Smt. Sabra vs State of U.P.

S.K. Agarwal, J.—This criminal appeal was preferred by Smt. Sabra, wife of the deceased, against her conviction u/s 302, I.P.C. and consequent sentence of life imprisonment by Vth Addl. Sessions Judge, Bijnor in S.T. No. 235 of 1979.

The incident in this case had occurred on the night of 20th March, 1979, at about 11 p.m. The report of the incident was lodged on 21st March, 1979, at 1.30 a.m. by the brother of deceased, Jalaluddin Khan. Motive behind the incident allegedly was that some row between husband and wife was going on the point of her going to her parents'' house. Three-four days before the incident, her father had come for her bidai. The deceased declined to send his wife with him just 2 days ago. Appellant had quarrelled with her husband on that score. On the faithful night, while deceased was sleeping, he was allegedly assaulted by his wife, the Appellant, with a gandasi. The alarm of the deceased had attracted the informant and Hanif apart from Mazhar, Miru, Mannu and Beeju, etc. to his house. The informant jumped into her house from the western wall. Hanif also entered inside the house of the deceased by climbing another wall. They saw that the Appellant was attacking her husband with a gandasi. He took his brother in his laps and raised alarm. He pushed aside the Appellant too. She went inside her room and washed gandasi''s blade with water and hanged it on a peg. Hanif in the meantime opened the main door. The witnesses, named above, entered the house. They had taken the injured Alam Dar Khan, deceased on a rickshaw to the police station. Smt. Sabra and weapon of assault were also taken to police station. Later on gandasi was produced at the police station by this witness. Its blade and handle in which it was fixed was found stained with blood. The blade was sealed separately and handle was broken into 4 pieces and sealed independently. They were sent for chemical examination. The weapon and clothes she wore at the time of her arrest were taken into custody. Other articles were also recovered from the spot including a durret (dari) which was lying on the cot of the deceased. They were all sent for chemical examination. The report of chemical examiner shows that they were blood stained. It does not say whether it was human blood. These articles were sent for serological examination. Blood was found to be human blood.

The prosecution in order to establish its case has examined 3 eye-witnesses, namely, P.W. 1, Jalaluddin, P.W. 2, Hanif and P.W. 3, Munnoo. Apart from them, some formal witnesses were also examined. They are P.W. 4, Murarilal Yadav who had prepared inquest memo. The information of death of Alam Dar Khan was received at the police station at about 6 in the morning. The case was converted from 307, I.P.C. to 302, I.P.C. General Diary entry pertaining to this alteration is Ex. Ka-3. Inquest memo is Ex. Ka-4. Other papers including challan and letter for post-mortem are Exs. Ka-5, 6 and 7. Other witness has filed an affidavit. He asserted that the dead body of the deceased was sent to mortuary through constable Virendra Singh, Rajendra Singh, P.W. 5, is the Investigating Officer. Dr. Surendra Pal Singh, P.W. 6, was the medical officer at Primary Health Centre, Nazirabad. He had examined the victim before his death at about 2 in the night. P.W. 7, is another constable. He was posted as moharrir at Sadar Malkhana. The articles that were recovered from the Appellant and the spot were all kept in the Sadar Malkhana under his custody. He has filed his affidavit. Constable Faiyaz Khan had also filed an affidavit. It has been marked as P.W. 8. He had taken the recovered 7 bundles containing recovered articles to Sadar Malkhana from the police station. P.W. 9 is Dr. R. Prasad who had conducted post-mortem examination. P.W. 10 is constable Jagdish Saran of Sadar Malkhana, Bijnor. He had received case property. They were kept in Sadar Malkhana and sent for chemical examination to Agra. He has filed an affidavit. P.W. 11 is Hari Singh, head moharrir. He had proved the report, Ext. Ka-1 prepared at the dictation of Jalaluddin and also prepared recovery memo of the gandasi Ex. Ka-2. He had also prepared the recovery memo for the clothes, salwar, kurta and orhani belonging to the Appellant. It is Ex. Ka-15. P.W. 12 is yet another clerk of District Hospital, Zaved Iqbal. He has proved that on 23.10.1979 constable Jagdish Saran brought 7 bundles duly sealed for chemical examination.

