Main Kumar vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Rajesh Kumar Pandey, learned counsel for the appellant, and Ms. Ruhi Siddiqui, learned AGA for the State were heard at length.

Under challenge in the instant appeal is the judgment and order dated 21.09.2012 passed by Additional Sessions Judge, Court No. 1, Faizabad, in Sessions Trial No. 684 of 2009 arising out of Case Crime No. 868 of 2008, Police Station Gosainganj, Faizabad, whereby the present appellant Main Kumar was convicted and sentenced as under:-

"(i) 302 IPC - Imprisonment for life and fine of Rs. 5,000/-;

(ii) 328 IPC - Rigorous imprisonment for a period of five years and fine of Rs. 3,000/-

(iii) 420 IPC - Rigorous imprisonment for a period of three years and also with fine of Rs. 2,000/-."

In default of payment of entire fine amount, the appellant was directed to undergo additional imprisonment for a period of six months. All the sentences were directed to run concurrently.

In the facts of the instant case, one Shivpati, aged about 65-70 years, is alleged to have been murdered. She was real ''Chachi'' of the complainant Ram Prakash and appellant Main Kumar happens to be her real nephew. Appellant Main Kumar is resident of village Targohan Police Station Maharajganj which is parental village of deceased Shivpati. While deceased''s matrimonial home was in village Boghipur, Police Station Gosaiganj, District Faizabad. She was widow of uncle of the complainant. It transpires from perusal of the record that on 13.09.2008 the complainant Ram Prakash moved an application scribed by Vijay Kumar Singh which was entered at GD No. 23 dated 13.09.2008 at 13.20 hours alleging therein that Shivpati was taken away by appellant Main Kumar on 02.09.2008 for her treatment where she died on 11.09.2008. Her dead body was brought to his house on a tractor along with 30-40 persons for the purpose of her funeral. Since the brother of the complainant was working in Gujarat, therefore, the complainant side waited for the arrival of his brother and till then the dead body was kept on ice. When on 13.09.2008, his brother Nand Lal came to his house then this application was given expressing some doubt about the cause of death of the deceased. On the basis of this information, inquest proceedings were conducted and after completing the formalities, the dead body was sent for postmortem, which was performed on 13.09.2008 at 11.20 PM. As per postmortem report, the age of the deceased was about 70 years and no ante-mortem injury was reported by the doctor on her person and cause of death could not be ascertained. Hence, viscera was preserved. In viscera report, the presence of aluminum phosphide insecticide was reported. Thereafter, the complainant moved an application under Section 156(3) Cr.P.C. on 25.09.2008 and under the orders of the Magistrate dated 18.10.2008 the case was registered on 10.11.2008. It was alleged in the application under Section 156(3) Cr.P.C. that the real uncle of the complainant named Ram Das had died long back. Since he was issue less, so his wife Shivpati (deceased) was living with the complainant. Her ''Maika'' was in village Targauhan, Police Station Mahrajganj, District Faizabad. Appellant Main Kumar was a man of bad character and he always tried to grab the property of Shivpati (deceased). He also made efforts to grab her property by creating political pressure but he could not succeed. On 02.09.2008, appellant on the pretext of visiting to his house had taken Shivpati forcibly with her. When resistance was offered from the complainant then these persons extended threats of dire consequences. The appellant had some knowledge regarding the medicines. He started giving medicine to Shivpati to make her mind unconscious and taking the advantage of it, on 03.09.2008 he had withdrawn some money from the account of Shivpati. On 04.09.2008, the appellant had taken Shivpati to Faizabad registry office and got a sale-deed executed of plot No. 115 area 0.3250 hectare in his favour. Complainant, to know about the welfare of Smt. Shivpati and to bring her back, used to go there but the health of Shivpati continuously deteriorated. Appellant threatened and assured that after improvement of her health he will send her to his house. On 09.09.2008, the appellant got a will deed of the entire property of the deceased executed in his favour and after execution of the said will deed, murdered her in the intervening night of 10/11.09.2008. On 11.09.2008 at about 10.00 AM the appellant and some persons of his village along with the dead body of Shivpati came to the house of the complainant for funeral but on the objection raised by the complainant that unless and until his brother comes the funeral shall not take place. The appellant insisted for early disposal of the dead body, ultimately after extending threats he went from there. Thereafter, the complainant went to give information of this incident at the police station where-from he was turned out. On 13.09.2008, the complainant along with his brother gave a written report at the police station. The SO concerned compelled them to enter into compromise. When the complainant insisted for registration of the case then his signature was obtained on a blank paper and he was assured that the postmortem shall be conducted on 14.09.2008. The postmortem was conducted in the night on 13.09.2008. On 13.09.2008, no first information report was registered by the police on the application given by him. Thereafter, he moved an application to Superintendent of Police concerned on 14.09.2008 but in spite of that no case was registered and ultimately he moved an application under Section 156(3) Cr.P.C. on 25.09.2008 and under the orders of the Magistrate, the case was registered.

