Smt. Pramila vs State Of U.P.
2019 Latest Caselaw 4592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on : 07.05.2019
 
Delivered on:16.05.2019 
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 3424 of 2010
 
Appellant :- Smt. Pramila
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Apul Misra
 
Counsel for Respondent :- Govt. Advocate, Udit Chandra
 
With
 
Case :- JAIL APPEAL No. - 602 of 2013
 
Appellant :- Smt. Girja Devi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail, H.D.Verma, Mohd. Kalim
 
Counsel for Respondent :- A.G.A., Udit Chandra
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Raj Beer Singh, J.

(Delivered by Hon'ble Raj Beer Singh, J.)

1. The Criminal Appeal No. 3424 of 2010 has been preferred by appellant Smt. Pramila while Jail Appeal No. 602 of 2013 has been preferred by appellant Smt. Girja Devi against the common judgment and order dated 24.04.2010 passed by Shri Ram Kushal, Additional Sessions Judge/Fast Track, Court No. 3, Basti in Session Trial No.125 of 2009. By impugned judgment, both the above-named accused-appellants have been convicted under Section 302/34 IPC and sentenced to life imprisonment and fine of Rs. 5,000/-, each, and in default thereto, they have to undergo one year additional rigorous imprisonment. They were further convicted under Section 201/34 IPC and sentenced to undergo five years rigorous imprisonment with fine of Rs. 1,000/- each and in default thereto, they have to undergo six months additional imprisonment. Both sentences were directed to be run concurrently.

2. The facts and circumstances giving rise to these appeals are that on 02.12.2008, while complainant Ram Milan and his wife were not at home, their son Raj Karan, aged two years, went missing from their house. After sometime, complainant's wife Sangeeta returned to home and tried to search her son but in vain. In the evening, complainant returned to home and he also made search of his son. It was alleged that one week prior to the incident, an altercation had taken place between complainant's wife Sangeeta and his brother's wife Girja Devi and after altercation, complainant had slapped Girja Devi. Being infuriated, Girja Devi threatened that she would kill him and his son. Due to these facts, complainant suspected that his son might have been killed by Girja Devi. Complainant and other villagers asked Girja Devi for search of her house but she resisted their move for searching her house. However, complainant and other villagers including Bhaiya Ram Maurya, Prahalad and Pujari entered into house of Girja Devi and found dead body of child Raj Karan, lying in a gunny bag inside a big tin box of Girja Devi. At that time, sister of Girja Devi, namely Pramila was also present there. Complainant reported the matter to police by submitting a written tehrir Ex. Ka-1. Consequently, the case was registered on 02.12.2008 at 21:30 AM under Sections 302, 201 IPC against accused-appellants Girja Devi and Pramila vide FIR Ex. Ka-15. The gunny bag and tin box were taken into possession by Investigating Officer vide recovery memo Ex. Ka-13.

3. PW-9 Vijay Shanker Giri, Station House Officer of Police Station, Rudhauli, conducted inquest proceedings on 03.12.2008 at 7:00 AM vide inquest report Ex. Ka-2. The dead body of deceased was sealed and sent for post-mortem.

4. The post-mortem on the dead body of deceased child Raj Karan was conducted by PW-8, Dr. Ram Prakash, on 03.12.2008 at District Hospital, Basti and following injuries were found on his person:

(i) Abrasion ½ cm x ½ cm at the middle of both nostril. Bruise present over septum of nose.

(ii) Abrasion present at the surface of upper lip.

(iii) Contusion 1.00 cm x ½ cm at the right side of face, ½ cm lateral to rt. eyebrow.

(iv) Abrasion with laceration ½ cm x ½ cm at the left side neck, 5 cm below left ear.

5. According to Autopsy Surgeon, the cause of death of the deceased is due to asphyxia as a result of ante-mortem smothering.

6. Investigating Officer prepared site plan of the spot and recorded statements of witnesses and after completion of investigation, accused-appellants were charge-sheeted for the offence under Sections 302, 201 IPC.

