Hon'ble Anil Kumar Srivastava-II,J.
(Per Anil Kumar Srivastava-II, J.)
1. Shri Avinash Kumar Srivastava, learned counsel for the appellants and Shri Umesh Verma, learned AGA for the State were heard at length.
2. Since both these connected criminal appeals i.e. (CRIMINAL APPEAL No. - 924 of 2013-Dev Bux Yadav @ Pujari (Tantric) vs. State Of U.P.) and (CRIMINAL APPEAL No. - 932 of 2013- Smt. Asha Devi vs.State Of U.P.) arise out of a common judgment, therefore, the same are being decided by a common judgment.
3. Instant appeal arises out of judgment and order dated 29.04.2013 passed by learned Additional Sessions Judge,Court No.2, Faizabad in Sessions Trial No.236 of 2010 arising out of Case Crime No.542 of 2010, under Sections 302 and 201 IPC, P.S. Raunahi, District-Faizabad; State Vs. Dev Bux Yadav @ Pujari (Tantrik) & Smt. Asha Devi wherein accused appellants were convicted under Sections 302 read with section 34 IPC and sentenced to imprisonment for life and fine of Rs.5000/- each, with default stipulation of one month's imprisonment, under section 201 read with section 34 IPC and sentenced to rigorous imprisonment for three years and fine of Rs.5000/- each, with default stipulation of one year's rigorous imprisonment. All the sentences were directed to run concurrently.
4. According to the prosecution version, complainant Krishan Chandra Singh @ Raju resident of Barai Khurd, P.S. Raunahi, District- Faizabad, lodged a first information report at Police Station- Raunahi on 20.6.2010 stating that his daughter Kumari Palak aged about three years is not traceable from 10.30 AM. An oral information about missing of Kumari Palak was given at police out-post Satti Chaura at about 5.00 PM. On receiving the information S.I. Mahesh Singh accompanied with constable Ajay Singh and Ajamat came to Village Barai Khurd. They inquired strictly from Asha Devi wife of Satyavir Singh @ Pintu son of Kali Prasad. Asha Devi told that she had no son. On the instigation of (Tantrik) Dev Bux Yadav @ Pujari, that if she will sacrifice one child than she will be blessed with a son, she called Kumari Palak to her house through Shivam Singh @ Shubham Singh who is brother of Asha Devi and strangulated her neck and killed her. In order to get a son, she had kept the dead body in a suitcase and kept it in a large box in her room. She can get it recovered. In the presence of Ram Pratap Singh and Mata Prasad Singh, Asha Devi opened the large box in her room in which dead body of Palak was concealed in a 24" suitcase of black colour. Dead body of Palak was lying in the house of Asha Devi.
5. On the basis of written report, first information report was lodged and investigation was handed over to the investigating officer Sumeshwar Singh who was station house officer. He proceeded to the place of occurrence and recovered the dead body. Inquest proceedings were conducted on 20.6.2010 at 9.30PM. Dead body was sealed and sent for postmortem. Postmortem was conducted on 21.6.2010 at 2.30 PM . Investigating officer prepared the site plan, recorded the statement of witnesses. After investigation charge-sheet was submitted against the appellants.
6. In order to prove its case, prosecution has produced. P.W. 1 Ram Pratap Singh grand father of the deceased in whose presence dead body was recovered. P.W.2 Chhaya Singh mother of the deceased who was also present at the time when dead body was recovered. P.W. 3 Krishan Chandra Singh father of the deceased and complainant, in whose presence, dead body was recovered and inquest proceedings were conducted. P.W. 4 Constable 470 Ram Sanehi who has prepared the chik FIR and G.D. P.W. 5 Dr. Ghanshaym Singh who had conducted the postmortem on the body of the deceased and found following antemortem injuries:-
Strangulation mark all over the neck size 18cm x 1cm alongwith abrasions and margins situated over coastal cartridge in front of 5cm below chin, 4 cm below both mastoid process.
7. According to the Dr. Ghanshyam Singh, duration of death was about one day. Death was caused due to asphyxia as a result of antemortem strangulation.
8. P.W. 6 constable Nand Lal Verma who is formal witness, P.W. 7 S.I. Sumeshwar Singh investigating officer. P.W. 8 Rajesh Chand Tripathi who has submitted the charge-sheet. P.W.9 S.I. Mahesh Singh Rathore who went to the house of the complainant on receiving information about missing of Palak.
9. In the statement recorded under Section 313 Cr.P.C. Accused Dev Bux Yadav has denied the allegations against him and stated that he is not a Tantrik. He has been falsely implicated due to enmity.
