Ram Niwas vs State Of U.P.
2022 Latest Caselaw 19267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43
 

 
Case :- CRIMINAL APPEAL No. - 2887 of 2018
 

 
Appellant :- Ram Niwas
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajesh Kumar Namdev
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Shiv Shanker Prasad,J.

1. Heard Sri Shivendra Raj Singhal, learned counsel for the appellant and Ms. Meena Kumari, learned A.G.A. for the State.

2. This criminal appeal is directed against the impugned judgment dated 20.02.2018 passed by Additional Sessions Judge, Court No.04, Budaun in Sessions Trial No. 723 of 2013 (State Vs. Smt. Rajjo and Ors.), arising out of Case Crime No. 265 of 2013, whereby accused-appellant Ram Niwas has been convicted of offence Section 302 and 201 I.P.C. and has been sentenced to rigorous life imprisonment alongwith Rs.20,000/- fine for commissioning of offence under Section 302 I.P.C.; in default of payment in fine to further one year additional imprisonment and four years rigorous imprisonment along with fine of Rs.5,000/- for the offence under Section 201 I.P.C. and in default of payment in fine to further under go three months simple imprisonment. All and the sentences are to run concurrently.

3. The prosecution case as reflected from the records, is that on the basis of written report (Exhibit-Ka/1) submitted by the first informant/P.W.-1 Ram Saran on 19th May, 2013 which has been scribed by one Kunwar Pal, the first information has been lodged on 19th May, 2013 at 22.30 hrs. against five named accused persons including the accused-appellant alleging that the informant/P.W.1 has solemnized the marriage of his daughter with accused-appellant Ram Niwas in the year 2005 according to Hindu Rites and Rituals. Just after marriage, the in-laws of daughter of the informant i.e. Rajjo mother-in-law, Amar Singh and Budh Pal father-in-laws brother (Chachiya Sasur), Ram Niwas husband and Ganpat-elder brother of her husband (Jeth) started harassing and taunting her for bringing less dowry. The informant and his son Rajesh P.W.-5 went to the in-laws and persuaded them not to harass her but they did not agree and demanded a motorcycle and buffalo. The informant came to know that his daughter had gone missing alongwith her two minor children i.e. a three and half year old daughter and son aged about five months. The informant alongwith his son P.W.5 and his wife P.W.4 came to his daughter's in-laws house but did not find them there. Residents of nearby houses also refused to tell anything. The informant suspected some untoward incident and threat to the life of his daughter.

4. After registration of the first information report against Smt. Rajjo, Amar Singh, Budhpal, Ramniwas and Ganpat under Sections 498-A, 365 I.P.C., the investigation was handed over to Sub-Inspector Mr. Manpal Singh (P.W. 8) and he has recorded the statements of witnesses under Section 161 Cr.P.C. and also arrested the named accused. During investigation, on 24.05.2013, on the confessional statement of the accused Ram Niwas and on his pointing out, the dead body of the daughter of the informant was recovered from beneath the sand on the bank of river Ganga. After recovery of the dead body, P.W.-8 i.e. the Investigating Officer prepared the site plan. Thereafter, offence under Sections 304 and 201 I.P.C. were added. The missing daughter and son of the deceased were found at the residence of one Karan Singh, resident of Bhagata Nagla Police Station, Sahaswan whereafter Section 364 I.P.C. was deleted. The inquest of the deceased (Panchayatnama) (Exhibit-Ka/8) has been conducted on the same day i.e. 24th May, 2013. The information of the dead body was given by the informant as per the inquest. The Inquest Witnesses opined that the death of the deceased is due to some untoward incident for the reason that she was quietly buried on the banks of river Ganges, therefore for ascertaining the cause of death of the deceased, post-mortem be got conducted. Thereafter the dead body of the deceased was sealed and sent to Mortuary.

5. The autopsy of the deceased was conducted by Autopsy Surgeon, Dr. Sanjay Kumar Saxena (P.W.-6) on 25.05.2013. In the opinion of P.W.-6, the cause of death was asphyxia due to throttling.

6. On submission of the charge-sheet dated 1st August, 2013, the cognizance was taken and ultimately, the matter was referred to the court of Sessions and the case was registered as Sessions Trial No. 723 of 2013 (State vs. Smt. Rajjo & 4 Others) arising out of Case Crime Nos. 264 of 2013 under Sections 147, 498-A, 302 read with 149, 201 I.P.C. and Sections 3/4 of Dowry Prohibition Act, Plice Station Ujhani District-Buadaun.

