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Judgment
The instant appeal has been filed against the
judgment dated 17.1.2007 passed by learned Additional Sessions
Judge (Fast Track) No.2, Pali in Sessions Case No.31/2006, by
which the learned trial trial Court has convicted the accused-
appellant under Section 302 I.P.C. for life imprisonment with a fine
of Rs.1000/- and in default further to undergo three years simple
imprisonment and under Section 201 I.P.C. for seven years
imprisonment and with a fine of Rs.500, in default, further to
undergo one year''s simple imprisonment.
The allegations as mentioned in the FIR goes to
reveal as under:-
"VERNACULAR MATTER OMITTED"
Heard submission of both the sides, placing
reliance on the judgment of Hon''ble Supreme Court as rendered in
Inspector of Police, Tamil Nadu Vs. Palanisamy alias Selvan,
(2009) 2 SCC (Cri) 844, learned counsel for the appellant has
contended that the trial court has committed material illegality
and perversity in passing the impugned judgment and has faulted
in arriving at conclusion of guilt, there was no direct evidence, the
case of the prosecution is based on circumstantial evidence and
the links relating thereto have not been properly connected,
majority of the witnesses of prosecution have become hostile.
"PW-2 Amba Lal" is not a trustworthy witness, since theory of
extra judicial confession, which has been invented through this
witness does not substantiate being contradictory and baseless,.
there are important contradictions in testimony of this witness, he
has himself controverted several say of police statements, he has
twice been testified, Amba Lal as well as Gopal were actually
involved in crime since both were detained by the police
authorities and they were interrogated under custodial
predicament, which goes to show that there was intense
propensity of doubt and involvement of both these witnesses in
the crime and without any reason the appellant was framed.
Because of no offence and unnatural burnt death under
the provisions of Section 174 / 176 of Cr.P.C. Proceedings for
morgue were conducted by Executive Magistrate and after
concocting fable, false report was lodged belatedly without any
legal ground. Learned counsel has further contended that
appellant-accused was illegally detained by the police authorities
prior to the alleged arrest memo, which is very much apparent
from the record and Ex.P.1, which has got interpolation of dates
and overwriting, which too is admitted by the prosecution and this
goes to reveal that fabrication of record was malafidely prepared
to involve innocent appellant.
Entire evidence goes to show that deceased Payal
was a poor girl, her father was serving sentence for murder, even
the marriage expenditures were borne by the accused himself, so
allegation regarding any demand automatically negates, and
nullified, the recovery is also not established, alleged dictum of
extra judicial confession says that the deceased was strangulated
whereas a knife by which alleged stains of wall, stated to have
been scratched and wiped away, has been recovered without
authenticity of any recovery witness. It has further been
contended that cause of death has also not been established and
story of the prosecution suggest that the accused had left the
place after handing over key of his house to neighbour Gopal, who
too has accepted this version in his testimony being PW 4, alleged
disclosure of extra judicial confession becomes wrong because
Amba Lal has himself said that when he visited at the house of the
accused, then ''Payal'' was not there and contrary to it alleged story
has been brought with the allegations, as if, that burnt dead body
of deceased ''Payal'' was inside the room, which is quite contrary
and unnatural. The post-mortem report and report of viscera does
not reveal cause of death of the deceased and all these go to
divulge that prosecution has miserably failed in establishing its
case and the impugned judgment is not sustainable at all, so it be
set aside after allowing the appeal.
Learned Public Prosecutor has contended that the
prosecution has proved its case, beyond all reasonable doubts,
there were strained relation between the couple and accused was
repeatedly demanding dowry, which has properly been conveyed
by all the witnesses of the prosecution. Body of the deceased was
found in the premises of the accused, recovery of weapon has also
been made on his information, the accused has eliminated his wife
within a year of marriage, testimony of prosecution is reliable and
there is no error in the findings of learned trial court. The appeal
does not weigh any merit, so it be dismissed.
