Court No. - 40
Case :- CRIMINAL APPEAL No. - 672 of 1984
Appellant :- Ram Autar And Others
Respondent :- State of U.P.
Counsel for Appellant :- A.D.Giri,Ajay Kumar Pandey
Counsel for Respondent :- D.G.A.,A.G.A.
Hon'ble Manoj Misra,J. Hon'ble Sameer Jain,J.
1. This appeal has been filed by four appellants, namely, Ram Autar; Nand Lal alias Nandu; Nand Kishore; and Smt. Sitabi against the judgment and order dated 28.2.1984 passed by IInd Additional Sessions Judge, Varanasi in Sessions Trial No.320 of 1983 whereby, all the four appellants have been convicted for offences punishable under Section 302 IPC read with Section 34 IPC; Section 201 /511 IPC read with Section 34 IPC and have been punished as follows: Life imprisonment for the offence under Section 302/34 IPC; and one year RI for the offence punishable under Section 201/511 IPC read with Section 34 IPC. Both the sentences were to run concurrently.
Introductory facts:
2. On a report of Ram Autar (appellant no.1), in respect of death of her daughter-in-law (Laxmi-deceased), dated 3.1.1983, provided at about 12.30 PM, an inquest proceeding was conducted at the residence of Ram Autar (Appellant no.1). The inquest proceeding that commenced post noon was completed by 14.30 hours on 3.1.1983, which was recorded in an inquest report (Ex.Ka 4). The witnesses to the inquest were Bali Ram; Heera Prasad Pradhan; Ram Dular (father of the deceased - PW -1); Abdul Majeed; and Kallu. The opinion of the witnesses were that death was due to ante mortem burn injuries though, for final opinion with regard to the cause of death, a post mortem was suggested. The post mortem was conducted by PW-6 on 4.1.1983 at about 4.30 PM. The post mortem report (Ext.Ka-13) disclosed a number of ante mortem external injuries, namely,
1. Two contusions in an area of 15 cm x 4 cm, on left side of head (scalp) - temporal and parietal areas. On opening the scalp, underneath the scalp, tissue was contused.
2. Three contusions (circular 1 cm in diameter) one above the other, having a gap of 0.5 cm in between, starting 1.5 cm below the angle of right mandible over the right side of neck. After everting the skin flap, there was contusion.
3. Circular contusion 1.5 cm in diameter over left side of neck at the level of Hyoid bone. After everting the skin flap, there was contusion.
4. Contusion 8 cm x 4 cm, over right side of chest in clavicular area.
5. Contusion 8 cm x 5 cm on right side of chest (lower part), at the level of 6th to 9th rib.
6. Contusion 7 cm x2 cm on medial aspect of middle one third of right leg.
7. Multiple contusions (linear) in an area of 16cm x8 cm, on back both sides lower part.
On opening the skull and examination of thorax, at the time of autopsy, following other internal injuries were noticed, namely,
1. Contusion 8 cm x 5 cm on the lower part of chest right side at the level of 6 to 9 ribs;
2. Contusion 5 cm x 3 cm on left side of chest at the level of 5th rib.
3. Contusion over right side of muscle attached to the corner of hyoid bone and adjacent part of epiglotis.
Internal examination revealed presence of digested food in the small intestine; and faecal matter in the large intestine.
3. In addition to above, post mortem burns were noticed on the body to the extent of 90% on almost whole of the body except the occipital region of scalp with hairs and inter scapular regions and lumbo sacral region of the back. Both palms and soles were burnt, black soot was present all over the body and no soot was noticed in trachea though it was found congested. According to the doctor cause of death was asphyxia as a result of compression. The approximate time of death was ascertained one and one-half day before.
4. On the application of the mother of the deceased, namely, Smt. Kalawati (PW-2), a First Information Report was registered on 20.1.1983 vide GD Entry no.42. After investigation, a charge sheet was laid against all the appellants and they were committed to face trial. All the accused were jointly charged with the offence of murder by causing death of the deceased in the night of 2/3.1.1983 in between 11 and 11.30 pm. They were also jointly charged for the offence of removing evidence of murder by burning the corpse after sprinkling kerosene. All the accused denied the charges and claimed for trial. In the trial, seven prosecution witnesses were examined. The defence examined Ram Karan Ram as DW-1. Though there was no direct evidence of murder or removal of the evidence of murder but, on the strength of the circumstances brought before it, finding the chain of circumstances complete, the trial court convicted all the appellants as above.
