Deo Singh vs State of U.P.

V. P. Mathur, J.—The appellant Deo Singh has come upto this Court against his conviction and sentence on charges under Sections 302 and 364,I.P.C.. on the first count, he has been sentenced to imprisonment for life and on the second count to rigorous imprisonment for seven years. The order has been passed by Mr. Brahma Singh, the then IInd Additional Sessions Judge of Etawah on 2591978. The learned Judge was disposing of Sessions Trial No. 460 of 1977 of his Court.

Briefly stated, the facts of the matter are that one Shyam Sunder Singh (P. W. 2) resident of village Kanspur Gugauli in district Fatehpur had three daughters namely Bholi (P. W. 3), Munni Devi and Binda Devi. All of them were married to different persons in the same village namely Chirhuli, which lies within the area of police station Auraiya of District Etawah. Binda Devi is the deceased of this case. She was married to Deo Singh the present appellant. It is the prosecution suggestionwithout any definite proof to that effect that Binda Devi was pregnant for the last about seven months and her fatherinlaw and motherinlaw suspected that the pregnancy was illegitimate and for that reason they were angry with her and on that account her husband Deo Singh accordingly committed this murder. There is no direct evidence of murder in this case, but the facts and circumstances which have been brought on the record, are said to suggest the fact of murder, and the evidence is only circumstantial. It is said that sometime in February, 1976 Deo Singh took Smt. Binda Devi by an Ekka from his house on the pretext that she was going to the house of her father Shyam Sunder Singh. They left village Chirhuli at about 8 or 9 a.m. in presence of Smt. Bholi (P. W. 3) and one neighbour Vishram Singh (P.W. 10). Laxmi Narain was also present, but he has not been examined. It is said that Ekka wala Puttu Khan (P.W. 16) brought them in his Ekka alongwith other passengers from Hakewar Ekka stand to Daudpura Bamba Pulia, where they got down. In the way, the Ekka stopped at the Octroi post known as Naharwali Chungi, where Babu Khan Pound Moharrir of Lakhana had a talk with Deo Singh, who gave out that he was going to the house of his mother''s sister. Between 12 noon and 2 p.m. when Smt. Ram Beti (P. W. 11) of village Sajhia p, S. Chakarnagar, Distt, Etawah was returning from Lakhana market and came to Ghat of Kadhesi Haar to cross the Jamuna river, she accosted the accusedappellant and a woman accompanying mm and had a talk with the woman. It is said that Smt. Binda Devi was the same woman, whose photograph was subsequently identified by Smt Ram Beti. They all crossed the river Jamuna together in the same Boat. And in this manner they reached accross Jamuna in village Kandhesi Haar, which lies within the area of police stationChakarnagar, about 1/2 furlong away from the Ghat under a Bargad tree p. W. 9 Pahalwan resident of village KadhoriKaNagla was sitting when at about 2.30 pm. or 2.45 p.m, a man and a lady got down from the Boat and passed from near this witness on the rasta to wards the village KadhoriKaNagla. He also identified the photograph (Ext. 14), on the basis of which he is now definite to say that the lady was Smt. Binda Devi. He also identified in Jail in identification proceedings the accusedappellants, as the person who was accompanying the lady. After passing through KadhoriKaNagla, it appears that the murder was allegedly done some where enroute. And at about 7.30 pm. the same day P. W. 4 Banslal was approached in villageNagla Kadhori by the accusedappellant of this case whom he had identified in jail and the accused appellant asked him for a place to stay during the night, which was granted to him. He stayed in the night at the house of Banslal (P. W. 4) and early in the morning at about 7 a.m. the next morning he left. At that time the lady was not present with him.