7. The prosecution in order to establish the charge against the accused persons including the accused-appellant has filed following documents:

"(i) the written report given by the first informant Ram Niwas dated 19th May, 2013 has been marked as Exhibit-Ka-1;

(ii) the first information report registered on 19th May, 2013 has been marked as Exhibit-Ka-3;

(iii) panchayatnama of the body of deceased dated 24th May, 2013 has been marked as Exhibit-Ka-8;

(iv) site plan with index dated 24th May, 2013 has been marked as Exhbiti-Ka-5;

(v) post-mortem report of the deceased dated 25h May, 2013 has been marked as Exhibit-Ka-2;

(vi) site plan with index dated 04h July, 2013 has been marked as Exhbiti-Ka-6;

(vii) Charge-sheet dated 1st August, 2013 has been marked as Exhibit-Ka-7."

8. After recording of the prosecution evidence, the incriminating evidence were put to the accused for recording his statement under section 313 Cr.PC. In his statement recorded U/s 313 Cr.P.C. the accused-appellant denied his involvement in the crime. Accused-appellant specifically stated before the trial court that he has been falsely implicated in this case. The defence however did not examine any witness from its side.

9. The court below on the basis of evidence led by the prosecution has convicted the accused-appellant and sentenced him to imprisonment for life. Aggrieved by it the accused-appellant is before this Court.

10. Sri Shivendra Raj Singhal, learned counsel for the accused-appellant submits that all prosecution witnesses have turned hostile and the recovery, allegedly made on the pointing out of the accused-appellant is not established. He further submits that the alleged recovery otherwise cannot be read against the accused-appellant as this incriminating material has not been put as a distinct/ specific question to the accused and, therefore, his right to explain the circumstances under Section 313 Cr.P.C. has been denied. Submission is that the accused-appellant is liable to be set free by setting aside the judgment of conviction.

11. Learned A.G.A., per contra, submits that the recovery of dead body is duly proved by P.W.-8 and P.W.-9 and the same has rightly been relied upon to convict the accused. It is also submitted that the accused being the husband is otherwise expected to explain the cause of death of deceased as she was residing with the accused. She has placed reliance upon the judgment of the Supreme Court in Jafarudheen & Ors Vs. State of Kerala, (2022) 8 SCC 440 on the aspect relating to recovery under Section 27 of the Evidence Act as also the judgment of Supreme Court in Sabitri Samantaray Vs. State of Odisha, 2022 SCC Onilne SC 673 on the aspect relating to applicability of Section 106 of the Evidence Act against the accused-appellant on the ground that being the husband it was for him to explain the circumstances relating to the death of his wife.

12. In order to prove the charge levelled against the accused-appellant the prosecution has adduced the evidence of four witnesses. P.W.-1, Ram Saran is the father of the deceased, who in his testimony has clearly stated that no demand of dowry was ever made by the accused-appellant and he received information that his daughter (deceased) and her children were not at home and when he came to the house of his daughter he found that the deceased and her children were not there. Not being furnished with any plausible explanation the F.I.R. was lodged. He has however, stated that the dead body of deceased has not been recovered in his presence and that both children of the deceased had already been recovered. He has emphatically denied the charge that the accused has killed his daughter. In his cross-examination he has stated that when he reached the house of his daughter both her children were at home. It was only the deceased who was missing. P.W.-1 has thus been declared hostile.

13. P.W.-2 namely, Narendra is the cousin of the deceased, who too has turned hostile and has not supported the prosecution case. Similarly P.W.-3 Hardwari Lal, who happens to be the neighbour of P.W.-1 has also been declared hostile. This witness was otherwise a hearsay witness. P.W.-4 namely, Rajeshwari is the mother of the deceased, who also has been declared hostile and has not supported the prosecution case. P.W.-5 namely, Rajesh is the real brother of the deceased, who too has been declared hostile and has not supported the prosecution case.

14. The prosecution case is that the dead body of the deceased has been recovered on the pointing out of the accused-appellant. This fact is sought to be proved by the prosecution witnesses, P.W.-8, who is the Investigating Officer, who has stated that the accused-appellant was arrested on 24.05.2013 and on his pointing out the dead body of the deceased has been recovered from the bank of river Ganga. It is also alleged that the Nayab Tehsildar and officiating Inspector were also present at the spot. He has proved the sight plan, which is marked as Exh. Ka-5. The other prosecution witness namely, Vimal Kumar Shukla (P.W.-9) is the Nayab Tehsildar and has stated that the accused-appellant took the police personnels and shown the place where the dead body of the deceased was buried and on his pointing out the body was recovered and the accused also verified the body to be of his wife. He has further stated that co-accused Ganpat, Jaiveer etc. had helped the accused in burying the dead body.

