proved the check F.I.R. of Crime No. 239/2011 by deposing that the same was written by Constable Chaman Kumar and he knew his hand writing as he was posted with him.

We now proceed to examine the evidence of witnesses of fact.

P.W.1 Smt. Indro Devi who is the informant in this case, in her examination-in-chief stated that on 26.08.2011, her son deceased Bheem Singh left his house for going to Nagina from where he proposed to go to the village of his maternal aunt in village- Chamrawala. On the same day in the evening, Bheem Singh informed his cousin brother P.W.3 Sudesh Singh on phone that Smt. Shobha Devi (A2) who had some intimacy with him, resided in his neighbourhood, along with her family members, had confined him in her house after calling him to her home on some pretext. P.W.3 Sudesh Singh had given the aforesaid information to P.W.1 informant Smt. Indro Devi on the next date on which she sent her brother Devendra, relatives Udai Singh, Rajesh Kumar, Vijay and Kripal etc. to village- Ibrahimpur Khandsal. On reaching there, they learned that the appellants after calling her son Bheem Singh to their house, had confined him there and after committing his murder, they had disappeared with the dead body of her son Bheem Singh after floating a false rumour in the village that the deceased had fled away from their clutches in the night. She proved the written report of the occurrence as (Ext.Ka.1).

P.W.2 Rajesh Kumar in his evidence recorded before the trial court deposed that on 27.08.2011, her sister P.W.1 informant Smt. Indro Devi called him and other villagers in village- Dharamsha Nagla and told them that her son Bheem Singh who had left his home for Nagina a day before, had informed P.W.3 Sudesh Singh of village- Ibrahimpur Khandsal that he had been confined by the appellants in their house after being tricked into called there. He further stated that on receiving the aforesaid information, he along with other persons, had gone to village- Ibrahimpur Khandsal in order to search his nephew Bheem Singh. After searching there, they came to know that the appellants had murdered Bheem Singh but had floated rumour in the village that the deceased had fled away from their clutches in the night. He further stated that he and his companions also enquired about this incident from the accused-appellants but they informed him that the deceased Bheem Singh had fled away from there in the night. While talking to them, he suspected that the appellants were concealing something from him. Thereupon, his sister P.W.1 informant Smt. Indro Devi lodged a report on which the police arrived at the house of the appellants who in his presence and in the presence of other witnesses admitted that they had committed the murder of deceased and buried the dead body of Bheem Singh in the sugarcane field of Sukh Dev (A3). He further stated that on the same day in his presence and in the presence of the other witness Udai Kumar got recovered the crime weapon from the root of electric pole installed in front of his house. He further stated that the mobile phone, identity card of the deceased issued by M.M. Inter College, Nagina, Avon cycle of the accused which was being used by him in carrying the dead body of deceased was recovered on the pointing out of Suresh alias Sonu (A1).

P.W.3 Sudesh Singh in his examination-in-chief deposed that the deceased Bheem Singh was his cousin. On 26.08.2011 at about 5 p.m., he received a phone call from Bheem Singh who told him that he was tricked by Smt. Shobha Devi (A2) to go to village- Ibrahimpur Khandsal where he was illegally confined by the appellants with the intention to kill him. Relying on the deceased's phone call, he informed his maternal uncle P.W.2 Rajesh Kumar on phone. On 27.08.2011, he went to the home of his maternal aunt (deceased's mother) situated in village- Dharmsha Nagli and told her also about the telephonic conversation which had taken place between him and the deceased Bheem Singh. He also informed her that there was illicit relation between the deceased and Smt. Shobha Devi (A2). He has deposed that the deceased told him that Smt. Shobha Devi (A2) used to call him often to her house to make illicit relation with him.

Thus, upon a wholesome appraisal and categorical analysis of the facts and circumstances of the case and the evidence on record, both oral as well as documentary, we find that the prosecution has succeeded in proving that the deceased Bheem Singh was the resident of village- Dharmsha Nagli and the deceased had left his home for Nagina on 26.08.2011 at about 10 a.m. On the same day at about 5 p.m., he informed P.W.3 Sudesh Singh on phone that he had been illegally confined in village- Ibrahimpur Khandsal where Smt. Shobha Devi (A2) had tricked him into going and he had also asked for help. When Devendra, brother of P.W.1 informant Smt. Indro Devi and her other relatives Udai Singh, Rajesh Kumar, Vijay and Kripal etc. went to village- Ibrahimpur Khandsal in search of deceased Bheem Singh, they learnt that the appellants had committed the murder of the son of P.W.1 informant Smt. Indro Devi in their house and had concealed the dead body somewhere and they had also floated a rumour in the village that Bheem Singh had escaped from their clutches during the night. After the F.I.R. of the incident was lodged by P.W.1 informant Smt. Indro Devi at P.S.- Kotwali Dehat, District- Bijnor on 28.08.2011, all the three accused-appellants were arrested and they confessed that since Suresh alias Sonu (A1) and his father Sukh Dev (A3) had caught Smt. Shobha Devi (A2) in a compromising position with the deceased Bheem Singh and she was having illicit relationship with the deceased, they kept Bheem Singh in confinement on 26.08.2011 and after committing his murder in their house, they had concealed his dead body and his personal belongings as well as the knife used in slitting his throat.