The Appellant in her examination u/s 313, Cr. P.C. had stated that she was sleeping in the kothari of her house and her husband was sleeping in the courtyard when she heard his alarm. She came out from the kothari in the courtyard. She saw two persons assaulting her husband. She raised an alarm and opened the bolt of the door. She took her husband in her laps. Hearing her alarm, many people collected there. The assailants ran away as soon as she raised alarm. People who collected there started making inquiries from her about the incident. She had informed all of them that two persons assaulted her husband and when she raised alarm, they fled from the spot. Her husband was placed on the cot from the ground. The villagers went to police station. She had also accompanied them. Jalaluddin in the meantime met the S.H.O. Her report was not transcribed because Jalaluddin had already contacted the inspector. Her husband was sent to hospital. She also accompanied him. At about 6, he died. They came back to their house. Police Inspector started inquiring from Jalaluddin about the culprits. He told him that he did not know about the assailants. The Investigating Officer threatened Jalaluddin to disclose the name of the real culprits or else he will involve him. He took the Sub-Inspector outside her house and she was thereafter in this manner involved in order to oust her from her husband''s property. Jalaluddin is a mischievous man. She stated that she told the Inspector "how can I kill my husband". Jalaluddin and her husband were doing business of selling buffaloes. Some altercation had taken place between them. Jalaluddin refused to continue the business in partnership with her husband. Jalaluddin demanded few buffaloes and refused to continue the business in future. This gave rise to a quarrel between them. Jalaluddin tried to remove her buffaloes but her husband had beaten him. His wife came to rescue her husband, she too was beaten. The Jalaluddin and his wife both stated they will see them within a year. Next day he called his in-laws to beat the deceased. She dragged her husband inside the room. They went away threatening to see him in future. She stated that she has two young children who are with Jalaluddin. She apprehend danger to their life also. She demanded that her children may be returned to her. For fear of Jalaluddin, no witness is ready to come to her defence. She is living with her father. In reply to question No. 5, she stated that her husband died subsequently. Initially he was unconscious. Rest she did not know. In reply to question No. 6, she admitted that her clothes were taken at the police station. Cot, dari and earth were stained with blood. In reply to question No. 7, she stated that Jalaluddin is deposing against her because he had usurped her property. Hanif and Munna are giving evidence under police pressure and due to their closeness with Jalaluddin. Hanif is nephew of Jalaluddin and Munna is his friend.

We have heard learned Counsel for the Appellant Sri V. A. Ansari and Sri Vidhu Bhushan learned A.G.A. for the State. It has been urged before us by the defence that the story brought on record by the prosecution is highly improbable. It is impossible for the Appellant to commit murder of her husband. The so-called motive is completely non-existent. It is a cock and bull story. The witnesses are not independent. They are partisan and inimical. P.W. 1, Jalaluddin, claimed himself to be brother of the deceased. He is also maker of the F.I.R. He has stated that the Appellant had washed gandasi blade inside the kothari. The gandasi was washed after she was lodged inside the kothari by Hanif. If the gandasi was washed it is wholly improbable that a gandasi (farsa) could be recovered in the morning that too with its blade and handle stained with blood. The prosecution had failed completely to establish its case. Why the articles recovered from the spot were not sent to serologist is wholly unexplained. So far as the recovery of blood on the gandasi is concerned, it does not appear probable. The weapon is shown as farsa in the recovery memo, Ext. Ka-2. This witness claimed that he had jumped inside the house of the deceased by climbing his roof. He then came to the house of his brother which is just adjacent to the house of the deceased and therefrom he came on the western wall of the deceased''s house and jumped inside. According to his admission, wall was 10 to 12 feet high. Yet he did not suffer a single scratch on his person is also highly suspicious. Apart from this, there are lot of conflict between the testimony of the Investigating Officer and this witness on the point of broken stack of the bricks and its seat. According to him, it was collected at a place where northern and western walls join. He denied its presence at the entrance gate of his house in the west. The height of this stack is also highly questionable. According to this witness this stack was about 2 meter in height whereas according to the Investigating Officer, it was 2-2-1/2 feet in height. He had no stairs in his house, therefore, he claimed that he had gone to the roof by scaling his wall with the help of this stack of brick. If this stack is only 2-1/2 feet high, it is beyond our comprehension that he could scale the western wall and then go to his roof therefrom. However, in the F.I.R. he had claimed that he had seen the Appellant giving blows after blows upon her husband from his roof. Immediately he ran and jumped inside the house and prevented further blows from being given by the Appellant upon the victim. In the F.I.R., this witness had not stated a word that deceased made any dying declaration before the witnesses. In the trial court, he had come out with this story that the victim after the arrival of the witnesses had told them, "Hindus and Muslims may listen, he had been assaulted by his wife." He further claimed that he had taken his brother into his arms. At that time he was wearing baniyan and underwear. Blood was oozing from his injuries, yet he claimed that only his hands were stained with blood. This circumstance too creates serious doubt in this story of his. He had claimed that his brother was speaking till his death. A perusal of the injuries clearly suggests that the victim is likely to fall unconscious soon after the assault. In this context, the statement of the doctor is also relevant.

