Reserved on 5.5.2018 Delivered on 31.5.2018 Case :- JAIL APPEAL No. - 3035 of 2011 Appellant :- Popi @ Bijendra Respondent :- State Counsel for Appellant :- From Jail, Ashok Kumar Gupta Counsel for Respondent :- Govt. Advocate
Hon'ble Om Prakash-VII,J. Hon'ble Aniruddha Singh,J.
(Delivered by Hon'ble Aniruddha Singh,J.)
1. Present Jail Appeal has been filed by the appellant Popi @ Bijendra against the judgment and order dated 7.2.2011 passed by the Additional Sessions Judge/ Special Judge (E.C. Act), Meerut in Sessions Trial No. 175 of 2005 (State of U.P. Vs. Popi @ Bijendra) arising out of Case Crime No. 357 of 2004, under Section 302 I.P.C., Police Station Brahmpuri, District Meerut whereby appellant Popi @ Bijendra has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs. 10,000/- and in default, six months rigorous imprisonment.
2. Prosecution story in brief is that F.I.R. was lodged by P.W.1 Dulari (mother of deceased Kammo) on 26.12.2004 at 5.10 a.m. alleging that deceased Kammo was the wife of appellant Popi @ Bijendra and it was a love marriage. They have three children namely Veshna, Himanshu and Priyanshu out of their wedlock.
P.W.1 came in the house of Kammo (deceased) and saw that Kammo and granddaughter Vaishna were lying dead and appellant Popi @ Bijendra was smoking 'bidi' (a type of cheap cigarette) at the place of occurrence; Meenu (brother of appellant) was also present there after killing Kammo and Vaishna. When she alarmed, they fled away from the place of occurrence. One plastic rope (rassi) was recovered from the place of occurrence.
3. On the basis of written report/ chik F.I.R. (Ext. Ka-16A), was registered and investigation was started. Investigating Officer visited the place of occurrence and prepared recovery memo of rope (rassi) Ext. Ka-15; Panchayatnama of deceased Kammo as (Ext. Ka-4), Panchayatnama of deceased Vaishna as (Ext. Ka-8) and also other police papers. Dead bodies of deceased were sent for postmortem alongwith the police papers through the constables. Postmortem was conducted and postmortem reports of deceased Kammo as (Ext. Ka-2) and deceased Vaishna as (Ext. Ka-3) were prepared. Site plan was also prepared with index which is exhibited as (Ext. Ka-15A). After completing all formalities, charge-sheet was submitted which is exhibited as (Ext. Ka-10).
4. After taking cognizance by the concerned Magistrate on the charge-sheet, the case was committed to the court of Sessions for trial and after transfer it was received in the court of Additional Sessions Judge/ Special Judge (E.C. Act), Meerut. On 31.3.2005 charge under Section 302 IPC was framed against accused Popi @ Bijendra to which he denied and claimed for trial.
5. In order to prove the charges on behalf of prosecution besides documentary evidence, Court examined thirteen witnesses in all i.e. P.W.1 Dulari (mother of deceased Kammo and grandmother (nani) of deceased Vaishna), P.W.2 Hari Singh (father of deceased Kammo and grandfather (nana) of deceased Vaishna), P.W.3 Rajendra Singh (witness of fact), P.W.4 Dr.S.P. Singh who has conducted postmortem & proved (Ext. Ka-2 and Ka-3 postmortem reports), P.W.5 Dr. Rajeev Kumar Gupta (S.O.), he proved Ext. Ka- 4 to Ka-13 (inquest reports, papers relating to postmortem), Ext. Ka-15-A site plan and Ext. Ka-15 fard, P.W.6 Ashok Kumar Sharma, P.W.7 Channo (mother of appellant) who did not support the prosecution case and turned hostile but admitted that appellant was rickshaw puller, P.W.8 Neelam (wife of Gulshan, brother of appellant) who has also not supported the prosecution case and turned hostile but admitted that when she came in his house, she saw that Kammo and Vaishna were lying dead; P.W.9 Rajni (wife of Meenu, brother of appellant) who has also not supported the prosecution case and turned hostile but admitted that dead body of both deceased were found in the house of appellant; P.W. 10 Gulshan (brother of deceased) has also not supported the prosecution case and turned hostile; P.W.11 Meenu (brother of appellant) has also not supported the prosecution case and turned hostile and deposed that at the time of incident appellant was not present at the place of occurrence, P.W. 12 Geeta (aunt of deceased Kammo) has supported the prosecution case stating that appellant Popi @ Bijendra was drinker and had suspicion about the character of his wife and used to say that in his absence some person used to come to his house, due to that reason appellant always beat his wife and due to this reason he killed his wife and daughter. House of Geeta is hundred step away from the house of appellant. P.W. 13 constable Tej Pal proved Ext. Ka-16, Ka-17 & G.D. entry.
