Jai Prakash vs State Of U.P.
2019 Latest Caselaw 5280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
RESERVED
 
Court No. - 65
 
Case :- CRIMINAL APPEAL No. - 1171 of 2012
 
Appellant :- Jai Prakash
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Umesh Vats, Chandra Pal Singh,
 
Pawan Singh Pundir,  Rajeev Sahni,  Rajesh Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
AND
 

 
Case :- CRIMINAL APPEAL No. - 1104 of 2012
 
Appellant :- Smt. Sunita
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sushil Shukla, Jitendra Pal Singh, Rajesh Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
************
 

 
Hon'ble Karuna Nand Bajpayee,J.

Hon'ble Ajit Singh,J.

(Delivered by Hon'ble Ajit Singh,J.)

Both these appeals arises out of common impugned judgment passed by the trial court, hence are being decided by this common order.

These two criminals appeals have been filed against the judgment and order dated 24.02.2012 passed by Additional District And Sessions Judge, Court No.8, Bijnore in Sessions Trial No.95 of 2008 (State Vs. Smt. Sunita Devi & Others) relating to Case Crime No.589 of 2007, under Sections 364, 302, 201, 120-B I.P.C. Police Station Haldaur, District Bijnore, convicting and sentencing both the appellants under Sections 364/120-B I.P.C. to undergo Life Imprisonment and a fine of Rs.10,000/- and in default of payment of fine, further to undergo one month simple imprisonment and further sentencing the appellant, Sunita to undergo Life Imprisonment under Sections 302 I.P.C. and a fine of Rs.10,000/- and in default of payment of fine, further to undergo one month simple imprisonment and the appellant Jai Prakash to undergo Life Imprisonment under Sections 302 I.P.C. read with Section 120-B I.P.C. and a fine of Rs.10,000/- and in default of payment of fine, further to undergo one month simple imprisonment. Appellant Sunita has also been convicted under Section 201 I.P.C. and appellant Jai Prakash also for offence under Section 201 read with Section 120-B I.P.C. for 7 years Rigorous Imprisonment and a fine of Rs.2,000/- and in case of default of payment they will further undergo fifteen days imprisonment. Both the sentences were directed to run concurrently.

The prosecution story in brief is that on 20.07.2007, the complainant Jogendra Singh submitted a written report scribed by Manoj at Police Station Haldaur, district Bijnor with allegations that Sunita (appellant), wife of Mahipal Singh, resident of village Virampur, Police Station Dhampur, who happens to be his sister-in-law, as a result of picking quarrel with her husband, used to visit his house sometimes and stay there for a day or two. Sunita came to his house on 14.07.2007 and went back to her house on 15.07.2007 at about 9-10 a.m. in the morning. On that very day, he was out of station. His son, Situ who was wearing a black thread in his neck and a purple necker had wheatish complexion and was of about six years in age. The complainant has further mentioned that when he returned to his house on 15.07.2007 in the evening then his wife told him that their son Situ was missing since morning. He searched him here and there but could not get the whereabouts either of his son or of Sunita. On 18.07.2007, Brahmpal Singh, son of Tekchand, Magan Singh, son of Khubban Sikngh, Sompal Singh son of Khabani Singh told him that on 15.7.2007 at about 9 or 10 A.M. they had seen Sunita carrying his son towards sugar-cane field of Jagat Singh. The brother-in-law of Sunita namely Jai Prakash, resident of Aliyarpur, Police Station Afzalgarh, District Bijnor also had come along with Sunita to his house several times. He started searching him (Situ) in the relations of Sunita but to no avail. It came to his knowledge that Sunita was also familiar with Ram Singh, s/o Baljeet, Tipu, s/o Ramcharan, who are also the resident, of his village. He had a suspicion that Sunita has kidnapped his son. It was also mentioned in the F.I.R. that the delay in lodging the same was because of having remained busy in the search of the missing boy. On the basis of this written report, a case was registered as Case crime No.589 of 2007, under Section 364 I.P.C. against Sunita and others and the investigation was entrusted to Sub-Inspector of Police, S.K.Verma, who recorded the statement of witnesses under Section 161 Cr.P.C. After investigation, the police has submitted the charge-sheet under Sections 364, 302, 201, 120-B I.P.C. against Sunita and Jai Prakash appellants. Charges were framed against the accused, Sunita and Jai Prakash and both the accused had pleaded not guilty and claimed trial.