It appears that Binda Devi was murdered somewhere in districtBhind (Madhya Pradesh). Her father came to know of her disappearance along with her husband and therefore, Shy am Sunder made some enquiries in the village and then lodged the first information report Ext. Ka1 at police station Auraiya on 1J51976 at 12.45 p.m. A case under Sections 302 and 201 of the Indian Penal Code was registered. SubInspector Lal Singh (P. W. 13) started investigation and recorded statements of Shyam Sunder and Vishram Singh and others. He came to Etawah and recorded the statement of Girja Shanker Reader of the Circle Officer, Chakarnagar and from him he came to obtain photograph Ext. 14 which he showed to Shyam Sunder and when Shyam Sunder recognised it to be the photograph of his daughter Binda Devi, Lal Singh (P. W. 13) asked him to approach the police of Chakarnagar, as the offence related to that Police Station.

What had happened a little earlier is that on 521976 between about 8.00 and 9.00 p.m., P.W. 1 Soney Lal , Chaukidar of village Barechha within police stationChakarnagar was going to obtain fodder for his cattle. He spotted a deadbody lying in a pit at a distance of one mile from his village. It was the deadbody of a female. He immediately returned back and went to police stationChakarnagar, where he gave an information to that effect at 12.30 p.m. Immediately Ram Swarup Singh (P. W. 6) SubInspector was entrusted with the investigation of the case and he alongwith constables reached the spot, carried out the inquest on the deadbody, took into possession the chappals and blood stained clothes etc. and other articles of the lady and also took into custody the simple and blood stained earth from the spot and then sealed the deadbody and sent it for postmortem examination. He also sent a letter to the Reserve Inspector, Police Lines Etawah for having the deadbody photographed and its finger impressions taken.

The postmortem examination on the deadbody, the identity of which was still unknown, was conducted by Dr. V. K. Gupta, (P. VV. 20) on 621976 at 3.30 p.m. and the doctor found the following ante mortem injuries on the deadbody

Incised wound � x � X bone deep on the front of left side of bridge of nose, margins clean cut and direction oblique.

Incised wound 1� x � x bone deep on the left side of neck 13/4 above left clavicle, margins clean cut and direction transverse and inwards.

Incised wound 3/4 x � x muscle deep on the right side neck, 1� above

right clavicle, margins clean cut, direction transverse.

Two incised wound � x 1/10 x skin deep each in the right supra clavicular fossa apart, margins clean cut, direction oblique.

Three incised wounds � X1/8 x skin deep each on the right front of neck 2 above sternum, margins clean cut, direction oblique.

Linear of abrasion 2 long on the front of the middle of neck, direction transverse.

Incised wound � X1/8 x skin deep on the back of right hand over II metacarpal bone, direction oblique, margins clean cut.

Incised wound � x� x bone deep on the palm surface of the tip of right little finger, margins clean cut, direction oblique.

Multiple abrasions in the area 5 X 5 on the right side of chest

an axillary lines.

Three abrasions 5'' x � X 1�i and 1 x I/10 on the right of neck, lower third portion direction transverse.

Multiple small abrasions in the area 10 x 5 on the outer side of right thigh.

Abrasion � x 1/8 on the front of right leg, 4 below knee joint.

Multiple small abrasions 2� x3� (area) on the front and outer side

of left knee joint.

Incised wound 1� x � X muscle deep on the left side of lower part

of abdomen, 1 � above public bone, margins clean cut, direction oblique.

Incised wound 1x � muscle deep on the left side of abdomen, 3 below and lateral to nucleus , margins clean cut, direction transverse.

Linear abrasion 3 long on the right side of abdomen, direction oblique.

Three incised wound � X 1/8 muscle deep each on the back of left hand over II and III metacarpals, margins clean cut, direction oblique.

Incised wound � x 1/10 x muscle deep on the tip of palmer surf ace of left index ringer, direction transverse, margins clean cut.

The internal examination revealed that the trachea had been cut in the posterior part under injury No. 2 and was congested. The neck vessels had been cut on the left side under injury No. 2 alongwith esophagus. The uterus had the presence of a male child of about 28 weeks.

