Hon'ble Subhash Chand,J.
(Per Hon'ble Subhash Chand, J.)
1. Criminal Appeal No. 7291 of 2019 (Hoti Lal Rajpoot and another Vs. State of U.P.) has been preferred on behalf of convict Hoti Lal Rajpoot and Lajjawati and the Criminal Appeal No. 7649 of 2019 (Arvind Kumar Vs. State of U.P.) was preferred on behalf of convict Arvind Kumar, against the judgment and conviction order dated 14.11.2019 passed by Sessions Judge, Auraiya, convicting the appellants Hotilal Rajpoot, Lajjawati and Arvind Kumar for the charges under Sections 302 r/w 34 IPC and sentenced them with imprisonment for life and fine Rs.25,000/-. In default of payment of fine additional imprisonment of six months was directed to be undergone by the appellants in S.T. No. 5 of 2016, arising out of Case Crime No. 675 of 2015, under Sections 498-A, 304-B, 302/34 IPC and Section 4 of Dowry Probibition Act, P.S. Auraiya, Disrtrict Auraiya.
2. Since both the Criminal Appeals arise out of the same Sessions Trial number, they have been heard together and are being disposed of by a common judgment.
3. The matrix of the prosecution case as gathered from the record are that the first informant Sarman Lal's daughter Arti was married with accused Arvind Kumar son of Hotilal Rajpoot, resident of Dayalpur, P.S. Kotwali Auraiya, District Auraiya about three years ago. Arti had also a daughter about one and half years old. The daughter of informant was subjected to cruelty by the husband Arvind Kumar, father-in-law Hotilal Rajpoot and mother-in-law Lajjawati. Since the time of marriage because of less dowry, besides she was also tortured and an additional demand for Rs.1,00,000/- in cash was made, which could not be fulfilled by the informant. On 30.07.2015 the informant received information from the cousin brother of his son-in-law Shambhu that his daughter Arti was ill and she was being taken to the hospital at Kanpur. Accordingly, the informant reached the Regency Hospital, Kanpur but none was found there. Thereafter the informant along with his family reached Auraiya where the in-laws of his daughter were residing, the house was locked, thereafter he came on the road and saw the dead body of his daughter lying on the road. The dead body was thrown down from the Maruti Van. Dowry death of his daughter was caused by the husband Arvind Kumar, father-in-law Hotilal Rajpoot, mother-in-law Lajjawati and sister-in-law Rinki and Pinki respectively. On this written information (Ext. Ka-1), at Case Crime No. 675 of 2015, a case under Sections 498-A, 304-B IPC and 3/4 D.P. Act was registered against Arvind Kumar, Hotilal Rajpoot, Lajjawati, Rinki and Pinki with the police station Auraiya, District Auraiya.
4. The investigating officer after having concluded the investigation filed charge-sheet against the accused-appellants Arvind Kumar, Hotilal Rajpoot and Lajjawati, under Sections 498-A, 304-B IPC and 3.4 Dowry Prohibition Act, exonerating the remaining two accused Rinki and Pinki. The cognizance was taken on the charge-sheet by the Court of CJM, Auraiya and the offence alleged being exclusively triable by the Court of Sessions, the CJM concerned committed the case to the Court of Sessions Judge, Auraiya.
5. The Court of Sessions Judge, registered the case as Sessions Trial and issued process to the accused. The charges were framed against the accused-appellants under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act besides alternative framing charge under Section 302 r/w 34 IPC. The charges were read over and explained to all the accused, who denied the charges and claimed to be tried.
6. On behalf of the prosecution to prove the case in oral evidence examined P.W.1 Sarman Lal (informant), P.W.2 Radha Devi, P.W. 3 Sushil Kumar, P.W.4 Smt. Kiran, P.W.5 Ajay Rajpoot and P.W.6 Devi Prasad as witnesses of fact and also examined P.W.7 constable Kishore Kumar to prove the check FIR Ext. Ka-3, P.W.8 Dr. Om Prakash to prove the postmortem report Ext. Ka-4, P.W.9 was examined to prove the inquest report and other papers relating to inquest Ext. Ka-2-A, Ext. Ka-5 to Ka-8, P.W.10 Subhash Khatri was also exmined as the Investigating Officer in regard to the details of investigation and he has proved the site plan and the charge-sheet Ext. Ka-9 and Ka-10, respectively.