The prosecution in order to prove its case examined as many as eleven witnesses. Jogendra and Smt. Dayawati deposed in the court as PW-1 and PW-2. The Sub Inspector of Police, Amar Singh Raghuwansi, Investigating Officer, who was examined as PW-9. Dr. Babu Singh who carried out post-mortem was examined as PW-6. Sri Sarvesh Kumar Sharma, who prepared the inquest was examined as PW-8. PW-9 Amar Singh Raghuwansi, who submitted the charge-sheet, PW-10 Om Prakash, who is witness of recovery of dead body, PW-11 Vishambhar Singh, who has prepared the recovery memo.

The original records and all the submissions made by learned counsel for the appellants have been considered by us. We have been extensively taken through the evidence by the learned counsel of both sides to substantiate their submissions. Learned counsel for the parties have also cited certain decisions in support of their rival contentions that have been perused by us. We shall refer them in the later part of the judgment at the appropriate place.

The prosecution witnesses PW-1 Jogendra has stated in his examination before the trial court that he knows both the accused Sunita and Jai Prakash, Sunita happens to be his relative and accused Jai Prakash is brother-in-law of accused Sunita. Sunita along with the accused Jai Prakash used to come to his house after quarreling with her husband. This witness further deposed that one year ago at the time of incident Sunita came to his house and on the next day she went along with his son Situ, who was six years old; when he came to the house in the evening his wife told him that Sunita had taken her son, Situ in the morning and since then he was missing. When he was searching my son Situ and Sunita then Brahampal Singh, Magan Singh and Sompal Singh residents of his village told him that on 15.07.2007 between 9-10 a.m. they had seen Situ along with Sunita going towards the sugar-cane field of Jagat Singh. He further deposed that later on the dead body of the deceased Situ got recovered at the instance of accused Sunita from the sugar-cane field of Jagat Singh and she had also told that she along with Jai Prakash had murdered Situ. He further deposed that his wife told him that on 15.07.2007 when in the morning she went to cut the grass then she had seen Tipu and Ram Singh coming out from the field of Jagat Singh. He also deposed that his wife also told him that on 19.07.2007 in the afternoon accused Jai Prakash had called over phone and asked to send Jogendra along with Rs.1 lac as ransom for the release of his son, Situ. This witness has proved the first information report as Ext. Ka-1. The witness further told in his statement that once his wife Dayawati had beaten Sunita with slippers (footwear) due to that reason Sunita was having ill-will against them. In his cross-examination, he deposed that when his missing son had not reached the house till evening then he started searching Situ and in the evening of 15.07.2007 he along with his wife and relatives namely, Baljeet went to the village Virampur where Sunita was residing with her husband Mahipal. They met Mahipal and narrated him the entire story and after that they went to village Aliyarpur in search of Sunita. He further deposed that after that he went to the house of Jai Prakash in village Mudiya Kheda but we did not find him. He further deposed that he lodged the first information report on 20.07.2007 against Sunita and Jai Prakash. He further deposed that on 19.07.2007 Sunita and Jai Prakash had demanded a ransom of Rs.1 lac and this was the reason of murder of his son. The other reason of murder of his son was that his wife had seen Sunita and Jai Prakash in a compromising position and my wife had beaten Jai Prakash with slippers (footwear).