After receipt of the postmortem examination report, investigation was further continued and this time. Sri Harvansh Singh, Station Officer Chakarnagar, (P.W. 22) made the rest of the investigation. He showed the photograph of the deceased to the witnesses and made sure that it was the photograph of Binda Devi.

Alongwith Deo Singleappellant, his brothers Narain Singh and Bhagwant Singh were also chargesheeted and subsequently a further charge sheet was submitted against the Pancham Kahar. It appears that the learned Additional Sessions Judge did not find any case against Narayan Singh and Bhagwant Singh and discharged them. Pancham Kahar was prosecuted and we are told that he was not found guilty but there is nothing on the record to show that.

The prosecution examined in this case Soney Lal P.W. 1) Shyam Sunder Singhcomplainant as P.W. 2, Smt. Bholi Devi as P.W. 3, Bansal as P. W. 4, Hargovind Sahai Mathur Stipendiary Magistrate as P. W. 8, Pahalwan as P.W. 9, and Dr. V. K. Gupta as P. W. 20, besides the formal witnesses. The total number of witnesses examined by the prosecution was 24.

On behalf of the defence, two witnesses Vishwanath Singh (D. W.I) and Shanti Devi (D. W. 2) entered the witnessbox but their evidence is not of any material worth.

It is clear that a deadbody was spotted between 8 and 9.00 a.m. by Soney Lal Chaukidar within an area of village Barechha, P. S. Chakarnagar and on the basis of this he submitted information to the Thana at Chakarnagar at 12.30 hours and the investigation started. While this was going on, the first information report of this case was also lodged on the basis of disappearance of the lady on 1351976 at 12.15 p.m. by Shyam Sunder in Thana Auraiya, Distt. Etawah. As we have already earlier mentioned that there is no direct evidence of the murder of Smt. Binda Devi at the hands of her husband Deo Singh. The defence has even challenged the identity of the dead body and it is contended that the photograph EKI. 14 is not of the deadbody of Binda Devi but is of some other lady. This however will not be accepted in view of the definite and direct testimony of Shyam Sunder (P. W. 2), who is the father of the girl and who says that the photograph is of her daughterand also in view of the statement of Smt. Bholiundoubtedly the sister of the deceased, who also correctly identified the photograph as that of Binda Devi. If the lady had been alive and had not died, those two very close relatives would never have gone to identify Ext. 14 as the photograph of Smt. Binda Devi. The defence contention however is that Binda Devi was living at her father''s place and in spite of attempts by Deo Singh to bring her back, she was not sent back and the suggestion is that from there she disappeared and now Deo Singh is being falsely implicated for her murder. The evidence against Deo Singh can be divided into three or four parts and the first part consists of the evidence of the going away of Deo Singh along with the deceased from villageChirhuli and for this evidence is of P. W. 3 Smt. Bholi and P. W. 10 Vishram Singh. We shall first discuss this evidence and its worth. According to Smt. Bholi and Vishram Singh, it was at about 8 or 9.00 a.m. that the occurrence took place. Vishram Singh was sitting at his OAH door just in front of the house of Deo Singh and Smt. Binda Devi came out of their house with some luggage and Deo Singh made the lady sented in the Ekka and himself proceeded on a cycle. Smt. Bholi was present at the house of Deo Singh, where she had been allegedly called by her sister in the morning at 6.00 a.m. and she was told that Binda was being taken to her father''s house by Deo Singh. Smt. Bholi says that her sister asked her if she had any message to be delivered to her parents and Smt. Bholi simply said that her parents may be informed that she was well. After that Smt. Binda Devi on the Ekka and the appellant on his cycle left the place ostensibly to go to the house of Shyam Sunder in villageKanspur Gugauli. It is said that Vishram Singh (P. W. 10) had also asked Deo Singh as to where he was going, because Deo Singh had with him some luggage like attachedcase and a handbag and he was told that they were going to Kanspur Gugauli. According to P. W. 10 Bishram Singh, Smt. Munni Devi and Smt. Bholi both came out of the house of the appellant to see Smt. Binda Devi off. This means that Munni Devi was also present, but according to Smt. Bholi, Munni Devi was not in the village in those days and had gone to her father''s house. Now the testimony of these two witnesses may be looked into in the light of the evidence of P. W. 16 Puttu Khan, who is examined as the Ekkawala. According to this witness he brought the appellant and the lady in his Ekka from Bakewar Ekka stand and took them upto Daudpura Bamba Pulia, where they got down. In the way, he stopped for a while to give water to his horse near the Naharwali Octroi post, where Babu Khan (P. W. 21) had a talk with Deo Singh. Now according to Babukhan and Puttu Khan, both the appellant as well as his wife were traveling by the Ekka and none of them had a cycle. It is not the prosecution case that the Ekkas were changed in the way or that Puttu Khan''s Ekka was not the one in which the lady sat in front of her husband''s house. The prosecution does not say so. We do not, therefore, know what happened to the cycle. Puttu Khan nowhere says that the cycle was left by the appellant at any place in the way and although originally he had started on a cycle, he came to his Ekka somewhere between his house and the place of destination. It is really a mystery that while Deo Singh was allegedly going on a cycle, he suddenly was found going on the Ekka and there is nothing to show as to what happened to the cycle Smt. Bholi admits that her sister called her and on that she had reached her house at 6.00 a.m. and that Smt. Binda had asked her if she had any message to give to her parents, but, this she had never mentioned to the Investigating Officer in her statement under Section 161, Cr. P. C. Similarly, she had not told to the Investigating Officer that Deo Singh seated her sister in the Ekka and himself went by cycle. She also never gave out the times when all these things happened. The absence of mention of these facts may be an omission but it is a material omission and has to be looked into to assess the worth of the testimony of Smt. Bholi.

