Har Prasad @ Lala vs State
2005 Latest Caselaw 558 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal Nos. 920 of 2002, 933/2002, 497/2002, 743/2002, 771/2002 and 394/2003 are directed against the judgment and order dated 13.5.2002 of the Additional Sessions Judge in Sessions Case No. 90/2000 in FIR No. 147/99, Police Station Mansarovar Park, whereby the learned Judge has held the appellants guilty of the offence punishable under Sections 120B, 302/120B and 201/120B IPC. The learned Judge vide separate order of the same date sentenced the accused persons to suffer rigorous imprisonment for three years under Section 120B IPC, for life under Section 302/120B IPC together with a fine of Rs.2,000/-, in default thereof further rigorous imprisonment of two months. The learned Judge has also sentenced the accused persons under Section 201/120B IPC for a period of three years and a fine of Rs.1,000/- each and in default further rigorous imprisonment for one year.

2. The facts of the case, as noted by the Additional Sessions Judge in his judgment under challenge, are that :

"accused Sunita was having illicit relation with accused Raj Kishan. In order to materialise the same, she wanted to get rid of the victim. So she got her husband murdered.

The case was registered on rukka sent by Insp.Suresh Kaushik of anti robbery Cell, Crime Branch. The rukka recites that the Insp.received information that some boys involved several incidents of murder and had killed one person in Gali No. 13, Ashok Nagar, in association with the wife of the victim, would be assembling in front of Gagan Cinema. Insp.formed a raiding party and at the instance of the secret informer apprehended Har Parshad @ Lala, Raj Kishan @ Babli, Vijay Kumar and Prehlad. Initially the said accused persons tried to tell their wrong names and address but ultimately they disclosed that they Along with accused Sunita murdered Vinod and threw the dead body in a septic tank in the house of victim. Accused Sunita reached to meet said accused persons at 7.00 P.M. She was apprehended. She also made disclosure implicating herself, aforesaid four persons and one more person namely Rakesh. Accused Rakesh was arrested at the instance of accused Vijay and Prehlad from Tyagi Public School, Sangam Vihar. He made disclosure and pointed out the place of occurrence. Next day accused Har Parshad, Raj Kishan, Sunita and Vijay pointed out the place of occurrence and got a dead body recovered from septic tank in H. No. D-1/405, Gali No. 13, Ashok Nagar which was at a height of 5' from the street level. Information was given to the SHO of the area.

During investigation the dead body was got post mortemed. The Doctor did not give any opinion about the cause of death as the body was almost decomposed. Scene was got photographed. Parents and brother of the deceased were called. Their blood sample was taken and sent for DNA test. The DNA test could not give any opinion as DNA obtained from tissues of deceased was highly degraded and contained inhibitors and was not amenable for analysis. Sunita got a muffler of deceased recovered. Raj Kishan got a wrist watch of deceased recovered. Remaining four accused got various ornaments of deceased and his wife recovered. Property was got identified in TIP from Ram Naresh, brrother of the deceased and Mala Misra neighbours of the deceased. Statements of the witnesses were recorded. After completing the investigation challan was filed. Copies were supplied. Case was committed to the court of session. The learned predecessor of this court found a prima-facie case for offence u/s 120B, 302/120B and 201/120B IPC. Accordingly a charge was framed to which all the accused pleaded not guilty."