PW-2 Dayawati has deposed that on 14.07.2007 Sunita came to her house along with Jai Prakash and she had scolded both the accused and asked them not to come to her house; then Jai Prakash went early in the morning on the next day, i.e. 15.07.2007 Sunita left my house between 9-10 a.m. in the morning along her son Situ and she thought that she is taking away her son Situ out of love and affection. She further deposed that when her son Situ and Sunita did not return then she called up her husband PW-1 Jogendra and when Jogendra came she narrated the entire story to him and then she started searching of her son along with her husband and Baljeet and went to villages of Sunita and Jai Prakash. She further deposed that Brahampal, Magan and Sompal had told her that they had seen the deceased, Situ in the company of Sunita three days before going towards the sugar-cane field of Jagat Singh. She further deposed that on 19.07.2007 accused Jai Prakash had called up over phone and said that if she wanted to take back her son Situ then he should send Jogendra at Bhutpuri Tiraha along with Rs.1 lac as ransom and he also said that if she did not give the aforesaid money her son, Situ will be murdered. She further deposed that she along with her brother-in-law (Devar) Naresh went to Bhutpuri Tiraha at about 5.00p.m. then Jai Prakash asked her that as to why Jogendra has not come and again said that her son, Situ was in his custody and if she gave Rs.1 lac the child Situ will he handed over. She further deposed that on 20.07.2007 the police came to our village after arresting Sunita and at the instance of Sunita the police had recovered the skeleton of Situ and also his neck thread and his under-wear. She also deposed that Sunita along with Jai Prakash used to come to her house prior to the incident and they used to indulge in illicit relations and she had beaten Jai Prakash and Sunita with slippers (footwear).

The prosecution has examined Naresh as PW-3, who has deposed in his examination that he knew accused Jai Prakash and Sunita and Sunita had taken away his nephew from the house of Dayawati. He also deposed that Sunita and Jai Prakash came at the house of his brother Jogendra one day before the incident and when Sunita had taken away his nephew Situ on that day his brother Jogendra was not at the house. He has further deposed that he along with his brother Jogendra, bhabhi and other people had started searching Situ. He has also deposed that Brahampal, Magan and Sompal had told that they had seen Situ in the company of Sunita, who was carrying away Situ towards the sugar-cane filed of Jagat Singh. This witness has also deposed that Jai Prakash had called on telephone of Amar Singh that if they want back Situ then Jogendra should come at Bhutpuri Tiraha. He along with his bhabhi Dayawati went there but Jai Prakash asked them to send Jogendra along with Rs.1 lac and said if you told anything to the police then your son Situ will be murdered. He has further deposed that his bhabhi Dayawati had beaten both the accused Sunita and Jai Prakash with slippers (footwear) and due to this reason his nephew Situ was abducted and murdered.

The prosecution has examined PW-4 Magan Das, who has deposed that he knows both the accused Sunita and Jai Prakash. Sunita is distant relative of Jogendra and she used to visit their house. Situ was also known to him. He further deposed that he had seen one and half year ago, Situ in the company of Sunita between 9-10 A.M. in the morning and she was carrying Situ towards the sugar-cane field of Jagat Singh at that time. This witness has further deposed that he narrated the entire story to Jogendra. Sunita was arrested and at her instance the dead body of the deceased, Situ was recovered from the sugar-cane filed of Jagat Singh. He further deposed in his cross-examination that when he had lastly seen Situ in the company of Sunita, Jai Prakash was not accompanying them.

The prosecution has further examined PW-5 Dr. J.R.Jiyani, Medical Officer, (Radiologist), District Hospital, Bijnor, who has deposed that on 13.08.2007 he was posted as Medical Officer, (Radiologist), District Hospital, Bijnor and on that day he got done x-ray of bones of the deceased Situ, son of Jogendra, aged 6 years in his supervision, which were brought by Constable 695 Satyapal Singh. He further deposed that on the basis of x-ray of jaw and teeth, the age of the deceased was about seven years.

The prosecution has examined Dr. Babu Singh as PW-6 who has conducted the post-mortem of the dead body of the deceased Situ. He has deposed that he found human bones, which were sent for post-mortem as 1) entire lower part of jaw, in which there were 12 teeth (4 incisors, two canine, two premolar and 4 molar teeth). The bones of head which were in four parts and in the first part there was R.T. Paritial and in second part L.T. Paritial, Occiptal plus both Temporal plus base of skull. In the third part left half of frontal bone plut lt. Maxila there were four teeth (one canine, one premolar and two molar) and in the fourth part rt. Half of Frontal bone plut rt. Maxila there were four teeth (one canine, one premolar and two molar). Further deposed that bone of left thigh which was 21 cms. long and behind the neck of femur and there was obtused angle and the head of this bone lower epiphysis was absent. Left calf of left foot was eaten by the animals and the corner of bones of right thigh were also eaten by animals; right scapula with glenoid cavity was also found to be eaten by the animals; seven calf of left side and two calf of right side were found. This witness informed that all the bones were found to be of human body and there was no soft tissue on any of the bones and viscera was also not found. This witness further deposed that in his opinion on the basis of the radiological examination, the age of the deceased was about 9 years and the cause of death could not be ascertained.