7. On behalf of prosecution in documentary evidence also filed the written information Ext. Ka-1, recovery memo in regard to taking into possession the Sari of deceased Ext. Ka-2, inquest report Ext. Ka-2A, Check FIR Ext. Ka-3, postmortem report Ext. Ka-4, photo of dead body Ext. Ka-5, police form no.13 Ext. Ka-6, letter to CMO Ext. Ka-7, letter to R.I. Ext. Ka-8, site plan Ext. Ka-9 and charge-sheet Ext. Ka-10.
8. The statement of the accused-appellants under sections 313 of the Code of Criminal Procedure was also recorded, in which all the accused persons denied the incriminating circumstance in evidence against them and claimed to have been falsely implicated and in defence no evidence was adduced.
9. Learned trial Court after hearing the rival arguments advanced, convicted the accused-appellant Arvind Kumar, Hotilal Rajpoot and Lajjawati for the charges under Section 302 r/w 34 IPC and acquitted them of the charges under Sections 498-A, 304-B IPC and 4 Dowry Prohibition Act.
10. Feeling aggrieved the appellants/convicts Hotilal Rajpoot and Lajjawati preferred Criminal Appeal No. 7291 of 2019 and the appellant/convict Arvind Kumar preferred aforesaid Criminal Appeal No. 7649 of 2019, under Section 374(2) Cr.P.C. challenging the judgment and conviction order dated 14.11.2019, whereby the appellants were convicted for the offences under Section 302 read with 34 IPC and were sentenced with imprisonment for life and fine of Rs.25,000/- and in default of payment of fine further additional imprisonment of six months was to be suffered.
11. The above criminal appeals have been preferred on the grounds that the conviction and sentence awarded against the appellants by the trial Court was illegal and the conviction and the sentence awarded by the trial Court was against the weight of Evidence on record. The trial Court had acquitted the appellants of the charges under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act. All the witnesses of fact had been declared hostile and the prosecution witnesses P.W.1 Sarman Lal also admitted that none of the appellants were present at the place of occurrence, as such the conviction and sentence passed by the trial Court was based on wrong appreciation of evidence and prayed for allowing these appeals and set aside the conviction and sentence awarded by the trial Court.
12. It has been vigorously claimed by the learned counsel for the appellants (in Criminal Appeal No. 7291 of 2019) that the conviction of Hotilal and Lajjawati by virtue of application of Section 34 IPC is grossly erroneous for certain reasons that it is virtually admitted that both these appellants were residing separately from the deceased and they were not present on the spot. Then application of Section 34 IPC in shape of sharing common intention with Arvind Kumar (husband of deceased) to cause murder of the deceased is absurd. In no way here, ingredients of Section 34 IPC shall be applicable. Even the burden to prove particular fact under Section 106 of Indian Evidence Act, 1872 also does not arise as the two above appellants are separate residents.
13. We have heard Sri Purushottam Dixit, learned counsel for the appellants and learned A.G.A. for the State and perused the record.
14. Learned counsel for the appellants contended that the prosecution had miserably failed to prove the case beyond all reasonable doubts. Although the learned trial Court had acquitted all the accused-appellants from the charges under Sections 498-A, 304-B IPC and 4 Dowry Prohibition Act, yet the learned trial Court convicted the accused-appellants for the charges under Section 302 r/w 34 IPC. Initially the burden was upon the prosecution to prove the case against the accused-appellants and after that alone the burden of proof should have been shifted and placed upon the accused under Section 106 of the Evidence Act. All the witnesses of fact produced on behalf of prosecution have been declared hostile. All the witnesses have denied the prosecution. Moreover all the witnesses of fact stated in their statement that the accused -appellants were not present at the place of occurrence at the time of incident and have also admitted fact that in absence of accused some miscreants had intruded in the house and while committing robbery they have caused the murder of deceased Arti. The informant P.W.1 Sarman Lal, P.W.2 Radha Devi the wife of informant, both in their statements have admitted that accused Hotilal Rajpoot and Lajjawati, who are the father-in-law and mother-in-law of deceased had been residing in a separate house while the occurrence took place in the house in which the deceased Arti along with her husband Arvind Kumar had been residing. Learned trial Court did not rely upon the evidence of the witnesses of fact and had wrongly shifted the burden of proof upon the accused-persons under Section 106 of the Evidence Act.
15. Learned Counsel for the appellant in support of his contention relied upon the case of Jose alias Pappachan vs. Sub-Inspector of Police, Koyilandy (2017) 1 SCC (Cri) 171 in which the Hon'ble Supreme Court held that the burden of proving fact specially within the knowledge, shifting this burden upon the accused is not permissible unless and until the prosecution had discharged its burden to prove the prosecution case.