15. The post mortem has been conducted of the dead body, which has been proved by the Autopsy Surgeon, Dr. Sanjay Kumar Saxena (P.W.-6). The post mortem report shows the cause of death to be asphyxia due to throttling. Following external as well as ante-mortem injuries have been found on the dead body:-

external examination-

eye closed, mouth half opened.

Body swollen and sand present all over the body

Hair and nails are loosened.

Skin peeled off at places. Abdomen distended. Cornea fall in. purplish streaks of vein prominent on body.

Ante-mortem injury-

1. abraided contusion 6cm x 4cm on right side of neck just below right ear.

Underneath injuries-

1. Trachea congested.

2. muscle under the injury is ecchymosed.

16. The panchayatnama has also been conducted on 24.05.2013 in which Ram Saran (P.W.-1) is stated to be the person who had informed about the recovery of the dead body. The inquest report further records that there are injuries on the body. From the post mortem as well the panchayatnama it is apparent that the cause of death of the deceased is homicidal.

17. However, the evidence on record shows that there is neither any disclosure statement of the accused-appellant nor any recovery memo has been prepared in respect of the recovery of the dead body. Except the statement of P.W.-8 and P.W.-9 there is nothing on record to show that dead body has been recovered on the pointing out of the accused-appellant. The dead body otherwise has been recovered from the bank of river Ganga.

18. In the event, the prosecution version that the accused had informed the Investigating Officer about the place where the dead body was hidden/buried is to be believed then a disclosure statement of the accused in that regard ought to have been recorded and a recovery memo was required to have been prepared to show that it was on the basis of disclosure made by the accused-appellant that the dead body itself has been recovered. Such disclosure statement and recovery memo was also expected to have been proved. No independent witness has otherwise come forward to testify that it was on the pointing out of the accused-appellant that the dead body itself was recovered. Mere statement of P.W.-8 and P.W.-9 that the accused-appellant informed the location of dead body would not be sufficient to prove the fact that the place where dead body was hidden/buried was disclosed by the accused-appellant or that the recovery of dead body was made on the pointing out of the accused-appellant. The circumstance relating to the alleged recovery of the dead body on the pointing out of the accused-appellant, therefore, has not been established/ proved by the prosecution.

19. Learned A.G.A. has placed reliance upon the judgment of Supreme Court in Jafarudheen and Ors. (supra) wherein the Court observed as under in paragraph 30 and 31 of the judgment which is reproduced:-

"30.Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of "confirmation by subsequent facts"facilitating a link to the chain of events. It s for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso.

31. The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act."

20. The above observation does not support the prosecution case inasmuch as the information having been received while accused is in custody of police the recovery under Section 27 of the Evidence Act must satisfy the Court's conscience as the possibility of prosecution taking advantage of the custody of the accused, by other means, cannot be ruled out. In the facts of the case we have already observed that there is neither any independent witness to the recovery nor any recovery memo has been prepared. There is also no disclosure statement. The accused has otherwise been denied proper opportunity to explain the aspect of recovery under Section 313 Cr.P.C. and, therefore, the prosecution case of recovery of dead body at the pointing out of the accused-appellant cannot be accepted.

21. The post mortem report also mentions that the death of the deceased has occurred about a week prior to holding of the post-mortem. The post mortem has been conducted on 25.05.2013 and a week prior thereto would indicate the likely date of death as 18.05.2013. The F.I.R. has been lodged on 19.05.2013, as per which the deceased was not tracable. The evidence, therefore, suggests that the deceased had gone missing on 19.05.2013 for a day or so, and the circumstance that no F.I.R or missing report was lodged by him goes against the accused-appellant. The fact that he did nothing to report the absence of his wife at the house or inform the parents of the deceased or even the police personnels is a circumstance which creates suspicion against the accused-appellant of committing the offence. Law is however settled that mere suspicion, per-se, howsoever strong cannot be a substitute for the positive evidence to be led by the prosecution in order to establish the guilt of the accused. The conduct of accused-appellant in not reporting the absence can be a corroborative piece of evidence.