The prosecution has further examined PW-7 Constable Bhal Singh, who has deposed that on 20.07.2007 he was posted as head Constable at police station Haldaur and on that day he prepared the chik first information report on the basis of complaint scribed by one Manoj. He has proved that chik first information report Ext. as Ka-4. He further deposed that on that day he has mentioned the institution of this case at rapat no.21 at 13.35 hrs., which is Ext. as Ka-5.

The prosecution has further examined Sarvesh Kumar Sharma as PW-8, who has deposed that on 20.07.2007 he was posted as Sub Inspector at Police Station Haldaur and on that day Jogendra, son of Ramchandra had got instituted the Case Crime No.579 of 2007, under Section 364 I.P.C. against the accused Sunita and the investigation was entrusted to him. This witness has conducted the initial investigation and after having arrested both the accused Sunita and Jai Prakash got recovered the clothes and the thread, worn by the deceased Situ and the bones of human body at the instance of accused Sunita. This witness has prepared the site-plan and also prepared the inquest report and proved the site-plan as Ext. Ka-5 and proved the recovery memo of bones as Ext. Ka-6 and he also proved the panchayatnama as Ext. Ka-7, and also proved the other documents as Ext. ka-8 to Ka-13 and this witness also deposed that he has converted the case from Section 364 I.P.C. to Sections 302, 201 and 120-B I.P.C. This witness also deposed that further the investigation was handed over to S.H.O., Amar Singh. He further deposed that in the recovery there was no role of Jai Prakash. He has further deposed that no witness has given the evidence against the accused Jai Prakash regarding abduction of Situ.

The prosecution has further examined Amar Singh Raghuwansi as PW-9, who has deposed that on 04.09.2007 he was posted at police station Haldaur and he had taken over the investigation from Sub Inspector Sarvesh Kumar Sharma and submitted charge-sheet against accused, which was proved as Ext. Ka-15 and he also proved the report of Forensic Science Laboratory as Ext. Ka-16.

The prosecution has also examined Om Prakash as PW-10, who has deposed that in the evening of 20.07.2007 the police party came along with the accused Sunita and Tikam went to the sugar-cane field of Jagat Singh and Sunita told that she had murdered Situ in this field and on his pointing out bones of human body were found. He has further deposed that Jogendra and his wife reached there and they identified the necker and black thread of Situ. This witness has signed on the recovery memo, which has marked as Ext. Ka-7 and this witness has also said that this is the same panchayatnama which he has signed and identified the same.

The prosecution has also examined PW-11, 801 Constable Vishambhar Singh, who has deposed that he was posted at police station Haldaur on 20.07.2007. This witness has proved the G.D. No.27 of police station Haldaur as Ext. Ka-17.

Thereafter the accused were examined under Section 313 Cr.P.C. The accused Sunita has denied the allegation that on 15.07.2007 she had murdered Situ, aged about 6 years between 9-10 a.m. and with intention to destroy the evidence of the dead body it was concealed. The accused Sunita has also denied the recovery of the bones at her instance. She has said that she has been falsely implicated in this case. The other accused Jai Prakash has also denied his involvement in the abduction and murder as well as destroying the evidence by concealing the dead body of Situ. No defence was led by the accused Sunita and the Jai Prakash in their favour.

After examining the entire evidence, the trial court convicted the accused Sunita and Jai Prakash by the impugned judgment of conviction. Aggrieved by the said judgment, the present appeals have been preferred by the accused persons.

We have heard Sri Pawan Singh Pundir, learned counsel appearing on behalf of the accused Jai Prakash and Sri Rajesh Singh, learned counsel for the accused Sunita and Sri Rupak Chaubey, learned A.G.A. for the State.