P.W. 6, Dr. Surendra Pal Singh had examined him first at about 2 in the night. According to him, the patient was not paralysed. There was no perceptible weakness but his statement was not possible. He was semi-conscious. His blood pressure was not recordable. He was in a state of deep shock and his muscles were cold. He was bleeding profusely. His injuriy Nos. 1, 2 and 7 were grievous. There was serious risk to his life. In the circumstances, oral dying declaration as claimed by this witness, in our opinion, is most unnatural and improbable. This is further rendered suspicious by non-mention of this fact in the F.I.R. His explanation is that he was mentally upset because of grave condition of his brother. He claimed that his clothes were not stained with blood despite his having taken him into his laps is also unbelievable. He had not shown any blood on his hands to the Investigating Officer. Nature of injuries suggests that excessive blood must have gushed out. It further bears testimony to the fact that the patient would not be in a position to speak. No injury upon him and Hanif also creates reasonable doubt in the story as set up in Court by Jalaluddin. She was still armed with the gandasi (farsa) and must have made use of it. Her meak surrender to these two persons does not influence our mind. The circumstance that the Appellant had washed the gandasi inside the kothari where water was kept in a lota only is also ingenious and, therefore, is unacceptable. The doctor said that witnesses who accompanied the victim had also told him that the victim suffers from partial paralysis. The witnesses had stated that they had seen the place where gandasi was washed. According to this witnesses, a gandasi was handed over to the Investigating Officer but it was actually handed over to head moharrir at police station. He has also not shown the place where the gandasi is claimed to have been washed and piece of cloth recovered. He claimed that Investigating Officer had seen the spot where gandasi was washed. He was also shown that place where blood and water soaked in the ground inside the kothari. Whether it was recovered by Investigating Officer was not known to him. He has admitted the suggestion that Alam Dar has snatched his buffalo and he has threatened him with dire consequences. He has admitted that about 2-3 years ago, some altercation had taken place between them and both had lodged the reports at the police station but ultimately the matter was compromised and there was no enmity remained between them. He has further admitted that her jeeja had demolished his wall some two years before the incident and he had lodged a report against them. The police came to the village and the matter was compromised.

Thus, it is not proved beyond reasonable doubt from the evidence on record that the gandasi handed over to Investigating Officer did belong to the Appellant since it was not recovered from the kotha where it was hanged on a peg after washing. Non-preparation of any memorandum of blood stained cloth with which the weapon was cleaned creates serious doubt even in its recovery. No blood was taken from the kotha. The blood stained handle were not sent to serologist leave no room for any doubt in our mind that this weapon was not used in the assault. It is further fortified from that once it was washed and cleaned, it is not likely to contain any blood. The statement of P.W. 6 that it is slightly blunt in the middle makes its use in the assault highly doubtful. The motive suggested by this witness also does not inspire confidence. If her father came to take her, he would not have returned from the place without taking her. The story that there was suspicion in the mind of the deceased about his wife''s involvement with his brother-in-law (sarhu) is not proved at all.