10. Asha Devi has also denied the allegations levelled against her and stated that on 20.6.2010 marriage of her real brother-in-law Atul Singh was fixed. Barat went to Pratrapgrah. Dead body of Palak was recovered in the night of 20/21.6.2010 in the field. Police came and recovered the dead body. She has been falsely implicated.
11. No evidence was adduced in defence.
12. After appreciating the evidence on record. Learned trial court has convicted and sentenced the accused-appellants against which they have preferred the appeal.
13. Learned counsel for the accused/appellants argued that there is absolutely no evidence against the appellant Dev Bux Yadav. He has been convicted on the basis of statement of co-accused Asha Devi which is not admissible in evidence.
14. It is further argued that appellant Dev Bux Yadav is neither a Tantrik nor has any relation with this technique. He is not at all concerned with the death of Palak.
15. On behalf of the appellant Asha Devi it is argued that she has been falsely implicated in this case. There was no motive for her to commit the murder of Palak, who was the daughter of elder brother of her husband. Recovery is not proved under Section 27 of the Evidence Act.
16. It is further submitted that the recovery as alleged is not proved. Time of recovery is not mentioned in the memo of recovery. It has further argued that provision of Sections 8 and 106 of the Evidence Act would only be attracted when recovery under section 27 Evidence Act is legally proved.
17. Learned counsel for the appellant has placed reliance upon Bahadul vs. State of Orissa AIR 1979,Supreme Court,1262, Manoranjan Singh vs. State of Delhi (1998)3 SCC 523, Pancho vs. State of Haryana (2011)10 Supreme Court Case, 165.
18. Per contra, learned AGA submits that recovery on the pointing out of the accused Asha Devi is admissible in evidence. It is contended that when the recovery was made from the room of Asha Devi wherein suitcase was kept in a large box. Dead body was kept in suitcase. Hence, burden lies upon the appellant Asha Devi to explain as to how dead body was there. Burden lies upon the appellant Asha Devi to show the existence of dead body in the suitcase in her room.
19. Learned AGA has placed reliance upon the Prakash Chand vs. State of Delhi Administration (1979)3 SCC 90; A.N. Venkatesh and Another vs. State of Karnataka (2005)7 SCC 714; Chandra Prakash vs. State of Rajasthan 2014 CRL. L.J.2884 (Supreme Court). It is further contended that it is not always necessary for the prosecution to prove the recovery under Section 27 of Evidence Act when burden lies upon the accused. First we will discuss the law on the point of applicability of Section 8 of the Evidence Act.
20. Section 8 of the Evidence Act reads as under:
"Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto."
21. In Prakash Chand v. State (Delhi Administration) (1979)3 SCC 90; it was held by the Apex Court that it was a case of taking bribe of an amount of Rs.30 which was recovered from the file which was in possession of the accused/appellants it was held by the Apex Court that "There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police officer in the course of an investigation which is hit by Section 162 Criminal Procedure Code. What is excluded by Section 162 Criminal Procedure Code is the statement made to a Police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act [vide Himachal Pradesh Administration v. Om Prakash.]" (1972)1 SCC 249.(Emphasis added)
22. In A.N Venkatesh and Another v. State of Karnataka (2005)7 Supreme Court Cases 714. Facts were similar to the present case. Son of complainant did not return from school the missing complaint was lodged. Ransom was demanded. At the place where ransom was to be paid. Accused were arrested by the police, they volunteered that they had kidnapped Madhu and they show the place from where dead body can be recovered, thereafter, they were brought to the police station and were interrogated, their disclosure statements were recorded. Thereafter, on their pointing out dead body was recovered. It was held by the Apex Court that "8. The accused persons were apprehended near the spot where the ransom amount was supposed to be paid. The accused person's presence at the place where they were arrested is a strong circumstance against the accused appellants. There was no apparent plausible reason for their presence alongside the railway track, loitering around a place which is quite far away from the place where they were residing viz., Hosadurga. Their conduct in running away when they saw the police party is also indicative of their guilty mind and is an important piece of evidence showing their conduct. No plausible explanation was given by the accused appellants for their presence at the spot where they were arrested, which was nearby the place indicated in the demand for payment of the ransom amount.