7. Learned Trial Court framed charges under Sections 302/34, 201/34 IPC against both the accused-appellants, as under:

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(Emphasis Supplied)

"I, Ram Kushal, Additional Sessions Judge/Fast Track Court No. 3, Basti charge you Smt. Girja and Pramila as under:-

Firstly:- That on 2.12.2008, at around 3:00 PM, at Village Haniwanta under P.S. Ruthauli, District Basti, both of you in furtherance of common intention, committed murder of Raj Karan, son of the complainant and thereby committed an offence punishable under Section 302/34 IPC within the cognizance of this Court.

Secondly:- That on the aforesaid date, time and place both you, having murdered Raj Karan, son of complainant, dumped his body in a gunny bag inside a big tin box in your house and wrapped it with a piece of cloth. In this way, you committed an offence punishable under Section 201/34 IPC within the cognizance of the Court.

It is hereby directed that you people shall be tried by this Court for the aforesaid offences."

(English Translation by Court)

8. Accused-appellants pleaded not guilty and claimed trial.

9. So as to hold accused persons guilty, prosecution has examined 10 witnesses. After prosecution evidence, statements of accused-appellants were recorded under Section 313 of Cr.P.C, wherein they have denied prosecution version and claimed false implication. In defence evidence, accused-appellant Girja Devi was examined as DW-1.

10. After hearing and analysing the evidence on record, both the accused-appellants were convicted under Sections 302/34 and 201/34 IPC by Trial Court vide impugned judgment and order dated 24.04.2010 and sentenced as mentioned above.

11. Being aggrieved by the impugned judgment and order, accused-appellant Smt. Pramila has preferred Criminal Appeal No. 3424 of 2010 and accused-appellant Smt. Girja Devi has preferred Jail Appeal No. 602 of 2013.

12. We have heard Sri Apul Mishra, learned counsel for appellant Smt. Pramila, Sri Mohd. Kalim, learned counsel for appellant Smt. Girja Devi and Sri Udit Chandra, learned Additional Government Advocate for the State.

13. Learned counsel for accused-appellant Pramila has contended that there is absolutely no evidence against accused-appellant Pramila and she has been implicated in this case just because she happens to be the cousin of accused-appellant Girja Devi. Neither any motive was attributed to her nor any recovery was effected from her possession. From perusal of statements of PW-1, Ram Milan Maurya, and PW-2, Sangeeta, it is clear that she has been named just on the basis of suspicion. It was argued that so far as accused-appellant Pramila is concerned, no incriminating circumstance has been proved against her and neither chain of circumstance is complete nor it could be said that the evidence on record points out to the guilt of accused-appellant Pramila.

14. Learned counsel for accused-appellant Girja Devi has argued that there is delay in lodging the report; as per PW-1 Ram Milan Maurya, information was given to police in the evening of 02.12.2008 but case was registered at 21:30 hours and this fact shows that the FIR was lodged after consultation; material witnesses are family members of the complainant and their testimony has not been corroborated by any independent witness; one Gyan Mati, who was witness to recovery memo Ex. Ka-13, has not been examined and the alleged recovery is fully doubtful; there are contradictions between inquest report and the postmortem report and that possibility cannot be ruled out that deceased might have entered into the box accidentally and died due to asphyxia.

15. Refuting the contentions of learned counsel for accused-appellants, it has been submitted by learned A.G.A. for the State that both the accused-appellants were named in FIR and there is no undue delay in lodging the FIR; the dead body of deceased was recovered from the gunny bag lying in the big tin box from the house of accused-appellant Girja Devi; she has failed to give any satisfactory explanation as to how the dead body came in the said tin box of her house; in view of Section 106 of Indian Evidence Act, 1872, burden was on the accused-appellant Girja Devi to explain, how dead body of deceased reached in the said tin box and in absence of any such explanation, an inference has been rightly drawn that she committed murder of the deceased child and concealed his dead body in the said tin box and that conviction of accused-appellants is based on evidence and there is no force in the appeals.