Perusal and analysis of the record reveals
that Ex.P.11 post mortem report does not disclose cause of
death of deceased Payal, several parts of the body were also
short, while the body was examined by the Medical Board at
Jodhpur, some parts of the body were separate and it has been
opined that the body was of female of 20 to 22 years, died
between 2-5 days from the time of post mortem
examination, cause of death could not be ascertained at the
time of post mortem, however, final opinion will be given
after receiving viscera report, this post mortem has been
conducted on 23.3.2006 at 6:15 PM. It is also mentioned in
the report that the dead body was brought by the police
from Pali for re-examination, body was extensively burnt
with exposed bones, skull lying separately, few bones, also
found loose, chest, abdominal cavities found opened.
Ex.31 which is a photocopy of an application
containing report of Pali Medical Board regarding first post
mortem report its overleaf reads that in the opinion of
Medical Board, cause of death, duration, nature of burn,
ante mortem or post mortem burnt (sic) could not
ascertained, however, piece of bones, ashes, flesh has been
taken and sent to higher center along with whole body (sic)
to police for further evaluation but it is strange that this
aspect has not properly been proved during trial. Exhibit 31
which is a faded photo copy and which is not properly legible has
been filed by the Investigating Officer, PW18 Sanjay Gupta during
the course of testimony, which has got a reference in his
testimony, as well. Ex.30 FLS report, which belongs to
viscera does also not disclose detection of poison or
metallic poisons, ethyl and methyl alcohol, cyanide,
alkaloids, barbiturates, tranquilizers and insecticides.
Upon aforesaid, it is obvious that the cause
of death of the deceased has not been ascertained, the
body of the deceased was post mortemed twice, so far as
the first post mortem report is concerned, it has not been
proved in the Court nor Doctors conducting the first post
mortem at Pali, have been produced in the Court, whereas
the first post mortem report, which was conducted at Pali
has also opined that cause of death could not be
ascertained there, even few parts of the body were taken
for further examination there but what occurred to those
samples of the body has not been revealed by the
prosecution in their evidence, which is astonishing.
PW9 Dr. P.C. Vyas, who conducted re-
examination of dead body at Jodhpur has said that on 23.3.2006,
he had conducted post mortem of Payal W/o Bheru aged 20 years,
body of which was identified by police officials, Amra Ram and
brother of the deceased Vikram Singh. He has said that death
occurred about 2 to 5 days prior to the post mortem and the body
was brought for re-examination from Pali. He has also said that
Ex.P.11 post mortem report is in his hand writing and has further
said that "cause of death could not be ascertained by post
mortem" and has said that he had got experience of 22
years and had conducted thousands of post-mortems.
PW 18 Sanjay Gupta, C.I.-cum-Investigator of
this matter has also accepted in his testimony that post mortem is
Ex.11 and FSL is Ex.30 and opinion of Pali Doctor is Ex.31 and on
the basis of these three "cause of death could not be
ascertained", there is no opinion regarding strangulation,
the body was found in burnt position as a skeleton, he has
also said that Pali Medical Board report is not on the record and
has said that he had brought photo copy of it, which is as Ex.31.
Ex.P.2 is a report pertaining to morgue,
which has been given by "Gopal", a neighbour and "Richi" sister of
the deceased. On 23.3.2006 at 7:30 AM, on which morgue No.4
under Section 176 Cr.P.C. was registered. It does not contain any
allegations against the accused and reads as under:-
"VERNACULAR MATTER OMITTED"
It also goes to indicate that on 22.3.2006 Gopal
had returned from his work at 5 to 6. Bheru was there at his
home at about 8 PM, he parked his cycle in his house, Bheru was
alone at home, his wife was not there, later on 8:30 PM, Bheru
came to the room of Gopal and consigned key of his house by
saying that he may take his cycle, since he was going to Jodhpur
and when he awakened in the night at 4 to 5 in the morning then
he found, smoke emanating from the house of Bheru Singh, Tej
Singh and his wife also got awakened, slight fire was blazing in
the house of Bheru and smoke was coming out, Tej Singh called
Fire Brigade, which extinguished fire and they saw a dead body of
burnt lady, probably of Payal there, subsequently on
enquiry/inquest of SDM Ex.P.17 was presented by SDM before the
Police Thana, Industrial Area, Pali on 25.3.2005 at 7:30 PM and a
case under Section 304B and 201 I.P.C. was registered and chalk
FIR was lodged by the police vide Exhibit 18.
