Om Prakash And 2 Others vs State Of U.P.
2023 Latest Caselaw 23729 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:173666-DB
 
CJ's Court
 
Criminal Appeal No. 2519 of 2013
 

 
      1. Om Prakash
 
      2. Nandu Ram
 
      3. Smt Hirawati Devi			                               Appellants
 
Vs 
 
          State of U.P. 						   	Respondent 
 

 
    	For Appellants	  :  	  Sri Gaurav Mahajan, Amicus
 
	For Respondent       :	  Sri J.K. Upadhyay, AGA
 

 
Hon'ble Pritinker Diwaker, CJ.
 
Hon'ble Samit Gopal, J.

Per: Pritinker Diwaker, CJ

(29.8.2023)

1. This appeal arises out of impugned judgment and order dated 30.4.2013 passed by Additional Sessions Judge Ist, Chandauli in Sessions Trial No.250 of 2008 (State vs. Om Prakash and others), arising out of Crime No.60 of 2008, Police Station Chakiya, District Chandauli, convicting and sentencing all the appellants u/s 498A IPC to undergo rigorous imprisonment for three years with a fine of Rs.5000/- each, in default thereof, they have to undergo additional rigorous imprisonment for one year; u/s 304B IPC to undergo imprisonment for life; u/s 201 IPC to undergo rigorous imprisonment for three years with a fine of Rs.5000/- each, in default thereof, they have to undergo additional rigorous imprisonment for one year; u/s 3 of Dowry Prohibition Act to undergo rigorous imprisonment for five years with a fine of Rs.15000/- each, in default thereof, they have to undergo additional rigorous imprisonment for two years and u/s 4 of D.P. Act to undergo rigorous imprisonment for two years with a fine of Rs.5000/- each, in default thereof, they have to undergo additional rigorous imprisonment for one year, with a further direction that all the sentences to run concurrently.

2. In the present case, the name of deceased is Banita Devi, wife of accused, Om Prakash. Their marriage was solemnized on 24.05.2005 and her dead body was found in a gunny bag near the banks of a river on 25.03.2008. Later on, the body was identified as that of the deceased on the basis of her clothes. Neither there is any recovery memo of the dead body nor any identification memo. On the basis of written report Ex.Ka-1, lodged on 19.03.2008, an FIR, Ex.Ka-4 was registered on 19.03.2008 at the instance of PW-1 (Ram Naresh), father of the deceased against the accused appellants and one Banarasi, the brother-in-law of the deceased, who later on, has not been prosecuted by the prosecution.

3. Inquest on the dead body of the deceased was conducted on 25.03.2008 vide Ex.Ka-2 and the body was sent for post mortem, which was conducted on 25.3.2008 vide Ex.Ka-6 by PW-6.

4. As per post-mortem report, following injuries were noticed on the body of the deceased:

"1. Depressed area on Left lower chest, ribs no. 9, 10, 11 left side fractured.

2. Left clavicle (collarbone) at lateral part fractured."

According to autopsy surgeon, cause of death of the deceased was due to shock as a result of haemorrhage due to anti-mortem injury.

5. While framing charge, the trial judge has framed charge against the accused appellants under Sections 498A, 304B, 201 of IPC and Section 3/4 of Dowry Prohibition Act.

6. So as to hold accused persons guilty, prosecution has examined eight witnesses. The statement of accused persons were also recorded under Section 313 Cr.P.C. in which, they pleaded their innocence and false implication.

7. By the impugned judgment, the trial judge has convicted all the accused appellants as mentioned in paragraph no.1 of this judgement. Hence this appeal.

8. Learned counsel for the appellants submits:

(i) that there is no evidence on which basis the accused appellants can be convicted u/s 498A, 304B, 201 of IPC and u/s 3/4 of DP Act;

(ii) that the basic ingredients of Section 304B IPC are completely missing;

(iii) that there is no recovery memo of the body of deceased, likewise there is no proper identification of the dead body. The deceased has been identified on the basis of her clothes by PW-1 (Ram Naresh), father of the deceased, who is residing in a separate village and, therefore, question of identification of the dead body of the deceased on the basis of her clothes, does not arise.