16. In the present case it is clear from the post-mortem report of deceased that death of the deceased was homicidal in nature. However, there is no eye witness of the alleged incident and the case is based on circumstantial evidence. It is well settled that though conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence. It is further essential for the prosecution to cogently and firmly establish the circumstances from which inference of guilt of accused is to be drawn. These circumstances then have to be taken into consideration cumulatively. They must be complete to conclude that within all human probability, accused and none else have committed the offence.

17. In a landmark judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, Court held as under:-

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be ' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved as was held by this court in Shivaji Sahebaro Bobade V State of Maharashtra 1973 CriLJ1783 where the following observations were made:

Certainly, it is primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.

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

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

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

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

153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence".

18. In Joseph vs. State of Kerala, [(2000) 5 SCC 197], court has explained under what circumstances conviction can be based purely on circumstantial evidence. It observed:-

16. "it is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavor in the case should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused."

19. Similar view has been expressed in Padala Veera Reddy v. State of Andhra Pradesh, (AIR 1990 SC 79). In C. Chenga Reddy and others v. State of Andhra Pradesh, AIR 1996 SC 3390, Court has held:-

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."

(Emphasis Added)

20. In State of U.P. vs. Ashok Kumar Srivastava, [(1992) 2 SCC 86], it was pointed out that great care must be taken in evaluating circumstantial evidence and if evidence relied on is reasonably capable of two inferences, the one in favour of accused must be accepted. It was also pointed out that circumstances relied upon must be found to have been fully established and cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.

21. In State of Himachal Pradesh Vs. Raj Kumar, reported in (2018) 2 SCC 69, Court was considering a case based on circumstantial evidence. Their Lordships while taking note of the well settled legal position, in Paragraph 9 and 10, observed as under:-

"9. Prosecution case is based on circumstantial evidence. It is well settled that in a case based on circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and that those circumstances must be conclusive in nature unerringly pointing towards the guilt of the accused. Moreover all the circumstances taken cumulatively should form a complete chain and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

10. In a case, based on circumstantial evidence, the inference of guilt can be drawn only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:-

"12. ...........The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."

(Emphasis Added)

22. The same principle was reiterated in State of Rajasthan v. Kashi Ram (2006) 12 SCC 254, Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731, State of Maharashtra v. Suresh (2000) 1 SCC 471 and State of Tamil Nadu v. Rajendran (1999) 8 SCC 679.

23. In Vijay Shankar Vs. State of Haryana, reported in (2015) 12 SCC 644, although the case was based on last seen theory, Court discussed the principles in respect of evidentiary value and held in Paragraph 8 as under:-

"8. There is no eye-witness to the occurrence and the entire case is based upon circumstantial evidence. The normal principle is that in a case based on circumstantial evidence the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that these circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation of any hypothesis other than that of the guilt of the accused and inconsistent with their innocence vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116. The same view was reiterated in Bablu vs. State of Rajasthan, (2007) 2 SCC (Cri). 590."

(Emphasis Added)

24. In Varkey Joseph Vs. State of Kerala, reported in AIR 1993 SC 1892, Court held that suspicion cannot take place of proof. In Paragraph 12 of the judgment, Court concluded as under:-

"12. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 16/ 25 case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. We had already allowed the appeal and acquitted him by our order dated April 12, 1993 and set the appellant at liberty which we have little doubt that it was carried out by date. The appeal is allowed and the appellant stands acquitted of the offence under S. 302, IPC"

25. In Raja @ Rajinder Vs. State of Haryana, reported in (2015) 11 SCC 43, Court noted down in Paragraph 10 the circumstance with which the court should be satisfied in a case based on circumstantial evidence alone. Para 10, 11 and 12 of the judgment, relevant, are as under:-

"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that:

"(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 Patna High Court CR. APP (DB) No.202 of 1996 dt.13-03-2018 17/ 25 consistent with the guilt of the accused but should be inconsistent with his innocence."

