Smt. Makkhan vs State
2018 Latest Caselaw 3355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 4.8.2018
 
Delivered on 26.10.2018
 
Case :- JAIL APPEAL No. - 6367 of 2008
 
Appellant :- Smt. Makkhan
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Arvind Kumar Singh,Mohd. Kalim,P.K. Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Mrs. Sunita Agarwal, J.)

Heard Mohd. Kalim assisted by Sri Manish Kumar Kesarwani learned counsels for the appellant and learned AGA for the respondent.

This appeal is directed against the judgment and order dated 12.5.2008 passed by the Additional Sessions Judge, Court No. 1, Jhansi, in Sessions Trial No. 77 of 2005 (State vs. Smt. Makkhan) arising out of Case Crime No. 200 of 2004 whereunder the appellant Smt. Makkhan has been convicted for commission of offence under Sections 302 and 201 IPC and has been sentenced with rigorous life imprisonment with fine of Rs. 2,000/- for the offence under Section 302 IPC and 5 years of rigorous imprisonment under Section 201 IPC with fine of Rs. 2,000/-. In case of non-payment of fine, she has to undergo six months additional imprisonment for each of the offences, separately.

The prosecution story unfolds with the written report dated 2.11.2004 (Exhibit Ka-1) submitted by Bhajan son of Umrao Ahirwar, the brother-in-law of the appellant Smt. Makkhan. This report was scribed by Laxmi Prasad son of Dharamchandra Tiwari.

As per the said report, the deceased Basanti was younger brother of the first informant namely Bhajan. He was residing in the old family house of the village and was doing labour work in Jhansi. He came to the village during 'Dussehra' and was last seen in the village in the night of 29.10.2004. Since 30.10.2004, he was not seen but since he was working at Jhansi, no one became suspicious with his absence.

On 31.10.2004, Smt. Makkhan, the appellant went to the house of the first informant and told his mother Mallo that the elder brother namely the first informant may also look after their agricultural fields. When the first informant reached back home at night, his mother told him the above stated fact.

Again on 1.11.2004, Smt. Makkhan, the appellant came to his house with her clothings and insisted that she should be sent to her 'maika' i.e. her paternal home by the Bullack-cart. She was persuaded by the first informant to wait for her husband then she started crying and said that there was no hope of him i.e. her husband coming back. Seeing her behaviour, the first informant got suspicious and took her to the house of the then Gram Pradhan. When the Gram Pradhan talked to Smt. Makkhan in front of the first informant, his mother and other neighbours, their suspicion got increased, moreso, as otherwise also the conduct of Smt. Makkhan was not good (being a woman of loose character). They then went to the house of the deceased Basanti and had noticed digged earth of about 2-3 days back in the "Aangan" (courtyard). They could also notice foul smell as that of the rotten dead body. On 30.10.2004, in the early morning, the villagers had seen three persons namely Ravi Mishra, Chhotu Ahirwar and Sripat son of Shivdayal Yadav going towards the Jungle after leaving the house of the deceased Basanti. Thus he had all reasons to believe that Smt. Makkhan, the appellant had murdered his brother Basanti with the help of three persons and buried his dead body in the courtyard (Aangan) of her house.

P.W.-4 Constable Sundar Lal who was posted as Constable Muharrir on 2.1.2004 in Thana Lehchura, District Jhansi stated that the said written report with the thump impression of the first informant was received by him at about 9:30 A.M. On the basis of the said report, Chik no. 39 of 2004 with the case crime no. 200 of 2004 under Sections 302/201 I.P.C. was prepared by him against Smt. Makkhan, Ravi Mishra, Chhotu Ahirwar and Sripat Yadav which is in his own handwriting and signature and has been exhibited as Exhibit Ka-8. G.D. entry was made by him after preparation of the chik FIR which is Exhibit Ka-9. He has denied the suggestion of the FIR being ante-timed or the entry of G.D. being of a later time. He had deposed that the written report was brought by the first informant Bhajan son of Umrao Ahirwar who came all alone in the police station. The scribe of the report Laxmi Prasad was not accompanying him.

P.W.-10, S.I. Badri Narain Singh entered in the witness-box to prove the recovery memos, 'Naksha Nazri' of the spot of crime and other reports prepared by him during the investigation. P.W.-11, S.I. Rudrapal Singh had conducted further investigation after 18.12.2004 on transfer of P.W.-10 namely S.I. Badri Narain Singh. The investigation was completed by him and the charge sheet was submitted against four persons namely Smt. Makkhan, Ravi Mishra, Sripat Yadav, Chhotu Ahirwar.