6. After closure of prosecution evidence, statement of accused- person under Section 313 Cr.P.C was recorded. He specifically stated in his statement that he is innocent, he has not committed any offence and stated that deceased Kammo was already married but she again solemnized love marriage with him due to which family members of previous husband and maternal family members were angry, some unknown persons killed them and he has been falsely implicated. In defence, he submitted some papers relating to marriage.
7. Trial Court after hearing parties, vide impugned judgment and order, convicted and sentenced accused appellant for the offence under Section 302 IPC. Hence this appeal.
8. In this matter, on previous occasion when the matter was taken up, no one appeared to argue the appeal on behalf of the appellant, hence, notice was sent through concerned Superintendent of Jail to the accused appellant to engage counsel. On showing his in-ability to engage private counsel, Court appointed Sri Ashok Kumar Yadav as Amicus Curiae.
9. Heard Sri Ashok Kumar Yadav, learned Amicus Curiae for the appellant and Sri Arunedra Kumar Singh, learned A.G.A. for the State.
10. Learned Amicus Curiae submitted that F.I.R. Was lodged ante- timed with consultation of police personnel. There are major contradictions between evidence of facts and medical evidence. Incident took place at night and there was no source of light. There is no cogent and reliable evidence against the appellant. He took plea of alibi that appellant was not present at the place of incident. P.W.7 to P.W.11 have not supported the prosecution case and turned hostile.
11. Learned A.G.A submitted that there is sufficient evidence against the accused-appellant to convict him under Section 302 IPC.
12. We have considered rival submissions made by the learned amicus curiae and learned A.G.A. for the State and gone through entire record.
13. The F.I.R was lodged on 26.12.2004 at 5:10 A.M. and incident took place on 26.12.2004 before 5 A.M. It appears that F.I.R. was lodged promptly because distance between place of incident and police station is only 1 km. Submission of learned Amicus Curiae on behalf of appellant that FIR was lodged on the dictation of police, is also not acceptable because it is merely a suggestion.
14. P.W.-12 Smt. Geeta is aunt of deceased Kammo(deceased Kammo was daughter of jeth of Geeta). Hence she is direct relative of deceased as well as accused. She has deposed that before 10 years of incident Kammo was married to the accused. They got three children out of their wedlock. House of Geeta is 100 step away from the house of deceased and accused. The appellant bore suspicion about character of his wife and he was habitual drinker and used to beat his wife in drunken state. In the evening of 25.12.2004 hurling abuses appellant started beating deceased Kammo, in the meantime his daughter came to Geeta for rescue of her mother, then Geeta came to the house of accused and rescued her. Accused-appellant strangulated Kammo and Vaishna with the help of rope at any time in the same night. In the morning at 5 to 5:30 A.M. on 26.12.2004 daughter of deceased Kammo went to Smt. Geeta and told that her father/accused- appellant killed her mother Kammo and sister Vaishna. When Smt. Geeta came in the house of appellant, Gulshan,younger brother of deceased was crying and saying that Popi has killed Kammo and Vaishna. At that time, Popi was present there. Popi confessed the guilt before Smt. Geeta that he had killed Kammo and Vaishna by way of strangulation. When they tried to catch him, he fled away. She has seen the dead bodies of both Kammo and Vaishna lying in the room and also a plastic rope(Rassi) used in commission of the crime. Police prepared inquest report and took custody of rope and obtained signatures of the witnesses.
