Brajesh Singh vs State Of U.P.
2019 Latest Caselaw 339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 4
 
Case :- CRIMINAL APPEAL No. - 2847 of 2014
 
Appellant :- Brajesh Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Bharat Singh,Krishna Kumar Patel,Ravindra Nath Rai,Ashok Kumar Rai
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

Heard Sri Viresh Misra, learned Senior Counsel assisted by Sri Sandeep Dubey and Sri Krishna Kumar Patel, learned counsel for the appellant and Smt. Manju Thakur, learned A.G.A.-I for the State.

This criminal appeal has been filed by the appellant Brajesh Singh against the judgement and order dated 09.07.2014 passed by the learned Additional Sessions Judge/Special Judge, S.C./S.T. (P.A.) Act, Budaun in S.T. No. 915 of 2012, State Vs. Brajesh Singh and S.T. No. 951 of 2012, State Vs. Shashi arising out of Case Crime No. 83 of 2012 u/s 323/34, 498-A, 304-B I.P.C. and ¾ D.P. Act, optional Section 302/34 I.P.C., P.S.- Dataganj, District- Budaun by which the appellant has been convicted and sentenced to imprisonment for life and a fine of Rs. 5,000/- and in case of default in payment of fine, three months further simple imprisonment u/s 302 I.P.C.

Briefly stated the facts of this case are that Ruchi Devi, daughter of P.W.1 informant Kaushal Singh was married to the appellant Brajesh Singh, resident of village- Jaipalpur Dhanaura, P.S.- Dataganj, District- Budaun about two years before the occurrence. His daughter Ruchi Devi was maltreated, tortured and beaten by his son-in-law Brajesh Singh and his other family members including her daughter's mother-in-law Veerbala, w/o late Natthu Singh, brother-in-law Hridesh, sister-in-law Shashi and his son-in-law's friend, Lalla son of Rambabu Pandit on account of non-fulfilment of demand of one pulsar motorcycle, T.V. set and Rs. 1,00,000/- cash. His son-in-law appellant Brajesh Singh had left his daughter several times in her parental home. However on 18.02.2012, her husband Brajesh Singh took her back to her matrimonial home on the promise that he will not maltreat or harass her. On 27.02.2012 at about 8 p.m., his son-in-law appellant Brajesh Singh informed P.W.1 informant Kaushal Singh telephonically that his daughter was suffering from cholera and he was taking her to Gupta Hospital in Bareilly for treatment. After 15 minutes, he asked the informant not to go to Bareilly as the appellant was bringing back his daughter to his house. On account of non-availability of any mode of transport in the night, P.W.1 informant Kaushal Singh reached his daughter's matrimonial home in village- Jaipalpur in the morning. He found her lying dead and it appeared to him that his daughter had been strangulated. He also noticed injuries on whole of her right hand and entire body. Narrating the aforesaid facts, P.W.1 informant Kaushal Singh gave a written report (Ext.Ka.1) at P.S.- Dataganj, District- Budaun on 28.02.2012 at 13.45 hours on the basis of which Case Crime No. 83 of 2012 u/s 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act was registered against the appellant Brajesh Singh and his mother Veerbala, younger brother Hridesh, younger sister Shashi and his friend Lalla. Check F.I.R. and relevant G.D. Entry were prepared by Constable Omprakash Singh and the investigation of the case was entrusted to Mansha Ram Gutam, the then Circle Officer, Dataganj.

After the registration of the case, the then Naib Tehsildar, Dataganj reached the place of occurrence along with police force and held inquest and after completing the inquest proceedings, prepared the inquest report (Ext.Ka.5) and other connected documents namely photo nash, specimen seal, police form 13, letters addressed to Reserve Inspector and C.M.O. (Ext.Ka.6 to Ka.10) and thereafter, he got the dead body of Ruchi Devi sealed and dispatched to the District Hospital, Budaun for conducting postmortem.

The postmortem on the dead body of Ruchi Devi was conducted on 29.02.2012 in District Hospital, Budaun by P.W.8 Dr. S.K. Saxena, the then Medical Officer who also prepared her postmortem report (Ext.Ka.1).