Arrest-memo of accused shows that variation and
interpolation is there in the "date of arrest" and visible overwriting
is there, which goes to show that "25" appears to be over written
as "26" and against column P.S. Thana efgyk is "struck" and this
manifest interpolation in column of "date" is established by the
evidence of PW 1 Mangi Lal, who has said that memo of arrest
Ex.1 contains his signatures from "A" to "B" and he has said
that the accused was arrested on 25.3.2006 in the morning
at about 10-11 and he has said that his signatures were
taken at 10:00 in the morning and not in the night and he
has further said that he remembers the date of arrest was
25.3.2006 and has denied that Ex.P.1 was not prepared as
per the details mentioned therein, which is enough to show
that the entire theory of arrest and proceedings pertaining
to alleged recovery thereafter collapses.
PW18 Sanjay Gupta, I.O. has also accepted in
his testimony that exhibit-1 contains overwriting from "X" to "Y"
(which is an entry relating to "date" and "time"), he has also said
that ink is spread at "Z".
"Amba Lal" and "Gopal" are witnesses of the
prosecution who were detained for custodial interrogation and this
version has been accepted by both these witnesses that they were
being called in the morning and were being let off in the evening
and were interrogated by the police authorities. "Amba Lal" has
said that on date 23rd, he had gone to police station at 2:00 PM,
his statements were recorded on that day and police had asked
about whereabouts of Bheru Lal, he has further said that next day
again at 7:00 AM, he was called and went to Thana and remained
there for whole day. He has further said that on 24 th Sahab came
in the evening and he ordered to release him. He has
specifically admitted that "it is correct", he and Gopal were
detained in Thana for two days in connection with murder
of Payal and has said that he was being summoned daily in
the morning and was let off in the evening.
PW1 Amba Lal has said that on 22.3.2006,
Bheru came to him and they went together to the house, when he
was going to his home, Bheru asked him to go along to his home.
Then, "Bheru informed him at the gate of his house that he
had killed Payal by strangulation and asked him how to
dispose of the body and had sought his advise, then he said
"thou have committed wrong, may misfortune fall upon
thee".
He has again said that prior to it, Bheru had said
that he would kill Payal and has said that after this, he left for his
home, which too is unreliable. He has also said that he had
participated in the marriage of Bheru Singh. Roshni and Shyam Lal
had performed role of Bride''s parents. He has also said that there
was no transaction or dowry, expenses of marriage were also
borne by Bheru Singh. He has also said that Bhanwari was a
married lady and she had got her own husband and her own
family and they live there. He has contradicted several parts of
exhibit 1 and 2 and has contradicted some parts of exbit 2
regarding alleged scuffle of Bhanwari, Bheru and Payal and has
said that on 22 he had gone to the house of Bheru Singh at
6:00. He has further said that he sat there for two minutes
and talked with Bheru but no dead body was seen by him in
the room nor blood spots were seen, on the wall, on one
hand this witness says that, he was informed by Bheru
Singh that he had killed his wife but while sitting there, he
did not find any dead body nor he witnessed any signs of
blood or dead body there, whereas Ex.2 shows that at 8 PM
he had kept his cycle in the house of Bheru Singh and then
Bheru Singh was alone in the house and his wife was not
there and at 8:30 PM, Bheru Singh handed over key of his
house to him to facilitate keeping of his cycle there, both
these facts indicate that on 22.3.2006, "Gopal" as well as
"Amba Lal" came to Bheru Singh''s house and no such body
was there, so, utterances of extra judicial confession of
Amba Lal are non-corroborative and unreliable.
