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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: HARI MOHAN & ORS.

DATE OF JUDGMENT:       07/11/2000

BENCH: K.T. Thomas, & R.P. Sethi,

JUDGMENT:

SETHI, J. L...I...T.......T.......T.......T.......T.......T.......T..J     Roop  Devi, daughter of Bhagwan Sahai (PW1) was  married to   Shyam  Mohan,  respondent   No.2  herein  on  6.6.1973. Respondent  No.1  Hari  Mohan  is   the  elder  brother   of respondent  No.2.  The other respondents are the  relations/ friends of Shyam Mohan.

   After  receiving the letter on 18.3.1977 which is stated to  have been written by Roop Devi, Bhagwan Sahai (PW1), her father, came to village Kurria Kalan on 19.3.1977 to inquire about  his  daughter.  He was told by respondent  No.1  Hari Mohan  that Roop Devi had died due to Cholera on  15.3.1977. Apprehending  some  foul play PW1 lodged the FIR  at  Police Station  Kanth on 20.3.1977 at about 1.30 p.m.  On 22.3.1977 the dead body of Roop Devi, bundled in a gunny bag was found floating  in a pond in Village Sahwapur, away from the house of  the  accused- respondents.  On opening the gunny bag  it was  found that dead body was tied in a saree and wrapped in a  bed sheet.  It also bore gun shot injuries.  Post  mortem was  conducted  on 23.3.1977 and the doctor opined that  the deceased  had died due to shock and haemorrhage as result of the ante mortem injuries noticed on her body.

   Upon   conclusion  of  the   trial,  the  learned  First Additional Sessions Judge, Shahjahanpur convicted respondent No.1  under  Section  302/34 IPC and sentenced him  to  life imprisonment.   All  other respondents were convicted  under Section  201  IPC  and  sentenced  to  five  years  rigorous imprisonment.

   Not  satisfied with the judgment of the trial court, the respondents  preferred an appeal in the High Court which was allowed  vide  the  judgment impugned in this  appeal.   The accused   were  acquitted  on   the  assumption  that   "the possibility  of a suicide of Smt.Roop Devi in the house also cannot  be denied".  As the occurrence was found to be  that of  a  suicide,  the conviction of all the  accused  persons under Section 201 IPC was held to be not maintainable.

   We  have  heard the learned counsel for the  parties  at length and perused the whole record including the statements@@            JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  the  witnesses  produced  by  the  prosecution  and  the@@ JJJJJJJJJJJJJJJJJJ defence.

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   Admittedly,  there is no direct evidence connecting  any of  the accused with the commission of the crime.  The  case of  the  prosecution is based upon circumstantial  evidence. It   is   often  said  that   witnesses  may  lie  but   the circumstances  cannot.  To convict a person on the basis  of circumstantial evidence all the circumstances relied upon by the  prosecution  must be clearly established.   The  proved circumstances  must be such as would reasonably exclude  the possibility of innocence of the accused.  The circumstantial evidence  should be consistent with the guilt of the accused and   inconsistent  with  his   innocence.   The  chain   of circumstances,  furnished  by the prosecution, should be  so complete as not to lead any reasonable ground for conclusion consistent  with  the  innocence of  the  accused.   Medical evidence  in  such a case may be an  important  circumstance giving assurance to the existence of the other circumstances alleged  against  the culprit.  This Court has  consistently held   that   when  the   evidence  against   the   accused, particularly  when  he  is charged with grave  offence  like murder   consists   of  only   circumstances,  it  must   be qualitatively  such that on every reasonable hypothesis  the conclusion  must  be  that  the   accused  is  guilty;   not fantastic  possibilities  nor freak inferences but  rational deductions  which  reasonable minds make from the  probative force of facts and circumstances.

   While appreciating the ocular testimony of witnesses and the circumstantial evidence in a criminal case, the criminal courts are expected to keep in mind the observations of this Court  in  State of Punjab v.  Jagbir Singh, Baljit Singh  & Karam Singh [1974 (3) SCC 277] wherein it was held:

   "A  criminal trial is not like a fairy tale wherein  one is free to give fight to ones imagination and phantasy.  It concerns  itself with the question as to whether the accused arraigned  at the trial is guilty of the crime with which he is  charged.   Crime  is an event in real life  and  is  the product  of  interplay  of  different  human  emotions.   In arriving  at  the conclusion about the guilt of the  accused charged  with  the commission of a crime, the court  has  to judge  the  evidence by the yardstick of probabilities,  its intrinsic  worth and the animus of witnesses.  Every case in the  final analysis would have to depend upon its own facts. Although  the  benefit of every reasonable doubt  should  be given to the accused, the courts should not at the same time reject  evidence  which is ex facie trustworthy  on  grounds which are fanciful or in the nature of conjectures."