Pursuant to the disclosure statement made by Suresh alias Sonu (A1), following incriminating articles were recovered on the pointing out of Suresh alias Sonu (A1) from different places :-

(a) mud-stained knife

(b) Avon bicycle of the deceased

(c) mobile phone of the deceased

(d) the dead body of Bheem Singh was recovered from a place in the sugarcane field of Sukh Dev (A3) buried about 2 and ½ ft. under the earth, packed in a gunny bag with his limbs tied with a plastic cord, in which the deceased's diary, purse, one pair of socks, one handkerchief, 2 and ¼ m piece of blood-stained cloth were kept. The gunny bag itself was kept under a plastic bag.

The autopsy report of the deceased Bheem Singh (Ext.Ka.14) mentions that there was a mark of cut around neck, cartilage, trachea, vessels of oesophagus were cut which corroborate the prosecution version that the deceased was murdered by slitting his throat. The time of death according to the evidence of P.W.6 Dr. Gyan Chand who had conducted the postmortem of the dead body of Bheem Singh and proved his autopsy report as (Ext.Ka.14) had deposed that the death was caused about three days before the recovery of the dead body. According to him, the death was caused due to antemortem cut injury and it was possible that the deceased was murdered on 26.08.2011. Blood-stained scrappings were taken from the floor of the roof where the deceased was allegedly done to death and sent to Vidhi Vigyan Prayogshala, Agra and according to the report of the Forensic Expert (Ext.Ka.18), human blood was found on the floor scrappings which establish that the deceased was murdered in a room of the house of the appellants. Although the accused in their statement recorded u/s 313 Cr.P.C., had alleged false implication due to enmity but they were not able to show how P.W.1 informant Smt. Indro Devi could be inimical towards the appellants who were residing in different villages.

We are of the opinion that the aforesaid circumstances which were conclusively proved by the prosecution are sufficient to fasten the guilt on Suresh alias Sonu (A1) and the learned trial Judge did not commit any illegality in convicting Suresh alias Sonu (A1) and sentencing him to life imprisonment.

As regards the other appellants, we find that the prosecution has not been able to prove its case against them beyond all reasonable doubts. The confession made by them before the police after their arrest is inadmissible in evidence against them and since neither any incriminating article was recovered either on their pointing out or from their possession nor there is any evidence that they were present inside the house at the time when the deceased was murdered or they were seen by anyone carrying the dead body of Bheem Singh for the purpose of burying it in the field of Sukh Dev (A3), their recorded conviction cannot be sustained.

There is no doubt that the death of Bheem Singh in this case is a result of culpable homicide but the question is whether Smt. Shobha Devi (A2) and Sukh Dev (A3) could also be said to be the authors of the crime along with Suresh alias Sonu (A1). But in the absence of any evidence showing their presence at or around their residence at the relevant time, they cannot be convicted for the murder of Bheem Singh along with Suresh alias Sonu (A1) by taking aid of Section 34 of the I.P.C. We stand fortified in our view by the observations made by the Apex Court in paragraph 10 of the judgement rendered in the case of State of Rajasthan Versus Ramanand reported in (2017) 5 Supreme Court Cases 695 :-

The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be author of the crime. The entire case of the prosecution on this count rests purely on circumstantial evidence. It is true that the deaths have occurred in a room occupied by the respondent along with wife, Anita and daughter Ekta. But no witness has been examined to suggest that the respondent was at or around his residence at the relevant time. The marriage was more than 10 years old and as such no statutory presumption on any count could be drawn, more particularly, when none of the prosecution witnesses had supported the case of prosecution as regards demands of dowry and harassment. Apart from strangulation marks nothing was found in the post-mortem report regarding any other bodily injury. The absence of any evidence as regards dowry or related harassment also nullifies the element of presence of any motive on part of the respondent. None of the prosecution witnesses alleged anything against the respondent nor are there any other supporting circumstances such as discovery of any relevant fact.

In view of the foregoing discussion, this appeal is allowed in part. While the conviction of Suresh alias Sonu (A1) and the sentence of life imprisonment awarded to him are affirmed, Smt. Shobha Devi (A2) and Sukh Dev (A3) are acquitted of all the charges framed against them.

Suresh alias Sonu (A1) is in jail. Smt. Shobha Devi (A2) and Sukh Dev (A3) are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. However, Smt. Shobha Devi (A2) and Sukh Dev (A3) shall comply with the provisions of Section 437-A of Cr.P.C. within a month from today.

Order Date :- 05.10.2018

KS