After all, there should have been some reason for Smt. Bholi''s presence at the house of Deo Singh at 6.00 a.m. in the month of February which is a winter month. This explanation should have been given at the first possible opportunity when the Investigating Officer interrogated her. It appears from the testimony of Smt. Bholi that the relations between Deo Singh''s parents on the one hand and Smt. Binda Devi on the other were strained. And for that reason, since Binda Devi is now no more alive, Suit. Bholi appears to have tried to forge out a case which does not appear to be true. It is really very strange that while according to these two witnesses Smt. Bholi and Vishram Singh, it was given out when the deceased and the appellant started from village Chirhauli that they were going to Kanspur but subsequently when Babu Khan (P. W. 21) allegedly tried to know as to where they were going, the husband gave out that they were going to his Mausi''s house. If this was so Smt. Binda Devi would have been put on an alert about the motive of her husband and about the truth of his version. She could have definitely known by that time that the husband was not taking for to her father''s house, but was taking he: elsewhere. Then there is evidence to show that the couple crossed the Jamuna and the lady made an enquiry from Ram Beti (P. W. 11), where the river which they were going to cross, was really the Jamuna river. It means therefore that the lady had not been river Jamuna earlier and when she was allegedly crossing it, she must have again thought about the fact that her husband was neither taking her to Kanspur nor to his Mausi''s house, but to some other strange place through a route which. she had never earlier gone through as she had not crossed the Jamuna river earlier, and with all this, we also learn from the testimony of P. W. 9 Pahalwan of village KadhoriKaNagla, that after crossing the Jamuna river allegedly the appellant and his wife passed from near the Bargad tree, where Pahalwan (P. W. 9) was sitting and went inside village KadhoriKaNagla, upto that time the lady was allegedly alive and shedid not resist being taken to an unknown place, even after knowing that the husband had indulged in falsehood in telling people that she was being taken to village Kanspur Gugauli or to the house of the husband''s Mausi and although she must have become suspicious about the conduct of her husband. We are supposed to believe that in spite of all this knowledge having dawned upon the lady which should have made her suspicious of her husband''s intentions, she followed her husband without making any protest in a very docile manner.