P.W.9 Brijendra Kumar Singh, the Investigating Officer of the case inspected the place of occurrence and prepared the site plan (Ext.Ka.4) and after completing the investigation, he filed charge-sheet against the appellant Brajesh Singh and his mother Smt. Veerbala alias Krishnamala u/s 498-A, 304-B, 323 I.P.C. and ¾ Dowry Prohibition Act (Ext.Ka.2) while investigation against accused Shashi and Hridesh continued. Co-accused Lalla alias Chandra Prakash was exonerated during investigation as no evidence indicating at his complicity in the aforesaid crime could be collected. Later charge-sheet was also filed against co-accused Hridesh and Shashi (Ext.Ka.3) by P.W.9 Brijendra Kumar Singh, the Investigating Officer of the case before Chief Judicial Magistrate, Budaun.

Since, the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Budaun committed the accused for trial to the Court of Sessions Judge, Budaun where their case was registered as S.T. No. 915 of 2012, State Vs. Brajesh Singh and others and S.T. No. 951 of 2012, State Vs. Shashi, and made over for trial from there to the Court of Additional Sessions Judge/Special Judge, S.C./S.T. (P.A.) Act, Budaun who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 323/34, 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act against all the accused along with an alternate charge u/s 302/34 I.P.C. The accused-appellants abjured the charges framed against them and claimed trial.

The prosecution in order to prove its case against the accused-appellants examined as many as nine witnesses of whom P.W.1 informant Kaushal Singh, father of the deceased, P.W.2 Sukhbir, neighbour of the informant, P.W.3 Sushma Devi, mother of the deceased, P.W.4 Sunil and P.W.5 Anil, brothers of the deceased and P.W.7 Harpal Singh, real maternal grandfather of the deceased were examined as witnesses of fact while P.W.6 Krishna Pal Singh, witness of the inquest, P.W.8 Dr. S.K. Saxena who had conducted autopsy on the body of the deceased and prepared her postmortem report and P.W.9 Brijendra Kumar Singh, the Investigating Officer of the case, were produced as formal witnesses.

The accused in their statements recorded u/s 313 Cr.P.C. denied the prosecution case as false and further stated that the deceased had committed suicide on account of depression emanating from the fact that she would never conceive. The accused also examined Pappu as D.W.1 and Madan Lal as D.W.2.

D.W.1 Pappu deposed that neither the appellant nor his family members had ever demanded any dowry or tortured or maltreated the deceased for the reason of non-fulfillment of any alleged demand of dowry.

D.W.2 Madan Lal deposed that the deceased, on account of the fact that she would never conceive, committed suicide under a spell of depression.

D.W.1 Pappu and D.W.2 Madan Lal further deposed in unison that at the time of the occurrence, the appellant was not present in his house and had gone to village- Dataganj.

Learned Additional Sessions Judge/Special Judge, S.C./S.T. (P.A.) Act, Budaun 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, while acquitting the appellant of the charges framed u/s 323/34, 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act, convicted and sentenced him to imprisonment for life and a fine of Rs. 5,000/- and in case of default in payment of fine, three months further simple imprisonment u/s 302 I.P.C. As regards the other accused, they were acquitted of all the charges.

Hence, this appeal.

Sri Viresh Misra, learned Senior Counsel appearing for the appellant submitted that all the six witnesses of fact examined by the prosecution during the trial failed to support the prosecution case in their examination-in-chief and declared hostile, the prosecution having further failed to lead any evidence showing that at the relevant time, the appellant was present in his house, it was impermissible to cast any burden on him u/s 106 of the Evidence Act and the conviction of the appellant recorded by the trial court by invoking Section 106 of the Evidence Act which was wholly unwarranted under the facts and circumstances of the case, is per se illegal and cannot be sustained. In support of his aforesaid contention, Sri Viresh Misra has placed reliance on Jose v. Sub-Inspector of Police reported in (2016) 10 Supreme Court Cases 519. He next submitted that the appellant having been acquitted of the charge u/s 498-A I.P.C. and ¾ Dowry Prohibition Act, the motive for the appellant to commit the murder of the deceased, disappeared. In a case based upon circumstantial evidence, motive assumes considerable importance and the failure of the prosecution to ascribe any motive to the appellant to commit the murder of his wife links in the chain of circumstances are not established. He also submitted that the learned trial Judge committed a patent error of law in disregarding the evidence of D.W.1 Pappu and D.W.2 Madan Lal without assigning any reasons who had consistently deposed that the deceased was neither tortured nor maltreated by her family members for non-fulfillment of any demand of dowry and that due to her physical disability to conceive, she was under depression and had committed suicide, especially in view of the fact that the evidence of D.W.1 Pappu and D.W.2 Madan Lal stood fully corroborated from the evidence of six witnesses of fact examined by the prosecution during the trial with regard to the mental condition of the deceased on the date of the incident. Such being the state of evidence, neither the recorded conviction of the appellant nor the sentence of life imprisonment awarded to him can be sustained and are liable to be set-aside.