Case against accused Smt. Makkhan, Sripat Yadav and Ravi Mishra was committed to the Court of Session by Chief Judicial Magistrate, Jhansi vide its order dated 1.3.2005 which was numbered as Session Trial No. 77 of 2005 and case against Chhotu Ahirwar was committed to the Court of Session by Chief Judicial Magistrate, Jhansi vide its order dated 4.5.2005 which was numbered as Session Trial No. 133 of 2005. Both Session Trial Nos. 77 of 2005 and 133 of 2005 were consolidated and charge under Section 302 read with Section 34 and Section 201 IPC was framed against all the four accused which they denied and demanded trial.

The charges of murder and disappearance of evidence against Smt. Makkhan, the appellant herein were found proved by trial Court beyond all reasonable doubts and hence she was sentenced with rigorous life imprisonment alongwith fine. Three of her accomplices were given benefit of doubt and were acquitted.

The documentary evidence on record are the written report Exhibit Ka-1, the basis of lodging of the first information report on 2.11.2004 at about 9:30 A.M.; Exhibit Ka-33 is the extract of two pages hand written letter submitted by the informant on 2.11.2014 to the investigating officer but there is no reference of this letter in the written report or the first information report lodged on that day itself.

The recovery memo dated 2.11.2004 (Exhibit Ka-30) is the memo of the recovery of the cadaver (dead body) from the house of the deceased Basanti. The said document narrates that at about 2:00 P.M. the investigating officer, Sri Badri Narain Singh with other police personnel arrested Smt. Makkhan, the appellant at the door of her house. She was then interrogated in the presence of a female Home-guard and one Advocate Rajendra Dubey. On her confession of being the perpetrator of the crime with the help of three persons as named in the FIR, one constable Ram Asre Verma was sent to bring the photographer Pramod Kumar Sahu as a precautionary measure. It may be noted here that the photographer was examined as P.W..5. The document records that the appellant confessed that in the night of 29/30.10.2004 between 2:00-3:00 A.M., she had murdered her husband Basanti son of Umrao Ahirwar with three above named accomplices and buried his dead body in the open courtyard of the house. She herself had opened the lock of the house with the keys which were in her possession and guided the police team and the public witnesses and led them to the place wherefrom the dead body was found after digging the loose earth. The nearby 'Chabutra' & walls of the 'Aangan' were cleaned and painted with fresh cow-dung. The appellant had told them that she slept on the 'Chabutra' with her son on the date of the incident and it was the place of murder.

She then handed over a washed blood stained cloth (Kathri) from one of the rooms of the house guiding the police party and pointed out the blood stains scattered over the said cloth, door, walls and other places of the house which were captured in the photographs. There were two spades present on the spot and the accused herself informed that one of them was of the Chowkidar Ramadhar. She then stared removing the loose earth from one of the spades. She had also pointed out one dibber (khurpa) kept near the spades and told that she used the same to remove blood stains scattered in the courtyard. After removing the loose earth, from a pit of about 3 ft. deep, 2 ft. wide and 6½ ft. in length, she herself got recovered the dead body of her husband. She also confessed that she took help of three named accused namely Ravi Mishra, Chhotu Ahirwar and Sripat to murder her husband through Axe and bury his dead body. The dead body was identified being of Basanti namely husband of the appellant Smt. Makkhan by the first informant and the inquest witnesses. One piece of old cloth (kathari) was found from the pit below the dead body. Two spades, one dibber (khurpa) and a piece of wood scrapped from the southern door of the house, two Kathris (old cloths) as also the lock and key were sealed and stamped. All the proceedings of recovery were photographed step-by-step by Pramod Kumar Sahu who had appeared in the witness-box as P.W.-5. The Chowkidar Ramadhar who was present on the spot had identified one of the spades being belonging to him which was separately sealed and kept as case property.

The recovery memo of the blood stained and plain earth and wood plank scrapped from the door was prepared as Exhibit Ka-37. The murder weapon namely 'Axe' was also recovered from a "kothari" of the house at the pointing of the appellant Smt. Makkhan. The appellant herself guided the police team to the spot where the murder weapon was concealed and was taken out by her from beneath the scrap scattered over there.

The post-mortem was conducted on 3.11.2004 at about 3:30 P.M. As per the post-mortem report, the rigor mortis was present on the whole body. The dead body was of an average built man with both the eyes and mouth open. Blood clot was present over entire face. Whole body was swollen and blisters were present at places. Foul smell was present.

The injuries found on the dead body are narrated as under:

"(1) chop wound 12 cm x 3 cm x bone deep over left side of Neck 2 cm above

to clavicle (left) margin clean cut.

(2) chop wound 10 cm x 3 cm x B-D over right side of Neck, situated 4 cm above to right clavicle cut margins clean cut, spindle shaped.

(3) chop wound 9 cm x 3 cm x BD over right side of Neck. 2 cm above to injury no. 2, spindle shaped, margins clean cut.

(4) chop wound 10 cm x 3 cm x Brain deep over right side scalp. 4 cm above to right eyebrow. spindle shaped. margin clean cut.

(5) chop wound 8 cm x 2 cm x bone deep over right side of face, situated 4 cm below right eye. margin clean cut.