(iv) that presumption u/s 113B of the Evidence Act has wrongly been applied by the trial judge;

(v) that there is no evidence on record that prior to her death, the deceased was in the company of accused persons in her house;

(vi) that the husband of the deceased Banita Devi is in jail since last more than 15 years, which is good enough to justify his conviction;

(vii) that the dead body of the deceased was found in a gunny bag in the river and not in the house of accused persons and thus, it cannot be said that it is the accused appellants, who committed the murder of the deceased; and

(viii) that accused Nandu Ram, father-in-law and accused Smt Hirawati Devi, mother-in-law of the deceased were on bail during trial and even after conviction, they have been granted bail by this Court and they have already remained in jail for almost five years.

9. On the other hand, supporting the impugned judgment, it has been argued by the State counsel:

(i) that the conviction of the appellants is strictly in accordance with law and there is no infirmity in the same;

(ii) that no probable acceptable explanation has been offered by the accused persons in their 313 Cr.P.C. statement and once unnatural death has been proved by the prosecution, burden lies upon the accused persons to prove their innocence; and

(iii) that dead body of the deceased was found in a gunny bag and, therefore, it was for the accused persons to explain as to how the dead body was found in a gunny bag.

10. We have heard learned counsel for the parties and perused the record.

11. PW-1 (Ram Naresh), is a father of the deceased. He states that marriage of the deceased was solemnized with accused Om Prakash on 24.5.2005 and in the marriage, a sum of Rs.25,000/- in cash along with sufficient gifts and ornaments were given. Thereafter, accused persons started demanding a Hero-Honda motercycle for which they started harassing the deceased and this fact was informed to him by his daughter. He states that though the accused persons had assured him that they will not further harass the deceased but they continued to do so. He further states that his daughter went missing and then he lodged the report and thereafter her dead body was found in a river. He states that he reached to the house of the deceased where he heard certain persons saying that the deceased has been killed by the appellants.

In the cross-examination, he states that after 25.1.2008, his daughter never came to his house nor he had gone to meet her. He states that on the basis of clothes worn by the deceased, he identified her. From the cross examination, it appears that PW-1 (Ram Naresh) had taken the help of a counsel at the time of completion of formalities of lodging the FIR.

12. PW-2 (Pradeep Kumar) is a brother of the deceased. He has given almost similar statement as has been given by PW-1 (Ram Naresh). He too has stated that after 25.1.2008, deceased was residing in her-in-laws' house.

13. PW-3 (Upendra Bahadur Singh) is a villager. He has made an attempt to make similar statement as has been given by PW-1 and PW-2. It appears that this witness is a tutored witness. In the cross-examination, he has not fully supported the prosecution case.

14. PW-4 (Ram Dayal Singh) is a Constable and PW-5 (Uma Shankar Pandey) is a Sub-Inspector. Both these witnesses assisted in the investigation.

15. PW-6 (Dr. Ashok Kumar) conducted the post-mortem on the body of the deceased.

16. PW-7 (Anand Kumar) is the Investigation Officer.

17. PW-8 (Heera Lal Ram) is Naib Tehsildar, who conducted inquest. 18. Close scrutiny of the evidence makes it clear that there is hardly any legally admissible evidence against the accused appellants. True it is that the marriage of the deceased was solemnized with accused Om Prakash on 24.5.2005 and the deceased died an unnatural death in the night intervening 16/17.3.2008 but there is no evidence to suggest that it is the accused appellants, who committed the murder of the deceased. The prosecution has failed to lead any evidence that the deceased was seen in the company of accused persons in her house prior to her death on or around 16/17.3.2008. Though the dead body of the deceased was found in a gunny bag, but there is no evidence on record to suggest as to how the dead body was packed in a gunny bag and by whom. The distance between the house of the appellants and that of the place where dead body of the deceased was found, is about 5 kilometres and there is absolutely no evidence as to how the body was found in a far of place. The recovery of the dead body has not been proved by any recovery memo and even the identification of the deceased has not been proved in accordance with law. The body is said to have been identified by the father of the deceased, who was residing in a separate village and has admitted the fact that the deceased last came about two months back. He has not stated anywhere that he knew the clothes of the deceased and further, he has nowhere stated that the body has been identified by him on the basis of her face or any other portion of the body. The witnesses have admitted the fact that since last two months, deceased did not come to their house and was residing in her in-laws' family. Thus, there is no evidence on record to show that soon before the death, deceased was subjected to cruelty by the accused persons. There are material contraditions in the statement of prosecution witnesses and the benefit of the same has to be extended to the accused persons. Most important aspect of the case is that there is no conclusive evidence that it is the appellants who committed the murder of the deceased. No such incriminating evidence has been adduced by the prosecution pointing out the guilt of the appellants in commission of the murder of the deceased.