9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand Vs. State (Delhi Admn.) (1979)3 SCC 90. Even if we hold that the disclosure statement made by the accused appellants(Ex. P15 and P16) is not admissible under Section 27of the Evidence Act, still it is relevant under Section 8." (Emphasis added)
23. In Chandra Prakash v. State of Rajasthan 2014 CRI. L.J. 2884; Recovery was attacked on the ground that when the accused led to the discovery of the articles ceased, he was not arrested. Hon'ble Apex Court referred the case of Anter Singh vs State of Rajasthan (2004)10 SCC 657 wherein it was held as under:
"16. The various requirements of the section can be summed up as follows:
(1)The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2)The fact must have been discovered.
(3)The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7)Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
24. It was further held by the Apex Court that the fact whether the accused was formally arrested or not will not vitiate the factum of leading to discovery. Even if the arrest was done after recovery, it would not make any difference.
25. In State of Rajasthan vs. jaggu Ram (2008)12 Supreme Court Cases 51;
" It was held that for the absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy. It was further observed that even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference."
26. In the case of Bahadul v. State of Orissa, AIR 1979 Supreme Court 1262; as relied by learned counsel for the appellant facts were different. Tangia was recovered on the pointing out of accused it was held that " As there is nothing to show that the appellant had made any statement under Section 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it. In these circumstances the mere production of the tangia would not be sufficient to convict the appellant." Reliance was also placed on the Manoranjan Singh's case wherein it was held that at the time making disclosure accused was not in custody of the police. But in the present case when interrogation was made by the police then accused/appellant Asha Devi has made the disclosure statement which is admissible in evidence.
27. According to P.W.9 S.I. Mahesh Singh Rathore an information about disappearance of deceasd was given at the out-post Satti Chaura, P.S. Raunahi he alongwith constable Ajay Singh and Ajmat reached at village Barai Khurd and strictly interrogated the accused Asha Devi who stated that she has no son. Dev Bux Yadav @ Pujari has prompted her that if she sacrifice a child then she will be blessed with a son. Then she called the deceased in her house through her brother Shivam Singh @ Shubham Singh strangulated her neck by cloth and killed her. Dead body was kept in a suitcase which was locked in a large box then she went to her room opened the large box a suitcase of 24" size was there. When locks of suitcase were broken dead body of deceased was found. It has also come in evidence that she avoided to hand over the keys to the police. On the basis of this statement of P.W.9 S.I. Mahesh Singh Rathore learned counsel for the accused-appellant Asha Devi contended that the alleged recovery is not a recovery under Section 27 of the Evidence Act and is not admissible in evidence. It is further contended by him that only piece of evidence against Asha Devi is the recovery which is not proved and she cannot be held guilty of murder of Kumari Palak.
28. According to the first information report exhibit Ka-1 S.I. Mahesh Singh alongwith two constables of out-post Satti Chaura came to the residence of complainant. On the basis of suspicion. S.I. Mahesh Singh interrogated her then she has admitted that she killed Kumari Palak and kept the dead-body in a suitcase which is in a large box. Suitcase was recovered in presence of Ram Pratap Singh and Mata Prasad Singh. It has also come in the evidence that suspicion on Asha Devi was raised as she did not go to attend the rituals of marriage of her own Dewar Atul Singh.
29. Any statement made by Asha Devi under Section 27 Evidence Act would be admissible only when prosecution has successfully established the recovery. Sections 8 and 106 Evidence Act would also come into play only when the recovery is proved. Learned counsel for the appellant has challenged the recovery and argued that no such recovery was made by the police on the pointing out of Asha Devi.
30. Now we have to see as to whether prosecution has been able to successfully prove the recovery of the dead-body of deceased ?
31. Accused Asha Devi is the wife of cousin of complainant Krishan Chandra Singh. Admittedly, on 20.6.2010, marriage of Atul Singh, brother-in-law of appellant Asha Devi, was fixed. Barat went to Pratapgarh in the evening at about 5.00PM. According to the P.W. 2 Chhaya Singh mother of the deceased Kumari Palak was not seen by any one since 10 or 10.30 AM. P.W. 1 Ram Pratap Singh grand father of the deceased. P.W. 3 Krishan Chandra Singh father of the deceased were also searching her since morning. Husband of the appellant Asha Devi and complainant Krishan Chandra Singh belongs to one family they all were living in a big house separately. A new house was also constructed by husband of the appellant. Appellant Asha Devi was also not seen since morning although there were different rituals for marriage in the house of Atul Singh. Notably, Atul Singh is the real brother-in-law (Dewar) of the appellant. Appellant should have participated in different rituals but she did not take part in all these rituals. Till late in the after-noon this fact was not noticed by anyone. When deceased was not traceable anywhere then Krishan Chandra Singh went to the police out-post Satti Chaura and informed the police about missing of Palak.
