Sangeeta vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Heard Mr. Khaleeq Ahmad Khan, learned counsel for the appellant, Sri Dharmendra Singh, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 26.6.2015 passed by learned Additional Sessions Judge, Court No. 11, Sitapur in Sessions Trial No. 1099 of 2008 arising out of Case Crime No. 301 of 2008, Police Station Maholi, District Sitapur whereby present appellant Sangeeta was convicted under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 10,000/- with default stipulation of one year''s simple imprisonment.

In brief the case of the prosecution was that complainant Hemraj Rajvanshi, Village Pradhan, gave an information at the police station on 28.4.2008 at 8.50 p.m. informing S.H.O. that Rajesh, son of Shri Pal resident of Jagannathpur, Hamlet of Madhna, Police Station Imiliya, District Sultanpur was living for the last six years in the house of his wife in village Abbaspur, District Maholi, District Sitapur. He died on 27.4.2008 under some suspicious circumstances, thereafter the family members of his in-laws house had brought the dead body of Rajesh to village Jagannathpur Hamlet of Madhna and after leaving the dead body on his gate went away. On the basis of this information, the case was registered and investigation proceeded. Inquest proceedings were conducted and after completing necessary formalities, the dead body was sent for postmortem, which was conducted on 28.4.2008 at 4:00 p.m. at District Hospital, Sitapur. The duration of death was found 1 - 1/2 day and following ante-mortem injuries were found on the body of the deceased:--

"(i) Contusion 4 cm x 3 cm on right side of forehead, 1 cm above right eyebrow.

(ii) Contusion 3.5 cm. X 3.5 cm. Over right cheek.

(iii) Contusion 6.5 cm x 3.6 cm on the front and right side of neck, 7 cm below chin.

On dissection, extravasation of blood was found in muscle and several tissue underneath injury No. 3, over corner of hyoid bone was found fractured."

In the opinion of the doctor, the cause of death was asphyxia as a result of strangulation.

During course of investigation, the place of occurrence was inspected. During investigation, name of the present appellant came into light, who happens to be wife of the deceased. Investigation revealed that present appellant had developed illicit relations with her devar Asharam, who was real brother of deceased Rajesh and was married to the real sister viz. Jantri of the appellant and they also used to live in the same house. This illicit relationship was opposed by Rajesh (deceased). On this point, on the date of incident, quarrel had taken place and thereafter the condition of Rajesh (deceased) deteriorated. He was taken for treatment to Dr. Deepak, who referred him to District Hospital, Sitapur. When he was being taken on jeep and at the time when the jeep stopped for taking fuel, the appellant caused the death by strangulating her husband. In the initial investigation, it was found that the deceased himself had consumed poison but after postmortem, prosecution story was changed.

Site plan was prepared on 27.7.2008, which shows that at the petrol pump on Sitapur to Shahjahanpur National Highway, the deceased was seen by witnesses in a jeep while they were taking fuel from the petrol pump.

The defence of the appellant, as stated by her in her statement recorded under Section 313 Cr.P.C., was that her husband Rajesh used to visit her parental house. After his death, she along with the dead body of her husband went to matrimonial home and remained there. The witnesses are giving false evidence. She has also pleaded that some quarrel had taken on the field in between Rajesh on one side and some other persons on the other side and those persons had beaten Rajesh. After the said incident, other villagers had brought her husband in an injured condition to her house and for the purpose of his treatment, he was being taken to Sitapur District Hospital and on the way, he succumbed to the injuries.

In order to prove its case, prosecution has examined PW-1 Smt. Usha, who was neighbour of the appellant. PW-2 Hemraj Rajvanshi, Village Pradhan, who had given information to the police. PW-3 Chhote Lal, who has stated that the appellant had developed illicit relations with her devar Asharam and on the date of incident, the condition of Rajesh deteriorated, so they took him on Thelia (man pulled four wheel cart) to Dr. Deepak, who referred him to District Hospital. PW-4 S.P. Singh, who has proved postmortem report and has stated that in cases of partial strangulation, the death may take place after some time gap. PW-5 Om Prakash Awasthi was a formal witness, who has proved the chik report and G.D. of this case. PW-6 Suresh has denied any knowledge about the illicit relations of the appellant with brother of the deceased and has also stated that a quarrel between deceased and Asharam had taken place in the field. Thereafter the condition of Rajesh became serious. He has also stated that he could not say whether the appellant was present there or not. He was declared hostile. During investigation, statement of this witness was recorded that he had seen the appellant strangulating the deceased in jeep while fuel was being filled. PW-7 N.K. Pandey is second Investigating Officer, who has taken up investigation from 24.6.2008. PW-8 A.C.P. Shiv Govind, who has proved the inquest report as secondary evidence.