After completing the investigation, charge sheet was filed.

The case of the defence was that he has been falsely implicated in this case and he has stated that on 02.09.2008, Shivpati was brought to his house for her treatment where he got her treated and because of her ill health, she executed a sale-deed and also will deed in his favour. On 10.09.2008, the complainant Ram Prakash came to his house and had taken Shivpati with him. On 12.09.2008, he came to know that Shivpati has expired.

In order to prove its case, the prosecution has examined PW-1 Ram Prakash- the complainant of this case, PW-2 Smt. Prabhawati, wife of the complainant Ram Prakash, PW-3 Seeta Ram who has seen the deceased and appellant in Bank, PW-4 Dr. Mangala Singh, who has conducted the postmortem on the body of the deceased, PW-5 Constable Chhote Lal, who has prepared the Chik FIR of this case on the application under Section 156(3) Cr.P.C. and had also made entry of the same in GD, PW-6 Ashok Kumar, Officer of the Bank where-from on 03.09.2008 appellant along with deceased went to the bank and had withdrawn the money, PW-7 is Dr. P.L. Rawat, the subsequent Investigation Officer of this case who took investigation from 31.05.2009, and PW-8 Ram Daras, the Investigating Officer of this case who took investigation of this case from 10.11.2008.

In defence, DW-1 Shiv Narayan was examined who has stated that on 10.09.2008 Ram Prakash was very much annoyed by the fact that Shivpati has executed a will in favour of the appellant Main Kumar and on 13.09.2008 he heard about the death of Shivpati. He has also stated that wife of elder brother of Ram Prakash used to take care of Shivpati.

After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal.

Submission of learned counsel for the appellant was that in the instant case the chain of circumstances was not complete and the circumstances proposed to be proved by the prosecution were not capable of the only conclusion that the appellant was the author of this crime but the learned trial court has not properly appreciated the evidence in correct perspective which has rendered its judgment unsustainable under law.

Learned AGA has submitted that learned trial court, by a reasoned and detailed judgment, has convicted the appellant. The judgment is based on evidence available on record. There is no defect of fact or law in the judgment. Hence, the appeal has no force and deserves to be dismissed.

Now, in view of rival submissions, the prosecution evidence has to be considered. Since it is a case based on circumstantial evidence, therefore, before proceeding further, we would like to address ourselves on the standards which are required to be established before recording conviction in a case based on circumstantial evidence.

In the case of Haresh Mohandas Rajput v. State of Maharashtra , 2011 (12) SCC 56, Hon''ble Apex Court following its earlier decision in the case of Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 observed that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:

"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be definite tendency unerringly pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

Reference on this point may also be made on the pronouncements of Hon''ble Apex Court in the cases of Manthuri Laxmi Narsaiah v. State of A.P. , (2011) 14 SCC 117, Sangili alias Sanganathan v. State of Tamilnadu , (2014) 10 SCC 264, Satni Bai v. State of M.P. , (2010) 2 SCC 646, Sk Yusuf v. State of West Bengal , AIR 2011 SC 2283, Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, Krishnan v. State represented by Inspector of Police , (2008) 15 SCC 430 and Wakkar and another v. State of Uttar Pradesh , (2011) 3 SCC 306.

