Smt. Archana Shukla vs State of U.P.

Amar Saran and Ramesh Sinha, JJ.—Heard Sri Dilip Kumar, learned counsel for the appellant, learned counsel appearing for the complainant and the learned A.G.A. A prayer for bail has been made in this criminal appeal which has been filed against a judgment and order dated 26.2.2011, passed by the Sessions Judge, Auraiya in Sessions Trial No. 50 of 2007, whereby the appellant has been convicted and sentenced to undergo life imprisonment and a fine of Rs. 10,000 with default stipulation of 1 year, for the offence u/s 302 read with Section 34, I.P.C.

A first information report was registered on 3.11.2006 at 6.30 a.m. against the appellant by P.W. 2 Ram Autar, father of the deceased Alok Kumar at police station Achhalda alleging that his son Alok Kumar aged about 26 years was running a ready made clothes shop in Achhalda. On 2.11.2006 at about 7.00 p.m. when the deceased was crossing the house of P.W. 1 Kanhaiya Lal. then the appellant Smt. Archana Shukla wife of Navin Kumar, who resided in the said house as a tenant, invited the deceased to her room. At 11.30 p.m. Kallu, Kishan and Mahendra Singh who were also residents of the said house reached the informant''s house in Mohamdabad and told him that the condition of his son was serious. He immediately left for Achhalda and arrived at the room of the appellant where he saw the deceased lying on the floor in a dead condition in his underwear and vest. He expressed suspicion against Smt. Archana of having committed the murder by pressing the neck of the deceased by herself or with the aid of some accomplice.

Learned counsel for the appellant argued that no documentary evidence by way of rent receipts, tenancy note etc. have been produced by P.W. 1 Kanhaiya Lal, house owner for showing that Smt. Archana Shukla used to reside in the upper portion of the house. There was no reason for the appellant to reside in the said house, in preference to Tahraijipur or Mohammadabad because she belonged to Mohamdabad which was six kilometres away and she was working as a Shiksha Mitra at village Tahrajpur which was one kilometre away from Mohamdabad. Her husband was in service in Kanpur and she had two children who were residing with her in-laws at Mohammadabad. It was further argued that the inquest report does not mention that the deceased was found in the room in the tenancy of the appellant. It was also urged that the deceased may have been residing in the said room. It had wrongly been mentioned that the deceased was seriously ill when Kallu, Mahendra Singh and other persons went to Mohamdabad to give information regarding the murder of the deceased in the appellant''s room at Achhalda. He further argued that the deceased may have been murdered by the other tenants or inmates of the house and the body may have been thrown into the appellant''s room.

It is also argued that P.W. 1 Kanhaiya Lal and P.W. 2 Ram Autar have falsely stated that Archana was present at the time of incident and she was arrested on same day and was taken to the police station as P.W. 6, Sobaran Singh, Investigating Officer, has stated that Archana was arrested on 24.11.2006, and the fact of her being arrested at the spot was also not mentioned by the informant in this F.I.R. or in his statement u/s 161. Cr.P.C. The F.I.R. which was lodged in the morning of 3.11.2006 at 6.30 a.m. was delayed as admittedly the informant was given information of the incident in his home at Mohammadabad at 11.30 p.m. on 2.11.2006. Some discrepancies as to whether the report was lodged at 1.30 a.m. in the night of 2/3.11.2006 or at 6.30 a.m. on 3.11.2006 have also been raised. The reply of the prosecution to these contentions was that there was no reason for Kanhaiya Lal and other witnesses deposing that the appellant was residing in the upper portion of the aforesaid house, if in fact she was not residing there. It was possible in case she had a relationship with the deceased or for any other private reason to have chosen to reside in the said house in Achalda, instead of her own home in Mohammadabad or in Tehrajpur where she was working as a Shiksha Mitra. Even the cross-examination of P.W. 1 Kanhaiya Lal was to the effect that there was some dispute of Kanhaiya Lal with Archana because he wanted her to leave his premises, as he was not happy with the appellant who was a single woman at Achalda, inviting male visitors like the deceased to her house in the night. By this cross-examination the appellant implicitly admits her presence in the house. Apart from making a bald statement that she was not residing in the said house she has not given evidence of residing in any other place which burden lay on her to discharge.

The inquest report does not need to contain the details regarding the occupancy of a particular room by the appellant as it mentions that it was in the house of P.W. 1, Kanhaiya Lal where the dead body of the deceased was found in the upper room. The site plan clearly mentions that the said room was in the occupation of the appellant. In the long written statement of the appellant there was not even a whisper that the deceased and not the appellant was residing in the said house.

So far as describing the deceased as ill and not dead to his father by the witnesses when they reached Mohamadabad, this may have occurred because the witnesses may have been misled by the appellant who had called them upstairs after the deceased had died in her house, perhaps to create an impression that the deceased had died due to heart attack or any other normal course. She could take this plea because there was no visible bloody injury on the body, and the witnesses may have realized that this was an unnatural death on subsequently noticing the ligature mark on the neck of the deceased or when it was seen during inquest or by the doctor conducting the post-mortem who reported the case to be one of strangulation.

Alternatively the information of the deceased being only ill and not dead may have been given by the witnesses to the family members of the deceased to prevent them from getting unduly alarmed at that stage.

It was too far-fetched that any one else (such as the other tenants or house inmates) could have committed the crime, because there was no good reason why the liability for the crime would have been foisted on the appellant who was a woman, if she was not actually involved in it. In such circumstance the onus u/s 106 of the Evidence Act squarely lay on the appellant to explain as to how the deceased was found dead in his underwear and vest on the floor in the premises occupied by her. which onus, it was submitted, the appellant had miserably failed to discharge.

It was argued by learned A.G.A. that there appear to be some defects in investigation, but unfairness or incompetence on part of the Investigating Officer provides no ground for casting aside the entire prosecution case. There was no reason for the informant to have sent a telegram on 8.11.2006 making a complaint against the Investigating Officer that he had picked up the appellant after the incident on 3.11.2006 and later released her, if such a thing had not actually occurred. Thereafter, the appellant was taken into custody on 24.11.2006. A plastic rope used for strangulating the deceased was also recovered at the instance of the appellant after her arrest.

An F.I.R. which was lodged at 6.30 a.m. after an incident which takes place before 11.30 p.m. the previous night cannot be said to be delayed as the informant who was a resident of Mohammadabad had to go to Achalda. 6 kms. away for taking stock of the situation before lodging the report. The alleged discrepancies in the time of F.I.R. and other minor discrepancies pointed out by the appellants counsel are. matters for appreciation at the final hearing of the appeal. The chain of circumstances for showing the complicity of the appellant in this crime are therefore sufficiently established. The appellant was also not released on bail during trial. Having considered the submissions of the parties, without expressing any conclusive opinion on the merits of the case, we are not inclined to grant bail to the appellant, Smt. Archana. Her prayer for bail is accordingly refused.

However, the hearing of the appeal is expedited.

Office is directed to prepare the paper book preferably within four months and to list the appeal for hearing the thereafter.