Per contra Smt. Manju Thakur, learned A.G.A.-I appearing for the State submitted that in view of the admitted factual scenario that the deceased was residing with her husband, the appellant, in his house and the deceased having died an unnatural death, a very heavy burden was cast on the appellant to explain the circumstances under which the deceased had met an unnatural death as the fact pertaining to the death of the deceased was within the special knowledge of the appellant. The deceased having failed to discharge the aforesaid maltreatment, no fault can be found either with the recorded conviction of the appellant or the sentence of life imprisonment awarded to him by the learned trial Judge. This appeal lacks merit and is liable to be dismissed.

We have heard learned counsel for the parties and perused the entire lower court record.

Record shows that the marriage between Ruchi Devi, daughter of P.W.1 informant Kaushal Singh and P.W.3 Sushma Devi and real sister of P.W.4 Sunil and P.W.5 Anil, was solemnized with the appellant about two years before the incident. The deceased had died in her matrimonial home on 27.02.2012. The written report of the incident (Ext.Ka.1) containing allegations against the appellant and his other family members regarding maltreatment and torture of the deceased by them for non-fulfillment of demands of dowry and her being strangulated to death by them for non-fulfillment of the demands of dowry, was lodged by P.W.1 informant Kaushal Singh at P.S.- Dataganj, District- Budaun on the basis of which check F.I.R. and relevant G.D. Entry were prepared and Case Crime No. 83 of 2012 u/s 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act was registered against all the accused including the appellant Brajesh Singh. The case was initially investigated by Mansha Ram Gautam, the then Circle Officer of Dataganj. Thereafter, the investigation was taken over by P.W.9 Brijendra Kumar Singh.

The postmortem on the body of deceased Ruchi Devi was conducted by P.W.8 Dr. S.K. Saxena who also prepared and proved her postmortem report as (Ext.Ka.1). The autopsy on the body of deceased was conducted on 29.02.2012. The time at which the postmortem was conducted has not been mentioned in the postmortem report. However, P.W.8 Dr. S.K. Saxena in his evidence recorded by the trial court has stated that the postmortem was conducted by him on 29.02.2012 between 2.30-3.00 p.m. The postmortem report of the deceased indicates following ante-mortem injuries :-

(1) Ligature mark 26 cm x 2 cm placed anteriorly below thyroid cartilage, 8 cm below ear on lt. lateral side of neck, 5 cm below ear on rt. lateral side of neck continuous. Base is brownish.

(2) Abrasion 1 cm x 0.2 cm on rt. side of neck part above medial end of clavicle.

(3) Abrasion 0.5 cm x 0.2 cm on rt. side of neck, 2 cm above medial end of clavicle.

Underneath injuries :-

(1) Subcutaneous tissue is ecchymosed under ligature mark.

(2) Trachea congested.

(3) Fracture of thyroid bone.

P.W.8 Dr. S.K. Saxena opined that the cause of death was asphyxia as a result of strangulation. He in his evidence tendered before the trial court has deposed that it was possible that the deceased had been strangulated to death on 27.02.2012.

Thus, from the medical evidence on record, it is proved that the death of the deceased was homicidal.

The next question which arises for our consideration is that whether the appellant is the author of the crime ?

As already noted hereinabove, the prosecution in order to prove its case, had produced as many as six witnesses of fact. However, none of them have supported the prosecution case. They were declared hostile and cross-examined at length by D.G.C. (Criminal) with the permission of the court.

We have very carefully perused the statements of all the six witnesses of fact namely P.W.1 informant Kaushal Singh and P.W.3 Sushma Devi, parents of the deceased, P.W.2 Sukhbir, neighbour of the informant, P.W.4 Sunil and P.W.5 Anil, real brothers of the deceased and P.W.7 Harpal Singh, real maternal grandfather of the deceased. We are constrained to observe that all the six witnesses of fact have not only consistently denied the prosecution case that the deceased was strangulated to death in her matrimonial home by the appellant and his family members on account of non-fulfillment of alleged demands of dowry but they have stated in one voice that faced with the possibility of never conceiving, the deceased Ruchi Devi had committed suicide in a spell of constant depression.

