Santosh vs State Of U.P.
2021 Latest Caselaw 2746 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- CRIMINAL APPEAL No. - 5657 of 2011
 

 
Appellant :- Santosh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Swati Agrawal Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

1. Heard Mrs. Swati Agrawal Srivastava, learned counsel for the appellant, Sri Nagendra Kumar Srivastava and Sri Rupak Chaubey, learned A.G.As for the State.

2. The present appeal challenges the judgment and order dated 6.9.2011 passed by Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur in Sessions Trial No.68 of 2010 convicting and sentencing the appellant alone under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for life imprisonment with fine of Rs.2,000/- and, in case of default of payment of fine, further to undergo imprisonment for one month.

3. Factual data as culled out from the record is that a First Information Report being Case Crime No.664/2009 was lodged on 18.4.2009 at Police Station Khorawar, Gorakhpur on the complaint made by one Jitendra Kumar Sahani s/o Dheesh Rawat, resident of Domar Ghat, Police Station Khajni, Gorakhpur who stated that his sister was married to Santosh s/o Bhagwan Kewat, Village Dumri Tola Bakhariya, P.S. Khorawar, Gorakhpur three years ago and in the F.I.R. it was mentioned that the in-laws of the deceased were demanding sum of Rs.50,000/- time and again and when their demands were not fulfilled, his sister was being harassed and on the intervening night of 17/18.2.2009 at about 2.00 a.m. the accused-appellant along with Jhinak, Bhagwan, Rajmati and Tetari did the death of her sister by strangulating her with saree and thereafter hanged her.

4. On the aforesaid F.I.R., the investigation was moved into motion. The red saree which was mentioned in the F.I.R. was recovered. The dead body was sent for postmortem and wherein it was opined that the cause of death was asphyxia due to strangulation. The Investigation Officer recorded the statements of several witnesses under Section 161 of Cr.P.C. and submitted the charge-sheet against the accused-appellant as also against Bhagwan and Rajmati under Sections 498A, 304 B of I.P.C. 3/4 of Dowry Prohibition Act.

The accused were facing charges which were exclusively triable by the Court of Sessions, hence, the case was committed to the Court of Sessions.

5. On being summoned, all the three accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 13 witnesses who are as follows:

Jitendra Kumar Sahani

PW1

Ghisrawan

PW2

Sumitra Devi

PW3

Dhanwanti Devi

PW4

Pana Devi

PW5

Chikhuri Prasad

PW6

Dr. V.P. Singh

PW7

Jayanti Pd. Sharma

PW8

Bhim

PW9

Triloki

PW 10

Vishwajeet Srivastava

PW11

Brijesh Kumar Mishra

PW 12

Ram Pyare

PW 13

In support of ocular version following documents were filed:

Written Report

Ex.Ka.1

F.I.R.

Ex.Ka.3

Recovery memo

Ex. Ka. 13

Postmortem Report

Ex. Ka.5

Panchayatnama

Ex.Ka.2

Charge-sheet

Ex. Ka.11

6. A very strange fact requires to be mentioned here that the accused were originally charged with commission of offences under Section 498A, 304B of IPC and Section 3/4 of D.P.Act. The charge was framed on 30.4.2010 and witnesses number 1 to 12 were examined on oath. P.W.11 was examined on 22.3.2011. The learned Judge who had framed the charge on 30.4.2010 was Mr. K.K. Pandey. Unfortunately, for the appellant who had settled the dispute with the other side met with Sri Lukmanul Haq, learned Additional Sessions Judge who without any application, of his own decided to have charge substituted/altered after oral testimony of maximum witnesses was recorded and charged all the three accused with Section 302 read with Section 34 of I.P.C.

7. The learned ASJ/Special Judge, after examining P.W.12, all of a sudden, altered and framed additional charge on 14.7.2011 and put the accused-appellant herein and other two co-accused to question under Section 313 of Cr.P.C. on 26.7.2011 and 12.8.2011 which means that the learned Judge did not re-examine any of the witnesses except P.W.13 namely I.O and no fresh evidence was led pursuant to alteration of charge.