5. Against the judgment and order of conviction all the accused jointly filed this appeal. However, the appeal of appellant no.1(father-in-law of the deceased); appellant no.3 (husband of the deceased); and appellant no.4 (mother-in-law of the deceased) was declared abated, consequent to their death during the pendency of this appeal. Thus, now, only the appeal of appellant no.2-Nand Lal @ Nandu S/o Ram Autar, the Jeth (elder brother in law) of the deceased, survives.
6. We have heard Sri Ajai Kumar Pandey, learned counsel for appellant no.2; and Shri Gaurav Pratap Singh, Brief Holder, for the State and have perused the record.
Submissions on behalf of the surviving appellant no.2
7. The contention of the learned counsel for the appellant no.2 is that, admittedly, there is no eye witeness account of the actual murder or burning of the body; that there is no motive attributed to him to join the other co-accused; that there is no reliable evidence to demonstrate that the appellant no.2 was with the other co-accused on or about the time when the deceased could have been inflicted with injuries resulting in her death or even when her corpse was allegedly burnt; that the specific case of the surviving appellant had been that he resided separately in a room constructed at his nursery located near Kashi Vidyapeeth, which was far away from the place where the deceased resided with her husband and where her body was found; that it is not a case where any presumption would be available to the prosecution with regard to the culpability of the appellant no.2 as the incident occurred prior to the insertion of the provisions of section 113-B of the Evidence Act; that the statement of PW-3 (Shanti Devi), disclosing the presence of the surviving-appellant with the other accused in the night of the incident, when the deceased was last seen alive, is at variance with her statement recorded during the course of investigation, in as much as, in her statement recorded under Section 161 Cr.P.C. she made no disclosure about the presence of the surviving appellant at the scene of crime therefore, in absence of any cogent evidence to show that the surviving appellant was also with the other accused on or about the time of the incident, the conviction of the surviving appellant is not sustainable. He further contended that the defence witness had categorically stated that the surviving appellant resided permanently at the place where his nursery was, and the prosecution did not cross-examine him on that. Therefore, it was proved that the surviving appellant had a separate place of residence. It was also contended that the statement of PW-3 cannot be relied for another reason also, which is, that she had a grudge against the accused inasmuch as she had a claim over the land where the accused, after purchasing the land from another person, had built their house. Under the circumstances, in absence of any evidence that the surviving appellant had harassed or tortured the deceased, he cannot be fastened with the liability of murder and removal of its evidence with the aid of Section 34 IPC. He has thus submitted that the conviction of surviving appellant with the aid of section 34 IPC is not sustainable and the judgment and order of conviction and the sentence recorded by the trial court as against the surviving appellant are liable to be set-aside.
Submissions on behalf of the State
8. In response to the above submissions, the learned AGA submitted that from the evidence brought on record it has been established that the surviving appellant had in the past visited the parental house of the deceased to get her Bidai, which is suggestive of the fact that the family of the accused was a joint family; and that the prosecution witnesses of fact also stated that though the surviving appellant had a separate nursery but he used to reside in that very house where the deceased used to reside with her husband. He further submits that although there may be no eye witness account of the actual murder but it was proved from the medical evidence that the murder was committed some time in the night when all the inmates of the house were present therefore, keeping in mind the nature of the injuries found on the body of the deceased, participation of more than one was certain, hence, by virtue of section 106 of the Evidence Act, the burden was on the accused to explain the circumstances in which the deceased sustained those injuries. As the accused failed to explain the circumstances in which the deceased sustained the injuries, the conviction of all the accused was justified. He also submitted that there is no cogent reason to disbelieve the statement of PW-3 with regard to her having seen the surviving appellant at the door of the house with the other accused in the night, the morning of which, the deceased was found murdered.
9. We have given our anxious consideration to the rival submissions and have perused the record carefully. Before we proceed to weigh the submissions qua the surviving appellant, it would be apposite to notice briefly the deposition of the prosecution witnesses.