   This  Court again in State of Himachal Pradesh v.   Lekh Raj  &  Sons [JT 1999 (9) SC 43] reiterated the position  of law  and  while  reminding  the  criminal  courts  of  their obligations  held:   "The criminal trial cannot  be  equated with  a  mock scene from a stunt film.  The legal  trial  is conducted to ascertain the guilt or innocence of the accused arraigned.  In arriving at a conclusion about the truth, the Courts are required to adopt rational approach and judge the evidence  by  its  intrinsic  worth and the  animus  of  the witnesses.    The   hypertechnicalities    or   figment   of imagination should not be allowed to divest the court of its responsibility  of  sifting  and weighing  the  evidence  to arrive   at  the  conclusion   regarding  the  existence  or otherwise  of a particular circumstances keeping in view the peculiar  facts  of  each case, the social position  of  the victim  and the accused, the larger interests of the society

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particularly  the law and order problem and degrading values of  life inherent in the prevalent system.  The realities of life have to be kept in mind while appreciating the evidence for  arriving  at the truth.  The courts are not obliged  to make  efforts either to give latitude to the prosecution  or loosely  construe  the  law in favour of the  accused.   The traditional  dogmatic  hypertechnical  approach  has  to  be replaced  by  rational, realistic and genuine  approach  for administering   justice  in  a  criminal  trial.    Criminal jurisprudence  cannot be considered to be a Utopian  thought but  have  to be considered as part and parcel of the  human civilization  and the realities of life.  The courts  cannot ignore  the  erosion  in values of life which are  a  common feature  of  the  present system.  Such erosions  cannot  be given a bonus in favour of those who are guilty of polluting society and the mankind."

   Before  appreciating the circumstantial evidence in  the case,  we  are  at pain to place on record  our  displeasure regarding the conduct of the investigation in the case.  The investigating officer appears to have left no stone unturned to  help  the  accused-respondents.   It  appears  that  the valuable  evidence,  though  available,  was  not  collected apparently  for  ulterior  purposes.   The  conduct  of  the investigating officer SI D.P.  Tiwari (PW7) was even noticed by  the trial court.  On 30th October, 1978 while  recording his  statement,  the trial court observed that  "it  appears that the IO was negligent and an irresponsible investigating officer".  It was noticed that "the witness giving aforesaid statement  and  it  appears  that he  wants  to  damage  the prosecution   case".   It  is   not  disputed  that   during investigation  it had come in evidence that respondent  No.1 was  possessed  of a licensed gun which was stated  to  have been   used  by  him  on   15.3.1977,  the  alleged  day  of occurrence,  yet  no effort was made by the IO to seize  the gun or get it examined by an expert to ascertain whether any shot  was  fired  from its barrel.  He also failed  to  have taken  into custody the letter written by the deceased for a sufficiently  long period though its mention was made by the PW1 in the FIR itself.  However, the defective investigation cannot be made a basis for acquitting the accused if despite such  defects  and failures of the investigation, a case  is made  out against all the accused or anyone of them.  It  is unfortunate  that  no action can be taken against the IO  at this  stage who, in all probabilities, must have retired  by now.

   The   trial  court  in   its  judgment  summarised   the circumstantial evidence against the respondents as under:

   "1.   Hearing  of gunshot by Bishran Singh at  about  10 a.m.  on 15.3.1977.

   2.   Bishran  Singh’s arrival near the Chabutra of  Hari Mohan  and then coming out of accused Hari Mohan with a  gun along with Mahadeo.

   3.   False assertion of accused Hari Mohan that he fired a blank shot in the air.

   4.   Hearing  of shrick or cry from inside the house  by Bishran Singh

   5.  Hari Mohan being a gun licensee.

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   6.   False  assertion  by accused Hari Mohan  to  Bhawan Sahai  on 19.3.1977 about the death of Smt.Roop Devi due  to Cholera.