26. In Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, it has been laid down that:-

"4. ..... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."

27. From the aforesaid it is clear as on day that Court is required to evaluate circumstantial evidence to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted [See Ujjagar Singh v. State of Punjab, (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272].

28. The principle that emerges from these decisions is that conviction can be based solely on circumstantial evidence, but it should be tested on the touchstone of law relating to circumstantial evidence laid down in above discussed authorities.

29. In the present case, evidence on record shows that PW-1 Ram Milan Maurya clearly deposed that Girja Devi and Pramila are maternal sisters and they all reside in one premises and entrance and exit of their house is common. One week prior to the incident, an alteration took place between his wife and his brother's wife Girja Devi and while trying to pacify, he has beaten both of them. Due to this, accused-appellant Girja Devi has threatened that she would kill him and his children but PW-1 ignored her at that point of time. On the day of incident at about 3:00 PM, PW-1 was busy at his agriculture land while his wife Sangeeta had gone for making kandi from cow dung and his daughters Kanchana, aged five years, Manjana, aged three and half years and his son Raj Karan, aged two years, were present at home. Taking advantage of this situation, accused-appellant Girja Devi, with the help of her sister Pramila, committed murder of his son Raj Karan and concealed his dead body inside the tin box, in a gunny bag, in her house. When wife of PW-1 came at home, she tried to search her son but in vain. In the evening, when PW-1 returned at home, he also tried to search his son but without success. Thereafter due to suspicion, they asked accused-appellant Girja Devi for search of her house but Girja Devi resisted, which further fortified their suspicion. Complainant PW-1, PW-2, PW-4, PW-5 and some other villagers entered the house of Girja Devi and during search, found dead body of deceased Raj Karan, lying in a gunny bag, inside the big tin box of Girja Devi. Thereafter, matter was reported to police by submitting written tehrir Ex. Ka-1. PW-1 further stated that Girja Devi has stated that she has taken revenge with him by killing his son and she has admitted that she has murdered deceased child by strangulating him.

30. PW-2 Sangeeta, who is mother of deceased child, has also made similar statement. She stated that before the incident, an alteration took place between her and Girja Devi and resultantly, her husband had given beatings to both of them. Thereafter, accused-appellant Girja Devi has threatened to take revenge. On the day of incident, while her husband was away at the field and she had gone for making kandi from cow dung, leaving her children at home, accused-appellants Girja Devi and Pramila were present there. When PW-2 returned back, her son was missing. She tried to search him but in vain. In the evening, when her husband and some other villagers tried to enter the house of Girja Devi, she resisted. However, they entered her house and during search, found dead body of deceased Raj Karan, lying in the gunny bag inside the big tin box of Girja Devi.

31. PW-3 Kanchana, aged 5 years, who is daughter of the complainant, has stated that on the day of incident, after she came from school, her younger brother was inside the home and her both the aunts were also inside the home while her sister Manjana was playing at door. Her brother has gone missing and when searched, his dead body was found inside the big tin box in a gunny bag from the house of her aunty Girja Devi.

32. PW-4 Bhaiya Ram has stated that before the incident, complainant Ram Milan Maurya had given beatings to Girja Devi on account of some domestic dispute and due to that Girja Devi had threatened to kill Ram Milan Maurya and his children. On the day of incident, complainant's son Raj Karan, aged two years, was murdered by accused-appellant Girja Devi with the help of her sister Pramila and his dead body was concealed inside a big tin box in a gunny bag in her house.

33. PW-5 Prahlad Maurya has stated that after the complainant's son had gone missing and due to suspicion the house of Girja Devi was searched, the dead body of the deceased child was found inside the big tin box in a gunny bag and thereafter, Girja Devi has admitted that she has killed the deceased child and dead body was concealed inside the big tin box in a gunny bag.

34. PW-6 Vishram and PW-7 Babu Ram were witnesses of recovery of dead body of the deceased child from the house of accused-appellant Girja Devi and they were also witnesses on the inquest report as Ex. Ka-2.