Testimony of Prosecution Witnesses
10. The testimony of PW-1, the father of the deceased, would reveal that on 3.1.1983 at about 1.00 PM a person arrived at his house, when he was not present, and gave information in respect of the death of his daughter to his wife (PW-2). After that informer left the house, within 10-15 minutes, PW-1 arrived at his house and was informed by his wife (PW-2) that his daughter Laxmi (deceased) has died on account of burn injuries. Upon receipt of this information he, along with his wife and other neighbours, went to the Sasural (matrimonial home) of Laxmi where they found the house locked. After 5-10 minutes of their reaching the spot, the Police arrived and opened the lock. On entering the house, across the courtyard (Aangan), below a tin shed, the body of Laxmi was found. A bare examination of the body revealed that she had suffered injuries and was burnt. He stated that on the next day i.e, 4.1.1983, he gave an application to the Superintendent of Police. The said application was marked as Ext. Ka-1. In his statement, he disclosed that Ram Autar, the father-in-law of the deceased, had demanded Rs.10,000/- from him to purchase some land. He did not make any specific allegation against the surviving appellant-Nand Lal alias Nandu in respect of his daughter's harassment though, he stated, in the past, on some occasions, Nand Lal alias Nandu had come for the Bidai of his daughter. There is no statement by PW-1 in respect of any demand having been made by the surviving appellant. Further, he is not the eye witness of the incident. During the course of cross-examination though he admits that accused Nand Lal alias Nandu (surviving appellant) has a nursery, where he has built a tin-shed, but denies the suggestion that he resides there, rather, he states he resides with the other accused.
11. PW-2 Kalawati, the mother of the deceased, gave similar statement as regards the demand of Rs.10,000/- by Ram Autar as also with regard to receipt of information about the death of her daughter, which was passed on by her to her husband. She also did not level any specific allegation against the surviving appellant save that he used to come for the Bidai of her daughter.
12. It be noticed here that the testimony of both PW-1 and PW-2 is silent with regard to the presence of the surviving appellant at the house where the body of the deceased was seen as also at the mortuary where the presence of Ram Autar, the father in law, is shown.
13. PW-3 (Shanti Devi) is the star prosecution witness. She claims herself to be a neighbour of the accused. Her house is located in close proximity to the house of the accused where the deceased was found dead. Her statement was recorded on 20.1.1984. She states that about a year and 18 days ago, in the night, between 10.00 pm and 11.30PM, she heard noises coming from the house of the accused. She went out of her house and saw Nand Kishore's wife Smt. Laxmi (the deceased) rushing out crying. Immediately, thereafter, Laxmi was pulled inside the house by her father in law (Ram Autar) and mother in law (Sitavi). At that time, she saw Nandu (surviving appellant) and Nand Kishore (deceased’s husband) standing at the door. She stated that she saw the incident in the radiance of electricity light coming from inside accused's/ victim’s house. She stated that she did not intervene in the matter as in the past also, Nand Lal alias Nandu (surviving appellant) used to have altercations with his own wife and when, in the past, she had intervened, the accused had warned her not to intervene in their family matters. She stated that thereafter she did not enquire because, in the morning she had gone to Kutchery (District Court) in connection with papers of her case though, on return, she came to know that Laxmi had died due to burn injuries.
In her cross examination she admitted that the night of the incident was dark and foggy. She also admitted that when she returned from the Kutchery at about 4- 4.30 pm, she saw the police investigating the incident and sealing the body of the deceased but neither the police inquired from her nor she informed the police about the previous night incident. She stated that later, after about 10-12 days, the police came to her house in connection with the investigation, when she disclosed to the police about that night incident. But, prior to that, she made no disclosure to any one about what she had seen that night.
14. Shanti Devi during cross-examination was confronted with her statement made during the course of investigation by pointing out to her that during the course of investigation she had not disclosed the presence of Nandu (surviving appellant) at the scene of crime on the night of the incident. On being confronted with her previous statement, she stated that she had made the disclosure but if the Investigating Officer had not recorded that statement, it is not her fault.
15. A notable feature in her testimony is that she was cross- examined in respect of her motive to falsely implicate the accused on two counts, firstly, she had a claim over the land which the accused bought from another person to build the house; and, secondly, in respect of a Well, which she claimed to be her own, Ram Autar (father in law of the deceased) had a rival claim. She did not deny those facts but claimed that she does not have any dispute with the accused on those counts.