Learned counsel for the appellants have submitted that this case is based on circumstantial evidence, which does not constitute the complete chain to link the appellant with the crime in question. No incriminating article like weapon of offence or mobile phone has been recovered from the appellants or on their pointing out and the prosecution has not led any convincing evidence regarding the abduction or for hatching criminal conspiracy in any manner against the accused Jai Prakash. Learned counsel for the appellant Sunita has also argued that the place where alleged recovery of dead body is being shown, is an open place and that place is accessible to all. He has further argued that the place from where the alleged recovery of the dead body of the deceased Situ is shown, is near the village locality but no stinking was noticed by anybody coming out from the alleged place of recovery of dead body which itself casts doubt on the prosecution story. It has been further submitted that there was no motive for the accused persons to commit the murder of innocent child and the chain of circumstances led by the prosecution against both the accused persons is not complete. The circumstances alleged by the prosecution are not of conclusive nature. It has been further argued that the accused Jai Prakash is said to have called the mother of the deceased Situ over phone and a demand of ransom was made but this fact does not find mention in the first information report nor any call details were furnished nor any evidence was led in this regard. He further submitted all the witnesses are relatives of the complainant and there is no independent witness against the accused and the interested witnesses being partisan witnesses are not reliable. There is delay of five days in lodging of the first information report. The incident is said to have occurred on 15.07.2007 and the first information report was lodged on 20.07.2007 and the delay in lodging of the first information report has not been properly explained.

On the other hand, learned A.G.A. has argued that both the accused Sunita and Jai Prakash were having illicit relations and they were found in compromising position by the mother of the deceased, namely, Dayawati, who scolded both the accused Sunita and Jai Prakash and had also beaten both the accused with slippers (footwear). This could be the obvious motive of murder of innocent child, namely, Situ by the accused persons. The deceased, Situ was last seen in the company of accused Sunita and the recovery of body parts of deceased, Situ were made at the instance of accused Sunita which shows her guilty mind and guilty knowledge both and would in turn give rise to the inference of guilt against her conclusively. Otherwise there is no explanation as to how she would have attained the knowledge of the field where the body remains of the deceased could be found. According to learned A.G.A. the information furnished by accused Sunita in consequence of which the bones of deceased were recovered would be relevant u/s 27 of the Evidence Act. Learned A.G.A. has further argued that there was no occasion to falsely implicate both the accused persons, Sunita and Jai Prakash by the complainant as they were distant relative of the complainant.

It is crystal clear and admitted to both prosecution and the accused persons that there was no eye-witness of the alleged incident and this case is based purely on circumstantial evidence and though the conviction can be based on circumstantial evidence alone but for that prosecution has to establish and must establish the chain of circumstances which consistently points towards guilt of the accused and accused alone and which is inconsistent with their innocence. It is the duty of the prosecution to firmly and cogently establish the incriminating circumstances against the accused persons and from those incriminating circumstances inference of guilt of the accused could be conclusively drawn safely and if all the incriminating circumstances against the accused persons are taken into consideration they should be so complete that within all probability they should point towards the guilt of the accused persons, then only such circumstances may be relied upon.

The Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622, the Hon'le Apex 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 Sahebrao Bobade V State of Maharashtra 1973CriLJ1783 where the following observations were made:

certainly, it is a 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 accused, 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''.

In the case of Joseph vs. State of Kerala, 2000 SCC(Cri) 926], the Hon'ble Apex court has explained under what circumstances conviction can be based purely on circumstantial evidence. It is observed, that,

"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."

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), the Supreme Court has held that:-

"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."

In the case of 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 the evidence relied on, is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of the guilt.

After considering the entire law laid down by the Apex Court on circumstantial evidence it emerges that conviction can be based solely on the basis of circumstantial evidence where the circumstances are fully established and the chain of circumstances is conclusively complete and the cumulative effect of all the circumstances is such which shows that only and only the accused is found guilty of committing the offence.