35. PW-8 Dr. Ram Prakash has conducted postmortem of the deceased and has duly proved postmortem report Ex. Ka-3.

36. PW-9 Vijay Shanker Giri, Incharge of Police Station Rudhauli has conducted inquest proceedings and investigation of the case. During the course of investigation, he recorded statements of witnesses and prepared site plan of the spot. The tin box and gunny bag from which dead body of the deceased was recovered, were also seized vide seizure memo Ex. Ka-13. After completion of the investigation, both the accused-appellants were charge-sheeted vide charge-sheet Ex. Ka-14.

37. PW-10 constable Shobha Nath Yadav is formal witness, who has recorded FIR.

38. DW-1 Girja Devi has stated that she did not kill deceased child. Her sister-in-law (Jethani) was having illicit relations with her husband and due to this fact, she was having enmity with her and hence falsely implicated her in this case on that account. Accused-appellant Pramila is her cousin and was residing in the same house, as they were married with complainant's younger brothers Ram Tej and Ram Pher. All the three brothers have a common house and their exit is also common. She is not aware as to how deceased child has been done to death.

39. Close scrutiny of evidence reveals that so far as accused-appellant Pramila is concerned, neither any motive was attributed to her nor dead body was recovered from her possession or from her house. It is apparent from evidence on record that complainant and his two brothers were residing in the same premises but their accommodations were separate but main entrance and exit was common. It would be pertinent to mention that in cross-examination, PW-1 has stated that at the time of alleged incident, Pramila Devi was pregnant; she has given birth to a child after one week of the incident; he has named accused-appellant Pramila Devi on the basis of suspicion but nothing was recovered from her; earlier dispute was also not with Pramila Devi; he has named accused-appellant Pramila Devi on the basis of suspicion as she is cousin of Girja Devi; and in fact he has named Pramila Devi due to insistence of his wife.

40. Similarly, in cross-examination, PW-2 has stated that he has suspected role of Pramila in crime as she is sister of Girja Devi and due to this reason, she has made a statement against Pramila also.

41. So far as testimony of PW-3 is concerned, she was a minor girl, just aged six years and in her cross-examination, she has admitted that she was tutored by her grandfather as to what statement has to be made in the Court.

42. PW-4 has also admitted that Pramila has not committed murder of deceased and she was named just on the basis of suspicion.

43. PW-5 Prahlad Maurya has stated in his statement that when house of Girja Devi was searched, accused-appellant Pramila Devi was sleeping in her house. Though PW-5 was declared hostile but in his cross-examination, he has stated that accused-appellants Pramila and Girja were residing in separate accommodations and Pramila was named on the basis of mere suspicion.

44. PW-6 has also not made any incriminating statement against accused-appellant Pramila.

45. In view of above facts, it is quite apparent that no incriminating circumstance has been established against appellant Pramila Devi, rather witnesses have clearly stated that Pramila was named merely on the basis of suspicion as she is cousin of accused-appellant Girja Devi. As stated earlier, neither any motive was attributed to accused-appellant Pramila nor any recovery has been made from her possession. It is well settled that suspicion, howsoever, strong cannot take the place of proof. Considering the above stated facts, it is quite apparent that prosecution has failed to prove its case against accused-appellant Pramila Devi.

46. However, so far as accused-appellant Girja Devi is concerned, one of the circumstance proved against her is motive. It is well settled that in cases where prosecution rests purely on circumstantial evidence, motive plays an important part in order to tilt the scale against accused. The absence of motive, however, puts court on its guard to scrutinize circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.

47. In Munish Mubar vs State of Haryana (2012) 10 SCC 464, Court said:-

"20. In a case of circumstantial evidence, motive assumes great significance and importance, for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof."