No evidence in defence was adduced on behalf of the appellant.

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

Submission of learned counsel for the appellant was that it was a case of no evidence. The initial investigation was on the line that the deceased himself had taken some poisonous substance but after postmortem the case was developed that after deterioration of the condition of the deceased, he was taken on Thelia to Dr. Deepak wherefrom he was referred to District Hospital. While on the way to District Hospital, the jeep was stopped to take fuel on the petrol pump, the appellant strangulated the deceased and caused his death. The prosecution witnesses produced in support of its case have not given any evidence to connect the appellant with the instant offence but the trial court, only on the basis of the presumptions, has convicted the appellant. It has also been argued that the trial court was of the view that non examination of Dr. Deepak was of no consequence. Since the appellant was alone in the jeep so it was her duty to explain as to how the deceased died. It is further submitted that the prosecution has itself come with a definite case that the condition of the deceased was serious, so he was referred to District Hospital by Dr. Deepak. While he was being taken to District Hospital, he died because of his serious condition and at the behest of other persons, she has been falsely implicated.

Learned A.G.A. has submitted that the prosecution has proved its case beyond reasonable doubt. The judgment of the trial court is well reasoned and it needs no interference.

In this case, there is no direct evidence that the deceased was killed by appellant. The prosecution, only on the basis of circumstances, has proposed to prove the guilt.

Before proceeding further in the matter, we would like to discuss the law on the point of circumstantial evidence. Reference on this point may be made to the pronounce of Hon''ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in , AIR 2011 SC 2283, wherein the Court in para 26 has held as under:

"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Hon''ble the Apex Court in the aforesaid case has followed its earlier pronouncements in the following cases:

"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 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."

Though a conviction may be based solely on circumstantial evidence, however, the Court must bear in mind the aforesaid tests while deciding a case involving the commission of a serious offence in a gruesome manner."

Hon''ble the Apex Court in the case of Manthuri Laxmi Narsaiah v. State of A.P. reported in , (2011) 14 SCC 117 has held in paragraph No. 6 as under:--

"6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence."

Likewise in the case of Mustkeem v. State of Rajasthan reported in , (2011) 11 SCC 724, Hon''ble the Apex Court in paragraph No. 24 has held as under:--

"24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116 in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p. 185)

(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(iii) the circumstances should be of a conclusive nature and tendency;

(iv) they should exclude every possible hypothesis except the one to be proved; and

(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The aforementioned judgments have been followed in a recent judgment in the case of Sangili alias Sanganathan v. State of Tamilnadu reported in , (2014) 10 SCC 264.

Now we will have to consider the evidence of the witnesses whether the chain is complete and the same is capable of only conclusion i.e. guilt of the accused. PW-1 Usha, who happens to be neighbour of the appellant, has stated that mother of Sangeeta (appellant) had left her house 3-4 years prior to the death of her husband. Sangeeta and Jantri were two sisters, who were married with Rajesh and Asharam respectively, who were also real brothers and both these sisters used to live with their husband in the house of their father. Sangeeta developed illicit relations with Asharam. She had seen them lying in the field. Rajesh had also seen them in compromising position so a quarrel had taken place between them. Sangeeta had said that she may leave Rajesh but not Asharam. After the said quarrel, the condition of Rajesh became precarious so Sangeeta along with 2 - 3 persons of the village took her to doctor where the doctor said the case to be hopeless. Thereafter Rajesh was being taken to District Hospital, Sitapur and on the way he died. This witness has stated that on 27.4.2008 quarrel had taken place in between Rajesh and Asharam. Initially the quarrel started from the field and thereafter it continued in the house also. His condition became dangerous. Due to such condition of Rajesh, Asharam ran away from there. This witness has stated that she has given statement to the Darogaji that Rajesh had consumed poisonous substance, which made his condition serious. This witness has stated that at the time of the quarrel, she was not present at the field. While the quarrel has taken place in the house then she was hearing the noise of quarrel from the door of her house. When Rajesh was being taken on Thelia then she was also present near the Thelia. One Chiranjo enquired Rajesh as to what has happened, then he replied that he has consumed poison. She got the information in the evening that Rajesh had died. Thus the evidence of this witness is only regarding the illicit relations of Asharam and the appellant. She has nowhere stated that she had seen the appellant strangulating the deceased. PW-2 Hemraj is the complainant of this case. He has stated that Sangeeta stayed with body of Rajesh in his village. He has also stated that the information was given by him to the police station and the police scribed the report because the police had said that unless and until he informs the police, how the postmortem can take place. Thus the evidence of this witness is of no consequence. It only goes to show that the appellant had taken the deceased on jeep to his parental house in District Sultanpur. PW-3 Chhote Lal, is the person, who was accompanying the deceased and Sangeeta on the jeep. He has stated that she was sitting on the back seat of the jeep and he had not seen the appellant strangulating the deceased. PW-4 Dr. S.P. Singh has stated that it was the case of partial damage of hyoid bone and in such cases, the death may take place after some gap. PW-6 Suresh has not supported the case of the prosecution on any point.