P.W. 2, Hanif, has not supported him on this point. According to him, relations between the Appellant and the deceased were cordial. This witness had further admitted all the facts about the motive that the Appellant had run away to the house of her brother-in-law on two different occasions and was living with her brother-in-law but he had not transcribed this fact in the F.I.R. nor told to the Investigating Officer in his statement u/s 161, Cr. P.C. He has admitted that on both these occasions, she had gone straight to her father''s place. Hanif has also claimed that he had jumped inside the house of the deceased by climbing the western wall for this purpose. He had claimed that at the confluence of the northern-western wall which was slightly lower and there was a brick which was slightly broken, he climbed by placing his foot on that broken space. The Investigating Officer had not shown any such broken brick on the wall in the site plan.

Both these witnesses had also introduced the presence of a lantern but neither any memo for this lantern was prepared nor it was taken into custody by the Investigating Officer. He did not show it to the Investigating Officer even nor he had shown the place in the courtyard where the deceased was sleeping during the mid of the night. He had claimed that he had named those persons who came along with him to the spot before the Investigating Officer but these names are not there in his statement made to Investigating Officer. He cannot give any explanation for the omission. His house is at some distance from the house of Jalaluddin, P.W. 1. In between house of Jalaluddin and the deceased, there is house of his younger brother. The presence of this brother was not noticed at the spot amongst those who arrived at the place of occurrence. Pradhan was also claimed to have reached the spot before the door was opened but was not produced in evidence. The other witnesses who had also reached the spot before the door was opened were also withheld. P.W. 3''s house was 10-12 paces away to the south from the house of this witness. From his cross-examination, it appears that in between the house of P.W. 2 and P.W. 3 towards south, a road exists and thereafter the house of Banarsi Carpenter. The house of the pradhan is towards south of Ayub''s house and in the south the haveli of Ayub is there. The house of Munnu is to the west of road of Ayub''s haveli. Jalaluddin''s house is to the north of the deceased''s house. He had admitted that the deceased was lying in a pool of blood. There is also some conflict between P.W. 1 and P.W. 2 on the point of pushing the Appellant. According to P.W. 1, Hanif had pushed her aside and locked her in the kothari. According to P.W. 2, Jalaluddin had pushed aside the Appellant and thereafter she herself had gone into the kothari. She did not raise her weapon to assault any one of them. Absence of any blood on her clothes too creates serious infirmity in the prosecution story. His evidence regarding washing of the weapon by the Appellant already discarded by us. We are not prepared to accept his evidence.

His statement about the presence of lantern stands no better than P.W. 1. He had not mentioned it to the Investigating Officer. He has introduced a new case that the victim had suffered paralytic attack some 2-3 months before and was using crutches. The Investigating Officer had not found any crutches in the house. It is also doubtful that the victim waited for the arrival of the witnesses from the village before taking out the name of his wife as his assailant. He had been lying in a precarious condition and was speaking till his death. He repeatedly stated that his wife killed him. He stated that this fact was told by him to the Investigating Officer and to the medical officer, P.W. 6 also. If any such statement was made to the doctor, he would have made a note of this fact in the injury report but this is not there. For these reasons, we are not in a position to accept the testimony of those witnesses on this oral statement of the deceased.

So far as P.W. 3, Munna, is concerned, admittedly his house, from the testimony of P.W. 2, is at a considerable distance. He has also supported that false claim that the victim made an oral dying declaration before the villagers but not a single villager before whom it was made, apart from these witnesses, had been examined by the prosecution in this case in the trial court. He has stated that the wall can be scaled, may be scaled and may not be scaled. It was more than human height. He had also supported the false case set up by the prosecution that the Appellant had run away on two occasions. Once one and half years ago and again 6 months before the incident. He had been also supporting the false case of paralysis suffered by the victim. He had admitted that she had not run away with any body. She had gone to her parent''s house. He has further admitted that he was told by Hanif and Jalaluddin a day before the incident that a quarrel is going on between Amal Dar and his wife. Thus, we do not find any merit in the statement of this witness also. He appears to us supporting the statement of these two witnesses either on account of his close contacts or under some pressure. We are unable to understand why no other independent witness including the pradhan of the village was not examined in evidence by the prosecution. The arrival of so many villagers is admitted to the witnesses. The Sub-Inspector who prepared inquest had admitted that while examining the victim, he had not noted down any of his hands being thinner than the other. He did not note any theft having been committed. He had admitted that in Exts. Ka-3 and Ka-7 no name of accused is disclosed. No cognizable report was registered after the registration of this F.I.R. There is no mention of the case property in G.D. No. 17 by which the Appellant was sent to jail although seizure of the weapon was allegedly claimed at the police station.