3. The prosecution in order to prove its case examined 26 witnesses. Of these, PW-1, Ram Naresh Sharma, the elder brother of the deceased, deposes that he last met his brother on 7.3.1999 at which time the accused, Raj Kishan, who was a tenant of his deceased-brother, had come to the house of the deceased Along with four other persons. All of them were entertained by his brother as also his wife, Sunita, who would not allow any one of them to leave without taking food. In the evening after having dined at 8.30 p.m., this witness went to the house of his cousin at Shanti Nagar, Loni, U.P. leaving all the accused persons in the house of the deceased. This witness returned after 7-8 days and found that his brother was not present at his house. On inquiry, he was told by Sunita that her husband after quarreling with her had gone somewhere. Yet after a gap of another 7-8 days he again visited the house of his brother but could not meet him as he was not available. On inquiry, Sunita gave an evasive reply. This witness then went back to his village and began searching for his brother. On 11.6.1999, neighbour, Sunder Singh, informed PW-1 that the body of his brother had been recovered from a septic tank of the house of Sunita. This witness then went to the spot and identified the body vide Ex.PW-1/B. He informed the police that his brother had told him that his wife, Sunita, was having illicit relations with his tenant, Raj Kishan, and on his advice Raj Kishan was evicted. This witness also identified the ring, muffler and wrist watch of the deceased.

4. In cross-examination this witness states that he was informed by his deceased-brother of the illicit relations between Sunita and Raj Kishan 2-3 months prior to 7.3.1999. He also states that he did not lodge any missing report from 7.3.1999 to 11.6.1999. This witness categorically states that he recognised the body of his brother from the face and teeth. He admitted that he did not tell his parents about Sunita having illicit relations with Raj Kishan. He also admitted that he did not inquire from his brother as to why he was entertaining Raj Kishan on 7.3.1999. No person, except the accused persons came visiting the house during his stay at the residence of his brother on 7.3.1999.

5. PW-6, Baru Sharma, is the father of the deceased. He identified the body vide Ex.PW-6/A. He also deposes that he and his wife gave blood samples for DNA tests. He admits in cross-examination that the marriage between Sunita and the deceased was a love marriage and that none of the family members attended the same. This witness admits that Sunita had informed them about Vinod Sharma having left the house after quarreling with Sunita.

6. PW-7, Mahenderi Sharma, mother of the deceased, supports the statement of PW-6.

7. Another important witness is PW-8, Mala Mishra. She is a neighbour and deposes to the fact that on 7.3.1999 she went to the house of the accused, Sunita, at about 8.30 p.m. to bring a fawra (an agricultural implement) and saw all the accused persons present there along with PW-1, Ram Naresh Sharma. She also states that on 11.6.1999 she was standing in the gali in front of the house of the deceased when police came along with the accused persons to recover the body. She identified the body of the deceased. She also states that Sunita used to allow Raj Kishan to visit her house in the absence of her husband and on various occasions allowed Raj Kishan to consume liquor at her house. Sunita had been warned by the mohalla people that she should mend her ways. The witness further states that she had seen Raj Kishan sleeping with Sunita at the roof of Sunita's house. She too identified the ring, muffler and wrist watch of the deceased.

8. In cross-examination this witness admits that it was not possible to recognise/identify the deceased from the face but that she identified the body with the aid of the underwear.

9. PW-14, HC Ram Kishan and HC Kewal Singh are witnesses of the arrest of the four accused persons and are also witnesses to the so-called disclosure statement made by each of the accused. Both these witnesses admit that no independent witnesses were joined at the arrest and/or at the recovery of the body.

10. PW-20, SI Aisweer Singh, is witness to the recovery of the muffler of the deceased, Ex.PW-20/A. Further, he testifies to the recovery of wrist watch from Raj Kishan, Ex.PW-20/B, gold ring from Har Prasad, Ex.PW-20/C, recovery of tagdi belonging to Sunita, Ex.PW-20/F, while kundal was recovered from the house of Vijay, Ex.PW-20/G. Prahlad got recovered another kundal vide Ex.PW-20/H. This witness categorically admitted in cross-examination that none of the recoveries were witnessed by any independent witnesses and no neighbours were joined.

11. The accused, Sunita, in her 313 statement admitted that she was the wife of Vinod Sharma but denied that she was having any illicit relations with Raj Kishan or that the alleged deceased had got his house vacated from Raj Kishan. She categorically denied that on 7.3.1999 Ram Naresh Sharma came to the house and also denied the manner of arrest by the police and denied having made any disclosure statement leading to the recovery. She states that the recoveries were effected from the house of Sunita which was her stridhan and same was shown to have been recovered in piecemeal from different accused persons.