   7.   Fresh and plastering of the Kothir ’C’ found by the investigating officer.

   8.   Blood stained earth taken in possession from points A and B shown in the site plan."

   While dealing with Circumstances 1 to 5, the trial court relied  upon  the testimony of PW3 and held:  "Accused  Hari@@         JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Mohan  is  the elder brother of accused Shyam Mohan.   Their father  was not alive at the time of the alleged murder.  As such  Hari Mohan was to discharge the duties and obligations of the head of the family.  Somehow, the matter of dowry had taken an evil turn and since there is evidence that Smt.Roop Devi  was  not pulling with his mother-in-law and there  was constant  conflict and dispute, every possibility borders on certainly  that  Hari Mohan took the law into his hands  and committed this murder callously and brutally."

   Circumstance  No.6  was held proved which, according  to the  trial court, strengthened the conclusion regarding  the guilt  of accused Hari Mohan.  Regarding circumstance  No.7, it  was  held  that  investigating  officer  had  noted  the existence   of  fresh  mud  plastering   at  the  place   of occurrence,  obviously  with  the object of  destroying  the evidence  in the form of blood stains and other marks  which could  prove  the  killing of the deceased by  a  gun  shot. Though  Circumstance  No.8 was held proved, yet it  was  not relied,  on  account of the negligence of the  investigating officer  as  he  had failed to get the  Chemical  Examiner’s report  about the origin and nature of the blood.  In appeal the  High Court, as noted earlier, has erroneously held that Roop  Devi could have died by committing suicide.  There was no  evidence or any basis to return such finding by the High Court.

   From  the  evidence placed on record it  is  established that  on  the day of occurrence the deceased Roop  Devi  was@@               JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ living  with her in-laws i.e.  accused-respondents.  We  are@@ JJJJJJJJJJJJJJJJJJJJJJJJ not  inclined  to  accept the plea of the  respondents  that before  her  death the deceased was living with her  parents and  not with the respondents.  Bhagwan Sahai (PW1), who  is the  father  of the deceased, has stated that the  deceased, two months prior to her death, was sent to her in-laws house in  the  company  of respondent No.1 Hari  Mohan,  upon  his assurance  that she would be kept well.  Letter Exhibit Ka 1 dated  13.3.1977 is proved to have been sent by the deceased to  her  parents  through Rajinder Prasad PW2.  We  are  not inclined  to  accept  the  plea  of  the  defence  that  the aforesaid  letter  was not written on 13.3.1977 but on  some earlier date.  Even if the aforesaid letter is written on an earlier   date,  it  will  not   make  any  difference   as, admittedly,  it  is  proved  to have  been  written  by  the deceased before her death.  The hand-writing of the deceased has  been proved by the prosecution by examining Arun Kumar, PW4.   It  may further be noticed that none of  the  accused

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except  Hari  Mohan,  respondent No.1 had  stated  that  the deceased  was  not  living  with them.   Even  her  husband, respondent  No.2,  has  not  pleaded that  on  the  date  of occurrence she was living with her parents.

   Bishran Singh, PW3 stated in the trial court that on the date  of  occurrence he had heard the noise in the house  of the  accused as mother of Shyam Mohan, accused, was having a brawl  with  the deceased.  He heard the sound of  gun  shot coming  from  the house of the accused and when he  inquired from  Hari  Mohan  about the gun shot, he was  told  by  the aforesaid  respondent that he had fired in the air.  Accused Hari  Mohan is admittedly possessed of a licensed gun.   The deceased  is  proved to have died on account of a  gun  shot injury.

