Shoedhani And Another vs State
2019 Latest Caselaw 524 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 4								   A. F. R.
 

 
Case :- CRIMINAL APPEAL No. - 823 of 1987
 
Appellant :- Sheodhani And Another
 
Respondent :- State
 
Counsel for Appellant :- D.N. Wali,A.N.Singh,Janardan Yadav,Sangam Lal Kesharwani A.C.
 
Counsel for Respondent :- AGA
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ghandikota Sri Devi,J.

(1) Heard Sri Sangam Lal Kesharwani, amicus curiae for the appellants and Smt. Manju Thakur, learned A.G.A. I appearing for the State-respondent.

(2) This appeal has been filed by Sheodhani A1 and Bajayee A2 against the judgment and order dated 20.03.1987 passed by IIIrd Additional Sessions Judge, Azamgarh in S.T. No. 144 of 1986 convicting both the appellants and sentenced them to life imprisonment each under Section 304 read with Section 34 I.P.C. and five years rigorous imprisonment each under Section 201 I.P.C. and Section 120-B I.P.C. Both the sentences were directed to run concurrently.

(3) Bajayee A2 had died during the pendency of this appeal and this appeal qua Bajayee A2 was already abated by order dated 12.10.2018 passed by another co-ordinate Bench of this Court.

(4) The prosecution case has unfolded during the trial is that Bajayee (deceased A2) resident of Village Jhajhawa Turkauli, P. S. Jeanpur, District Azamgarh on 14.11.1985 at about 7:30 A.M. stating therein that while his wife and daughter were inside his house, his daughter-in-law-Asharafi @ Sanjafi was sleeping in the western sara and he was sleeping outside the hut. At about 11:30 P.M., four miscreants entered into the house after climbing on the wall, stolen one hansuli of silver from a bag containing barley which was kept in the southern kothari of his house. They also stolen two sarees from a box and then went to the room where his daughter-in-law was sleeping and took out her chhara and sikari from a box and when she resisted, a shot was fired from a pistol on her neck. On hearing the sound of gunshot, Bajayee (deceased A2) got up and realized that some miscreants were committing theft in his house. He raised alarm on which villagers came with lighted torches but in the meantime miscreants came out from the main door of his house and make good their escape and while running away from the place, they fired shots from their kattas. The miscreants were seen by him, his wife, his daughter, Narain, Sita, Sheobadan, Chandradeo, Sheonath, Sawan and many other villagers. He also stated that Sagar son of Vikram, Kishun son of Ramdutta were inimical towards him and he suspected that the aforesaid persons has committed theft in his house.

(5) On the basis of the written report of the incident Ext. Ka1, case crime no. 254 of 1985, under Section 460 I.P.C. was registered vide G.D. rapat no. 8 at 7:30 A.M.

(6) The investigation of the case was taken over by P. W. 6 Sub-Inspector Daya Ram who visited the place of occurrence, recorded the statements of Bajayee (deceased A2) and his wife and after inspecting the spot, prepared it's site plan Ext. Ka4. He then held inquest on the body of deceased-Sanjafi and prepared inquest report Ext. Ka8 and other connected documents namely challan lash Ext. Ka9, photo lash Ext. Ka10, letter addressed to C.M.O. and R.I. Thereafter, he got the body of the deceased sealed and dispatched it for conducting postmortem examination. He also recovered an empty cartridge and blood from the place of occurrence and prepared the recovery memo and ornaments from which some jewelry was allegedly stolen.

(7) The postmortem on the body of Sanjafi was performed by P. W. 5 Dr. P. K. Sinha on 15.11.1985 who also prepared her postmortem report Ext. Ka2. He noted following antemortem injuries on the body of deceased-Sanjafi :

Lacerated wound of 5.0 cm ( long horizontal) x 2 cm x cavity deep on neck. Anterior aspect 9 cm above the upper border of sternum. Blackening present around the margins of the wound. Trachea, oesophagus all lacerated corresponding to the trachea and oesophagus all blackening present upto vertebral column. One plastic cork, one wedding material piece, one small metallic pellet thirty in number were found sealed.

Cause of death according to him was shock and hemorrhage due to antemortem injury.

(8) On 15.11.1985, P. W. 1 Ram Das, father of deceased-Sanjafi moved an application at police station Jeanpur, district Azamgarh alleging therein that his daughter-Sanjafi married to Sheodhani A1 son of Bajayee (deceased A2) and since he and his family members were not satisfied with the dowry given at the time of the marriage, his daughter-Sanjafi was harassed and tortured by them. Deceased-Sanjafi had returned to her matrimonial home about 11 days back and when about 5 days before the occurrence his son Shyamkaran had visited the matrimonial home of his daughter-Sanjafi, she told him that in case a sum of Rs. 10,000/- was not paid at the earliest, she would be killed. The aforesaid demand was communicated by Sheodhani A1 to him. In the evening of the day, before lodging of the F.I.R., it had come to their knowledge that Sanjafi was murdered and a concocted story of theft was fabricated, although his daughter-Sanjafi had been killed by Sheodhani A1 in connivance with his father-Bajayee (deceased A2).