12. With the assistance of counsel for the accused and also counsel for the State, we have been taken through the entire depositions on record as also other material. It appears to us that the case of the prosecution rests purely on circumstantial evidence inasmuch as (i) the last seen for which the prosecution has relied upon PW-1, Ram Naresh, and PW-8, Mala Mishra which is on 7.3.1999 about three months prior to the recovery of the body from the septic bank; (ii) recovery of a body on 11.6.1999 from the septic tank of the house of Sunita; (iii) recovery of wrist watch of the deceased pursuant to the disclosure statement; (iv) alleged motive of illicit relation between Sunita and Raj Kishan; (v) identification of the dead body by PW-8 on the basis of the underwear and by PW-1 on the basis of the teeth and face structure.

13. Taking the circumstances, as they come, PW-1, Ram Naresh Sharma, states that so long as he was present in the house along with the deceased and his wife on 7.3.1999, except for the accused persons no one else visited the house. He admits that the alleged deceased and Sunita were entertaining the other accused persons even though, according to this witness, his brother had told him that Raj Kishan was having illicit relations with his wife, Sunita two or three months prior to 7.3.1999.

14. PW-8, Mala Mishra, deposes that she saw the accused persons as also PW-1, Ram Naresh Sharma, at the house on 7.3.1999 at 8.30 p.m. when she went to borrow an agricultural implement. There is, however, nothing to show that the fawra had been, in fact, taken by Mala Mishra since we have no recovery of the same on record. PW-1 categorically states that no other person came to the house while he was there except the accused persons and his brother. The contradiction between PW-1 and PW-8 to the presence of each other on 7.3.1999 at the house of the deceased is a material contradiction. However, presuming that Vinod Sharma was last seen on 7.3.1999 in the company of the accused persons, this, in itself, does not prove the charge of murder. The next circumstance is the recovery of the body on 11.6.1999 from the septic tank of the house of Sunita. The body so recovered, presumably at the instance of the accused persons, was so badly mutilated and decomposed that it defied recognisition which has been admitted by PW-3, PW-4 and PW-8. DNA test was done to ascertain the identity of the body which result did not establish that the body recovered was that of Vinod Sharma, son of PW-6 and PW-7, the admitted father and mother of Vinod Sharma. This body was alleged to be identified by PW-1 on the basis of his teeth. The witness does not, in any manner, depose as to what was the special features in the teeth which he noticed although the Investigating Officer and the neighbour, PW-8, Mala Mishra, state that it was not possible to recognise the body from the face. The condition of the body was such that its limbs had fallen apart, muscles, flesh and soft tissues disintegrated leaving a bare skeleton. It is highly improbable that PW-1 could have identified Vinod Sharma from the teeth of the skeleton. To say that the body was recovered from the septic tank of the house of Sunita is not correct. The so called septic tank is 5 feet higher than the floor level of the house. Surely this can be the tank serving only the house of the accused.

15. PW-8 is yet another witness who recognises the body with reference to the underwear. There is nothing on record to show that the deceased, Vinod Sharma, roamed around in his underwear or that there was anything peculiar about the underwear or that PW-8 was so intimate as to be aware of the under garments of Vinod Sharma and, therefore, could have identified the body on the basis of an underwear. We are not impressed with the so-called identification of the body to be that of Vinod Sharma, husband of Sunita. Mere recovery of body would not foist the liability of the murder of Vinod Shama on the accused persons. It is interesting to note that even the post mortem Doctor has not been examined by the prosecution. In other words, the post mortem report regarding the date of death or the manner of death has not been established by the prosecution.

16. The recovery of the body from the septic tank has not been witnessed by any independent person and no public witness was associated with the recovery although they are all stated to have been available. Further, the so-called recovery is made pursuant to a joint recovery memo which is inadmissible under Section 27 of the Indian Evidence Act. Reference may be had to Kavinder and Ors v. State, 2005 (1) JCC 53, Satish Kumar v. State, 1995 (4) Crimes 305, Chander Pal v. State, 1998 (2) JCC 207 and Jaivir Singh v. State 1995 Crl.L.J. 1477.