48. While dealing with a similar issue in State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73 Court held as under:

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

49. In the present case, PW 1 and PW-2 have consistently stated that one week prior to the incident, an altercation took place between wife of the complainant and accused-appellant Girja Devi and thereafter, in order to pacify them, PW-1, complainant, has given beatings to both of them and due to this, Girja Devi has threatened to take revenge and to kill the complainant and his children. These witnesses have been subjected to cross-examination but no such fact could emerge so as to make any dent on the credibility of these witnesses. This version that before one week of incident after the alleged altercation, complainant has beaten Girja Devi and thereafter, she has threatened the complainant to revenge, has been corroborated by independent witness PW-4 and PW-5. There are no reasons to doubt their version. DW-1 Girja Devi has also not denied the said incident in her statement. Thus, prosecution has been able to prove motive on the part of accused-appellant Girja Devi.

50. The next important circumstance is recovery of dead body of deceased from the box of appellant Girja Devi from her part of residence. The evidence shows that when deceased had gone missing, and not traceable, due to suspicion, complainant (PW-1), and other villagers including PW-2, PW-4 and PW-5 asked accused-appellant Girja Devi for searching of her house but she resisted that move. Her resistance against search of her house, indicates that she had a fear that if her house is searched, dead body of deceased would be found. Thus, her resistance from taking search of her house is also an incriminating circumstance against her.

51. The most important and clinching circumstance against the accused-appellant Girja Devi is that the dead body of deceased child was recovered from a gunny bag lying concealed in a big tin box in her house. There is consistent and cogent evidence that when search of her house was taken, dead body of deceased was in a gunny bag and covered with other cloths. It is not disputed that alleged tin box belongs to accused-appellant Girja Devi and lying in her house. All the material witnesses including PW 1, PW 2, PW-4 and PW-5 have consistently stated that dead body of deceased was recovered from a gunny bag lying in the big tin box of accused-appellant, Girja Devi, from her house. These witnesses have been subjected to cross-examination but no major contradiction or inconsistency could emerge. Even accused-appellant Girja Devi has not specifically disputed the alleged recovery of deceased child from the tin box at her house in her statement made as DW-1. The version of PW 1 and PW 2 has been amply corroborated by independent witnesses i.e. PW-4 and PW-5 and the same is consistent with recovery memo Ex. Ka-13 by which the alleged gunny bag and tin box were seized. The recovery memo has been duly proved.

52. Merely because one of the recovery witness namely Gyan Mati was not examined, it would not make any difference. There is no such law that each and every witnesses of recovery has to be examined, particularly, when such memo has been duly proved by other witnesses. The statements of material witnesses are consistent with the statement of Investigating Officer PW-9. There are absolutely no reasons as to why these witnesses, including independent witnesses PW-4 and PW-5, would depose falsely about the recovery of dead body of deceased from the house of accused Girja Devi. There is overwhelming and reliable evidence on record that within a few hours of missing of deceased child from his house, his dead body was recovered from inside the big tin box in a gunny bag from the house of accused-appellant Girja Devi.

53. Here it would be pertinent to mention that in view of these facts and considering the provisions of Section 106 Evidence Act, the onus shifts to the appellant to disclose as to how deceased suffered death and how dead body of deceased came to be found in her tin box, as same might have exclusively in her knowledge. The appellant has simply alleged that she is not aware as to how deceased has suffered death.

54. In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766, Court observed:

"It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773)."

(Emphasis Added)

55. As the dead body of deceased child was found in the box of the accused-appellant Girja Devi from her home, she is the only person having exclusive knowledge as to how dead body reached there. It is settled view that in such cases it becomes the duty of accused to explain circumstances under which death of the victim has occurred and how dead body reached in her possession i.e. tin box belongs to her. Law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. Duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case.

56. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If an offence has been committed with secrecy, inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. In fact Section 106 of Evidence Act is not intended to relieve prosecution of its burden to prove guilt of the accused beyond reasonable doubt, but the said provision would apply to cases where 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/her special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

57. No doubt, mere conjectures or suspicion cannot take the place of legal proof and the large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, as observed by the Apex Court, but it is equally established that law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. If a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. If an offence has been committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same.