32. On the basis of information S.I. Mahesh Singh alongwith constables reached at the house of complainant. At that time, the finger of suspicion was raised towards appellant Asha Devi on the pretext that she was not seen in any rituals of the marriage since morning which creates a doubt. All the three prosecution witnesses have stated that when police asked the appellant then she admitted that she has killed Palak on the instigation of Dev Bux Yadav. At this stage, we find that the role of Dev Bux Yadav has nowhere been proved by the prosecution. Only evidence against Dev Bux Yadav is the statement of co-accused Asha Devi that Dev Bux Yadav is a Tantrik. Since, she was not having a male child. Dev Bux Yadav instigated her that if she will give sacrifice of the child then she would be blessed with the male child. This statement itself is not admissible, so far as it relates to Dev Bux Yadav. Apart from this evidence, there is absolutely no evidence against Dev Bux Singh which would implicate the appellant Dev Bux Yadav. Evidence of co-accused against an accused is not admissible except in certain circumstances. There is no evidence to show that accused Dev Bux Yadav had ever prompted or instigated the appellant. Hence, we do not find any evidence against co-accused Dev Bux Yadav who is entitled for acquittal.
33. According to the first information report, dead body was recovered from the room of appellant which was in a suitcase of black colour. Suitcase was kept in a large box. There were also injuries on the body of deceased. Asha Devi herself has opened the room and the box in which suitcase containing dead-body was kept. This fact is mentioned in the written report itself. First information report was lodged at 8.10 PM, thereafter, investigating officer Sumeshwar Singh prepared the recovery memo and conducted the inquest proceedings which began at 9.30 PM on 20.6.2010 and finished at 11.00AM 20.6.2010.
34. P.W. 1 Ram Pratap Singh, P.W. 2 Smt. Chhaya Singh, P.W. 3 Krishan Chandra Singh are the witnesses of recovery. It is argued that all the three are relative and most interested witnesses. Hence, their evidence on the point of recovery could not be believed. We do not find any substance in the argument.
35. Law is settled on the point that even if a witness is a chance witness or a related witness, even then his evidence cannot be discarded solely on the ground that he was a chance or a related witness.
36. In a recent judgment in the case of Nagappan Vs. State (by Inspector of Police, Tamil Nadu) reported in (2014) 3 SCC (Cri) 660 Hon'ble the Apex Court in paragraph no. 10 has observed as under :-
"10. As regards the first contention about the admissibility of the evidence of PW 1 and PW 3 being closely related to each other and the deceased, first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and have not supported the case of the prosecution. The prosecution heavily relied on the evidence of PW 1, PW 3 and PW 10. The trial court and the High Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without considerable contradiction as claimed by their counsel. This Court, in a series of decisions, has held that where the evidence of "interested witnesses" is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested witnesses. In other words, relationship is not a factor to affect the credibility of a witness. " (emphasis added)
37. Hon'ble Apex Court in the case of Vikram Singh and others V. State of Punjab reported in (2010) 3 SCC 56 has cited paragraph 3 of its earlier pronouncement in the case of Rana Pratap and Others V. State of Haryana reported in 1983 (3) SCC 327 which reads as under:-
"There were three eye witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned Counsel described both the independent witnesses as chance witnesses implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that that they are mere chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses' even where murder is committed in a street is to abandon good sense and take too shallow a view of the evidence."(Emphasis added)
38. Reference may also be made to the pronouncement of Hon'ble Apex Court in the case of Thangaiya V. State of Tamil Nadu reported in (2005) 9 SCC 650 and the Hon'ble Apex Court has observed in para 8 which is reproduced as under:-
" Coming to the plea of the accused that PW-3 was 'chance witness' who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as 'chance witnesses' it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful."