(9) The I.O. of the case again recorded the statements of the witnesses and converted the case to one under Section 302 read with Section 34 I.P.C., 120B I.P.C. and 201 I.P.C., arraigning the appellants and one Narayan as accused.

(10) After completing the investigation, P. W. 6 Daya Ram filed charge-sheet against all the three accused before C.J.M. Azamgarh. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, C.J.M. Azamgarh committed the case for trial of the accused on 19.4.1986 from there to the Court of Sessions Judge where it was registered as S.T. No. 144 of 1986 and transferred for disposal from there to the Court of IIIrd Additional Sessions Judge Azamgarh who on the basis of the material on record and after affording opportunity of hearing to the accused as well as the prosecution, framed charges under Section 302 read with Section 34 I.P.C., 120B and 201 I.P.C. against all the accused. The accused abjured the charge and claimed trial.

(11) The prosecution in order to prove its case examined as many as six witnesses, of whom P. W. 1 Ram Das, informant and father of the deceased-Sanjafi, P. W. 2 Lal Dhari, P. W. 3 Hari Charan and P. W. 4 Shyam Karan were examined as witnesses of fact while P. W. 5 Dr. P. K. Sinha who had conducted the autopsy on the body of deceased-Sanjafi and P. W. 6 Sub-Inspector Daya Ram who had investigated the matter and filed charge-sheet against the accused were produced as formal witnesses.

(12) Thereafter, the accused were examined under Section 313 Cr.P.C. Bajayee (deceased A2) stated that he had falsely been implicated in the case due to enmity. He further stated that the theft had taken place in his house in which his daughter-in-law was killed. Accused-Narain stated that he had falsely been implicated on account of enmity.

(13) Sheodhani A1 stated that on the date of incident, he was not present in the village and had gone to his sister's place. He also alleged false implication. The accused-appellant also examined D. W. 1 Chandra Pal Yadav resident of village Turkauli and D. W. 2 Sita Ram resident of village Jhajhawa.

(14) Learned IIIrd Additional Sessions Judge Azamgarh after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record convicted the appellants and awarded aforesaid sentences to them while co-accused Narain was acquitted of all the charges.

(15) Hence this appeal.

(16) It is contended by the learned counsel for Sheodhani A1 that deceased-Sanjafi was killed by some unknown miscreants in the theft which was committed in his house in his absence at about 11:30 P.M. on 13/14.11.1985, first information report whereof was promptly lodged by his father Bajayee (deceased A2) on 14.11.1985 at 7:30 A.M. The last rites of the deceased were performed in the presence of his family members including P. W. 1 Ram Das and P. W. 4 Shyam Karan and they have not raised any suspicion at that time about the deceased being murdered by the appellants, as an afterthought and after due deliberations and unexplained delay of three days, a written report of the incident Ext. Ka3 was lodged by P. W. 1 Ram Das on 15.11.1985 at police station Jeanpur, district Azamgarh stating therein that he suspected that his daughter had been murdered by the appellants and his family members on account of non-fulfillment of demand of Rs. 10,000/- cash as dowry made by the appellant from his wife and the story of his daughter-Sanjafi being murdered by unknown miscreants during the night of the occurrence of theft in the appellant's house was false and concocted. He next submitted that the trial court having come to a different conclusion that the evidence of the two eye-witnesses of the occurrence P. W. 2 Lal Dhari and P. W. 3 Hari Charan was not trustworthy and there being no evidence on record indicating that Sheodhani A1 was present in his house at the time of the occurrence and it being admitted that at the time when the theft was committed in his house, his father Bajayee (deceased A2), his mother and his sister were present in his house, it was not at all open to the learned trial judge to have convicted Sheodhani A1 by invoking Section 106 of the Indian Evidence Act especially in view of the fact that Sheodhani A1 in his statement recorded under Section 313 Cr.P.C. had categorically stated that he was not present in his house at the time of the incident and had gone to village Bagwar and the positive evidence of D. W. 2 Sita Ram in this regard which fully corroborated the aforesaid statement of Sheodhani A1. He also submitted that the medical evidence on record fully corroborates the time of death mentioned in the first information report of the incident Ext. Ka1 lodged by his father Bajayee (deceased A2). He further submitted that P. W. 1 Ram Das in his application dated 15.11.1985 Ext. Ka1 had categorically asserted that his daughter was murdered by Sheodhani A1 and his family members due to non-fulfillment of the demand of Rs. 10,000/- cash which allegation was disbelieved by the learned trial court as a result the motive suggested by the prosecution for the appellant to commit the murder, disappeared and a material link the chain of circumstances stood snapped. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellant nor the sentence awarded to him can be sustained and are liable to be set aside.

(17) Per contra Smt. Manju Thakur, learned A.G.A. I appearing for the State-respondent submitted that the deceased having died in her matrimonial home and her death had been proved to be homicidal and the explanation given by the inmates of the deceased having been disbelieved by the learned trial judge, no fault can be found either with the recorded conviction of the appellant or the sentences awarded to Sheodhani A1.