15. Smt. Dulari, P.W.-1, mother of Kammo also stated that deceased Kammo was married to the accused way back ten years and it was love marriage. They were blessed three children out of their marriage. The elder daughter was 8 years old. House of Dulari is situated just after 4 to 5 houses away from the house of accused. She also stated that on 26.12.2004 at 5 A.M. she went there on hearing uproar and saw that door of the house of accused was closed from inside. She went inside and saw that accused and his brother were smoking 'bidi' (a type of cheap cigarette) and dead bodies of Kammo and Vaishna were lying having received injuries on their necks caused by plastic rope . On hearing uproar, other persons also came there, then accused- appellant fled away. Smt. Dulari lodged FIR and proved the same as Ext. Ka-16-A.
16. P.W.-2 Hari Singh, father of Kammo and father-in-law of accused-appellant stated same version as stated by P.W.1 Smt. Dulari.
17. P.W.-3 Rajendra Singh is an independent witness. He deposed that on 26.12.2004 at 5 to 5:15 A.M. he heard cries of Smt. Dulari. She was weeping and saying that accused-appellant has killed Kammo and Vaishna. Both dead bodies and plastic rope were lying in the house of appellant. This witness has also supported the version of P.W.-1 Smt. Dulari, P.W.2 Hari Singh and P.W.-12 Smt. Geeta.
18. According to postmortem report, three ante mortem injuries were found on the body of deceased Smt. Kammo which are as follows:
i. Ligature mark 19 cm x 1 cm on front of neck 7 cm below to chin, 7 cm below to right ear and 6 cm below to left ear.
ii. Lacerated wound 4 cm x 1 cm on inner side of lower lip.
iii. Multiple abrasions in an area of 13 cm x 7 cm on the area of neck and chin.
19. According to postmortem report, one ante mortem injury was found on the body of deceased Vaishna which is as follows:
“Ligature mark 16 cm x 1 cm on mid of neck on front side below 5 cm from chin, 5 cm below left ear and and 5 cm below right ear”.
20. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charge levelled against accused appellant beyond reasonable doubt or not.
21. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
22. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
23. It is pertinent to mention here that both deceased were killed at the time, date and place mentioned/disclosed by the prosecution.
24. P.W. 1, P.W.-2 and P.W.-12 are relatives of the accused and they have categorically stated that accused-appellant has killed both the deceased and specific role has been assigned to the appellant in the incident. Hence, on this point involvement of accused Popi @ Bijendra is not doubtful. Statement of P.W. 1, P.W.-
2 and P.W.-12 are wholly reliable. P.W.3 is also independent witness who has supported the prosecution case.
25. P.W.-1 Smt. Dulari has supported the prosecution case and proved FIR(Ext.Ka-16A) and written report. P.W.-2 Rajendra Singh supported the statements of P.W.1 Smt. Dulari and P.W.2 Hari Singh. P.W.-12 supported the prosecution case fully and proved inquest report (Ext. Ka-4) and recovery of plastic rope(Ext.-Ka- 15). P.W.-4 Dr.SP. Singh proved the post mortem reports(Ext.Ka-2 & Ka-3).
26. Now, question is whether injuries received by deceased were caused by accused appellant or not. As stated above, P.W.-1, P.W.- 2, P.W.-3 and P.W.-12 are reliable witnesses and have fully supported the prosecution case, just after the incident, plastic rope used in the crime was also recovered from the place of occurrence. It has come in the statement of prosecution witness that accused-appellant was present in the house in night when the incident took place, deceased died due to strangulation/throttling which is supported by medical evidence.
27. If we compare injuries received on the body of deceased with the plastic rope recovered at the place of occurrence, we find that injuries found on the body of deceased could be caused by plastic rope recovered at the place of occurrence. This is very material evidence against the appellant. Recovery memo of plastic rope was proved as Ext. Ka-15 which was recovered on 26.12.2004 just after the incident.
28. Learned Amicus Curiae submitted that injuries received on the body of deceased are not probable to have been caused by plastic rope. This submission has no force as the doctor examined in the matter has clearly stated that cause of death was asphyxia, hyoid bone was broken and injury no.1 could be caused by plastic rope. Doctor has also opined that cause of death was homicidal not suicidal or accidental.