39. A natural conduct of a human being is shown by the complainant Krishan Chandra Singh, his wife Chhaya Singh and father of Ram Pratap Singh. No doubt, all the three are closely related with the deceased but it never means that would falsely implicate the appellant. The appellant is also wife of the cousin of complainant Krishan Chandra Singh. P.W. 1 Ram Pratap Singh has stated that on 20.6.2010 at 6/6.30PM. Police came and interrogated the appellant who got the dead body recovered from her room in suitcase which was kept in large box. Keys of the suitcase were not available then the locks of suitcase were broken. Atul Singh is also related to the P.W.1 Ram Pratap Singh. P.W. 1 Ram Pratap Singh did not go in Barat as he got disturbed due to missing of his grand daughter likewise. P.W.2 Chhaya Singh also stated that Ram Pratap Singh and Krishan Chandra Singh did not go in the marriage party as Palak was not seen since 10 or 10.30A.M. in the morning. By the time dead body was recovered, Barat had already gone. Chhaya Singh was also present. P.W.1 Krishan Chandra Singh has given a very natural statement regarding recovery of the dead body. He has stated that he informed the police of out-post Satti Chaura about missing of Palak then S.I, Mahesh Singh alongwith two constables reached at his house. He asked him as to whether he has any suspicion against someone, then Krishan Chandra Singh told him that appellant has not been seen since morning in spite of the fact that she had to take part in different ceremonies of marriage of the Atul Singh which casts a doubt upon the conduct of appellant Asha Devi. Conduct of the accused Asha Devi gains importance in view of Section 8 Evidence Act. Conduct of the appellant is non-attending the marriage of ceremony itself shows that she was trying to conceal herself from the eyes of others. Appellant did not want to be seen by any one during the course of the day. Because, she herself has killed the deceased and kept the body concealed. Although, there is some discrepancies in the statement of P.W.7 S.I. Sumeshwar Singh who is the investigating officer of this case and P.W.9 Mahesh Singh Rathore. According to the statement of witnesses, dead body was recovered by S.I. Mahesh Singh. When appellant opened the large iron box in her room, wherein the suitcase was kept. Dead body was in the suitcase. P.W. 7 S.I. Sumeshwar Singh has stated that he had prepared the recovery memo. Appellant was formally arrested on next day i.e. 21.6.2010 at 6.30 AM. Statement of complainant was recorded on 20.6.2010. At one place, S.I. Sumeshwar Singh has stated that when he reached at the spot then on the basis of interrogation of appellant, dead body was recovered on her pointing out. It is admitted by him that when he reached at the spot, sub-inspector of police out-post Satti Chaura and constables were present there. While P.W.9 S.I. Mahesh Singh has stated that he has not recorded the statement of appellant. When the suitcase was broken up, Sumeshwar Singh was not present. Inquest proceedings were conducted by the Sumeshwar Singh when he reached at the spot alongwith Krishan Chandra Singh.
40. These statements are indicative of the fact that the dead body was recovered from the room of appellant Asha Devi. Both S.I. Sumeshwar Singh and S.I. Mahesh Singh reached at the spot. S.I. Mahesh Singh reached there on getting an information from Krishan Chandra Singh complainant. He reached at about 6/6.30 PM. Thereafter, Asha Devi was interrogated. Then she got the dead body recovered from the suitcase which was kept in a large box in her room. No doubt thereafter, first information report was lodged on the basis of written report of complainant. Investigating officer Sumeshwar Singh alongwith complainant reached at the sport prepared a formal recovery memo, conducted inquest proceedings and send the body for postmortem. It appears that S.I. Sumeshwar Singh has exaggerated the prosecution version to the extent that dead body was recovered by him. When he reached at the spot after registration of the case. This statement itself cannot belie the whole prosecution version. P.W.7 S.I. Sumeshwar Singh has admitted that the case was registered at the police station in his presence. He himself took over the investigation and proceeded to the place of occurrence that he had interrogated appellant rather it is stated that he recovered the dead body from the suitcase. Although, in the cross-examination, he has stated that he recovered the dead body on the pointing out of the appellant. If this was the situation then why he has not examined. S.I. Mahesh Singh on this point ? Why complainant Krishan Chandra Singh was not interrogated on this point ? Whole prosecution story revolves on the point that dead body was recovered by Sub-Inspector of Police out-post Satti Chaura on the pointing out of appellant. It is true that no formal recovery memo was prepared by the Sub-Inspector Mahesh Singh which was subsequently, prepared by S.I. Sumeshwar Singh, it appears that in order to take the credit of solving the case. S.I. Sumeshwar Singh has over reacted in the court. Even in recovery memo Ka5, he has mentioned that the dead body was recovered from the suitcase. He has nowhere mentioned that appellant was interrogated by him. Hence, the statement of S.I. Sumeshwar Singh on this count is not believable rather he has over reacted in the Court. Fact of the recovery of dead body was mentioned in the FIR itself S.I. Sumeshwar Singh started investigation after registration of the case. He has only prepared the formal recovery memo of the dead body which was already recovered.