(6) chop wound 8 cm x 2.5 cm x BD over manubrium, margin clean cut.

(7) chop wound 7 cm x 3 cm over body of sternum x Heart cavity to deep margin clean cut.

(8) Incised wound 8 cm x 3 cm x bone deep over right arm, margin clean cut horizontal to direction.

(9) Incised wound over left ring finger 2 cm x 2 cm x bone deep, margins clean cut.

(10. Incised wound 5 cm x 2 cm x BD over left scapular areas, margins clean cut.

(11) Incised wound 6 cm x 2 cm x BD over right scapular area, margin clean cut.

N.B. Dried clotted blood present over all injuries (1-11)."

There were serious injuries of rupture of internal organs such as brain, heart, pharynx, lungs and esophagus. Frontal and right parietal bone of the skull were found broken. One vest and underwear was found on the dead body which were blood stained and handed over to the police personnel present there. The estimated time of death as recorded therein is about 4-5 days prior to the post-mortem. The cause of death was stated to be hemorrhage and shock due to ante-mortem injuries.

The doctor who conducted the post-mortem had appeared in the witness-box as P.W.-3 and proved the post-mortem report. He stated that in all possibility, the said injuries would have been caused by a heavy sharp-edged weapon like Axe etc. He had proved that the post-mortem report was in his own handwriting and signature, which is Exhibit Ka-7.

The report of the Forensic Science Laboratory dated 1.3.2005 (Exhibit Ka-41) is on record which indicates that human blood was found on two 'katharis' (pieces of cloth), Axe, wood plank, vest and underwear and the blood stained earth sent for examination. However, no determination of blood group could be done as the blood was disintegrated.

With the above reports on record, the prosecution examined the following witnesses of facts:-

(1) P.W.-1, Bhajan (the first informant) son of Umrao Ahirwar, the brother of the deceased Basanti.

(2) P.W.-2, Laxmi Prasad, Scribe of the report who was declared hostile by the prosecution and was cross-examined, thereafter.

(3) P.W.-6, Raghvendra Kumar Pathak, the then Gram Pradhan of the village.

(4) P.W.-7, Smt. Sapna wife of Ramadhar Chowkidar to prove the fact that one out of two spades found on the spot was borrowed from her by the accused prior to the crime.

(5) P.W.-8, Deendayal was produced to prove the Paper No. 20A and 21A which were exhibited as Exhibit Ka-31 and Ka-32 allegedly written by him on 30.10.2004 at the asking of Smt. Makkhan, the appellant, prior to the commission of the crime by her. At this moment, it would be pertinent to note that Exhibit Ka-31 and Ka-32 are the two pages of a letter which was allegedly handed over to the first informant by the appellant Smt. Makkhan on her own and was extracted as Exhibit Ka-33 by the Investigating Officer in his own handwriting.

(6) P.W.-9, Smt. Mallo is the mother of the deceased Basanti and first informant.

This case rests on Circumstantial Evidence. It would, therefore, be proper to first to go through the settled legal position for appreciation of evidence to sustain conviction.

In Padala Veera Reddy Vs. State of Andhra Pradesh & others1 the Apex Court has laid down the tests which must satisfy when a case rests upon circumstantial evidence as follows:-

"(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; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In State of U.P. Vs. Ashok Kumar Srivastava2, it was pointed out that care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

In Sharad Birdhichand Sarda Vs. State of Maharashtra3, it was held while dealing with the circumstantial evidence that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The same view has been reiterated in various pronouncements of the Apex Court latest being Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra4 and Manivel & others Vs. State of Tamil Nadu5.

Analyzing the statements of the above witnesses, it may be seen that the prosecution story starts from the statement of Smt. Mallo P.W.-9 mother of the deceased that the appellant namely Smt. Makkhan who is her daughter-in-law came to her with a letter and stated that a "tempo-wala" had handed over the said letter to her. The appellant, thereafter, started crying and stated that she tried to stop the deceased Basanti from leaving the house but he left early morning at about 4:00 A.M. and she did not know where had he gone. When the appellant was wailing, the first informant called Raghvendra Kumar Pathak, the Gram Pradhan, who then enquired from the accused Smt. Makkhan as to the whereabouts of Basanti, the deceased. At that time, Smt. Mallo, P.W.-9 was also present. Upon much interrogation, the appellant Smt. Makkhan confessed that she had committed murder of Basanti through Axe with the help of other three accomplices Ravi Mishra, Chhotu and Sripat. P.W.-9 alongwith others including P.W.-1 and P.W.-6 then went to the house of Basanti and found the dead body buried in the open courtyard of the house. Two spades were seen by her on the spot.