In her cross-examination, Shanti Devi stated that in the morning, following the night of the incident, she went to Kutchery in connection with litigation with a Rickshaw puller who had lodged a case against her as she had got his encroachment removed from her land. To this, a suggestion was given to her that accused Ram Autar was doing pairvi for that Rickshaw puller therefore she made false statement. This suggestion was denied by her. She also denied the suggestion that she is lying because of enmity.
16. Notably, PW-3 did not make any disclosure about Nand Lal alias Nandu (surviving appellant) residing in the house where the incident occurred, nor she disclosed about Nandu (surviving appellant) harassing the deceased. Though, she stated that he had issues with his own wife which were there two years before the date of the incident.
17. PW-4 is the first Investigating Officer, who carried out the inquest proceedings. PW-5 is the police personnel, who brought the body of the deceased to the Mortuary. PW-6 is the Doctor, who conducted the post mortem. The Doctor, who conducted the post mortem did not rule out the possibility of death of the deceased in the intervening night of 2/3-1-1983. He also proved his observations entered in the post mortem report and, on his statement, the post mortem report was exhibited. PW-7 is the second Investigating Officer, who completed the investigation and submitted the charge sheet. In his cross-examination PW-7 specifically stated that Shanti Devi during her statement under Section 161 Cr.P.C. made no disclosure in respect of presence of Nand Lal alias Nandu (surviving appellant) at the scene, nor made any disclosure about the radiance of light emanating from the house of the accused.
18. After the evidence of the prosecution was recorded, the incriminating circumstances emerging from the prosecution evidence were put to the accused. All the accused including the surviving appellant denied their involvement in the crime. The non surviving appellants disclosed that the deceased served them (i.e. the non surviving appellants) tea in the morning; thereafter, they (the non-surviving appellants) left for their nursery where they were informed by Ram Karan (DW-1) about the incident. Whereas, the surviving appellant took a specific case that he is innocent; he does not reside at the place where body of the deceased was found; that he has a room at his nursery near Kashi Vidyapeeth; and he resides there.
19. A defence witness, namely, Ram Karan Ram-DW-1, was examined. He is a neighbour of the accused i.e. non surviving appellants. He stated that Hiramani, aged about 7-8 years, informed him, at about 11 am, that her Bhabhi (sister in law) is ablaze. When he and other ladies of the neighbourhood reached there they found her dead. At that time, no one was present in the house of the accused Ram Autar. He went to the nursery and informed Ram Autar of the incident. He specifically stated that at the Nursery there exists a room where the accused Nand Lal alias Nandu (surviving appellant) resides permanently. Importantly, DW-1 was not cross-examined on the above aspect.
Trial Court Findings
20. The trial court found from the medical evidence that death occurred in the night due to ante mortem injuries; that the presence of all the accused in the night of the incident was proved by PW-3; that the medical evidence disclosed a case of homicide as also an attempt to remove the evidence of homicide; that the conduct of the Investigating Officer was not above board, therefore, if he had not recorded the statement of PW-3 regarding presence of the surviving appellant in the night of the incident, it would not render her statement in that regard unreliable; and that the defence witness does not inspire confidence. Thus, in absence of cogent explanation from the accused as to the circumstances in which the deceased sustained injuries, the accused were liable to be convicted.
Analysis
21. Having noticed the entire evidence, the submissions and the findings returned by the trial court, keeping in mind that we have to deal with the appeal of only the surviving appellant, namely, the Jeth (brother in law) of the deceased, and the incident is of a date when no presumptive provision, such as Section 113-B of the Evidence Act, was in the statute book, what we have to first determine is whether there is cogent and reliable evidence with regard to the presence of the surviving appellant on or about the time of occurrence, or whether there is definite evidence of the surviving appellant residing at that very place and no other place. In addition to above, whether the evidence of DW1 with regard to the surviving appellant residing at the nursery unreliable. Second, we have to determine as to when the body was burnt. Third, we have to determine, whether, at the time when the body was burnt, the surviving appellant was seen at the place where the body was burnt.