29. Main defence taken by the appellant is that accused was not present at his home at the time of incident; previous husband of deceased Kammo or other persons might have caused death of Kammo as she was a lady of bad character and Vaishna was done to death because she had seen the incident committing the murder of her mother Kammo. On this point, Section 106 of the Indian Evidence Act, 1872 is very material which is quoted below:-
“106. Burden of proving fact especially within knowledge.— When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
30. Absolutely nothing is on record to substantiate the defence of appellant.
31. It is also very relevant at this point to mention that according to Section 105 of the Indian Evidence Act, 1872, burden lies on the accused to prove the defence. Section 105 of Indian Evidence Act is quoted below for ready reference:-
"105. Burden of proving that case of accused comes within exceptions.--When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.
32. At this point, Section 6 of the Indian Evidence Act, 1872 is also relevant and is quoted below:-
"6. Relevancy of facts forming part of same transaction.-- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
33. From perusal of record, it is proved that P.W.-1, P.W.-2, P.W.- 3 and P.W.-12 are wholly reliable witnesses. They have supported the prosecution case. Plea of defence that earlier husband of deceased Kammo or some other persons might have caused death of both deceased, is not acceptable as the door was closed from inside and nobody could enter into the house. It is also not a case of dacoity as there have been no loot of articles from the house. The plea that deceased Vaishna had seen the incident and that is why she was also killed, is also not acceptable. The incident is of night hours. Other family members were sleeping in separate rooms in the same house by bolting the doors and the incident of strangulation was done in a bolted room, hence they could not save Kammo and Vaishna. It has come in the statement of P.W.-8 that nobody could enter into the room as the room was locked. Submission of learned Amicus curie that nobody had seen the incident, may be true but the fact and circumstances emerged in the statements of P.W.1, P.W.-2, P.W.-3 and P.W.-12 clearly prove that only the appellant has committed murder of his wife Kammo and daughter Vaishna. Prosecution case is also supported by medical evidence.
34. Learned Amicus Curiae on behalf of appellant further submitted that there are major contradictions in statements of witnesses of facts. This submission has also no force as there is no major contraction on material points which are fatal to the case of prosecution.
35. In the case of Lallu Manjhi & Another vs. State of Jharkhand reported in AIR 2003 SC 854, the Supreme Court has held as below:-
"The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon testimony of a single witness. {See - Vadivelu Thevan etc. v. State of Madras, AIR 1957 SC 614}."
36. After analysing judgment of Supreme Court in the case of Lallu Manjhi & Another vs. State of Jharkhand(supra) we find that the testimony of witnesses P.W.1 Smt. Dulari, P.W.-2Hari Singh, P.W.-3 Rajendra Singh and P.W.12 Smt. Geeta are "wholly reliable".
37. Hence A prudent man under these circumstances can believe that the facts deposed by the witnesses would have existed beyond reasonable doubt.
38. Learned Amicus Curiae placed reliance upon Nazim & another vs. State of Rajasthan, 2016(1) SCC 550 and Sahadevan and Another vs. State of Tamil Nadu, 2012 AIR(SC) 2435, but the facts of present case are entirely different from the case law relied upon by the learned Amicus Curiae and are not helpful to the accused-appellant.
39. For the foregoing discussions and in the backdrop of law laid down by Apex Court, we find that charge levelled against the appellant stands proved beyond reasonable doubt. There is no infirmity in the judgment of conviction and sentence dated 7.2.2011. The appeal is dismissed. Judgment and order of lower court dated 7.2.2011 is upheld. Conviction and sentence awarded to appellant Popi @ Bijendra in the Sessions Trial No. 175 of 2005 (State Vs. Popi @ Bijendra) arising out of Case Crime No. 357 of 2004 under Section 302 I.P.C. are hereby affirmed.
40. Let Sri Ashok Kumar Yadav, Amicus Curiae be paid Rs.10,000/- by the Registry of this High Court within two months.
41. Copy of this judgment be also supplied to the accused appellant through the concerned Superintendent of Jail.
42. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 31.5.2018 A. Singh/P.P.