This story was sought to be substantiated with the statement of P.W.-1 who had deposed that the accused came to his house to meet his mother twice prior to the revelations made by her. First time to inform that her husband went back to Jhansi and second time after 2-3 days with her clothings and pleaded to send her back to her 'maika'. Both these witnesses namely P.W.-1 and P.W.-9 are at consensus on one fact that P.W.-6 Gram Pradhan Raghvendra Kumar Pathak was called by them when they got suspicious about the whereabouts of deceased from the conduct and behaviour of the appellant Smt. Makkhan. The appellant then in the presence of P.W.-6 Gram Pradhan and other villagers had confessed about the crime of murder having been committed by her with the help of three persons namely Ravi Mishra, Chhotu Ahirwar, Sripat Yadav named in the FIR. After confession, she guided them to her house i.e. the place of crime where they found the dead body of the deceased Basanti buried in the open courtyard. P.W.-1, thereafter, went to the police station with the written report scribed by Laxmi Prasad P.W.-2. The police reached the spot, then arrested the appellant Smt. Makkhan, who removed the loose earth from the place of burial herself and got recovered the cadaver.

The then Pradhan Raghvendra Kumar Pathak who had deposed as P.W.-6 states that the first informant P.W.-1 and his mother P.W.-9 brought the appellant to his house on 1.11.2004 with two pages letter Exhibit Nos. Ka-31 and Ka-32. It was told by the first informant that the said letter was handed over to the appellant Smt. Makkhan by a "taxi-wala". P.W.-6 then made enquiry about the whereabouts of the deceased Basanti from the appellant Smt. Makkhan and their neighbours. Everyone told him that they had seen the deceased in the evening of 29.10.2004. P.W.-6 had further tried to make improvements in the story narrated by him with the assertion that Smt. Makkhan told wife of one Balu son of Tulsi Chamar that her husband had left for Jhansi in the early morning and told to return back in the evening and this fact was made known to him in the enquiry. He also added that two neighbours of Smt. Makkhan namely Balu Pal and Bachchi Chamar had disclosed during the course of enquiry made by him that they had seen three accomplices leaving the house of the deceased Basanti in the night of 29/30.10.2004 who were Ravi Mishra, Chhotu and Sripat, Smt. Makkhan and the accused was guiding them to leave the place in a clandestine manner. P.W.-6 further stated that when he told the appellant Smt. Makkhan that they would search her house, she then started crying and confessed that she had murdered her husband. After reaching there, she herself opened the lock of the house and showed them the place of burial. At that time the first informant P.W.1, his mother P.W.-9 and other neighbours were also present. The P.W.-1 then went to the police station to report the incident. The body was, thereafter, recovered in their presence by the police. By the time the police reached the spot, they were sure that the deceased Basanti was murdered.

There are lots of contradictions in the statements of P.W.-1, P.W.-9 and P.W.-6 as to when and how they came to know about the fact of commission of crime by the appellant Smt. Makkhan. There are noticeable variations in their statements in the cross-examination on the suggestion that the written report submitted on 2.11.2004 by the P.W.-1, brother of the deceased, was an act of deliberation between them i.e. P.W.-1, P.W.-6 and P.W.9. There are strong evidence of animosity between P.W.-1 and his deceased brother Basanti which become much more strong with the statement of the accused under Section 313 Cr.P.C. that she was called from 'her maika' by her brother-in-law (P.W.-1) after murder of her husband and was falsely implicated in connivance with the Gram Pradhan in order to grab the landed property of the share of her husband.

As per the statement of P.W.-1 and the medical evidence on record, the dead body was recovered 3-4 days after the incident. P.W.-1 was not a frequent visitor of the house of his deceased brother nor his mother (P.W.-9) used to go there. The handwritten letter (Exhibit Ka-31 and Ka-33) which is sought to be proved by the deposition of P.W. 8, came into light during the course of police investigation and there is no reference of the same in the written report or the FIR though it was stated to be extracted by the investigating officer P.W.-10 in his handwriting on 2.11.2004 itself as Exhibit Ka-33. The said letter is a suggestion of the prosecution that a story of suicide was concocted by the appellant, wife of the deceased Basanti, to save her. There are no evidence of three accomplices being present on the spot of crime at the time of commission of the murder. The deceased was an average built man whereas from the photographs of the recovery filed by the police, it appears that the appellant was a frail woman. The injuries on the body of the deceased are grievous, deep and suggest that there were repeated blows of Axe and the deceased had tried to save him as his ring finger of the left hand was found injured whereas deep wounds were found on the right hand and on both left and right shoulders, mostly on the upper part of the body. The dead body was found buried in a dig of approx 3 ft. deep from the courtyard of the house after digging the earth. The possibility of the appellant having overpowered her husband and committed the murder alone is highly doubtful. It appears that three young persons were added in the story by the prosecution witnesses to rule out this impossibility.