Amba Lal has also said that he did not inform this
while recording Ex.D.1 and D.2 with respect to say of Bheru Singh,
as earlier narrated him for some times that he would kill Payal,
which also goes to suggest that vitals were concealed by him or
nothing of that nature was informed to him by Bheru, which
diminishes value of his evidence.
This witness "Amba Lal" has also said that he
visited at the house of Bheru Singh, his wife Payal use or wear and
use veil (parda) and it has also come in his evidence that she
worked with them, when both were engaged in house
construction. Amba Lal was known of Richa, sister of deceased,
so testimony of this witness is illusive, contradictory and at several
occasions, he has narrated unreliables, so far as utterrrences of
extra judicial confession are concerned that too appears to be
cloudy and unrealistic.
PW3 Vikram Singh brother of deceased Payal
has also uttered several contradictory and non-believable says, as
he has said that he is not aware that with whom Payal had
married for the first time and is not aware on which date,
marriage of Payal was ceremonised with Bheru Singh
because he was not present at the time of marriage and
has further said that Bheru Singh had made all expenses of
marriage and has also said that he had come to Pali after
one year of marriage of Bheru Singh and Payal and stayed
with Richa and did not visited to the house of Bheru Singh,
whereas the FIR reveals that marriage of Bheru Singh and Payal
had taken place 8 to 9 months before. He has also contradicted
some parts of Ex.P.3 and P.4 and has uttered some improvements.
He and his sister Richa have further said that they did not inform
police regarding demand of dowry inferring that "Bheriya" had
committed suicide by burning himself, this witness has also
accepted that his father was serving sentence in connection with
some murder in central jail.
PW4 Gopal has turned hostile. He has accepted
his signatures on Ex.P.2 to 7 and has said that "Payal" had
married with Bheru Singh 8 to 10 months, prior to the occurrence
and has said that when Bheru went to Jodhpur, he had given key
of his house to him to facilitate parking of cycle and has said that
in what way couple Bheru Singh and Payal resided is not known to
him. He has further said that Ex.P.2 was written by police and his
signatures were taken and he does not know what is written in
Exh.P.3, 4, 5, 6 and 7. He did not read nor those were read over
to him. He was asked to sign, so he signed. He has further said
that Bheru Singh lives there with affection without any struggle
with anybody and he never seen Bhanwari coming over to the
house of Bheru Singh. He has further said that fire brigade people
and police men were trying to break open the door, so he had
given key of the house to them and has said that when they
came, he and Tej Singh opened the house lock by key. He has
narrated an important fact that "when he kept his cycle then
Payal was not present there". Bheru Singh has informed him
regarding her visit to Jodhpur. He has further said that Bheru
Singh and Payal used to live with affection and Bheru Singh was
amicable with neighbours and was living comfortably with them.
PW5 Naresh, neighbour, has also become hostile
and has accepted his signatures on Ex.P.5, 7 and 9 though he is a
recovery witness of dagger but he has said that Bheru Singh had
given a knife to police, mode of information and consequent to it,
alleged knife has not properly been recovered. He has further
said that Ex.P.9 was not read over to him and has said that knife
was recovered next day to the Payal''s tragedy, fact reveals that
the incident happened on 22/23.3.2006, whereas recovery of the
knife is of 27.3.2006 vide Ex.P.9 and as per the aforesaid say of
this witness, the recovery gets falsified and he has further said
that the alleged knife was shown in the thana and it was taken
into writing vide Ex.P.9, whole of the evidence of this witness
makes the recovery untrustworthy. Moreover, cause of death of
deceased Payal has also not been ascertained. According to
alleged extra judicial confession the death is said to be by
strangulation, which has proved non-reliable, whereas knife is
stated to be used in wiping the blood spots from walls but eye
witnesses have also said that no blood stains were found by them
in the room. On totality, of the above evidence alleged recovery
of knife is of no use.