Close scrutiny of the evidence led by the prosecution is very much necessary. The PW-1, who has lodged the first information report, who has been examined by the prosecution is neither a witness of last seen nor a witness of recovery of dead-body. This witness has simply said that he had searched his son Situ and when he was searching his son, he was told by Brahampal, Magan and Sompal that in the morning of 15.07.2007 Sunita was seen accompanying his son, Situ towards the sugar-cane field of Jagat Singh. This witness has said in his examination-in-chief that the accused Sunita had got recovered the dead-body of his son, Situ from the sugar-cane field of Jagat Singh in front of him. This witness has said in his cross-examination that the police summoned him and his wife and in the presence of Om Prakash and Tikam the dead-body was recovered. He has further said that the policemen came to call him and the statement of this witness can be relied upon against the accused persons regarding the last seen evidence or recovery of the dead-body of the deceased not as primary evidence but only as a supporting kind of evidence of secondary source. This witness has primarily only proved the lodging of the first information report against the accused persons.

PW-2 Dayawati has said that Sunita on 15.07.2007 between 9-10 a.m. Had gone from his house after abducting her son, Situ. She has also said in her statement before the trial court that when she returned after three days to her village after searching her son, Situ then Bramampal, Magan and Sompal told that they had seen Sunita carrying the deceased, Situ towards the sugar-cane field of Jagat Singh. This witness has further deposed about the demand of Rs.1 lac as ransom by the accused Jai Prakash over telephone and further said that if ransom money was not paid then, the child will be murdered. This fact was surprisingly enough not disclosed in the first information report. The omission in this regard is too loud to be ignored. Moreover, no convincing evidence has been led by the prosecution in order to prove the demand of ransom over phone. No call details have been filed by the Investigating Officer and it has not been mentioned that from whose phone the accused Jai Prakash is said to have called and to whom the ransom call was made and on which number it was made. Though in her cross-examination PW-2 Dayawati has further stated that the accused Jai Prakash had called over phone on the number of Amar Singh and demanded the ransom but this fact was never mentioned to the Investigating Officer during investigation. The demand of ransom of Rs.1 lac is also missing in the statement of this witness to the Investigating Officer. This fact of demand of ransom of Rs.1 lac finds mention for the first time in her statement during trial. The police has not investigated on whose phone the demand of ransom was made nor any call details has been annexed in support of this fact. This witness has also said in her statement that she had told to the police that both the accused persons, namely, Sunita and Jai Prakash were having illicit relations but this fact was also narrated for the first time during evidence and this fact was not told to the Investigating Officer and was not in her statement under Section 161 Cr.,P.C. and appears for the first time mentioned in the court in her statement.

The prosecution has examined PW-3 Naresh, who has said in his statement that the accused Sunita had carried away the deceased, Situ from the house of Dayawati out of love. This witness has also deposed that Brahampal, Magain and Baljeet had seen accused Sunita carrying away the deceased, Situ towards the sugar-cane field of Jagat Singh. This witness is witness of conspiracy being hatched by both the accused, Jai Prakash and Sunita regarding the kidnapping of the deceased, Situ and demanding the ransom of Rs.1 lac. He further deposed that Jai Prakash had called over phone and said if you want to take back child Situ then come at Bhutpuri Tiraha where he alongwith PW-2 Dayawati went and Jai Prakash demanded the ransom of Rs.1 lac. This fact that accused Jai Prakash had called on the landline phone of Amar Singh, was not told by this witness to the Investigating Officer in his statement and this witness for the first time has said in the Court that he along with his bhabhi, PW-2 Dayawati had received phone call on the phone of Amar Singh and this fact was also not investigated by the Investigating Officer that phone call was made by the accused Jai Prakash demanding ransom for the release of child Situ and there is no corroboration regarding phone call and demand of ransom. This witness can not be totally relied upon about the theory of demand of ransom or criminal conspiracy. This witness has deposed in his statement before the court that Jai Prakash had made call to PW-2, Dayawati but it was not disclosed that from whose telephone number the aforesaid call was made and it is also very questionable that from where the call was made. In this scenario and circumstances the allegation that Jai Prakash had demanded the money and phoned to the mother of the deceased Situ and uncle of the deceased and made demand of ransom is not fully proved and established.