No one had seen the deceased and the appellant in the village before the incident. The deceased was reportedly seen by P.W.-1 but when he had seen him is not known. There are improvements in the prosecution story by adding one spade allegedly found on the spot of crime recovery of which was sought to be proved with the help of P.W.-7 who deposed that the appellant came to her house to borrow the spade a day prior to the murder. During the cross-examination, P.W.-7 who is wife of Chowkidar Ramadhar had stated that she used to do labour work in the house of the Gram Pradhan and was under his debt. She was called by the police after recovery of the dead body from the house of the appellant and also went to the police station to record her statement. From the police station, she straightway went to the house of the Gram Pradhan to work.

The story of the prosecution is that after confession of the accused of committing murder when she told that one of the spades found on the spot was belonging to the Chowkidar Ramadhar, then Smt. Sapna, P.W.-7 wife of Ramadhar was called by the police to identify the same. The recovery memo Exhibit Ka-30 records that Chowkidar Ramadhar was present on the spot of recovery when the dead body was recovered. Two spades were separately exhibited after he identified one belonging to him and kept as case property but it has come in the cross-examination of the Investigating Officer (P.W.-10) that two spades which were produced in the court exhibited as Case property no. '8' and '9' did not bear the signature of either the Investigating Officer or the witnesses or the appellant. There is no mention of the case crime number over the same. They, therefore, could not be connected with the case allegedly having been recovered and sealed as Exhibit Ka-30. Similarly, dibber (khurpa) which was allegedly used by the accused for removing the blood stains from the spot of crime was also not properly kept as case property so as to connect it with the crime. The testimony of P.W.-7 is, therefore, unbelievable.

We are, thus, left with he oral testimony of P.W.-1.

From the statement of P.W.-1, first informant, it is more than evident that he was not having good relations with his deceased brother. The then Gram Pradhan P.W.-6 stated that he had mediated between two brothers when they had separated after marriage of the deceased younger brother. P.W.-1 had admitted that the deceased Basanti was living in the old family house with his wife and he himself was in possession of the entire agricultural land belonging to his father. The deceased younger brother was not getting anything as agricultural produce or money. P.W.-1 had never gone to the house of the deceased in the last 4-5 years, prior to the incident. The parents of P.W.-1 were residing with him at the time of the incident. Both the brothers were, thus, admittedly having strained relations. It is not understandable when the deceased and the informant P.W.-1 i.e. his elder brother were not at the talking terms, why would the appellant (wife of the younger brother) go to him to ask the elder brother (his 'Jeth') to drop her to 'her maika'. P.W.-1 in his statement admits that the appellant Smt. Makkhan was living all alone in the village house when her husband used to be at Jhansi for work. It has come in evidence that the deceased used to stay in Jhansi for 5-6 days a week and used to come back to stay in his house in the village during the weekends. Smt. Makkhan, the appellant used to go to her 'maika' all alone. It is, therefore, not acceptable that she would go to her mother-in-law with her clothes to request to allow to go to her 'Maika' or would request the first informant (his 'Jeth') to drop her. The manner in which the entire prosecution case has been narrated by P.W.-1, P.W.-6 and P.W.-9 in their ocular evidence and introduction of the letter written by P.W.-8 and deposition of P.W.-7 prove that it was their deliberated attempt to implicate the accused Smt. Makkhan in the murder of her husband. Though they have also made an allegation of the appellant being a woman of immoral (loose) character so as to introduce a motive of murder, but there is not even an iota of evidence or a suggestion of her having any illicit relationship with any particular person in the village or her accomplices.

It has come in the evidence that the couple (the deceased and the accused) had two children. P.W.-6 deposed in his statement recorded in the year 2007 that elder son of the deceased was about 6 years old. That means, he was about 3 years old at the time of incident. As per the prosecution case, the child was present in the house when the murder was committed. P.W.-10, the Investigation Officer had admitted that he did not record the statement of the child nor he was brought before him. His absence, thus, becomes conspicuous.

There are strong suggestion of enmity between the P.W.-6 Gram Pradhan and two accomplices who were implicated in the murder of the deceased. In his cross-examination, P.W.-1 admitted that the names of three accomplices of the appellant had been added at the asking of the Gram Pradhan. Sripat Yadav and Ravi Mishra had stated under Section 313 Cr.P.C. that they were implicated falsely at the behest of the Gram Pradhan (P.W.-6). Chhotu Ahirwar, the alleged third accomplice was closely related to Smt. Makkhan namely the appellant and had stated under Section 313 Cr.P.C. that a close relative of P.W.-1 was having enmity with him and as such he was falsely implicated in the crime. No evidence was found against them of having been participated in the crime allegedly committed by the wife of the deceased.