We have further noticed that none of the prosecution witnesses have deposed that the appellant was present in the house or seen in or around his house at the relevant time. Moreover this is on record, evidence of D.W.1 Pappu and D.W.2 Madan Lal who had deposed that on the date of the incident, the appellant was not present in his house and had gone to village- Dataganj. We now have to examine that whether under the facts and circumstances of the case and the evidence on record, the trial court was legally justified in convicting the appellant by taking the aid of Section 106 of the Evidence Act ?

Under identical facts and circumstances, the Apex Court while hearing an appeal against conviction of one S.I. of Police, Koyilandy who had been convicted u/s 302 I.P.C. by the trial court for the murder of his wife by invoking Section 106 of the Evidence Act and the appeal preferred by him before the High Court was dismissed. The Apex Court in Jose (supra) in paragraph no. 52 to 66 has held hereunder :-

52. The evidence of the eye-witnesses when considered in conjunction with the testimony of the doctor does not link the appellant directly or indirectly with the actual act leading to the unnatural death of the deceased. In absence of any persuasive evidence to hold that at the relevant time the appellant was present in the house, it would also be impermissible to cast any burden on him as contemplated under Section 106 of the Evidence Act. The consistent testimony of the appellant and his son to the effect that after alighting from the bus on their return from Potta, the deceased was made to accompany DW1 back home while the appellant did go in search of labourers for works in his compound on the next day and that thereafter till the time DW1 had departed for his ancestral house, the appellant did not return home, consolidates the defence plea of innocence of the appellant.

53. This version of the appellant and his son is in accord with the statement made by the appellant under Section 313 Cr.P.C. as well. Though the courts below have dismissed the testimony of DW1 as untrustworthy, he having feigned ignorance about the lady Darly with whom his father allegedly had extra marital affairs and was construed to be partisan towards the appellant and insensitive to the death of his mother, we are unable to lend our concurrence to these reasonings. This witness at the time of his deposition was a major with the required maturity in the life's perspectives, and in our assessment expectedly would not have lied for the appellant, his father, only to see him through, though knowing him to be the real perpetrator of the crime. This is more so when the deceased was his own mother.

54. The prosecution plea that the appellant had resigned from the service in the police department to move out to Jeddah/Saudi Arabia with the intention to perpetuate his illicit association with the lady Darly thereat and that in a way he had deserted the deceased and the children, is also not borne out definitively by the materials on record. On the other hand, a plain perusal of the letters Ex. D4 and Ex.D4A written by the deceased to the appellant while he was abroad, do not reveal anguished outbursts of a wife otherwise expected in such a situation or any fervent insistence for early return. Instead the contents thereof reveal narration of mundane happenings of day to day life, emphasis on the need for his required stay thereat for enhanced savings together with somewhat intimate feelings expected of a married couple physically estranged by compulsion of circumstances. The letters for the least, do not suggest any bitterness, disappointment, frustration and seething indignation of the deceased for the appellant being away at Jeddah/Saudi Arabia and allegedly with the lady, Darly. Instead there are traces of cheer for his expected return in near future. The authenticity of these letters and also of the records relied upon by the defence to demonstrate that the appellant while abroad used to remit money for the sustenance of the family, has not been impeached.

55. On an overall consideration of the evidence available on record, it would be, in our view, wholly unsafe to hold the appellant guilty of the charge of murder of his wife by strangulating her with the nylon rope as seized and then hanging her from the roof with the saree to complete the act. The circumstantial evidence adduced by the prosecution in our assessment falls short of the requirement in law to return a finding of guilt against the appellant without any element of doubt whatsoever. The fact that both the accused persons had been exonerated of the charge of cruelty under Section 498-A IPC and that the co-accused, who allegedly had assisted the appellant in the perpetration of the crime had been fully acquitted by the courts below of all the charges also takes away the wind from the sails of the prosecution.

56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of "may be true" but has to essentially elevate it to the grade of "must be true". In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touch stone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available, one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.

