The Allahabad High Court while allowing the Jail Appeal observed that Section 106 of the Indian Evidence Act cannot be attracted in a case unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Shiv Shanker Prasad heard a Jail Appeal filed by Guddu Verma.
The criminal appeal is directed against the judgment dated 14.04.2016 passed by Additional Sessions Judge, Maharajganj in Sessions Trial, arising out of Case under Sections 302/34, 201 I.P.C, Police Station Paniyara, District Maharajganj, whereby accused appellant Guddu Verma has been convicted of offence under Section 302/34 I.P.C and has been sentenced to rigorous life imprisonment alongwith Rs 20,000/- fine for commissioning of offence under Section 302/34 I.P.C; in default of payment in fine to further undergo one year additional imprisonment and three years rigorous imprisonment along with fine of Rs 3000/-, under Section 201 I.P.C; in default of payment in fine to further undergo three months additional imprisonment.
The facts of the case are that on 13.04.1998 complainant namely, Janardan son of Adhare, resident of Village Barvafahim, P.S Kotwali, District Maharajganj had filed a written report alleging therein that he solemnized the marriage of his daughter Sangita with the accused-appellant Guddu son of Kedar about seven years ago, his daughter committed suicide tonight by hanging herself.
It is further alleged that there was no fault of her in-laws in suicide of his daughter. He was informed to take necessary action. He also requested to give him the dead body of his daughter for the last rites. On the aforesaid written complaint of the complainant, a case was registered being Case under Sections 302, 201 I.P.C, Police Station Paniyara, District Maharajganj.
When the Investigating Officer collected the evidence during investigation, it came to light from the evidence of the witnesses that the accused Partapi and Guddu Verma falsely making allegation of Sangeeta’s character,grabbed her face and got her back side head hit to the wall forcefully due to which she sustained injuries and died on the spot. To hide the crime both the accused tied her neck with rope and hanged the dead body on a bamboo stick near the ceiling so that the onlookers might be considered the said crime of murder as suicide.
On the basis of the above exhaustive analysis of the evidence, the trial court has come to the definite conclusion that all the arguments advanced by the defence have no force.
On the basis of the evidence, it has been proved beyond reasonable doubt that at some unknown time on the night of 12/13.04.1998, the accused Smt Partapi Devi (who died during the trial) and Guddu Verma in fulfilment of their common intention had killed Sangeeta, who was the wife of accused appellant by causing injuries in their house and in order to avoid the crime of murder they tried to make the said murder, projected to be a case of suicide by getting a rope tied around her neck, which has been proved by the prosecution beyond reasonable doubt by its relevant cogent evidence, therefore the offence under Section 302 read with Section 34 and Section 201 of the Indian Penal Code against the accused Guddu Verma is proved beyond reasonable doubt, accordingly, it seems fully justified to convict him for the offencee under the above sections.
The trial court has accordingly convicted the accused-appellant under Section 302 read with Section 34 and Section 201 of the Indian Penal Code and sentenced him life imprisonment with fine of Rs 20, 000/- for the offence under Sections 302/34 I.P.C and three years rigorous imprisonment with fine of Rs 3,000/- for the offence under Section 201 IPC.
Being aggrieved with the impugned order of conviction passed by the trial court, the accused-appellant has preferred the jail appeal.
The Court observed that,
We are, therefore, of the considered view that this is a case of circumstantial evidence and not direct evidence as all the prosecution witnesses are hear-say witnesses, no one has seen the incident with his/her own eyes. In the chain of circumstantial evidence, the motive, which is the strongest link of prosecution evidence in this case, rendered weak and unreliable. The motive as alleged by the prosecution cannot be relied upon on the basis of evidence led by the prosecution during the course of trial. Apart from the alleged motive no other circumstance has been proved against the accused persons including the appellant. We otherwise find that the chain of events in a case of circumstantial evidence which is required to be completed by the prosecution is left incomplete.
When we analyse the evidence on record on the above touchstone, we have no hesitation in arriving at the conclusion that the prosecution has failed to prove the guilt of the accused appellant beyond reasonable doubt. It has not been proved by the prosecution that the chain of events in the case leads only to the hypothesis of guilt on part of the accused appellant and an alternative hypothesis cannot be ruled out.
There is also a considerable delay between the time when the informant gave a report to the Police stating therein that his daughter has committed suicide by hanging herself and the family members of her in-laws were not involved or responsible in occurring of the said death and the time when the Police has recorded their statements under Section 161 Cr.P.C during the course of investigation stating therein that the accused-appellant Guddu and his mother Partapi had killed the deceased and to hide the crime, they hanged her by tying a rope around her neck as they suspected that she had illicit relationship with her father-in-law. An alternative hypothesis supporting the innocence of the accused-appellant, therefore, cannot be ruled out.
We also cannot lose sight of the fact that as per the statement of the Autopsy Surgeon Dr Noor Ahmad and the autopsy report, it is crystal clear that the death of the deceased is homicidal, as she was caused injuries on her head and face and due to injuries sustained by her on her head, she has done to death. However, in the said homicidal death of the deceased, the accused-appellant cannot be convicted only on the basis of testimony of interested and hearsay witnesses and also on the basis of chain of circumstantial evidence, which has not been completed as held above, even otherwise, no one has seen that the accused-appellant and his mother (died) had killed the deceased and to hide the crime, they hanged her on a bamboo stick by tying rope around her neck. It was the duty of the Investigating Agency to find out the culprit who had committed the offence of murder of the deceased.
“So far as the inference drawn by the trial court while passing the impugned judgment of conviction that since the death of the deceased has occurred in the house of the accused-appellant, which is homicidal, the burden of proof under Section 106 of the Indian Evidence Act lies upon him and he had to discharge his burden as to under which circumstances and what manner the deceased has done to death, which he has failed to discharge the same, is concerned, it is settled law that Section 106 of the Indian Evidence Act cannot be attracted unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution. We therefore hold that provisions of Section 106 of the Indian Evidence Act have no application to the facts of the case because the initial burden of proving the accused appellant had committed the murder of his wife is not discharged by the prosecution. The prosecution has completely failed to discharge its initial burden in proving the guilt of the accused-appellant beyond reasonable doubt”, the Court said while allowing the jail appeal.
“The order dated 14.04.2016 passed by Additional Sessions Judge, Maharajganj in Sessions Trial, arising out of Case under Sections 302/34, 201 I.P.C, Police Station Paniyara, District Maharajganj, against the accused appellant, is hereby set aside.
The accused appellant-Guddu Verma, who is in jail from 13th April, 2016 shall be released forthwith, unless he is wanted in any other case on compliance of Section 437-A CrPC”, the Court ordered.