In view of the aforementioned legal position, the evidence has to be considered. The first ground is that the appellant had forcibly taken the deceased to his house on 02.09.2008 and he brought her dead on 11.09.2008. Another circumstances proposed to be proved is that the appellant had withdrawn the money from the bank account of the deceased on 03.09.2008 and he got the sale deed of her property executed in his favour and the last circumstance is the "will" executed by the deceased in favour of the appellant. While the defence of the appellant is that he send back Smt. Shivpati to the house of complainant on 10.09.2008.

The prosecution has come with a definite case that the appellant had forcibly taken the deceased with him on 02.09.2008 but in the application dated 13.09.2008 (Ext. Ka-3), which was given by the complainant himself, it was mentioned that the appellant Main Kumar had taken the deceased with him for the purpose of her treatment. There was absolutely no allegation in the said application that the complainant side had opposed the request of the appellant to take the deceased Shivpati with him. Though the execution of this application has been challenged by saying that his signatures were obtained on blank papers but prosecution has proved it as Ext. Ka-3 and on the basis of this application postmortem of the dead body was conducted. It was duly entered in GD. It was scribed by one Vijai Kumar Singh of complainant''s village. Apart from it, PW-3 Seeta Ram also says that Shivpati sat on the rear seat of Maruti car out of her own will without offering any resistance while Ram Prakash was opposing it. In the application under Section 156(3) Cr.P.C., it was alleged that on 02.09.2008 the appellant had taken his Chachi Shivpati forcibly for her visit to her "Maika" and on the protest, the appellant had extended threats of dire consequences. In the evidence before the court complainant on this point has stated that the appellant told that condition of brother of Shivpati named Ram Kewal, who happens to be the father of the appellant, is precarious so he has called Shivpati to see her. But the complainant did not believe this statement and refused to send Shivpati with him but in spite of that she was taken forcibly by him in a Maruti car. So at different stages, a different version has been given by the complainant. Apart from it, if the version that Shivpati was taken forcibly against her will and against the will of the complainant side then why the complainant did not lodge the first information report of such incident. Why he did not go to the house of the appellant immediately has nowhere been explained but instead he kept on waiting. As per evidence he and his wife visited the house of the appellant where they were treated with respect and there is no allegation that they were not permitted to meet the deceased. On this point not even a single witness of the village could be examined by the prosecution. So this ground that Shivpati was taken forcibly by the appellant could not be proved by the prosecution by reliable evidence. The initial version of the complainant himself which was mentioned in his own application dated 13.09.2008 (Ext. Ka-3) was that Shivpati was taken by the appellant for her treatment. There was also contradiction at different stages whether she was taken on tractor trolley or Maruti car or by any other means. It has also come in the evidence that the appellant himself is a quack. So, it appears to be more natural that Shivpati was sent with the appellant for her treatment and the story of forcibly taking Shivpati with him appears to be an after thought due to which inconsistent evidence is given by the complainant on this point.

The second circumstance is that appellant had withdrawn money from the bank account of the deceased. On this point the prosecution has examined PW-6 Ashok Kumar and PW-3 Seeta Ram. Evidence of the two witnesses shows that on 03.09.2008 Smt. Shivpati herself had gone to the bank to withdraw Rs. 25,000/- from her account and at that time appellant Main Kumar was also present with her. However, in his statement under Section 161 Cr.P.C. PW-6 has not disclosed the name of the appellant Main Kumar to the Investigating Officer that he was also present there. So, simply withdrawal of money by Shivpati from her own account in normal circumstances does not make any incriminating circumstance against the appellant. Even if it is assumed that he was present there then his company with the deceased cannot be said to be unnatural because she was an old lady and closely related to the appellant. She has not made any effort to complain to any person to say that she is being forced to withdraw the money. Appellant permitted every one to meet her as is clear from the evidence of PW-3 and PW-6. Complainant has mentioned in the first information report that he used to go there to know about the welfare of the deceased. It is no where the case of the prosecution that complainant did not permit him to meet Shivpati. It is no where stated by the complainant that Shivpati made any complaint about withdrawal of money or execution of sale deed against her will.