8. It appears that the learned judge who had subsequently taken charge of the matter had made up his mind that despite there being no evidence which proved the guilt against the accused-husband. The learned judge convicted the accused-appellant on the basis of what is known as morale conviction. This is the submission made by learned counsel for the appellant.

9. It is submitted by learned counsel for the appellant that the learned judge has misread the judgment of the Apex Court in L.S. Rao Vs. State of Andhra Pradesh, 2004 (3) Crl. 70 SC and has come to the conclusion that the death occurred in matrimonial home of the deceased and therefore, provisions of Section 114 of the Evidence Act would be attracted and has come to the conclusion that Santosh has not discharged the burden of proof cast on him that at the time of incident he was not at home (place of incidence). It is submitted that the learned Judge had heavily relied on the decisions titled Babu Vs. Babu, 2003 (3) Crl. 285 SC and Shiv Shanker Vs. State of Karnataka, 2003 (1) Crl. 44 SC. The learned judge even came to the conclusion that police had no reason to file a false charge-sheet and that is why he convicted the accused-husband under Section 302 of I.P.C. for life and acquitted the other two accused.

10. Learned counsel for the appellant has contended that the charge could not have been altered in the fashion and in the manner in which it has been done which has acted prejudicial to the appellant herein and learned counsel has relied on the decision in R. Rachaiah Vs. Home Secretary, 2016 0 Supreme (SC) 383 and decision of this Court in Criminal Appeal No.234 of 2017 (Dharmendra Rajbhar Vs. State of U.P.), decided on 19.1.2021 so as to contend that accused requires to be given benefit of doubt as the prosecution has failed to prove the circumstances connecting accused to death of deceased.

11. Learned counsel for the State has vehemently submitted that the burden of proof has been shifted on the accused as per Section 106 of the Evidence Act, 1872 as the death was unnatural and at the dwelling place of husband.

12. Learned A.G.A. has relied on the cases titled (1) Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, (2) Sahabuddin and another Vs. State of Assam, (2012) 13 SCC 213, (3) Smt. Krishna Vs. State of U.P., 2017 (100) ACC 774, (4) Kalu alias Laxminarayan Vs. State of Madhya Pradesh, (2019) 10 SCC 211 to contend that the judgment cannot be found fault with.

13. Heard the learned counsel for the parties and perused the judgment and order impugned.

14. While considering the decision of the Court below, we would have to go through the evidence of the hostile witnesses though they have scantly supported the case of the prosecution. The learned judge has relied on their testimonies.

15. The postmortem report has been proved by P.W.7 who has conducted the postmortem report. According to him, the body had boils at several places, the face had blue spot, on neck also there was injury, the brain was liquefied, the respiratory tract was deeply congested and there was faecal matter. The death was, according to P.W.7, due to asphyxia and had occurred three days before the date on which postmortem was carried out. Even in his cross-examination, he has accepted that the death was due to strangulation. On the basis of this evidence, it can be said that the death of the deceased was homicidal.

16. We are sifting the evidences led in view of the recent decision of the Apex Court in Criminal Appeal 99 of 2021 (State of Gujarat Vs. B.L.Dave) decided on 2.2.2021.

17. Investigation of the case had taken place and the charge-sheet was laid under Section 498A, 304B of IPC and Section 3/4 of D.P.Act. Learned Sessions Judge acquitted two accused and also the present appellant for charges under Section 498A, 304B of IPC and Section 3/4 of D.P.Act but as we can see, convicted the accused under Section 302 of IPC after altering the charge.

18. It is further submitted by learned counsel for the appellant that once Trial Court came into conclusion that when no offence was committed under Section 498A of IPC, the presumption under Section 114 of Evidence Act, 1872 could not be raised.

19. It would be pertinent to reproduce Section 216 of Cr.P.C. regarding alteration of charge which reads as follows:

"216. Court may alter charge.