PW6 Kalu Singh has also turned hostile and he
has said that Payal and Bheru Singh used to live together
peacefully and he did not witness any dispute between them nor
heard anything alike. He has denied his statements of Ex.P.10
and has said that he did not inform police anything alike, in his
cross-examination, he has said that Bheru Singh is a simple area
inhabitant, having no dispute with anybody and nurturing good
relations with area people, he has further said that at the time of
blaze, official vehicle came, they asked key from Gopal, then
opened the house. He has also said that he did not know,
whether any divorce took place between Bheru and his first wife
Kamla. With respect to expenditure of marriage, this witness has
also said that the marriage expenses were made by Bheru Singh,
he has also said that what formalities were completed by the
police, is not known to him nor those were read over to him and
he did not watch any illicit relations between Bhanwari and Bheru
Singh.
PW7 Tej Singh is also a neighbour, who
informed and called fire brigade on detecting blaze, he has also
said that Payal and Bheru had married 8 to 9 months, prior to the
incident, five months back, his wife had informed regarding the
inferno at 5 in the morning after awakening him, on observing
smoke, he telephoned to fire brigade. Fire brigade came, house
was locked, Gopal had also arisen and he informed that the keys
were with him, Gopal opened the house by that key, fire brigade
doused water and extinguished, the fire, on witnessing inside a
burnt skeleton was found there. All area people drew an idea that
the skeleton was of Payal, in his cross-examination, he has also
said that the marriage expenses were borne by Bheru Singh and
marriage was dowryless and he did not hear anything adverse
against Bheru Singh, in connection with dowry demand.
He has uttered an important fact that soon as
Gopal opened the door of Bheru Singh''s house, flames emanated,
fire brigade doused water forcefully, flames were intense, there
was thick smoke around, he has further said that at the time when
Ex.P.2 was written by him, "Gopal" and "Richi" were there. He has
further said that "Richi" and his brother Vikram were also there
and both did not inform anything like annoyance of Payal by Bheru
Singh.
PW. 8 Richa sister of deceased, who also resides
in the nearby place of deceased''s house, has said that at 4 to 5
a.m. about 5 months back, Tej Singh knocked at her door and
informed about the fire at Payal''s home, she went to the house of
Payal, Fire Brigade people came there, then the house door was
opened, she has further said that after marriage, relations of Payal
and Bheru Singh remained comfortable for some time, Bheru used
to go to the house of Bhawnari. Payal forbade, which was a
reason of struggle, in her cross-examination, she has said that she
had signed Ex.P. 2 (the morgue report) after reading it and has
said that she did not inform anything pertaining to dowry demand
or harassment by Bheru Singh, on advice of neighbour, but she
has said that she do not know the names of those persons, who
advised alike, she has further said that Bheru Singh had asked
him at the time of marriage that convey your caste as "Rajput" so,
she had conveyed her caste as "Rajput" in Ex.P. 6 and 7, she has
further said that she used to inform her caste as "Sardar" and her
sister''s as "Rajput". Surprisingly at the time of "taking-down" of
her testimony, she has informed her caste as "Darzi", which goes
to reveal that this witness is less trustworthy and is accustomed to
"speak false". She has further said that earlier Payal was married
with a "Darzi" in Sadri, her mother-in-law was bad, so the
marriage was abandoned though divorce was not there, she has
further said that pertaining to alleged harassment of Payal by her
mother-in-law, case was not lodged, she has also said that her
father is convicted for triple murder. She has also said that the
expenditure of marriage of Bheru Singh and Payal was
made by Bheru Singh, since she had said that they have got
no money, she has further said that the role of bride''s
parents, at the time of Payal''s marriage was performed by
Roshni and her husband.
She has again said that Payal had informed her,
that reason of dispute was because of Bhanwari and not for any
other reason, she has further said that she did not complain to
Bhanwari or her mother and her husband regarding alleged illicit
relations, she has further accepted that Ex.P. 6 and 2 does not
mention fact relating to "Information of Payal that Bheru Singh''s
visit to Bhanwari''s house was reason of their dispute".