57. The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant.

58. The inalienable interface of presumption of innocence and the burden of proof in a criminal case on the prosecution has been succinctly expounded in the following passage from the treatise "The Law of Evidence" fifth edition by Ian Dennis at page 445:

"The presumption of innocence states that a person is presumed to be innocent until proven guilty. In one sense this simply restates in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained above, the burden of proof rule has a number of functions, one of which is to provide a rule of decision for the factfinder in a situation of uncertainty. Another function is to allocate the risk of misdecision in criminal trials. Because the outcome of wrongful conviction is regarded as a significantly worse harm than wrongful acquittal the rule is constructed so as to minimise the risk of the former. The burden of overcoming a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt."

59. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction.

60. This applies with full force particularly in fact situations where the charge is the sought to be established by circumstantial evidence. These enunciations are so well entrenched that we do not wish to burden the present narration by referring to the decisions of this Court in this regard.

61. Addressing this aspect, however, is the following extract also from the same treatise "The Law of Evidence" fifth edition by Ian Dennis at page 483:

"Where the case against the accused depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically convict unless they are sure that inferences of guilt are the only ones that can reasonably be drawn. If they think that there are possible innocent explanations for circumstantial evidence that are not "merely fanciful", it must follow that there is a reasonable doubt about guilt. There is no rule, however, that judges must direct juries in terms not to convict unless they are sure that the evidence bears no other explanation than guilt. It is sufficient to direct simply that the burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure.

The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction. It means that someone whom, on the evidence, the factfinder believes is "probably" guilty, or "likely" to be guilty will be acquitted, since these judgements of probability necessarily admit that the factfinder is not "sure". It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty of the offences charged, and who would be convicted if the standard of proof were the lower civil standard of the balance of probabilities. Such acquittals are the price paid for the safeguard provided by the "beyond reasonable doubt" standard against wrongful conviction."

62. A reference in the passing however to the of quoted decision in Sharad Birdhichand Sarda (supra) construed to be locus classicus on the relevance and decisiveness of circumstantial evidence as a proof of the charge of a criminal offence would not be out of place. The relevant excerpts from paragraph 153 of the decision is extracted herein below :

"153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...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.

(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."

63. As recent as in Sujit Biswas v. State of Assam, (2013) 12 SCC 406, this Court also in the contextual facts constituting circumstantial evidence ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of a crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused.

64. In Dhan Raj v. State of Haryana, (2014) 6 SCC 745, one of us (Hon. Ghose,J.) while dwelling on the imperatives of circumstantial evidence ruled that the same has to be of highest order to satisfy the test of proof in a criminal prosecution. It was underlined that such circumstantial evidence should establish a complete unbroken chain of events so that only one inference of guilt of the accused would ensue by excluding all possible hypothesis of his innocence. It was held further that in case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence excluding any chance of surmise or conjecture.

65. Judged on the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in his favour.

66. The circumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below. We are therefore inclined to extend benefit of doubt to him. The conclusions drawn by the courts below are not tenable on the basis of the evidence available. The appeal is thus allowed and the conviction and sentence recorded by the courts below is hereby set aside. The appellant be released from the jail forthwith if he is not required in any other case.

Thus, what follows from the reading of the aforesaid passages from the case of Jose (supra) is that where a case is based upon circumstantial evidence, 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, it must have been done by the accused.

However, upon a wholesome consideration of the facts and circumstances of the case and a very critical analysis of the evidence on record, we do not find that the prosecution has been able to establish and prove the chain of circumstances which are consistent only with the hypothesis of the guilt of the accused. On the contrary therein, unrebutted positive evidence on record of D.W.1 Pappu and D.W.2 Madan Lal showing that the appellant was not present in his house at the time and date of the occurrence.

In view of the foregoing discussion, we are of the view that the learned trial Judge committed a patent error of law in convicting the appellant for the murder of his wife by applying Section 106 of the Evidence Act to the facts and circumstances of the case. Thus, neither the recorded conviction of the appellant nor the sentence of life imprisonment awarded to him can be sustained and are liable to be set-aside.

The appeal succeeds and is accordingly, allowed.

The impugned judgement and order is hereby set-aside. The accused-appellant Brajesh Singh is acquitted of the charges framed against him.

The appellant Brajesh Singh is in jail. He shall be released forthwith unless he is not wanted in some other case subject to his complying with the mandatory requirement of Section 437-A of Cr.P.C.

There shall however, be no order as to costs.

Order Date :- 1.3.2019

KS