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded

20. The question which arises before us is that when no cogent evidence to convict the accused despite that the learned Judge has relied on what can be said to be his own conjectures which are not borne out even on interpretation of Section 106 of the Evidence Act, 1872 (hereinafter referred to as 'Act, 1872') 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."

21. Section 113B and 114 of the Act, 1872 reads as follows:

".1[113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]."

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.

22. Provisions of Section 106 and 114 of Act, 1872 were raised by the learned Judge below but oral and other reliable evidence would not permit this Court to raise such presumption as the said presumption is rebuttable. The fact that the deceased died in the matrimonial home is not in dispute but whether it was accused who authored the act which would fulfill the ingredients of Section 300 of IPC and whether it would fall within its purview, such presumption cannot take place of proof. The learned judge with utmost respect could not have convicted the accused under Section 302 of I.P.C. on evidence which was not laid or rather the evidence which was led, was never put to him under Section 313 of Cr.P.C statement and, therefore, he was taken off guard. The presumption under Section 106 of Act, 1872 will not also come to the aid of the prosecution as it was not proved beyond reasonable doubt that the charge which was added did not even mention the satisfaction of the learned Judge below and the conviction was not from major to minor but was from minor to major offence.

23. The submission of learned A.G.A. is that no objection was raised at the time of alteration of charge.

24. We may hasten to mention here that the charge was added at the fag end of the trial. The accused could not have thought that the said alteration of charge would be acted upon within seven days and the trial would culminate into returning the finding of punishment to him under Section 302 of IPC though the evidence was not completing the right of 1872, Act.

25. The total effect of the evidence led and the documents proved has to be satisfied before addition or alteration of the charge. The ingredients of Section 302 of IPC were not present though charge was framed. Reliance by the Court on the evidence of hostile witnesses is permissible but the Court at least has to be aware that prima facie a witness who makes different statements at different times has no regard for truth. Reliance can be placed on the decision in State of Rajasthan Vs. Bhawani, AIR 2003 SC 4230.

26. If the testimony of hostile witnesses is to be made the basis of punishment or conviction, there must be corroboration. The learned judge, unfortunately, has come to the conclusion that the hostile witnesses mentioned that the death was in the matrimonial home. The question is, can this statement be sufficient to convict the accused under Section 302 of IPC? The answer is, no.

27. In our case, we can safely hold that the alteration of charge was bad and reliance is placed on the decision in R. Rachaiah (Supra) which will apply in full force.

28. We are pained to state that this is the second case which is similar to the case recently decided namely in Criminal Appeal No. 3660 of 2013 (Sanjay Maurya Vs. State of U.P.) decided on 29.1.2021, on which, heavy reliance is being placed by learned counsel for the appellant.

29. In judging the question of prejudice as of guilt, the Trial Court was supposed to act with a broad vision and look to the substance and not to the technicalities. The main concern should be to see whether accused has/had a fair trial though he may know or not of what he was being tried for, once the evidence is over, he would not have a fair chance of cross-examination of the witnesses for the new charge added which is under Section 302 of I.P.C. and no evidence was recorded so as to bring home charge of Section 302 of IPC. No doubt the stage of framing new charge under Section 216 of the Cr.P.C. can be at any stage, but the charge for alteration or addition has to be so that the accused is put to circumstance which are against him. The basic feature for framing and/or altering charge in criminal trial is based on principle of fair play.

30. The charges which were levelled and in absence of any evidence, being proved and when there was no charge of murder, the Trial Court could not have altered the charge at the fag end of the Trial and raised presumption as to commission of offence under Section 302 of IPC.

31. The object and scope of altering the charge and the principles therein have been summarized by the Apex Court in Nallapareddi Sridhar Reddy Vs. State of A.P., (2020) 12 SCC 467 which are applicable in our case.

32. In this case, the learned Trial Judge perused the charges and suddenly after most of the witnesses were examined and when it appeared that he could not base the conviction, on the basis of presumption under Section 106 and 114 of the Evidence Act, 1872, he altered the charge to Section 302 of I.P.C.