Smt. Makkhan, the appellant had made a categorical statement in her defence under Section 313 Cr.P.C. that the police had made the entire investigation in the wrong direction at the asking of the Gram Pradhan and submitted a false charge-sheet. Before murder of her husband, the P.W.-1 (brother of the deceased) and P.W.-6 Gram Pradhan wanted to grab their landed property and they could not have done so during the life time of her husband. P.W.-1 her brother-in-law was having an evil eye on her and wanted her to maintain illicit relationship. At the time of incident, she was in her 'Maika' and she was called by her brother-in-law Bhajan and P.W.-6 Gram Pradhan giving information that her husband was murdered and was falsely implicated by the police. It was a conspiracy hatched by her brother-in-law in connivance with the Gram Pradhan and was executed with the assistance of the police. The police had also physically assaulted her to confess the crime and it was not her voluntary act.

The Court may also take note of the fact that no one had deposed in defence of the accused but it may not ignore the fact that the master creator of the prosecution story is the village Gram Pradhan namely P.W.-6. The accused and two, out of three other persons, implicated were poor labourers of the village. It is known to all that the poor villagers, most of the time, do not gather courage to go against the village Gram Pradhan who in the instant matter appears to have manipulated the entire prosecution case. There are serious lacunas in the investigation done by the police. Murder weapon appears to have been planted by the police and recovery of the same seems to be farce.

Noticeable circumstances culled out from the statements of the prosecution witnesses are as under:-

(i) No one had seen the victim and the appellant in the village prior to the incident except P.W.-1, the first informant.

(ii) The entire prosecution case is based on the extra judicial confession of the appellant firstly made in front of the first informant P.W.-1, the Gram Pradhan P.W.-6 and her mother-in-law (P.W.-9) and thereafter, before the police when she was taken into custody on the first information report lodged by the P.W.-1, the first informant.

(iii) The recovery of the dead body and the murder weapon at the pointing of the accused are made basis to implicate her ignoring the following glaring circumstances:-

(a) The place of murder and burial of dead body as per the prosecution case, was shown by the appellant to P.W.-1 and Gram Pradhan P.W.-6 after she confessed her crime.

(b) P.W.-1 and P.W.-6 went to the police station to lodge FIR after satisfying themselves about the fact of murder of the deceased and the place of burial of the dead body.

(c) The police immediately went to the spot with the photographer and found the accused standing outside the house cordoned off by the villagers while front door of the house was locked.

(d) She had opened the gate herself from a key in her possession and led the police to recover the dead body, the murder weapon and all other instruments such as spades and dibber (khurpa) used by her to destroy the evidence.

(iv) The prosecution story of the appellant having been assisted by her three accomplices in committing murder of her husband is not proved.

(v) the entire incident of recovery was interestingly, captured by a photographer who though appeared in the witness-box but did not prove the photographs by producing negative or the camera which was used by him.

(vi) The depositions of two witnesses namely P.W.7 Sapna wife of Chowkidar Ramadhar and P.W.-8 Deen Dayal, the young body who allegedly wrote two pages letter (Exhibits '21' and '22') are not creditworthy and are highly shaky. Both the witnesses admitted that they were under the debt of the Gram Pradhan P.W.-6 against whom the allegations of connivance with P.W.-1 have been made by the appellant.

(vii) One of the spades allegedly belonging to P.W.-7 cannot be treated as a link in the chain of evidence when P.W.-7 herself states that she was called by the police from her house after the dead body was recovered and the spade was identified by her husband Chowkidar Ramadhar being belonging to him during the course of recovery. The statement of P.W.-7 is that she was alone in her house when the accused came to borrow the spade from her and the assertions of the Investigating Officer in the recovery memo is that the spade was seized after the appellant informed herself that it was belonging to Chowkidar Ramadhar. It is not understandable as to when owner of the spade himself was present on the spot of recovery, where was the occasion for the police to call P.W.-7 to identify the same. The story that it was borrowed by the appellant from P.W.-7 is nothing but an improvement.

(viii) Last and most important circumstance is that there were serious injuries marks on the dead body which indicate that he was attacked with full force and several blows were caused on him by a sharp-edged weapon so as to make sure that he did not survive. The doctor in the cross-examination had deposed that the deceased was not in the stage of intoxication on account of use of any such substance. There were no evidence of him being in such a stage before murder. In case, he would have taken any intoxicating substance, the said circumstance could have been visible on his dead body.

Having noticed the same, it is difficult to believe that a frail woman of about 24 years of age could overpower her husband, an average built man aged about 26 years and could hit him with such force that he could not save himself despite being in a fit physical health. This is one of the most clinching circumstance which further strengthen the strong hypothesis of murder being committed by any other person than the accused wife.

(ix) The statements of two witnesses P.W.-7 and P.W.-8 are remarkable improvements in the prosecution story in an attempt to prove the extra judicial confession made on her part before P.W.-1, P.W.-6 and P.W.-9.

(x) There is no independent witness in the prosecution evidence and all witnesses of facts are either guided by P.W.-1 or are in close contact with him and also under the debt of the P.W.-6 Gram Pradhan, whose deposition itself is highly shaky.