22. Before we dwell on the issues culled out above, we may briefly record our approval to the findings returned by the trial court in respect of the homicidal death of the deceased; and an attempt to hide the evidence with regard to her homicidal death.
23. In respect of the presence of the surviving appellant at the scene of crime on or about the time when the deceased was last seen alive, that is the intervening night of 2/3.01.1983, we find that the prosecution led no evidence except that of PW-3. P.W.-3, though a neighbour, comes forward with her version 10-12 days after the incident even though she saw the police present at the place of occurrence when she allegedly returned from the Kutchery in the evening of the next day of the incident. Further, she made no disclosure about the presence of the surviving appellant at the scene of crime in her statement recorded during the course of investigation. The observation of the trial court that this omission is not significant as the investigation officer’s conduct had not been above board is not acceptable because if the investigating officer is recording all other aspects of her statement why would he leave that out.
Further, we find that PW-3 had property related issues with the accused Ram Autar. Under these circumstances, her testimony with regard to the presence of the surviving appellant also, at the scene of crime on the night of the incident, is not confidence inspiring. More so, when she does not specifically states that the surviving appellant resided there and at no other place.
24. In respect of the residence of the surviving appellant being at another place, namely, the nursery, it has been the specific case of the surviving appellant in his statement under section 313 CrPC that he resides separate from the other accused in a room built at his Nursery located near Kashi Vidyapeeth, which is at some distance from the place of occurrence. The defence witness DW-1 also proves this fact and he has not been cross-examined on that statement. Further, the prosecution witnesses in their testimony have made no disclosure about any act of the surviving appellant (Nand Lal @ Nandu) in the past from which it could be inferred that the surviving appellant stayed under the same roof as the deceased. Interestingly, the other accused appellants also do not state in their statement under Section 313 CrPC that they left for their nursery with the surviving appellant after being served tea by the deceased in the morning. Thus, even from their statement, it appears, the surviving appellant was not with them. Otherwise also, the mere fact that in the past the surviving appellant had come to fetch her sister in law for Bidai cannot be a basis to assume joint living as it may be a family tradition or custom that some elder of the family has to go for Bidai. We, therefore, find no definite and clinching evidence to prove that the surviving appellant resided in that house, and nowhere else, where the deceased was found dead. Rather, the defence that the surviving appellant resided in a room at the nursery gets probabilized not only by the statement of DW-1 but also by the statements of other co-accused persons recorded under Section 313 CrPC and by absence of a categorical stand to the contrary in the statement of PW-3.
25. In respect of presence of the surviving appellant next day morning of the incident, the prosecution evidence is completely lacking. There is no evidence that the surviving appellant was seen in the morning at the place where the body was allegedly burnt. Further, the body was not seen burning by any prosecution witness either in the night or in the morning therefore, it could be assumed that it was burnt in the day time (before noon) as is the statement of DW-1.
26. On the analysis above, we find no reliable evidence that, on or about the time of death of the deceased, the appellant was with the deceased and the other co-accused. The testimony of PW-3 (Shanti Devi), disclosing the presence of the appellant with the other accused and the deceased on the night of the incident, is not acceptable being at variance with her statement recorded under section 161 CrPC. Therefore, we are of the firm view that the prosecution has failed to prove the case against the surviving appellant beyond the pale of doubt. More so, when there is no allegation against the surviving appellant in respect of making demand of any kind, or of hararssing or torturing the deceased. Thus, the appellant is entitled to the benefit of doubt.
27. For all the reasons recorded above, the conviction and sentence of the surviving appellant no.2 (Nand Lal alias Nandu) cannot be sustained and same are liable to be set-aside.
28. The appeal of the appellant no.2 (Nand Lal @ Nandu) is, therefore, allowed. The judgement and order of conviction and the sentence recorded against the appellant no.2 dated 28.2.1984 passed by II Additional Sessions Judge, Varanasi in Sessions Trial No. 320 of 1983 is set-aside. The appellant no.2 is acquitted of all the charges for which he has been tried. The appellant is reported to be on bail, he need not surrender, his bail bonds are discharged, subject to the compliance of the provisions of Section 437-A Cr.P.C.
Let a copy of this order and the lower court record be sent back to the trial court.
Order Date :- 25.10.2021 SKM