22. The dead body of the deceased has been recovered from the bank of river Ganges. So far as plea of learned A.G.A. based upon Section 106 of the Evidence Act is concerned, we may gainfully refer to the judgment of Supreme Court in Sabitri Samantaray (Supra), wherein the Court has observed as under in paragraph 18 and 19 of the judgment:-

"18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove.

19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681]"

23. Since the prosecution has not been able to prove the recovery of dead body at the pointing out of the accused-appellant and all witnesses of fact have turned hostile, it would not be open for the prosecution to rely upon Section 106 of the Evidence Act to exonerate it of its obligation to prove the guilt of accused-appellant beyond reasonable doubt.

24. We may also notice one of the mitigating circumstances on part of the accused-appellant. The accused-appellant was throughout present and has joined the attempts to trace out the deceased. The two minor children of deceased have already been traced/ recovered. The fact that accused-appellant had remained present and made no attempts to flee from the place to a certain extent mitigates his conduct in not reporting the absence of his wife. Apart from this circumstance of not reporting the absence of deceased there is no other evidence led by the prosecution to prove the guilt of the accused-appellant. The period of absence of deceased from her house is otherwise not very long and is at best about a day's time.

25. We may also take note of the fact that on the aspect relating to alleged recovery of the dead body the prosecution has not put any specific question relating to the circumstance of dead body being recovered on the pointing out of the accused-appellant. The adverse circumstance against the accused has been put to him in eight questions. Second question is a lengthy question which virtually contains the entire substance of prosecution evidence and includes reference to the statements of P.W.-8 and P.W.-9 with regard to the recovery of dead body at the pointing out of the accused-appellant.

26. It is by now well settled that Section 313 Cr.P.C. vests an important right in the accused to explain the adverse circumstances against him appearing in the matter. The manner of putting question has also been commented upon by the Supreme Court and the practice of putting entire evidence against the accused in a single question has been deprecated on the ground that it curtails the right of the accused to specifically explain each distinct and separate circumstance that appears in evidence against the accused.

27. In a recent judgment of the Supreme Court in Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, which has been relied upon by the counsel for the accused-appellant the Court has relied upon an earlier judgment in Naval Kishore Singh Vs. State of Bihar, (2004) 7 SCC 502 and observed as under:-

"9. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502, it was held to an essential part of a fair trial observing as follows :­

"5......The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence..."

(emphasis supplied by us)

28. The manner in which the prosecution has put incriminating circumstance by clubbing all facts/ circumstances in one question cannot be treated to be sufficient opportunity to the accused to reply to the alleged recovery of dead body, on his pointing out, for which no recovery memo or disclosure statement was otherwise prepared. We are, therefore, of the considered view that the circumstance relating to alleged recovery of dead body of the deceased cannot be relied upon against the accused-appellant in the facts of the present case.

29. Since all other witnesses of fact have turned hostile and the prosecution has not been able to independently prove that the offence has been committed by the accused-appellant beyond reasonable doubt, as such the finding of guilt returned by the court below against the accused-appellant cannot be sustained. We find from the record that neither the aspect relating to non-preparation of recovery memo and disclosure statement has been dealt with nor even the non mentioning of circumstance relating to recovery as a distinct incriminating material has been put to the accused under Section 313 Cr.P.C. There is a complete non consideration of these crucial aspects in the judgment of the court below. Merely relying upon the statements of P.W.-8 and P.W.-9 to hold that the dead body was recovered on the pointing out of the accused-appellant would clearly be impermissible in law for the reasons recorded above.

30. For the aforesaid reasons and discussions, this appeal succeeds and is allowed.

31. The conviction and sentence awarded to the accused-appellant is accordingly reversed. The judgment and order dated 20.02.2018 passed by Addtional Sessions Judge, Court No.04, Budaun, in Sessions Trial No. 723 of 2013 is set aside. The accused-appellant Ram Niwas, who is in jail since 25.05.2013 shall be released forthwith subject to compliance of Section 437-A Cr.P.C., unless he is wanted in any other case.

32. Let a copy of this judgment be sent to the Chief Judicial Magistrate, Budaun henceforth, who shall transmit the same to the concerned Jail Superintendent for release of the accused-appellants in terms of this judgment.

                               (Shiv Shanker Prasad, J.)        (Ashwani Kumar Mishra, J.)
 
Order Date: 01.12.2022
 
Abhishek Singh