Entire evaluation and examination of
testimony of this witness reveals that she is just a hearsay
and Ex.P.2, which was the first information regarding the
unfortunate does not reveal any allegation or incriminating
facts pertaining to demand of dowry, alleged illicit relations
with Bhanwari, strained relationship of couple or anything
otherwise, which is suggestive that prosecution has
invented certain neo facts through improvements, which
are not reliable at all.
PW.10 Shanti a labour, who worked alongwith
the couple and Bhanwari has turned "hostile" and she has said
that she did not witness Bheru Singh beating his wife Payal and
has denied Ex.P.12''s utterances.
PW.11 Roshni Yadav is also an important
witness since this lady has ceremonized marriage of Payal
with Bheru Singh being mother of Payal and her husband
has also ceremonized the marriage as parents of bride
Payal. She has said that ''Kanyadan'' of payal was
performed by her and her husband, her marriage was
performed on 16.7.2005. All the expenditure of marriage
was made by Bheru Singh, he did not demand any dowry in
marriage and no transaction took place because Bheru
Singh was aware that Payal''s family was not competent.
She has further said that on ''Deepawali'', both Bheru Singh
and Payal had visited to her house and couple was happy.
She has further said that Payal never informed her
regarding any demand of dowry by Bheru Singh or his
alleged illicit relations.
PW12 Kamla has also turned hostile and has
denied her police statement Ex.P.13.
PW13 Om Prakash is a Police Constable. He
has said that on 27.4.2006, Police Constable Jagdish Kumar
brought two sealed packets pertaining to case No.29/2006 of
Police Station Mahila Thana, Pali and deposited the same, he
prepared Ex.P.14 forwarding letter and gave it to Jagdish Kumar,
who deposited the sample on 28.4.2006 in Jodhpur and submitted
copy of its deposit receipt. He has confirmed Ex.P.14, 15 and 17
and has said that during his custody the sample remained sealed
and secure, he has further said that articles were packed in
white cloth bag but he did not open the bag.
PW14 Mohan Singh Ratnu, Station House
Officer has said that he has lodged case No.29/2006 under Section
304B, 201 of I.P.C. and investigation was handed over to C.I. Pali.
He has further said that FIR is Ex.17 which contains his
endorsement and his signatures its chalk FIR is Ex.P.18, which
also contains his signatures, he has further said that after
completion of investigation, he had filed charge-sheet in the
Court. He has also said that it is mentioned in the post-mortem
report that the "cause of death will be ascertained after
receipt of FSL report and by the time of filing the charge-
sheet, F.S.L. was not received".
PW15 Kuna Ram is a Constable Photographer,
who has said that he had clicked photographs on 23.3.2006 which
are Ex.P.19A to P.27A and its negatives are Ex.P.19 to P.27.
PW16 Jagdish Kumar is a Constable, who has
said that two sealed packets of a glass bottle (jaar) were given to
him on 27.4.2006 per road No.16/27.4.2006 for depositing in FSL.
Constable Om Prakash received them and after getting Exhibit 14
forwarding letter from S.P. Office, he deposited the samples on
28.4.2006 and obtained Ex.P.16 its receipt and deposited the
same with C.O. Office and its copy to S.P. Office. Contrary to
the statement of PW13 Om Prakash, this witness has said
that the glass (Jaar) were not packed in cloth bag, which is
a manifest flaw.
PW17 O.P. Jain, SDM, who has conducted
morgue inquest has confirmed Ex.P.2 and P.3, P.4, P.5 and P.6. He
has further said that by a team of, Medical Board Members, post
mortem was conducted on the spot, but the post mortem
board failed to conclude opinion regarding cause of death,
so, on their advise, post-mortem of the deceased was
further got conducted in Mahatma Gandhi Hospital,
Jodhpur in his cross-examination, he has said that had
there been any kerosene container, then it would have
been mentioned in spot-memo. He has further said that the
morgue report was signed by "Richi", sister of deceased and
"Gopal" neighbour.