33. The Apex Court in R. Rachaiah Vs. Home Secretary, 2016 0 Supreme (SC) 383 has held that alteration of charge in violation of mandate as per Sections 216 and 217 of Cr.P.C., and conviction recorded under altered charges seriously causes prejudice to the accused. Thereafter, this impropriety of the Trial Court stands vitiated and there could have been no conviction under altered charge namely under Section 302 of IPC.

34. In the situation where demand of dowry and harassment soon before the death was found to be lacking, the presumption under Section 113B of Act, 1872 has not been believed. The learned Trial Judge in view of the unsupported evidence has acquitted the accused as well as other in-laws of the charges under Section 498A, 304B of IPC and Section 3/4 of D.P.Act, but with the recourse of Section 216 of Cr.P.C., altered the charge and with a recourse of Section 106 read with Section 114 of Act, 1872, convicted and sentenced the appellant alone under Section 302 of IPC as he was the husband of the deceased.

35. Recently, this Court in Dharmendra Rajbhar Vs. State of U.P. (Supra) in similar situation has considered legal position as far as Section 106 of the Act, 1872 is concerned. We do not want to burden our judgment with reproduction of the said findings and analysis except para 40 of the said judgment wherein the Court has held as under:

"40. Section 101 to Section 114A of Chapter-VII of the Indian Evidence Act, 1872 deal with subject "OF THE BURDEN OF PROOF." Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proof to prove that fact is upon him. Section 106 is an exception to Section 101 of the Evidence Act which stipulates that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. Section 106 of the evidence act has to be read in conjunction with and not in derogation of Section 101 Evidence Act. Section 106 of the Indian Evidence Act does not relieve prosecution of it's primary and foremost duty to establish the guilt of the accused beyond all reasonable doubts independent of weaknesses of the defence. It is only when prosecution, for well perceptible and acceptable reasons, is unable to lead evidence because of circumstances beyond it's control including the reason that the fact required to be proved was "within the special knowledge of an accused alone" and prosecution could not have known it by due care and diligence, that Section 106 can be resorted to by shifting burden on the accused to disclose that fact which is "in his special knowledge" and if accused fails to offer any reasonable explanation to satiate judicial inquisitive scrutiny, he is liable to be punished. Section 106 is not meant to be utilized to make up for the prosecution's inability to establish its case by leading, cogent and reliable evidence"

36. What is the situation in the present case? Considering the testimony which has come before us, we are unable to subscribe ourselves to the submission of learned A.G.A. that the decision in Sahabuddin and another (Supra) would apply to the facts of this case. In the said matter the Apex Court has sifted the evidence of entrusted witnesses who had not turned hostile and the evidence was corroborated. In our case, there is lack of proper evidence, there was no credible evidence available and the statement under Section 313 Cr.P.C. also does not give accused proper chance.

37. The judgment in R. Rachaiah (Supra) would be applicable to the facts of this case in contradiction with the judgment relied upon by learned A.G.A in the case of Kalu alias Laxminarayan and in Smt. Krishna (Supra).

38. In our case, there is no dying declaration. The demand of dowry was not established. In Smt. Krishna (Supra), the High Court has felt that it is not necessary for the Court to reexamine all the witnesses and the burden gets shifted on the accused. Had the learned judge decided to convict the accused under Section 304B of IPC, the said judgment would have been helpful to the State.

39. The decision of the Apex Court in Trimukh Maroti Kirkan (Supra) will apply to the facts of this case though it is nobody's case that the husband was last seen with the deceased. It is proved that the husband and wife were last seen together. No doubt, the offence was committed in the matrimonial home but it was near the dwelling house. The Apex Court has held the conviction of the accused under Section 304B would be just and proper.

40. The factual data shows that the provisions of Section 113 of the Act, 1873 as submitted by learned A.G.A. for the state can be raised against the accused that the death was within the period of seven years. The depositions of the witnesses though they became hostile, confirms the fact that the accused used to demand certain amounts and that might have been cause of the death of the deceased.