   On  13.3.1977  the deceased is proved to have written  a letter to his father PW1, stating therein that she should be@@           JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ immediately  taken  back  from  the  house  of  her  in-laws@@ JJJJJJJJJJJJJJJJJJ otherwise her brother-in-law, respondent No.1, mother-in-law and  the  husband would kill her.  The letter being  in  the hand-writing  of deceased, as noticed earlier, stands proved by the testimony of PW4, her brother.  No effort was made by the accused persons, if they doubted the authenticity of the letter, to get it compared with the admitted hand-writing of the  deceased.   The mere fact that the prosecution  witness did  not  produce  other letters allegedly  written  by  the deceased,  could  not be made a basis to hold that they  had made  any  attempt  to  suppress   the  evidence  which  the respondent could have utilised for the purposes of comparing the  hand- writing of the deceased.  In view of the positive evidence  of  PW4 we have no reason to hold that the  letter Exhibit  Ka 1 was not written by the deceased.  The  alleged discrepancy  or  over-writing  on  the  top  of  the  letter regarding its date in no way helps the accused persons.  The false  assertion by the respondent Hari Mohan that  deceased had  died  due to Cholera on 15.3.1977 is such an  important circumstance  as  would  leave no doubt in the mind  of  the court that the death was neither natural nor suicidal but in fact homicidal.  Making of contradictory statement on a fact which  the accused knew well that it is a wrong statement on a very vital aspect concerning the death of the deceased can also be counted, among other circumstances, as a link in the chain  of  circumstances  to connect the  accused  with  the commission  vide  judgment  in Rajinder Kumar v.   State  of Punjab[AIR  1966  SC 1322].  In that case the  deceased  was last  seen with him and later the dead body was found buried in  his  own  house,  the court  counted  the  contradictory statement made by the accused (that deceased had gone to the shop  of  one Baba to fetch a toast) as one of the links  in the  chain.   There is no doubt in our mind that Hari  Mohan accused  in  this  case  made a false  statement  about  the deceased  by  telling  her father that she had died  due  to cholera  on  15.3.1977.  If Roop Devi had died on  15.3.1977 due  to  Cholera,  what  prevented the  accused  persons  to intimate  her  parents about the death.  No  explanation  is tendered by the accused persons.  The said accused, however, has  taken  the  contradictory plea in the  court  that  the deceased was not at all living at their residence.

   From the prosecution evidence it is established that:

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   i) the deceased Roop Devi was married to respondent No.2 on 6.6.1973;

   ii)  the relations between the deceased and her  in-laws were strained on account of the demand of dowry;

   iii)  two  months prior to the incident she was sent  to her  in-  laws’ house in the company of accused  Hari  Mohan where she lived till her death;

   iv)  the deceased wrote a letter Exhibit Ka 1 intimating her parents that she apprehended to be killed by the accused persons;

   v)  on the date of occurrence gun shot was heard in  the house of the accused;

   vi)  respondent No.1 owned and possessed a licensed  gun on the date of occurrence;

   vii)  the  dead body of Roop Devi packed in a gunny  bag was  found  floating in a water tank away from the house  of the accused;

   viii)  Roop Devi was proved to have died after receiving gun  shot  injuries which could be fired from a distance  of 4-6 ft which excluded the possibility of suicide;

   ix) Hari Mohan accused made a false statement to Bhagwan Sahai, the father of the deceased that Roop Devi had died on 15.3.1977 due to cholera.

   On the basis of prosecution evidence led in the case and despite  mis-handling  of  the  case  by  the  investigation officer,  we are satisfied that the circumstances enumerated hereinabove  have been fully established by the prosecution. The  circumstances  are  a  chain, complete  in  itself  and inconsistent  with the innocence of accused Hari Mohan.   On the  touchstone  of  the  tests  regarding  appreciation  of circumstantial  evidence enumerated hereinabove, we have  no doubt  in  our  mind that prosecution had  proved  its  case beyond any reasonable doubt that Hari Mohan, respondent No.1 had  caused the death and thus committed the murder of  Roop Devi.   He  was rightly convicted by the trial  court  under Section  302  of the IPC and wrongly acquitted by  the  High Court on erroneous considerations.

   We are, however, of the opinion that the prosecution did not  succeed  in proving the case either under  Section  302 read  with  Section 34 or Section 201 IPC against the  other accused persons.

   In  the result the appeal is partly allowed by restoring the  conviction passed by the trial court against respondent No.1 Hari Mohan for the offence punishable under Section 302 IPC  and sentencing him to undergo life imprisonment.   Bail bonds  of Hari Mohan stands cancelled.  The First Additional Sessions  Judge, Shahjahanpur, will take prompt steps to put Hari  Mohan, the first accused, back in jail to undergo  the sentence  imposed  upon  him.    The  appeal  against  other respondents  is  dismissed and their acquittal by  the  High Court is upheld.

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