The Allahabad High Court while observing that the judgement of Sessions Judge dated 28.10.2017 is not based on any conclusive evidence but, simply on the basis of presumption and circumstantial evidence which itself was not sufficient has acquitted two accused who were awarded a sentence of life imprisonment in a murder case
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Arun Kumar Singh Deshwal passed this order while hearing a Criminal Appeal filed by Rajveer Singh and Rahisuddin.
Two appeals were filed against the order dated 28.10.2017 passed by the Additional District & Sessions Judge (FTC), Bulandshahr in Sessions Trial (State Vs Rajveer Singh and another) by which both the appellants were awarded life imprisonment along with fine of Rs 20,000/- each, under Section-302 read with Section 34 IPC and in case of nonpayment of fine they would further undergo two years incarceration.
Appellants were also imposed six months imprisonment along with fine of Rs.10,000/- each under Section-201 IPC and in case of non-payment of fine, they would further undergo one year imprisonment.
As per the prosecution case, first informant Harbir Singh Arya Advocate had given a Tehrir dated 20.10.2011 to Station House Officer, Police Station-Narora, DistrictBulandshahr stating therein that his son Lavkesh was married to Pooja, daughter of Rajveer resident of village-Kamalpur in the year 2009. Since the date of marriage Smt Pooja refused to live with his son Lavkesh and she has also lodged a case under dowry prohibition act as well as for maintenance against him as well as his family.
On 18.10.2011 at 9:30 pm, he received a phone call from Gajraj Singh, son of Banshi Singh, resident of Ganaura Nagli that his daughter-in-law Smt Pooja has been killed by her parents, brother and Rahisuddin by forcibly administering poison to her and just to falsely implicate him, they initially planned to bring the dead body of Pooja at his house. When they could not get a chance, they disposed off the dead body of Pooja by burning it. After receiving the aforesaid information, first informant Harbir Singh had given information of this incident to SP R.S Rathore on his mobile phone. It was further mentioned that he could not register the case because of the fear of accused persons.
After receiving the aforesaid information, FIR was registered in case under Sections-302, 201 IPC on 20.10.2011 at 10:50 am against Rajveer as well as mother and brother of Pooja and also against Rahisuddin.
During investigation, police prepared site plan of place of incident where the deceased was administered poison as well as the place where ashes and bone of dead body of Pooja was recovered from and recovery memo for recovering the ashes and bone was also prepared and thereafter, ashes and other remains along with soil of the place of incident was also sent for chemical examination and thereafter, on the basis of available evidence, charge-sheet dated 20.01.2022 under Sections-302 and 201 IPC was filed against the appellants and charge-sheet against the other co-accused persons namely Pawan and Roopwati was also filed on 21.03.2012, under Sections-302 and 201 IPC before the concerned court.
Appellants were committed to Sessions court on 13.03.2012 and also the case of other co-accused persons on 22.07.2012. Thereafter, the Sessions court summoned the accused persons and these accused persons also appeared before the Sessions court. Thereafter, after hearing the Assistant District Government Counsel as well as Defence counsel, charges were framed against the present appellants under Section-302 read with Sections-34 and 201 IPC in Sessions Trial. The charges were also framed against other co-accused persons namely, Pawan and Smt Roopwati, under Section-302 read with Sections- 34 and 201 IPC on 27.01.2014 for which accused persons denied and demanded trial.
Appellant-Rajveer stated that he has been falsely implicated just to pressurize him to enter into compromise with the first informant Harbir because his daughter Pooja as well as he lodged criminal cases against the first informant as well as against his family members under Sections-498A, 323, 504, 506 IPC and ¾ Dowry Prohibition Act and also the case for maintenance under Section 125 Cr.P.C and his daughter Pooja has died due to natural death while bringing her to the clinic of doctor as she was suffering from high fever and diarrhea.
The Court noted that,
Sole basis of lodging the FIR on part of the first informant is the information received by him from Gajraj Singh regarding the murder of deceased Pooja. Subsequently, during trial the informant had stated that the incident of causing death was also witnessed by Budhh Pal Singh, Ravi, Nanak and Sanjay apart from Gajraj Singh.
During the trial, Budhh Pal Singh and Nanak did not support the prosecution story and were declared hostile. The sole witness (Gajraj) mentioned in the FIR who was the main source of information regarding the murder of Pooja was not produced before the trial court to support the prosecution story. Apart from this, another witness Ravi, who as per the statement of informant had seen the incident, was not produced before the court by the prosecution. Even the witness of motive for causing the murder of Pooja, Bishan Singh did not support the prosecution story, therefore, he was declared hostile.
The recovery memo for recovery of ashes and burnt bones of deceased Pooja on the basis of information given by the appellants which was marked was not signed by any of the appellants and the witnesses who signed this recovery memo namely, Ram Lal Singh and Kadhak Singh, were not produced before the court to prove the aforesaid recovery memo. The above evidence shows the entire prosecution story is based on hearsay evidence of the informant as well as circumstantial evidence.
Sessions Judge while passing the impugned judgement also observed that if deceased Pooja was dead because of illness then there was no occasion on the part of the appellants to dump the ashes and burnt bones in his agriculture land by digging the pit and he has not given any information to police. Though, as per the hindu customs rites, ashes and bones should be emerged in ganga or any river. Therefore, learned Sessions Judge on the basis presumption under Section 106 of the Evidence Act convicted the appellants.
“In view of the above fact, the judgement of Sessions Judge dated 28.10.2017 is not based on any conclusive evidence but, simply on the basis of presumption and circumstantial evidence which itself was not sufficient. Therefore, we are of the considered opinion that prosecution could not prove its case against the appellants beyond doubt”, the Court observed while allowing the appeals.
“Therefore, the order dated 28.10.2017 passed by the Additional District & Sessions Judge (FTC), Bulandshahr is set aside and appellants are acquitted from the charges under Sections-302/34, 201 IPC in case Police Station-Narsena, Bulandshahr. Therefore, appellants namely, Rajveer and Rahisuddin be immediately released if they are not wanted in any other cases”, the Court ordered.