19. For bringing home within the ambit of Section 304B IPC, prosecution was required to prove the basic ingredients of said section but in the present case, the material contradictions prove that the basic ingredients of Section 304B IPC are completly missing.

20. In Sunil Bajaj vs. State of M.P., (2001) 9 SCC 417, the Supreme Court, while dealing with dowry death, observed as under:

"We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied:

(1) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(2) such death must have occurred within 7 years of her marriage;

(3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;

(4) such cruelty or harassment must be for or in connection with demand of dowry."

In Tirath Kumari @ Raj Rani and another vs. State of Haryana, (2005) 12 SCC 561, the Supreme Court observed as under:

"It is not disputed that the incident had taken place within seven years of marriage. Section 304B IPC requires the following ingredients to be established before the presumption can be drawn under Section 113B of the Indian Evidence Act :

(a) the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage;

(b) it must be shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives;

(c) such cruelty or harassment must be in connection with demand of dowry.

If the aforesaid ingredients are established then the death shall be called as dowry death. Once the aforesaid ingredient are established by the prosecution, the presumption under Section 113B of the Indian Evidence Act shall be drawn."

21. In Sattatiya @ Satish Rajanna Kartalla Vs. State of Maharashtra, (2008) 3 SCC 210, the Supreme Court, while dealing with circumstantial evidence, observed as under:

"11. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343], which is one of the earliest decisions on the subject, this court observed as under:

"10. ...... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

12. In Padala Veera Reddy v. State of AP [(1989) Supp (2) SCC 706], this court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else."

13. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;

(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."

In S. Govindaraju v State of Karnataka, (2013) 15 SCC 315, the Apex Court, while dealing with circumstantial evidence, observed as under:

"29. It is obligatory on the part of the accused while being examined under Section 313 of Cr PC to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide: Munish Mabar v. State of Haryana, AIR 2013 SC 912).

31. The prosecution successfully proved its case and, therefore, provisions of Section 113 of the Evidence Act, 1872 come into play. The appellant/accused did not make any attempt, whatsoever, to rebut the said presumption contained therein. More so, Shanthi, deceased died in the house of the appellant. He did not disclose as where he had been at the time of incident. In such a fact situation, the provisions of Section 106 of the Evidence Act may also be made applicable as the appellant/accused had special knowledge regarding such facts, though he failed to furnish any explanation thus, the court could draw an adverse inference against him."

In Devi Lal vs. State of Rajasthan, AIR 2019 SC 688, the Supreme Court, while dealing with circumstantial evidence, observed as under:

"14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 (4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite:

153. 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 Sahabrao Bobade & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the 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."

22. Considering the law laid down by the Apex Court in the aforesaid cases, and the factual matrix of the case, we are of the view that the prosecution has failed to prove its case beyond all reasonable doubts against the appellants. The appellants are entitled to get the benefit of doubt.

23. The appeal is, accordingly, allowed.

24. The accused appellant no.2-Nandu Ram and accused appellant no.3-Smt Hirawati Devi are reported to be on bail and, therefore, the bail bonds are cancelled and sureties are discharged. Accused appellant no.1-Om Prakash is reported to be in jail. He be set free forthwith, if not required in any other case.

25. A copy of this judgment along with the original trial court record be sent to the concerned trial court for compliance.

26. We appreciate the assistance rendered by Sri Gaurav Mahajan, Amicus. He would be entitled to receive Rs.10,000/- towards his remuneration from the High Court Legal Services Committee.

 
       Date: 29.8.2023
 
       RK
 
         (Samit Gopal, J)       (Pritinker Diwaker, CJ)