PW-4 is a witness of last seen and this witness has deposed that he had seen accused Sunita carrying away the deceased, Situ between 9-10 a.m. in the morning towards the sugar-cane filed of Jagat Singh. This witness has further deposed that the accused Sunita got recovered the dead-body of deceased, Situ. This witness has further deposed in his cross-examination that the accused Sunita was carrying away the deceased Situ and at that time accused Jai Prakash was not with them. PW-5 Dr. J.R.Jiyani, M.O. Radiologist, District Hosptial, Bijnor has opined that he got conducted the x-ray of the recovered bones of the deceased Situ and he came to the conclusion that the age of the deceased Situ was around 7 years. PW-6, Dr. Babu Singh, who has conducted the post-mortem of the recovered bones of the deceased Situ has given his opinion about the age of the deceased Situ, to be of about 9 years. PW-7 has prepared the chik F.I.R. Of this case. PW-8 has deposed during the trial that he started the investigation and he arrested both the accused Jai Prakash and Sunita. This witness has also recorded the confessional statement of the accused Sunita in consequence of which the body remains of deceased in the form of scattered bones of skeleton were recovered and also got recovered the other articles belonging to him which were worn by the deceased Situ at the time of his death. This witness has deposed that nothing was recovered at the instance of Jai Prakash and that witness has further deposed that any witness had not told him that Jai Prakash had committed the murder of the deceased Situ. Jai Prakash was not seen abducting the deceased Situ. This witness has said that witness Naresh and Dayawati had told him about the phone call made by the Jai Prakash. This witness has accepted that he had not tried to get the call details of Jai Prakash, Naresh and Dayawati and this witness has also accepted that Naresh and Dayawati had not given any phone number to him on which they had received the call and from which number the call came.

After perusal of the evidence of the prosecution witnesses we are of the opinion that the prosecution has proved its case beyond reasonable doubt against the accused Sunita by leading sufficient evidence regarding the factum of the deceased having been last seen in the company of Sunita. The corroborating statement of P.W.-1 read with the statement of P.W.-2, who is mother of the deceased and the statement of P.W.-4 Magan Das are satisfying enough to prove the factum of the deceased having been carried away by the accused Sunita. We have already discussed the details of evidence as has been adduced on behalf of prosecution in this regard. The factum of the deceased having been kidnapped by Sunita will further give rise and bring into application certain propositions of law which will have a direct bearing upon the inferences which are to be drawn under these circumstances. It would be pertinent to keep in perspective Section 106 of the Indian Evidence Act at this stage, which reads as follows :

"106-Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

The evidence as is before us shows that after the deceased having been seen along with the accused Sunita going towards the field of Jagat Singh, was never seen alive thereafter. What happened to the deceased, under what circumstances the mangled body remains in the form of widely scattered bones of the deceased were found near the field where the accused Sunita had taken the police party to get them recovered, are best known to the accused Sunita herself and the circumstances of his eventual disappearance and murder are within the special knowledge of accused Sunita herself. Therefore, it is she alone who can explain the mystery of murder and disappearance of the deceased. She has simply failed to adduce any evidence in this regard or offer any kind of explanation as to how and under what circumstances the deceased met with his nemesis in such a brutal manner. At this stage Section 114 of the Indian Evidence Act also will have a natural application. It may be relevant to quote the aforesaid section herein below, which reads as follows :

"114. Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations- The Court may presume

(a) ......................;

(b) .....................;

(c) .....................;

(d) .....................;

(e) .....................;

(f) ......................;

(g) .....................;

(h) .....................;

(i) ......................"

The facts and circumstances as are before us, we feel persuaded to presume the guilty participation of accused Sunita in the murder having regard to the common course of natural events and human conduct. It is apparent on the face of record that no attempt on the part of the accused has been made to explain the circumstances of the disappearance of the deceased from her company. It is not known how the accused Sunita parted away from the company of the deceased, if at all she did. The simple denial of the accused in such circumstances falls far short of coming to the rescue of the accused and the natural incriminating inferences inevitably must follow against her and about her complicity in the crime.

The information furnished by accused Sunita in consequence of which the police party reached near the place fromwhere the body remains of the deceased Situ were discovered shall be read as the most incriminating relevant fact in proof of her guilt just as the conduct of the appellant Sunita in taking the police party to that place fromwhere the remnant bones of the deceased and the articles belonging to him were eventually discovered, shall be relevant under Section-8 of the Indian Evidence Act and shall be read against her. When Sunita was arrested she had also given a self incriminating statement and had also narrated the fact that she could get the dead-body of the deceased Situ and other articles recovered. The dead-body of the deceased was consequently recovered also at the instance of accused Sunita in the form of multiple bones of the skeleton, which is proved beyond reasonable doubt. The memo of recovery about the human bones of deceased has been duly prepared and proved as Ext.Ka-6.