41. The recovery memo of saree, postmortem report and the panchayatnama would permit us to hold the accused-appellant guilty under Section 304B of IPC. Depositions of P.W.1 to P.W.4 go to show that the accused can be convicted under Section 304B of IPC. The acquittal of the other two accused cannot be disturbed.

42. While penning this judgment, this Court has come across the judgment of the Apex Court in the case of Special Leave to Petition (Crl.) No.1156 of 2021, State of Orissa Vs. Banabihari Mohapatra (Coram: Hon'ble Mrs. Justice Indira Banerjee and Hon'ble Mr. Justice Hemant Gupta), reported in Live Law 2021 SC 103 wherein the Apex Court has held as under:

"It is well settled by plethora of judicial pronouncements by this Court that suspicion, however strong cannot take the place of proof. An accused is presumed to be innocent unless proved guilty beyond reasonable doubt"

43. The evidence must be such that the guilt of the accused would have to be proved by consistent evidence which would be proved by the attending circumstances from which cogent evidence would emerge.

44. In our case, there are no evidences of Section 302 of IPC being fulfilled but at the same time it would have been much better for the learned Additional Sessions Judge to record a finding of no guilt and the presumption against the accused cannot take place of evidence for convicting the accused under Section 302 of IPC but for 304B, a presumption under Section 113 of the Act, 1872 could have been pressed into service which we are doing, the reason being, as we narrated herein above, the death took place within period stipulated under the Act.

45. The chronology of events as narrated in the F.I.R. and the depositions of the hostile witnesses go to show that the accused had married the deceased. She was his legally wedded wife. The death took place within seven years of their marriage. The witnesses who have turned hostile also conveyed that there were certain demands. In that view of the matter, the death having occurred in the house of the accused, he can be held for the unnatural death under Section 304B but not under Section 302 of IPC. The converse cannot be applied as in Section 302, it is for the State to prove that the accused was guilty of the charges which were levelled against him. In that view of the matter, we have held the accused guilty as he is in jail for a period of more than 10 years. His incarceration can be said to be enough punishment for him for untimely death of his legally wedded wife.

46. The decisions cited by learned A.G.As would have permitted us to upturn the finding under Section 304B of IPC but in case of Section 302, we must have what is known as credible evidence before convicting the accused. In our case the variation of evidence relating to all the aspects make the conviction vulnerable under Section 302 of IPC.

47. The judgment in Sanjay Maurya Vs. State of U.P. (Supra) will also come to the aid of the accused.

48. However, in this case, as there is no dying declaration, though the presumption could have been raised and as the accused has been in jail for more than 10 years and as the State has not preferred the appeal as the conviction was under Section 302 of IPC, we hasten to convict the accused under Section 304B of IPC. The reason being, it is a crime against women and children. We are supported in our view by the recent decision in Preetpal Singh Vs. State of U.P. and another, (2020) 8 SCC 645 which we have decided to apply to the facts of this case, reason being, Section 304B of IPC does not categorize death. It covers every kind of death that occurred otherwise than in normal circumstances. The deeming fiction is invoked by us. The onus on the accused, in-laws or the husband to show otherwise is on them. The onus under Section 302 is on the prosecution.

49. We have no other option but to acquit the accused under Section 302 of I.P.C. as this is a case of no evidence.

50. The deceased died of unnatural death which would have been a case of Section 304B but the learned Judge has come to the conclusion that it was not the case of Section 304B of IPC but of Section 302 of I.P.C.

51. In the end, we acquit the accused-appellant under Section 302 of IPC and convict him under Section 304B. The reason is, the evidence is writ large that the death occurred within seven years and the dead body was found near the dwelling house of the accused.

52. In view of the above, the appeal is partly allowed. The accused-appellant is sentenced to undergo 10 years rigorous imprisonment. If 10 years of incarceration is over, he shall be released forthwith, if not required in any other case. The fine and default sentence is maintained. The default sentence to run after 10 years of incarceration is over. The judgment and order impugned in this appeal is modified to the aforesaid extent. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned for compliance.

Order Date :- 22.2.2021/DKS