16. Learned A.G.A. vehemently opposed the contention of learned counsel for the appellants and contended that the learned trial Court was right in placing the burden of proof upon the accused, since this fact was in specific knowledge of the accused how the deceased was murdered more so when the death was caused inside the house of he accused-persons. Theory of defence set up to the ambit that some miscreants had intruded in the house to commit robbery and on being opposed by the deceased the miscreants committed the murder of the deceased cannot be relied because on behalf of the accused no such evidence was adduced to prove the defence plea, therefore, both the appeals deserve to be dismissed and the conviction and sentence awarded to the accused-appellants deserves to be upheld.
17. For disposal of these criminal appeals point for determination is being framed.
Whether the findings of learned trial Court is perverse on shifting the burden of proof upon the accused-appellants under Section 106 of Evidence Act and had convicted to the appellants on the basis of wrong appreciation of evidence on record.
18. On behalf of prosecution to prove the case, six witnesses of fact have been examined and all these witnesses in their statements have stated that the deceased (Arti) was married with Arvind Kumar on 6.2.2013 and no alleged demand of dowry was ever made by the inmates of in-laws house and Arti was never subjected to cruelty. The trial Court relying upon the statement of witnesses of fact acquitted the accused persons of the charges under Sections 498-A, 304-B IPC and 4 of D.P. Act.
19. The prosecution case is based on circumstantial evidence. On behalf of prosecution to prove the charges against the accused-appellants under Section 302/34 IPC six witnesses of fact have been examined.
20. P.W.1 Sarman Lal, who is the informant has admitted his signature on the written report Ext. Ka-1, he has denied the contents of the written information to the extent that no demand of dowry was made by the inmates of in-laws of house of his daughter and she was never subjected to cruelty for demand of dowry. This witness has also fortified that at the time of occurrence none of the accused was present at the place of occurrence and on the fateful day some miscreants intruded in the house to commit robbery and on being opposed by his daughter the miscreant committed the murder of his daughter. This witness was declared hostile by the prosecution and cross-examined. This witness admits that he got the information in regard to the death of his daughter from cousin brother of his son-in-law Shambhu on 30.07.2015 and when he reached the house of his daughter, none was present over there and he found the dead body of his daughter on the roadside near the Maruti Van. At that time his wife P.W.2 Radha Devi was also accompanied him.
21. P.W.2 Radha Devi, who is the wife of informant, she reiterated the same thing as has been stated by the P.W.1 Sarman Lal (informant).
22. P.W.3 Sushil Kumar, P.W.4 Smt. Kiran and P.W. 5 Ajay Rajpoot, have also supported the version as has been stated by the informant P.W.1 Sarman Lal.
23. Although all these witnesses of fact have been declared hostile yet their testimony cannot be discarded in toto. All the witnesses of fact have admitted in their statements that death of Arti was caused in the matrimonial house and the death of deceased is homicidal. Obviously it appears, these witnesses of fact have been won over by the defence.
24. In corroboration on behalf of prosecution has examined P.W.9 Shamsher Singh, who has proved the inquest report Ext. Ka-2A and the papers relating to inquest report Ext. Ka-5 to Ka-8. This witness said that the dead body of the deceased was lying at the service road of Ram Dayalpur Highway and he prepared the inquest report of the deceased. All the witnesses of inquest report are persons of village of informant Sarman Lal (P.W.1). The cause of death was due to the injury at the neck and other reasons.
25. P.W.8 Dr. Om Prakash, who had conducted the postmortem of the deceased Arti has proved the postmortem report Ext. Ka-4. This witness has stated that cause of death was asphyxia due to strangulation. In ante mortem injuries, there were two injuries (1) ligature mark 27 cm x 3 cm continues x horizontal x high up on th neck behind the chin and larynx; injury no. (2) abraded contusion 1-1/2 cm x 1 cm on lower part of right cheek at mandibular area at 4 cm below from right ear lobule.
26. Therefore, the death of deceased Arti was homicidal as per ocular evidence is also corroborated with medical evidence.