Now the last circumstance i.e. execution of sale deed is concerned, learned AGA has vehemently argued that execution of sale deed and execution of will deed in favour of the appellant is also an incriminating circumstance which provides a strong motive to the appellant to commit the murder of the deceased. In the instant case, the prosecution has neither filed the said sale deed nor the said will is on record but on the basis of the admission of the appellant it is submitted that the execution of the sale deed and will is an admitted fact. The will is alleged to have been executed on 10.09.2008. In the facts of the instant case, it is true that execution of the will is an admitted fact. But evidence of attesting witnesses of the will would have been very important for the instant offence as they would have deposed regarding the mental condition of the deceased at that time and the circumstances under which the will deed was executed in favour of appellant Main Kumar.

Perusal of the record shows that the third Investigating Officer (P.L. Rawat PW-7) of this case had prepared a site plan (Ext. Ka-8) of the house of the appellant on 13.06.2009 wherein place ''A'' has been shown where Shivpati had died and injection and medicine were given to her and at place ''B'' Km. Gomati was sleeping, which is adjacent to the place ''A''. So it transpires from this site plan that the third Investigating Officer of this case, who has filed charge sheet in the instant case, had collected any information on such points and therefore these points have been shown in the site plan. Nothing incriminating is alleged to have been recovered from the house of appellant Main Kumar. The last Investigating Officer was examined as PW-7 Dr. P.L. Rawat. This witness has proved the said site plan but he was not questioned by the Public Prosecutor as to how he has shown these places in the site plan. No such witness of fact has been examined by the prosecution on this point as to whether Shivpati was lying or any injection or medicine was given to her by the present appellant. Apart from it, in the facts of the instant case PW-2 Smt. Prabhawati Devi who happens to be the wife of the complainant Ram Prakash has stated in her cross examination that after 8 days on 10.09.2008 Shivpati came to her house then she saw her. This statement of PW-2 supports the defence story. During this period, she once visited the house of the appellant and she was treated with full respect at the house of the appellant. She has also not stated that at that time Shivpati had told her about withdrawal of money and execution of sale deed against her will. This statement of the witness goes very much against the case of the prosecution. Thus, this point also becomes doubtful whether Shivpati came alive to the house of the complainant on 10.08.2008 or she was brought dead by the appellant on 11.09.2008. For the sake of arguments, even if we take all the circumstances to be proved even then the said circumstances only create a strong doubt against the appellant that after getting the will deed executed in his favour, he might have committed her murder to get the fruits of the said will. But the possibility that any other member of his family, who was interested in the appellant, might have administered poison, cannot be ruled out. It is no where the case of the prosecution that appellant was the only person living in the house. Such persons may be the wife or any other inmate of the house. There is absolutely no evidence that the appellant was the person who was present near the deceased at the time when she died or the deceased used to take her meals or medicines only by the present appellant. These aspects of the case were not considered in correct perspective which has rendered its judgment unsustainable under law. So the evidence is not of such nature that gives rise to the only evidence of the guilt of accused on the contrary, it is capable of other inference also indicated above. It is no where in the evidence that appellant was the only person present in the house who could have approached the deceased.

So, in view of discussions made above, we are of the considered view that the appellant deserves to be granted the benefit of doubt. The appeal deserves to be allowed and is hereby allowed. The appellant is acquitted of the charges levelled against him. He be set at liberty. He is in custody. He shall be released forthwith, if not wanted in any other case.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.