(xi) The recovery of the dead body and the murder weapon may be treated as one of the circumstance in the chain of evidence but the information allegedly supplied by the appellant leading to recovery of these articles cannot be said to be admissible under Section 27 of the Evidence Act.

The interpretation and scope of Section 27 of the Evidence Act has been very lucidly provided in a celebrated judgment of the Apex Court in Mohmed Inayatullah vs. the State of Maharashtra6.

It has been held therein that the expression "provided that" together with phrase "whether it amounts to a confession or not" shows that the Section 27 is in the nature of an exception to the preceding provision particularly Sections 25 and 26 of the Indian Evidence Act. The first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confession and statement made to the police, is that if a fact is actually discovered in consequence of the information given by the accused, it affords some guarantee of truth of that part and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the facts which may be indirectly or remotely related to the fact discovered.

Before proceeding further, it is relevant to note the precise statement which had been made by the accused to the Police officer. The statements finds incorporation in the recovery memo Exhibit Ka-30 in the paper book and in the original record is in Hindi. English rendering of the same is that during the course of investigation in case crime no. 200 of 2004 on 2.11.2004 at about 2:00 pm, the accused Smt. Makkhan aged about 24 years was handed over to the police by the public witnesses in front of her house and was taken in police custody. After arrest, she admitted her crime and revealed the information that she had murdered her husband and buried the dead body inside her residential house and she would get it recovered after digging the place of burial. This statement, as per the recovery memo, had led to the recovery of the dead body and the murder weapon.

Having careful examined the statement of the accused which had led to the discovery of the dead body coupled with the fact that the information of the dead body being buried in the house of the husband of the deceased was passed on to the police by the P.W.-1 in the written report submitted on 2.11.2004, it cannot be said that the discovery of the dead body was in consequence of the information received from the accused wife of the deceased and the said information was the direct and immediate cause of the discovery. The first condition necessary for bringing the Section 27 of the Evidence Act into action, therefore, is not satisfied. The recovery appears to be planted by the police in connivance with the first informant P.W.-1 and P.W.-6 Gram Pradhan. It will, thus, be seen that it was not alleged by the prosecution, much less proved that the place of burial of the dead body was only in the knowledge of the accused and that it was disclosed for the first time to the police after she was taken into custody.

The said statement of the accused regarding recovery as extracted in the recovery memo is not admissible in evidence so as to provide link in the chain of circumstances. Even otherwise, the admissible portion of the statement under Section 27 being distinct and only if it is the proximate cause of the discovery, has to be read in conjunction with the facts discovered and to see whether the said fact was sufficient to draw the presumption that the accused was murderer or the perpetrator of the crime. It must also be remembered that an inference under Section 114 (a) cannot be reached unless it is a necessary inference from the circumstances of a given case which cannot be explained on any other hypothesis save as that of the guilt of the accused. The facts proved by the prosecution, particularly, the first portion of the statement of revelation of information of the dead body being buried inside the house and discovery of the same therefrom give rise to two hypothesis:-

(i) that the accused had herself buried the dead body and concealed the murder weapon.

(ii) the second hypothesis that a person other than the accused was perpetrator of the crime as the recovery of dead body was not based on the sole statement of the accused in the police custody and was wholly compatible with her innocence. The recovery of the dead body and the murder weapon does not aid and assist the prosecution version.

It has been held in Musheer Khan Alias Badshah Khan and another vs. State of Madhya Pradesh7 that if the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [Reference State of Bombay vs. Kathi Kalu Oghad, (AIR 1961 SC 1808)].

Thus in the ultimate analysis, the discovery by itself from the house of the accused does not help the prosecution to sustain the conviction.

When a murder charge is to be proved solely on circumstantial evidence, as in this case, presumption of innocence of the accused must have a dominant role.

It is not a case where aid of Section 106 of the Evidence Act can be taken to draw reasonable inference of the appellant being the accused. The pristine rule is that the burden of proof is on the prosecution to prove the guilt of the accused. The doctrine of presumption as laid down under Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. The presumption under Section 106 of the Evidence Act would apply in a case where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn that the accused has committed the murder of her husband. In the instant case, no one had seen the accused and her husband together or inside the house prior to the murder. The possibility of third person coming in between and committing murder cannot be ruled out, inasmuch as, the accused had offered explanation in her statement under Section 313 Cr.P.C. that she was not present in the house on the date of murder rather was called by the complainant from her maika afterwards.

Putting all incriminating circumstances together, it is not possible for the Court to lay burden on the appellant to give an explanation as to how the crime was committed.

Reference may be made to the judgments of the Apex Court in Ch. Razik Ram vs. Ch. J.S. Chauhan and others8.

Relevant para '116' of the said judgment is quoted as under:-

"116. In the first place, it may be remembered that the principle underlying Section 106, Evidence Act which is an exception to the general rule governing burden of proof-applies only to such matters of defence which are supposed to be especially within the knowledge of the-defendant-respondent. It cannot apply when the fact is such as to be capable of being known also by persons other than the respondent........ xxxxxxxxxxx........"