According to P.W. 5, the victim was brought to the police station first but no statement was recorded there. No entry was made about his injury in the G.D. nor any mention of the fact that he was conscious at that time is noted there. Investigating Officer had gone to the hospital first and recorded the statement of injured. He had not contacted any doctor before recording the statement nor has obtained any certificate from the doctor. He claimed that before recording Ex. Ka-12, his dying declaration in the case diary, he has made considerable inquiry from the victim but he was unable to make any response. He further admitted that he had examined the injury report before recording the statement. It was transcribed there that there is danger to his life but still he did not realise any urgency to call a Magistrate for recording his dying declaration. He did not call any witnesses while recording this statement, Ex. Ka-12 as required by Rule 115 of Police Regulations. He admitted that many people would have been there but the inquiry was made from the victim alone. He was speaking slowly but in Ex. Ka-12 it is written "karahte va atakate huye bolne ke baad uski baat maine observation se likhi hai". He has admitted that he has not shown broken pieces of bricks collected at the door of P.W. 1 in his site plan and inspection memo. Thus, this story of collection of stack of broken bricks is beyond our understanding. He admitted that there was no staircase in the house of P.W. 1. Thus, if the presence of any stack of brick is discarded how P.W. 1 had reached his roof is a question which remained unresolved from the evidence of the witnesses. He claimed that he had reached the village at about 6.30 a.m. and returned in the evening at about 5 p.m. Thus, in our opinion, the investigation in this case is collusive and the Investigating Officer had tried to shield the truth and protect the real assailants and had involved this innocent woman as assailant of her husband. He had admitted in Ex. Ka-8 and Ka-9 that only crime number and sections are written. The name of the Appellant is not described therein but in the site plan, it had been described. The reason behind the omission as disclosed by him is that loss of site plan is always possible. In our opinion, the site plan was prepared later on. He had admitted that the parchas and the case diary were sent to circle officer but when was it received he did not know. He admitted that the papers are used to be sent to the police station daily but it has not been so proved from head moharrir.

In this context, the statement of P.W. 6, Dr. Surendra Pal Singh is also very relevant. So far as the recovered gandasi is concerned, according to this witness, the gandasi, Ex. Ka-1, involved in the offence is not sharp in the middle. Any injury caused by this weapon will not have clean cut margins at this place. No such injury was found in the post-mortem examination or medical report of the deceased. This statement creates serious doubt in the use of this weapon in this assault.

In the circumstances, discussed above, we are of the opinion that the Appellant had not participated in the incident of murder of her husband. She has become the victim of a design executed by these witnesses and the police conjointly. This is a typical case in which the participation of the police in the involvement of an innocent woman as assailant of her husband is clearly discernible. If she would have been the killer, none of these two witnesses would have spared her without a single scratch nor the villagers who arrived at the scene of occurrence on having learnt about this fact, would have spared her. Some injuries ought to have been there on her person. She must have been given a thorough beating atleast by the close relatives of the deceased. The deceased''s younger brother was also living in the adjoining house. Complete absence of this brother in this sordid drama leaves absolutely no room for any doubt in our mind that this lady was not a killer and has become a victim of the police and these witness''s ingenuity. A thorough inquiry for the conduct of the police officer, if he is still in the police service, is called for. The Home Secretary of State of U.P. is directed to hold an inquiry by any superior officer of the rank of Superintendent of Police in the matter.

In the result, this appeal is allowed. The conviction and sentence passed by the learned Vth Addl. Sessions Judge, Bijnor in S.T. No. 235 of 1979 u/s 302, I.P.C. is set aside. She is acquitted. The Appellant is on bail, she need not surrender. Her bail bond is cancelled and sureties are discharged.