The deadbody was found by the Chaukidar Soney Lal (P. W. 1) within the agricultural area of village Barechha, which lies within an area of police station Chakarnagar, District Etawah. The prosecution has not tried to show that this place Barechha will lie any where close to KadhoriKaNagla, upto which place according to P. W. 9 Pahalwan, the husband and the wife were both alive and had passed from in front of this witness. Where actually the murder was committed and at what time, is also not at all established. In our opinion, the testimony of Smt. Bholi (P. W. 3) and Vishram Singh (P. W. TO) does not inspire confidence and cannot be taken to be an uncontroverted circumstances against the appellant.

So far as Puttu Khan (P. W. 16) and Babu Khan (P. W. 1) are concerned, they are unreliable witnesses. Puttu Khan says that he brought a large number of passengers on his Ekka including the appellant and his wife. He was not sent to Jail during identification proceedings to identify Deo Singh, who admittedly was not known to him from before. The photograph Ext 14 was also not shown to him and therefore his testimony does not establish any thing. P. W. 21 Babu Khan says that he knew the appellant Deo Singh for sometime because neighbour Vishwanath. who is related to Deo Singh, had introduced this man to him earlier in village Lakhna. Vishwanath has been examined as a defence witness and he says that he never introduced Deo Singh to Babu Khan and that Deo Singh is not related to him in any manner. Babu Khan is a Pound Clerk in Lakhna which lies within the area of police station Bakewar. The cattle pound is at some distance from the Octroi post. It is really very strange that Babu Kan would leave his own duties connected with his work in the cattle pound, lock the pound and come to the Octroi Post and would sit there unnecessarily. His testimony appears to have been made up only to provide some evidence to show that the appellant along with his wife passed from near the Lakhna Naharwala Octroi post at about 12 noon about 212 years back. Even Babu Khan is unable to identify the photograph Ext. 14. We do not think that he proves any thing in this case.

This brings us to the consideration of the testimony of P. W. 11 Smt. Rambeti. She is the wife of one Ramesh of villageSajhiya. P. S. Chakarnagar District Etawah. Although her husband and other relatives are alive, she insists that she herself goes to the market at Lakhna to make purchases. According to her about 212 years. Prior to the date of her testimony, she had gone to village Lakhna Bazar at about 7 or 8 in the morning. She made some purchases and returned at about 12 noon or 2 p. m. There is a wide gap between the two hours which she gives as the time of her return. Then she says that she passed from near the Ghat of Kadhesi Naar and crossed the Jamuna river by a boat and then a man and a woman also crossed Jamuna by the same boat. It is strange that although the woman was putting on a Ghunghat (veil) and the man had no dhata on his face, she is unable to identify the man, but could identify the photograph Ext. 14 as that of the woman. During cross examination she clearly gave out that photograph Ext. 14 was shown to her for the first time out side the Court room by a constable and was never earlier shown to her. This will reduce her testimony regarding identification of the deceased to nil. She also does not prove any thing.

P. W. 4 Banslal is a resident of village Nagla Kadhori and he says that about 7.30 p. m. the appellant of this case approached him with a request for some place to stay during the night and gave out that he belonged to village Aheripur, P. S. Bakewar and was coming Code of Criminal Procedure Code of Criminal Procedurerom Kotchari (which is in Madhya Pradesh). He stayed with him during the night and left at 7 a.m. the next morning. This witness went to identify the appellant in Jail on 28 71976 and correctly identified him. But he says that in the parade some persons were putting on caps, while others were bareheaded and some were putting on shirts and some others had nothing on the upper parts of their bodies. If it was so though this fact has not been recorded by the Magistrate in his identification memo then the identification itself will suffer from a serious defect.