27. The prosecution has been successful to prove its case that the death of deceased Arti was caused in the matrimonial house and was homicidal. The testimony of all the witnesses of fact adduced on behalf of the prosecution shall be relied. Even if, all theses witnesses of fact have been declared hostile. So far as the statement given by the prosecution witnesses that the deceased was murdered by the miscreants on the fateful day, who had intruded in the house to commit robbery and on being opposed by the deceased the miscreants had committed murder. Upto this extent the statement of the prosecution witnesses cannot be relied upon because the same is based on hearsay evidence. None of the prosecution witnesses of fact were present at the place of occurrence, the sole source of these witnesses in regard to the claim of commission of occurrence by the miscreants, are the in-laws and the persons of locality had told to them. On behalf of prosecution none of those persons have been examined, from whom these prosecution witnesses came to know in regard to commission of murder by the miscreants. To this extent the theory of committing murder by the miscreants is not admissible in evidence from the statement of prosecution witnesses.
28. The Hon'ble Supreme Court held in Subhash Har Narayan Ji Laddha Vs. State of Maharashtra (2006) 12 SCC 545, where the statement of witnesses before the Court was made on the basis of that, what she had information from her husband and she had no direct knowledge of the fact, her statement was held inadmissible in evidence.
29. Where the incident had taken place inside the house, the onus lies upon the persons of the house present. In such cases it is difficult for the prosecution to lead any direct evidence to establish the guilt of he accused. In view of the circumstantial evidence adduced by the prosecution the burden of proving the case beyond doubt has been discharged, how the burden of proof shifts upon the accused-appellants to explain how the homicidal death of deceased was caused in their house.
30. The defence case as set up in their statements under Section 313 Cr.P.C. is that at the time of occurrence they were at the agricultural field and the death was caused by the miscreants, as such all the accused persons in their statements had taken the plea of alibi that at the time of occurrence on the fateful day that they were working at the agricultural field and some miscreants had committed the murder of deceased, while they had intruded in the house with an aim to commit robbery.
31. Moreover, learned counsel for the appellants also contended that star witnesses of the prosecution P.W.1 Sarman Lal and P.W.2 Radha Devi, both have admitted that the appellants Hotilal Rajpoot and Lajjawati were residing another house and the deceased along with her husband (accused Arvind Kumar) were residing in a separate house. Admittedly there are two houses of the in-laws of deceased, in one house Accused Arvind Kumar resided along with his wife Arti and in another house resided Hotilal and Lajjawati, who are father-in-law and mother-in-law of the deceased respectively. The incident happened in the house near the Highway bridge where Arvind Kumar resided along with his wife Arti, as such, the burden of proof under Section 106 of the Evidence Act, cannot be shifted and fastened upon the accused-appellants Hotilal Rajpoot and Lajjawati.
32. Learned counsel for the appellants submits that trial Court had wrongly shifted the burden of proof on accused-appellants Hotilal Rajpoot and Lajjawati and claimed acquittal for both the appellants. He also contended that all the witnesses of fact have admitted that the accused were not present at the time of occurrence as such all the accused-appellants deserves to be acquitted from the charge leveled against them.
33. P.W.1 Sarman Lal in his testimony stated that the accused-appellant Hoti Lal had two houses and both the houses are situated at separate places. His son-in-law and his daughter Arti had been residing in the new house near the Highway. The occurrence took place in the house which is situated near the Highway.
34. P.W.2 Radha Devi in her testimony has stated that accused Hotilal Rajpoot and Lajjawati had been residing in a separate house, her daughter and son-in-law also residing in another separate house, which is situated near the Highway.
35. On behalf of prosecution to prove the plea of alibi that at the time of occurrence accused-appellants were working at the agricultural field, no evidence has been adduced, even no cogent circumstance exists to corroborate to any such possibility.
36. Once the prosecution succeeds in discharging its burden and it is incumbent upon the accused-appellants taking the plea of alibi to prove it with certainty so as to exclude the possibility of presence at the place of occurrence. Plea of alibi means accused elsewhere. It is based on physical impossibility for participation in the crime by the accused-appellants, thus, distance would be relevant fact from the place of occurrence.
37. The theory of defence of plea of alibi is not proved by the accused-appellants even at the touchstone preponderance of probability.
38. So far as the burden of prove to be discharged by the appellants under Section 106 of Evidence Act is concerned, the death of deceased was caused admittedly in the matrimonial house situated near the Highway in which the accused-appellant Arvind Kumar and deceased Arti both resided. The appellants Hotilal Rajpoot and Lajjawati both had been residing in another house separately, therefore, the burden of proof under Section 106 of the Evidence Act cannot be placed upon these two appellants Hotilal Rajpoot and Lajjawati. This burden can be shifted only upon accused-appellant Arvind Kumar, who resided with the deceased in the new house situated near the Highway, wherein the homicidal death of the deceased was caused. To discharge this burden on behalf of the appellant Arvind no evidence has been adduced. In his statement under Section 313 Cr.P.C. this witness has said that at the time of occurrence he was working at his agricultural field and to this effect also no evidence has been produced to prove the plea of alibi. Even strewn circumstances of the case do not point to any such possibility.