He has further made a significant say that
on the date of 23rd "Gopal" had stated that "Bheru Singh"
had given him key of his house at 8 to half past 8 on
22.3.2006 after saying that he was going to Jodhpur and it
is correct that "Gopal" and "Tej Singh" had stated that key
of Bheru Singh''s house was with "Gopal" through which
the door was opened and fire was extinguished.
He has also stated that according to Ex.P.2
when "Gopal" kept his cycle in the house of "Bheru Singh",
then Bheru Singh was there in his house and his wife was
not there, he has also said that during his enquiry nobody
informed that when Bheru Singh consigned key of his
house on 22nd to Gopal, till morning of 23rd, he was not seen
there. He has accepted that there is no mentioning of dual keys
in Ex.P.17. He too has said that Medical Board, Pali failed to
advise cause of death and Jodhpur Medical Board did not
reveal cause of death and has said that it was said that it
will be advised after FSL report of viscera.
PW18 Sanjay Gupta, a Circle Officer-cum-I.O.,
has narrated the mode and methodology of investigation, he has
specifically admitted that Pali Medical Board did not ascertain
cause of death, likewise Medical Board of Jodhpur also
failed to ascertain it. He has admitted that the body was in
worst condition, so six Doctors failed to ascertain cause of
death. He has also said that he had investigated and
inquired with Bhanwari but did not record her statements,
he has also said that witnesses Shanti, Sayara Bai, Sangram
Singh, S.I., stated in their submissions that Bheru Singh and
Bhanwari had no illicit relations and such were rumours there was
some rupee transaction between them.
Accused Bheru Singh has denied all the
interrogatories put to him under Sectioin 313 Cr.P.C . and has
explained elaborately that he was away to Jodhpur, after giving
home key to "Gopal" and his wife did not return by the evening of
22nd, he never demanded dowry or harassed her and refuted all
relations of illicit relations with Bhanwari and has said that
"Amba Lal" and "Gopal" framed him after hatching a
conspiracy.
Upon adverting and evaluating the entire
evidence as discussed earlier, we feel that the prosecution has,
failed to produce any positive evidence to prove its case.
F.S.L./viscera report does not divulge administration of poisonous
substance, surprisingly, first post-mortem report has not been
proved nor it has been produced according to the provisions of
law. I.O. has just made a reference of it, which is an illegible
photo copy, which too suggests that certain parts of the body were
sent for further examination, but Doctors conducting the first
post-mortem report, have not been produced in the evidence. So
far as, subsequent post-mortem is concerned, that too has
not revealed cause of the death. The Investigating Officer,
as well as, Doctor PW 9 Dr. P.C. Vyas have also accepted
this aspect that the cause of death of deceased Payal could
not be ascertained.
Majority of the witnesses of the prosecution have
turned hostile and have not supported, the story of prosecution,
even recovery has remained unfruitful. Entire story of the
prosecution suggests that Bheru Singh had handed over key of his
house to a neighbour "Gopal" in order to facilitate him to keep his
cycle there, the witnesses of the prosecution namely "Amba Lal"
and "Gopal", who had been to the house of Bheru Lal on 22 nd in
the evening, have explicitly asserted that Bheru Lal was alone at
his home and Payal was not there.
Dicta of extra-judicial confession which has been
revealed by Amba Lal is of no value, being untrustworthy and
invented. Amba Lal has contradicted several of his police
statements. He has remained close in touch with Richa sister-in-
law of Bheru Singh and sister of the deceased. As per his own
say, he as well as Gopal were interrogated coercively under
custodial way for days together, so probability of invention of
such theory cannot be ruled out, the day on which alleged extra
judicial confession of killing Payal was made, no such body of
deceased Payal was witnessed in the house of Bheru Singh,. Death
has been said to be caused by strangulation but no such opinion is
there in the post mortem report, contrary to it recovery of a knife
is shown but witnesses have said that they did not find Any blood
stains on the walls, so alleged wiping thereof through knife also
becomes futile. Moreover recovery of knife has also not been
proved.