In State of West Bengal vs. Mir Mohammad Omar and others9, it has been observed therein in paragraphs '36', '37' and '38' as under:-

"36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

38. Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra vs. The State of Ajmer (1956 SCR 199) the learned Judge has stated the legal principle thus: "This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."

In State of Rajasthan vs. Kashi Ram10, relevant para '23' of the said judgment is quoted as under:-

"23. ...........xxxxxxxxxxxxxxx..............The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatiable with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218."

Reference may be made to the judgment of the Apex court in Dnyaneshwar vs. State of Maharashtra11.

Reference may also be made to Nibaran Chandra Roy vs. King Emperor12, wherein it was held that the fact that the accused person was found with a gun in his hand immediately after a gun was fired and a man was killed on the spot from which the gun was fired may be strong circumstantial evidence against the accused, but it is an error of law to hold that the burden of proving innocence lies upon the accused under such circumstances. It, therefore, follows that whatever force a presumption arising under Section 106 of the Indian Evidence Act may have in civil or in less serious criminal cases, in a trial for murder, it is extremely weak in comparison with the dominant presumption of innocence. Thus the principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and is incapable of explanation upon any other reasonable hypothesis except his guilt. The settled principle is that all the links of chain of evidence must be proved beyond reasonable doubt and they must exclude the hypothesis of guilt of any other person than the accused. (Reference State of U.P. vs. Dr. Ravindra Prakash Mittal [(1992) 3 SCC 300]

While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali vs. Emperor [43 IC 241] that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.

The last circumstance put forth pertains to extra judicial confession of the appellant.

Learned counsel for the appellant has vehemently criticized the extra-judicial confession on the ground that such confession was made to the brother of the deceased, the first informant who was having strained relationship with the appellant and her husband.

The settled position of law is that extra-judicial confession, if true and voluntary, can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weaknesses of extra-judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and his evidence is credible.

The principles laid down in Sahadevan and another vs. State of Tamil Nadu13, for admissibility of extra judicial confession as a piece of evidence capable of forming the basis of conviction of an accused are as follows:-

"i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence."

The alleged confession of the accused wife, in the instant case, which can be said to be extra-judicial confession has come up in the statements of P.W.-1, P.W.-6 and P.W.-9 whose depositions are shaky. This apart, it cannot be said to be voluntary and truthful and does not inspire confidence of the Court once tested on the touchstone of credibility. The statements of P.W.1 and P.W.-6 and P.W.-9 of the accused wife having admitted before them of being perpetrator of the crime suffer from many material discrepancies and inherent improbabilities as discussed above. Even otherwise, such statement has to be proved by the prosecution like any other fact in evidence. The confession of the accused leading to discovery of he dead body by the first informant and P.W.-6, the star witnesses of the prosecution story could not be proved as their testimonies have been found incredible.

The accused has plainly denied having committed the crime and has made a categorical statement under Section 313 Cr.P.C. that she was falsely implicated by the first informant P.W.-1 in connivance with the Gram Pradhan P.W.-6 so as to grab their landed property. It is not the case where accused has failed to explain the circumstances in which, she was implicated in the murder of her husband.

In the ultimate analysis, it is found that the ocular evidence is not credible which would unerringly point towards the guilt of the accused wife leaving all hypothesis of her being innocent.

It is a case of circumstantial evidence, the law is well-settled that the burden is on the prosecution to prove the guilt of the accused beyond all reasonable doubts and lead such evidence which would form a complete chain of events inculpating the accused at each stage of the circumstances brought before the Court.

An innocent person cannot be put behind the 'Bar' for suspicion of having committed the murder.

The motive for commission of murder of her husband by the accused stated to be sudden provocation during their fight, is too remote. Another motive introduced of her being woman of loose character is not proved by bringing any evidence on record and is not providing a link in the chain of evidence.

The prosecution has failed to establish the guilt of the appellant beyond all reasonable doubts. As the balance tilts in favour of the appellant, we are of the view that the appellant should get benefit of doubt. The appellant is, thus, acquitted of the offences under Sections 302 and 201 IPC.

Consequently, the appeal succeeds and is allowed. The impugned judgment and order dated 12.5.2008 passed by the Additional Sessions Judge, Court No. 1, Jhansi, in Sessions Trial No. 77 of 2005 (State vs. Smt. Makkhan) arising out of Case Crime No. 200 of 2004 is hereby, set aside. The appellant Smt. Makkhan is acquitted of all the charges framed against her. The appellant Smt. Makkhan is in jail. She shall be released forthwith unless she is wanted in some other case subject to her complying with the provisions of Section 437A Cr.P.C.

				( Ifaqat Ali Khan,J.)    (Sunita Agarwal,J.)
 
Order Date :- 26.10.2018
 
Brijesh