After going through the entire evidence carefully, we are of the considered view that the trial court has not correctly appreciated the evidence on record. The trial court has observed that non examination of the doctor, who examined the deceased and referred him to District Hospital Sitapur was of no consequence as his evidence was not material in the facts of the instant case. But we do not agree with the view taken by trial court. According to the admitted case of the prosecution, Dr. Deepak had examined the deceased and finding the case to be hopeless, he immediately referred him to District Hospital, Sitapur. So this witness was most material regarding the physical conditions of the deceased and nature of illness, with which the deceased was suffering at the time, he examined him. What were the chances of his survival. It is an admitted case of the prosecution that this witness had declared the case to be hopeless and referred him to District Hospital, Sitapur. So in such condition it cannot be presumed that he was subsequently strangulated by the appellant because the condition of the deceased was already very serious. The trial court has also observed that at the petrol pump, the appellant was the only person sitting in the jeep and one of the witnesses had heard sound of gasping. On this basis, the trial court was of the view that in view of the provisions of Section 106 of the Indian Evidence Act, it was the duty of the appellant herself to explain as to what happened inside the jeep. But we do not agree with this observation of the trial court because the jeep is an open vehicle and the persons standing outside the jeep may also see as to what is happening inside the jeep. It is also clear from the fact that only one witness has stated that he heard the noise of gasping. So if the witness was in a position to hear the noise of gasping then he must be in a position to see as to what is going on inside the jeep. Apart from it, at the time when the fuel is being filled in a vehicle, the petrol man stands very close to the vehicle. So he was also in a position to note any unnatural incident/act inside the jeep. Strangulation of a person, is not such an easy task for a lady to complete inside the jeep without being noticed by any one and that too in friction of seconds. The witness has also stated that he had seen the hands of the appellant on the head of the deceased and the same were covered with her Shawl. If the condition of the husband of the appellant was serious and the appellant, if she was putting her hands on the head of her husband then the same cannot be any incriminating circumstance to connect the appellant with the offence. The trial court has also ignored the medical opinion of the doctor that in case of partial strangulation, the death may take place after some time gap and this medical opinion was important in the facts of the instant case because even at the time when he was taken to Dr. Deepak, he declared the case to be hopeless and immediately referred him to District Hospital. So in that background, it was quite possible that the death of the deceased ensued because of the partial strangulation, which has taken place prior to the examination of the deceased by Dr. Deepak, which might be the result of quarrel of the deceased with some other person in the field. It is nowhere the case of the prosecution that any witness had seen the deceased being strangulated by the appellant in the village. The only evidence was that quarrel between the deceased and Asharam or some other person took place in the village and there is no evidence that the appellant was also present at that place. PW-1 though has stated that some quarrel had also taken place inside the house and after such quarrel, Asharam ran away from the house but the evidence of other witnesses establishes that after the quarrel in the field, the condition of Rajesh became serious and he was immediately taken to doctor on Thelia.

In view of the discussion made above, it is clear that some quarrel had taken place in the fields and thereafter the condition of Rajesh became precarious. There is no evidence that at the relevant point of time appellant was present there. Appellant immediately had taken the deceased to doctor on a Thelia where-from he was referred to District Hospital. On the way to District Hospital while the jeep stopped at a petrol pump a noise of gasping was heard. No-one has seen the appellant strangulating the deceased while some others were present there. Admittedly in the jeep her own daughter was present. Thereafter she had taken the deceased in his parental home in District Sultanpur where she stayed. So there is neither any direct evidence nor sufficient circumstantial evidence to connect the appellant with the offence. Possibility that the deceased died because of injury sustained in the quarrel in fields cannot be ruled out in view of the medical opinion.

Thus in our considered opinion, the prosecution had utterly failed to prove its case beyond reasonable doubt. But the trial court has not properly appreciated the prosecution evidence and has committed error of law and fact in convicting the appellant.

In view of the discussion made above, this appeal deserves to be allowed and is hereby allowed. The judgment and order dated 26.6.2015 passed by learned Additional Sessions Judge, Court No. 11, Sitapur in Sessions Trial No. 1099 of 2008 is hereby set aside. The appellant is acquitted of the charges levelled against her. She be set at liberty. The appellant is in jail. She shall be released forthwith, if not wanted in any other case.

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