41. True that the accused-appellant was taken into custody by the investigating officer 21.6.2010 at 6.30 AM. Dead body of the deceased was recovered on 20.6.2010 in the evening at about 6.00PM. When appellant was interrogated by S.I. Mahesh Singh then dead body of deceased was taken out by the appellant from a locked suitcase which was kept in a large box in her room. Conduct of the appellant becomes relevant and admissible under Section 8 Evidence Act as has been held by the Hon'ble Apex Court in the case of A.N. Venkatesh (Supra).
42. In the present case also, dead body was recovered from the room of the appellant which was kept in a suitcase that too was kept in a large box. This fact was exclusively within the knowledge of appellant only. Section 106 Evidence Act provides that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him. Appellant was obliged to explain as to how dead body reached in her room in a suitcase. But there is no evidence on record to explain it. Section 106 Evidence Act, specifically makes a provision for explanation of a fact which is in favour of the prosecution. Appellant has failed to produce any such explanation. Why accused would be falsely implicated? No enmity or other circumstance has been brought on record to show that the complainant or family members were having any bias or grudge or ill-will against the appellant. Dead body was recovered from her possession which cannot be said to be the brain child of prosecution as such a recovery could not be a false or planted recovery.
43. It is a case of circumstantial evidence wherein no direct evidence is available. Appellant is a close relative of the deceased. Deceased was child aged about three years. Appellant called her through Shivam Singh @ Shubham Singh brother of the appellant, thereafter, deceased was killed.
44. Recovery of the dead body in a suitcase, which is kept in a larger box in the room of appellant is proved beyond reasonable doubt. The circumstance, that the appellant pointed out to the police officer where dead body was kept would be admissible as conduct under Section 8 Evidence Act irrespective of the fact whether the statement made by the accused contemporaneously with an antecedent to such conduct falls within the purview of Section 27 Evidence Act.
45. There was a motive behind the crime. In the first information it is mentioned that appellant has stated that she was having only two daughters. She wanted to be blessed with son. On the instigation of Dev Bux Yadav alleged Tantric, she killed Palak so that God may bless her with male child. Motive itself plays very important role in the case of circumstantial evidence. Motive is not an ingredient of any offence but when it is proved it helps the court to come to a correct conclusion. Where, there is no direct evidence. In State of Gujarat v. Anirudh Singh and Another AIR 1997 SCC 2780; it was held that if motive is proved, that would supply a chain of links but absence thereof is not a ground to reject the prosecution. It is not necessary in each and every case to prove the motive, the absence of motive is a circumstance which is relevant for assessing the evidence but where the circumstantial evidence proves the guilt of the accused. Those circumstances are not weakened by the fact that the motive has not been established as was held in Rajinder Kumar and Another v. State of Punjab AIR 1966 Supreme Court 1322.
46. Appellant was having motive for commission of the offence. Although, it is true that appellant was not having animosity against the deceased. All are family members but she got an impression in her mind that if she sacrifice a child, she will be blessed by a male child, this superstition mandated her to commit the crime. Hence, there was a strong motive for the appellant for commission of the offence.
47. It is a very unfortunate situation that still in the modern world people are adopting such methods for having a male child which could not be accepted either by the society or court of law. Child ratio between male and female child is disturbing the society. Campaign for "Beti Bacho" are being organized but still such unfortunate incidents happens. Greed for male child is so high that appellant killed a girl of tender age of three years who was also a member of her own family. She was murdered by strangulation which does not deserve any sympathy for appellant from any corner.
48. First information report was promptly lodged. Prosecution has adduced ample evidence to prove the guilt against accused-appellant Asha Devi beyond all reasonable doubt. No explanation of recovery or dead body from her room is advanced by the appellant which complete the missing link. Hence, it is proved that the recovery was made from her room which is admissible under Section 8 Evidence Act also. Considering all these facts and circumstances of the case, we are of the considered view that the learned trial court has rightly appreciated the evidence against the appellant Asha Devi. Learned trail court has rightly convicted and sentenced her. Prosecution has successfully proved the guilt against the appellant Asha Devi. Her appeal deserves to be dismissed and is accordingly dismissed.
49. Conviction and sentence imposed by the trial court is confirmed. She is in jail. She shall serve out the sentence as imposed by the learned trial court.
50. The appeal of accused Dev Bux Yadav is allowed. His conviction and sentence is set aside. He is in jail. He shall be released forthwith, if not wanted in any other case.
51. Office is directed to certify this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.
(Anil Kumar Srivastava-II,J.) ( Surendra Vikram Singh Rathore,J.) Order Date :- . 27th May,2016 Subodh/-