Now the position of identification may also be looked into with reference to the fact that it was delayed. In this case the appellant ultimately surrendered in Court on 1061976 and he was put up for identification on 2871976. There is nothing on the record to show that he ever absconded. On the contrary it appears that the Investigating Officer did not try to arrest him before 106196 and raided his house only once and merely because he was not available on that date, he started concluding that he was missing and had absconded. No action under Sections 82 and 83 of the Code of Criminal Procedure was taken. The occurrence took place some time in February 1976 and after about five months or more the identification of the accused was made. It is true that it is not a dacoity case. It is also true that the occurrence did not take place during night, but the facts and circumstances are that between the date of the occurrence and the date of the identification, there has been a time gap of five months or more. This should be considered before any reliance can be placed on the identification evidence:. Between the date of the arrest (surrender of the accused) 1061976 and the date of identification (2871976) there will be a time gap of about 4849 days.

In the case of Soni v. State of U. P., (1982) 3 SCC page 368 (1) the identification parade was held after a lapse of about 42 days from the date of the arrest of the accused and it was held that the delay throws a doubt on the genuineness thereof. Because it will be difficult that after a lapse of such a long time, the witnesses would be remembering the facial impressions of the appellant.

In the case of Subhash and Sheo Snankar v. State of U. P., 1987 Supreme Court Criminal Rulings, page 264, three witnesses correctly identified the appellant in parade, but the Court took into consideration the fact that nearly four months had elapsed between a the date of the occurrence and the date of the identification proceedings. It was also observed that neither the identification memo shows nor the statements under Section 161, Cr.P.C. record any descriptive particulars of the accused given by the witnesses It was held that it would not be safe to act upon such identification evidence

In the case of Muthu Swami v. State of Madras, AIR 1954 SC 4 identification which was held about 212 months after the occurrence was not held to be safe on which reliance could be placed.

In the case of Mohd. Abdul Hafeez v. State of Andhra Pradesh, AIR 1983 SC page 367 it was held that where the witnesses have not given any description of the accused, their identification at the Sessions Trial cannot be safely accepted.

In a recent case of Harinath and another v. State and same other cases connected with it reported in, 1988 S.C.C. page 14 the facts were that the test identification parade had been held four months after the occurrence of dacoity. The benefit of this regrettable and wholly unexplained absence of promptitude in holding the testidentification was to be given to the appellant because the evidence of test identification lacked the requisite element of reassurance in support of conviction and raises a reasonable doubt.

The sum and substance of the law uptodate is that delay in identification raises suspicion, unless the delay is explained as having been caused on account of the accused, or there are other circumstances to be taken into consideration in support of that delay and to show that in spite of the delay the witnesses had strong reasons to be able to identify the appellant. In the present case, the identification memo will simply show that the witnesses gave out that they had come to identity the person who had committed the murder. It is really strange that they could say so. it only shows that they were told that the person whom they were going to identify, had committed the murder. The two witnesses namely Pahalwan and Bansal should have said that they have to identify the person, who in the case of Pahalwan, passed from near him alongwith a lady and proceeded towards the village KadhoriKaNagla and in case of Bansal, he was the man who came and stayed at the house of Bansal on one night, These witnesses could never have known that such a man was a murderer unless some body had imparted that knowledge to them and this in itself is extremely suspicious. In our opinion, the identification evidence does not inspire confidence.

A complete perusal of the evidence and the circumstances of the case will thus show that there is not a single circumstance which could unequivocably lead us to the conclusion that Deo Singh committed the murder of his own wife. In case of circumstantial evidence, the circumstance should point only to the guilt of the accused and no other explanation should be possible. This element is missing in the present case, we are not in agreement with the learned Additional Sessions Judge that the guilt of the accused was made out. As such the judgment cannot be upheld.

In the result, the appeal is allowed. The order of conviction and sentence passed against Deo Singh by Mr. Brahma Singh, the then III Additional Sessions Judge of Etawah on 2591978 is set aside. Deo Singh is not found guilty of the offences punishable under Sections 302 and 364, I.P.C.. The sentences of imprisonment for life and rigorous imprisonment for seven years passed against him are set aside. He is acquitted on both the charges. He is on bail and need not surrender. His bail bonds and sureties shall stand discharged.