(18) She next submitted that the recorded conviction of the appellant is based upon cogent evidence and the sentences awarded to him are supported by relevant considerations requiring no interference. She lastly submitted that this appeal lacks merit and is liable to be dismissed.

(19) We have heard the learned counsel for the parties and perused the entire lower court record very carefully.

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

(21) Record of this case shows that there are two versions of the incident. The first version of the incident was brought on record by Bajayee (deceased A2) in his written report Ext. Ka3 which was given by him at police station Jeanpur, district Azamgarh on 14.11.1985 at about 7:30 A.M. in which he had stated that in the night of 13/14.11.1985 at about 11:30 P.M. a theft had been committed in his house by four unknown miscreants and his daughter-in-law-Asharfi @ Sanjafi had been shot dead by them. The other version of the occurrence came into existence on 15.11.1985 in the light of the day when P. W. 1 Ram Das, father of the deceased filed a report Ext. Ka1 at police station Jeanpur, district Azamgarh stating therein that his daughter-Sanjafi had been murdered by Sheodhani A1, Bajayee (deceased A2) and the other family members on account of non-fulfillment of the demands of Rs. 10,000/- cash. In the report, he further stated that the version of the occurrence of committing theft in the house of Bajayee (deceased A2) as set forth in the report lodged by him Ext. Ka1 was false and concocted.

(22) As already noted, the prosecution in order to establish the charges framed against the appellant had examined as many as four witnesses of fact. As far as P. W. 1 Ram Das and P. W. 4 Shyam Karan are concerned, nothing turns on their testimony as they are not the eye-witnesses of the occurrence. The evidence tendered by them on the point of demand of dowry and consecutive torture and maltreatment and eventually murder of Sanjafi by the appellants and his family members on account of non-fulfillment of the alleged demands of dowry has been disbelieved by the learned trial judge. As far as the two so called eye-witnesses of the occurrence P. W. 2 Lal Dhari and P. W. 3 Hari Charan are concerned, their evidence was also disbelieved by the trial court by giving cogent reason and we do not find any reason to take it contradictory.

(23) The only question which remains to be addressed and adjudicated by us is that only whether the learned trial judge legally justified in convicting the appellant under Section 302 read with Section 34 I.P.C., 201 and 120B I.P.C. and awarding life and other sentences by invoking Section 106 of the Indian Evidence Act.

(24) Before examining the aforesaid issue in the background of the evidence on record, we consider it proper to have a glance at the law on the issue rendered by the Apex Court in the case of Jose v. Sub-Inspector of Police reported in (2016) 10 Supreme Court Cases 519 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.

(25) Now in the present case Sheodhani A1 in his statement recorded under Section 313 Cr.P.C. had categorically stated that he was not present in his house at the time of the occurrence and deposed that he had gone to his sister's village Bagwar and had returned to his village in the morning of 14.11.1985. The aforesaid statement of fact made by Sheodhani A1 stands fully corroborated from the evidence of D. W. 1 Chandra Pal Yadav and D. W. 2 Sita Ram particularly D. W. 2 Sita Ram who was cross-examined by the prosecution but nothing could be elicited from him which may shake his credibility or render his testimony unreliable. It is also pertinent to note that the prosecution did not challenge the non-presence of Sheodhani A1 in his house at the time of the occurrence.

(26) On the other hand after going through the evidence of P. W. 1 Ram Das, P. W. 2 Lal Dhari, P. W. 3 Hari Charan and P. W. 4 Shyam Karan, we find that none of them had stated that Sheodhani A1 was present in his house at the time and on the date of incident.

(27) We have also gone through the evidence of P. W. 5 Dr. P. K. Sinha who conducted the postmortem on the body of the deceased, prepared and proved her postmortem report Ext. Ka2 during the trial. He in his examination-in-chief has clearly deposed that the death of the deceased was caused due to shock and hemorrhage due to antemortem injuries received by him. The antemortem injuries found on the body of the deceased were caused by firearm. He in his cross-examination stated that probable time of death of the deceased was about 2 A.M. in the midnight of 13/14.11.1985 with a variation of 6 hours on either side and thus the time of death as per the medical evidence on record corroborates the time of death mentioned in the report of the occurrence lodged by Bajayee (deceased A2) which was brought on record and proved as Ext. Ka3 when the appellant was not present in his house.

(28) Thus, in view of the foregoing discussion, we have no hesitation in holding that the prosecution has failed to prove it's case against Sheodhani A1 beyond all reasonable doubts.

(29) The appeal is allowed. Sheodhani A1 is acquitted of all the charges framed against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall comply with mandatory requirements of provision of Section 437-A Cr.P.C.

(30) There shall be however no order as to costs.

(31) Sri Sangam Lal Kesharwani, learned amicus curiae for the appellant shall be paid Rs. 15,000/- towards his remuneration as per High Court Rules.

Order Date :- 06.03.2019

SA