It has been averred by majority of the witnesses
even the couple ceremonizing ''kanyadan'' of deceased Payal, that
no dowry was there in the marriage, even family members of
deceased Payal have asserted that entire expenditure of marriage
was borne by Bheru Singh. It has also come in the evidence that
Payal, as well as, Bheru Singh both were married earlier and had
ceremonised second marriage without annuling their first
marriage. Father of deceased was serving sentence in connection
with triple murder. It has also come in the evidence that Payal
remained engaged with Amba Lal and Bheru Singh with Bhanwari
in connection with some labour for construction. Smt. Roshni
Yadav PW11, who performed ''kanyadan'' of Payal has also said that
the couple was living peacefully and there was no discontents,
they had been to her house on last Deepawali and were happy.
Tej Singh and Gopal, neighbours of area have
explicitly said that on arrival of police authorities and fire brigade,
house door of Bheru Singh was opened, after obtaining key from
Gopal. It has also emerged that soon as the lock and door were
opened, flames emanated, so nothing abnormal or tangible has
emerged, so, involvement of Bheru Singh is not proved. Even
cause of death of the deceased has not been established.
Obviously, it is a failure on the part of the
prosecution, in this era of scientific advancement, failure in
establishing the cause of death, despite presence of body,
its remains and even in presence of burnt skeleton, appears
to be astonishing and unbelievable, which shows that no
diligent and sincere endeavours have been made to
prosecute the trial in a true spirit.
In Varun Choudhary Vs. State of
Rajasthan, 2011 Crl.L.J. 675, it has been held that where
chain of events is doubtful, no conviction can be based and it
is settled legal proposition that in a case of circumstantial
evidence there must be complete chain of events, which
would lead to a conclusion that the accused was the only
person, who could have committed the offence and none-
else. In Musheer Khan alias Badsah Khan vs. State of
Madya Pradesh, (2010) 2 SCC 748 it has been observed
that in cases of circumstantial evidence complete chain of
circumstances must be looked and snapped or scattered links
is not enough to convict.
In Jiten Besra v. State of West Bengal,
(2010) 2 S.C.C. (Cr.) 438 and in Kamla Devi vs. State of
Delhi, 2012 (2) J.C.C. 1457 (Delhi) the Hon''ble Supreme
Court has observed that once it is found that circumstance
could not point out towards guilt of accused, without any
other inference being probable, the accused must get the
benefit of doubt.
In Baijnath & Ors. vs. State of Madhya
Pradesh, 2017 1 SCC 101, Hon''ble the Supreme Court has held
that in the cases of deficiencies of proof, benefit would be
available to the person charged and in Narendra Singh &
Another v. State of M.P ., (2004) 10 SCC 699, the Hon''ble
Apex Court has also held that in event of there being two possible
views, one supporting the accused should be upheld and Hon''ble
the Supreme Court has recognized presumption of innocence as a
human right.
In Padala Veera Reddy V. State of Andhra
Pradesh, 1989 Supp. (2) SCC 706 the Hon''ble Supreme Court
has observed that in matters of circumstantial evidence, the
evidence must satisfy the following texts:-
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) 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
(4) 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.
Upon taking into consideration, totality of facts,
evidence and law as discussed above, it is manifest that the
prosecution has miserably failed to establish its case against the
accused beyond reasonable doubt and we, feel that findings of
guilt against the appellant-accused are not sustainable and same
are liable to be quashed.
Therefore, the appeal is allowed and the
impugned judgment is set aside and quashed as such, the accused
is acquitted of the charges levelled under Section 302 and 201 of
I.P.C . so, he be released forthwith, if his custody is not required, in
any other case.
Keeping in view, however, the provisions of Section
437A Cr.P.C. the accused appellant is directed to forthwith furnish a
personal bond in the sum of Rs.30,000/- and a surety bond in the
like amount, before the learned trial court, which shall be effective
for a period of six months to the effect that in the event of filing of
Special Leave Petition against the judgment or for grant of leave, the
appellant, on receipt of notice thereof, shall appear before Hon''ble
the Supreme Court.
Record of the trial court be sent back immediately
with copy of the judgment.