17. The motive of the crime appears to be an illicit relation between accused, Sunita and Raj Kishan. This was stated to have been known to Vinod Sharma and yet on 7.3.1999, strangely, Vinod Sharma is entertaining his wife's paramour in his own house in presence of his elder brother, PW-1. This does not appeal to reason. The testimony of PW-8, which has been pressed into service, is in the nature of a canard. She has gone to the extent of even seeing the accused, Sunita and Raj Kishan, in bed on the open roof of the house of Sunita and has deposed that the entire mohalla was extremely agitated at the relationship between Sunita and Raj Kishan, yet nobody from the mohalla has been examined to corroborate the so-called illicit relationship. Vinod Sharma and Sunita have a 10 years old son who may have been a good witness had the prosecution examined him. The motive pressed into service by the prosecution is self-defeating inasmuch as there is nothing on record to show that the other accused persons, other than Raj Kishan, would lend their services to accomplish the task of killing Vinod Sharma when no special relationship is shown between the accused persons. The scattered odd recoveries of a ring and/or wrist watch as also sliver jewellery items of Sunita recovered from the other accused, do not inspire confidence. In any case, there is nothing on record to show that the wrist watch recovered was, in fact, ever purchased by Vinod Sharma or had any peculiar speciality from which it could be identified. Similar is the case of ring. The non-joining of independent witnesses, though they were all available, creates doubt as to the authenticity of the recovery.

18. The last but not the least, the manner of arrest made of the accused persons from Gagan cinema is also a suspect. The rukka from secret informer to the effect that some boys involved in several incidents of murder, will assemble in or around Gagan Cinema, implies that the factum of death of Vinod Sharma already stood in the knowledge of the police. In other words, the informer had information which he supplied regarding the murder. It is not the case of the prosecution that the accused were absconding yet the police had to hold a 'nakabandi'. Even after having apprehended Har Prasad, Vijay Kumar and Prahlad, kept waiting for Sunita to arrive at the spot. It defies reason as to why Sunita would visit the co-accused at Gagan cinema. Surely, it is not the case of the prosecution that Sunita had gone to make any payments for the work done. Further, having elicited information regarding the body, there was no reason why the police should have waited for the following day to make recovery. It is here that independent witness of arrest becomes important. In the present case, even though the place is a busy area, yet no independent witness has been joined at the time of arrest. There is nothing on record to show that the accused persons had any prior criminal record or had for that matter committed any criminal acts for which they have been separately proceeded with. The so-called secret information does not inspire confidence.

19. Taking the totality of the case, we find that there is no evidence on record to show that the body recovered from the septic tank was that of Vinod Sharma. The so-called motive, namely, illicit relationship, is not established beyond doubt. There is nothing on record to show that Har Prasad, Vijay Kumar or Prahlad had any reason to join Raj Kishan and Sunita even if the affair was in existence. The single individual item allegedly recovered from each of the accused persons appears to have been substituted/planted in order to pad up the case. The recoveries made in the absence of any independent witness do not inspire confidence. All recoveries have been made in the presence of the three policemen even when independent witnesses were available.

20. From the above, the so-called chain of circumstances is incomplete. It cannot be said that the material brought on record unerringly points towards the guilt of the accused. It does not conclusively establish that Vinod Sharma has been murdered or that the accused persons are responsible for the murder of Vinod Sharma. The last seen circumstance by itself is incapable of establishing the guilt of the accused. In that view of the matter, we find that the judgment of the trial under challenge cannot be sustained. Accordingly, we allow Criminal Appeal Nos. 920 of 2002, 933/2002, 497/2002, 743/2002, 771/2002 and 394/2003 and set aside the judgment and order under challenge. The appellants are acquitted of all charges. They be released forthwith, if not wanted in any other case.