58. In the present case, accused-appellant Girja Devi has failed to give any explanation, whatsoever, as to how dead body of deceased reached in the said tin box in her house and as to why it was being concealed there. In the absence of any such explanation, inference has to be drawn that it was accused-appellant Girja Devi, who committed murder of deceased child and concealed her dead body in her house. It would be pertinent to mention that time gap between the missing of the child and recovery of dead body of the child is not much but only a few hours. In such a small gap of time there is no possibility of any other theory except that the murder was committed by appellant, Girja Devi, specially when she has not come up with any explanation what so ever.

59. An argument was raised on behalf of appellant Girja Devi that positively deceased child may have accidentally entered in to the box of appellant Girja Devi and died due to asphyxia. We are afraid that this contention has no basis at all. It is apparent from the evidence that the dead body of deceased child was lying in a gunny bag, concealed in the box of appellant-accused Girja Devi. It was found that it was covered with other cloths. From these facts it is manifest that the dead body of the deceased was concealed in a deliberate way. Further, from the post-mortem report of the deceased it is clear that the deceased was done to death by ante-mortem smothering. Thus, it is established that death of deceased was homicidal in nature and above contention has no substance.

60. Considering entire evidence on record, it is established that a week prior to the incident, accused-appellant Girja Devi was given beatings by the complainant and thereafter, she threatened the complainant to kill him and his child. It is also in evidence of PW-2 that when she had gone from her home for making kandi from cow dung, appellant-accused Girja Devi was present at her house. When on suspicion, she was asked for search of her house, she resisted that move. The dead body of deceased child was found concealed in the box of appellant-accused Girja Devi from her house and she failed to explain, how deceased died and how dead body reached in her box lying in her home. Considering all the evidence and circumstances established by prosecution, it is manifest that the prosecution has established the chain of circumstances, which consistently points to the accused-appellant Girja Devi alone and the same are inconsistent with her innocence. All the circumstances have been firmly established. When these circumstances are taken into consideration cumulatively, they conclude that within all human probability, it was accused-appellant Girja Devi, and none else, who has committed murder of deceased and concealed dead body in the box in her house. Therefore, we are of the considered opinion that conviction of appellant-accused Girja Devi is based on evidence and Trial Court was justified in convicting appellant accused Girja Devi under Sections 302 and 201 of IPC.

61. However, so far as appellant-accused Pramila Devi is concerned, her involvement in the incident appears doubtful and thus, she is entitled for benefit of doubt. Therefore, conviction and evidence of appellant-accused Pramila Devi under Section 302/201 of IPC is liable to be set aside.

62. So far as sentence of accused-appellant Girja Devi is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

63. In the instant case, the accused-appellant Girja Devi was sentenced to life imprisonment and fine of Rs. 5,000/- and in default thereto, she has to undergo one year additional rigorous imprisonment. She was further convicted under Section 201/34 IPC and sentenced to undergo five years rigorous imprisonment with fine of Rs. 1,000/- each and in default thereto, he has to undergo six months additional imprisonment.

64. Applying the principles laid down in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon accused-appellant Girja Devi by Trial Court vide impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon her.

65. Resultantly Jail Appeal No. 610/13 filed by Girja Devi is dismissed. Conviction and sentence of appellant-accused Girja Devi is affirmed. She is in jail. She shall serve out the remaining sentence.

66. Criminal appeal No. 3234/10 filed by Pramila Devi is allowed and her conviction and sentence is set aside. She is acquitted of the charge under Section 302/201 of IPC. In case, accused-appellant Pramila Devi is in jail, she be released forthwith, if she is not required in any case.

67. Lower Court record along with the copy of this judgment be sent back immediately to Court concerned for necessary compliance. A Copy of this judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation forthwith. Compliance report be also submitted to this Court.

 
Order Date : 16.05.2019
 
Anand 
 
 (Raj Beer Singh)    (Sudhir Agrawal)