The motive for committing the murder of the deceased, Situ, can also be safely attributed to the accused Sunita because she was beaten by the mother of the deceased and she was naturally having strong ill-will against the mother of the deceased that could have been a probable cause why she has committed the murder to take revenge from the mother of the deceased, namely, Dayawati. At this stage it may also be mentioned that motive by itself is never conclusive proof of guilt against any accused, it only probabilizes his participation in the crime. In the cases of direct evidence the motive pales into complete insignificance but in the cases of circumstantial evidence it serves as one of the circumstances to be reckoned against the accused in proof of his guilt. In the present case the prosecution has tried to show during the course of trial that there was a demand of ransom money made on behalf of accused Jai Prakash on telephone and in that connection some meeting of the family members of the deceased also took place with the accused side but as we have seen during the course of our discussion of evidence that this aspect of the case could not be satisfactorily proved by prosecution. There could have been many ways to demonstrate the truth about making such a call demanding the ransom but inefficient investigation into the case, specially regarding this aspect of the matter, has resulted into the situation that we are left with no other option than to treat this particular allegation having remained unproved. But we are constrained to observe that if a particular fact has remained 'unproved' it does not mean that the same has been 'disproved'. A fact might exist but the prosecution may fail to prove the same. Proving the non existence of a fact is substantially and qualitatively different proposition than having failed to prove the existence of that fact. In such a situation when we cast a glance upon the possible aspects of motive that might have prompted the accused to commit this foul crime, the possibility of such kind of rapacious purpose having remained in the back of mind of the accused cannot be ruled out. The motive itself remains locked in the heart of the accused always and discerning the same is often a matter of opinion of the witnesses. In the present matter we have referred to the ill-feelings of the accused Sunita as serving the motive part is for the reason that we find the factum of the beating of Sunita by slippers (footwear) done by mother of the deceased for the as having been proved sufficiently by the prosecution.

Regarding the accused Jai Prakash this Court feels that the prosecution has utterly failed to prove the theory of abduction by the accused Jai Prakash and also for making the demand of ransom done by the accused Jai Prakash because the phone calls as alleged to have been made by the accused Jai Prakash were not duly enquired upon and have not been proved sufficiently so as to connect him with the crime. The deceased Situ was not last seen in the company of accused Jai Prakash or at any point of time and no other independent incriminating fact came out during investigation which could be proved against the accused Jai Prakash. The alleged visit of Dayawati made to accused Jai Prakash in connection with the negotiation on the point of ransom demand of Rs.1 lac does not find any mention in the F.I.R. and this omission is too loud to be ignored. There is absolutely no explanation offered by prosecution for the same. Even Amar Singh on whose telephone the call was allegedly made demanding the ransom, has not been produced by prosecution to confirm the fact. The dead body in the form of scattered bones and the articles belonging to the deceased have also not been recovered at his instance.

This Court is therefore of the opinion that the prosecution has utterly failed to prove the guilt of the accused Jai Prakash in the commission of charged crime and the prosecution has proved its case beyond reasonable doubt only against the accused Sunita.

Consequently for all the reasons above, we allow the appeal of Jai Prakash being Criminal Appeal No.1171 of 2012 and set aside the finding of guilt and sentence of conviction awarded to the Jai Prakash. He is acquitted of all the charges framed against him and he shall be set at liberty forthwith.

We confirm the conviction and sentence of the appellant, Sunita by the trial court. She shall serve out the sentence as awarded by the trial court. The appeal, filed by Sunita being Criminal Appeal No.1104 of 2012 stands rejected.

Both the accused are in jail. The accused Jai Praksash be released from custody forthwith, if not detained in any other case and the accused Sunita shall serve out the sentence as awarded to her by the trial court.

A copy of the judgment of this judgment shall be dispatched to the trial court for necessary compliance. The accused/appellant Sunita shall serve out the sentences awarded to her by the trial court.

Dt.31.05.2019

R./