39. So far as the theory of defence that on the fateful day miscreants had intruded in the house with the aim to commit robbery and on being opposed by the deceased, who was present in the house, the miscreants had committed her murder to eliminate hurdle in committing the robbery is concerned, the accused persons have not adduced any evidence. The time of occurrence is 9 O'clock of day time, if the miscreants had intruded in the house with intention to commit robbery and on being opposed by the deceased the miscreants had committed murder, no such FIR was lodged on behalf of accused-appellant Arvind Kumar. This theory cannot be relied by any impartial and prudent person that if at day time i.e. 9 O'clock the miscreants had intruded in th house to commit the robbery and also committed the murder on being opposed by the deceased, none of the persons of the locality or vicinity were examined on behalf of the appellants. It was incumbent upon the accused-appellants to have produced some person in the vicinity to establish this fact that on the fateful day the miscreants intruded in the house with intention to commit the robbery. All the witnesses of fact who have been examined by the prosecution, who have been declared hostile although have stated that the deceased was murdered by the miscreants and this fact came to the knowledge of the witnesses of fact from the family members of in-laws house and also from the persons of the locality. None of the family members of in-laws house or the persons of locality was examined by the accused-appellants in support of above claim to prove this defence theory. The conduct of the accused-appellants is very unnatural; had there been any robbery committed by the miscreants in his house as a man of ordinary prudence he must have informed the police about the incident.
40. The Hon'ble Supreme Court in Criminal Appeal No. 590 of 2015 Jayanti Lal Verma Vs. State of M.P. (Now Chhatisgarh), judgment dated 19.11.2020 held the incident where the incident had taken place inside the privacy of the house, the onus was on persons residing in the house to give the explanation. It is difficult for the prosecution to lead any direct evidence to establish the guilt of the accused. The initial burden to prove the case would be upon the prosecution. It would be of right character. There would be corresponding burden upon the inmates of the house to give cogent explanation how the crime was committed. They cannot get away by keeping quiet.
41. In the present case this fact was in particular knowledge of the accused-appellant Arvind who had been residing with the deceased to prove how the deceased was murdered.
42. Even he neither produced himself in the witness box before the trial Court nor did adduce any witness of the locality to prove and give credence to this defence of committing robbery as well as murder by the miscreants. The findings of the learned trial Court to this extent bears no infirmity.
43. So far as shifting the burden of prove under Section 106 of Evidence Act upon the accused-appellants Hotilal Rajpoot and Lajjawati is concerned, same is against the evidence on record because there is evidence on record that Hotilal Rajpoot and Lajjawati had been residing in a separate house and on the fateful day they were not present at the place of occurrence, as such, the burden of proof under Section 106 of the Evidence Act cannot be shifted upon the accused-appellants Hotilal Rajpoot and Lajjawati. Therefore, the conviction and sentence passed against the appellants Hotilal Rajpoot and Lajjawati is based on the oral appreciation of evidence and same deserves to be set aside, while the conviction and sentence passed against appellant Arvind Kumar deserves to be upheld.
44. Accordingly, Criminal Appeal No. 7291 of 2019 (Hotilal Rajpoot and another Vs. State of U.P.) is allowed and the Criminal Appeal No. 7649 of 2019 (Arvind Kumar Vs. State of U.P.) is dismissed.
45. In Criminal Appeal No. 7291 of 2019, the appellants Hotilal Rajpoot and Lajjawati are acquitted of all the charges leveled against them. They are in jail. They be released forthwith, in case, they are not wanted in connection with some other case provided they file personal bonds and two sureties each in the like amount to the satisfaction of the Sessions Judge, Auraiya in compliance of the provisions contained under Section 437-A, Cr.P.C.
46. In Criminal Appeal No. 7649 of 2019, the appellant Arvind Kumar is in jail. The conviction and sentence awarded against him vide judgment and order dated 14.11.2019 is hereby affirmed. He is directed to serve out the remaining sentence as has been awarded by the trial Court.
47. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and further send back the lower court record.
Order Date :- January 20, 2021 Prajapati (Subhash Chand, J.) (Arvind Kumar Mishra-I, J.)