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SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, B.R. GAVAI, HRISHIKESH ROY, JJ.
Surendra Kumar & Anr. - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 449 of 2021 (Arising out of SLP (Crl) No. 6965 of 2019)
Decided On : 20-04-2021
(A) Indian Penal Code, 1860 – Sections 302/34 and 120B – Murder of wife and conspiracy – Common intention – Conviction and sentence – Circumstantial evidence – Co-appellant was married with deceased and no criminal act is attributed to him – His conviction is entirely based on theory that he hatched a conspiracy with his brother and father to eliminate deceased as he was unhappy with her looks – This appears to be far fetched because prosecution failed to adduce any evidence to prove meeting of minds of two brother or with other two accused to eliminate deceased – Unhappiness attributed to husband cannot reasonably implicate his brother or two unrelated accused – Simple fact of being unhappy with a person even if accepted, do not provide a strong enough motive to hatch a conspiracy to eliminate the person – But this aspect was ignored by Court below to attribute motive for murder – Motive element in chain of circumstances is not acceptable and benefit of broken link must be made available to appellants – There is no common conspiracy theory connecting all accused in the case – Prosecution failed to adduce acceptable evidence to prove crime against appellants – Innocence of appellants is a distinct possibility and when two views are possible benefit must go to accused – Appellants acquitted. (Paras 14, 17, 22, 23 and 24)
(B) Indian Evidence Act, 1872 – Section 106 – Burden of proof – Section 106 of Evidence Act cannot be used to strengthen evidence for prosecution – Prosecution must stand or fall on evidence adduced by it and until a prima facie case is established by such evidence, onus does not shift on to accused – Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie guilt of any particular person or all of them jointly. (Para 17)
(C) Criminal Law – Appreciation of evidence – Reaction of witnesses who see violent crime can vary from person to person – To expect a frightened witness to react in a particular manner would be wholly irrational – Equally dangerous would be approach of Courts to reach certain conclusion based on their understanding of how a person should react and to draw an adverse inference when reaction is different from what Court expected. (Para 18)
Facts of the case:
Instant appeal is the culmination of a tragedy which decimated two families in its course. The murder of a recently married young woman, where the finger of suspicion was raised towards her own husband, brother-in-law and even her father-in-law as an accused who met an unnatural demise during the pendency of the trial. This Court has been approached to lay to rest the litigation which has followed suit for more than two decades.
Findings of Court:
There are several missing components in the chain of circumstantial evidence and High Court misdirected itself in finding support for conviction on such unclinching evidence. The innocence of the appellants is a distinct possibility in the present matter and when two views are possible the benefit must go to the accused. The impugned judgment is accordingly set aside with direction for immediate release of both appellants.
Result : Appeal allowed.
JUDGMENT :
HRISHIKESH ROY, J.
1. Leave granted. This appeal is the culmination of a tragedy which decimated two families in its course. The murder of a recently married young woman, where the finger of suspicion was raised towards her own husband, brother-in-law and even her father-in-law as an accused who met an unnatural demise during the pendency of the trial. This Court has been approached to lay to rest the litigation which has followed suit for more than two decades.
2. Heard Mr. Shadan Farasat, learned counsel for the appellants. Also heard Mr. V. Diwakar, learned AAG representing the State of Uttar Pradesh. The challenge in this appeal is to the common judgment and order dated 12.3.2019 in Criminal Appeal No. 346 of 2009, whereby the Division Bench of the High Court of Judicature at Allahabad upheld the conviction of the appellant No. 1 under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and of the appellant No. 2, under section 120B IPC.
3. The appellants are brothers and are residents of Mahal Village in Meerut District. The appellant No. 2 Ramveer was married on 13.5.1993 to Kamla Rani, whose parental home was in the neighboring village of Phlawada. On 8.8.1993 Kamla Rani, after spending some days with her parents was returning back on the scooter driven by her brother in law Surendra Kumar (appellant No. 1). Some minutes after they started the journey, two armed miscreants on the road between Phlawada and Bathnor ambushed the scooter near the forested area and took Kamla Rani to the roadside sugarcane field of Quasim Ali and shot her from close range and robbed her of the gold and silver ornaments worn on her person. Surendra Kumar then rode the scooter to village Phlawada to inform Baldev, the father of Kamla Rani about the incident. The scooter was left behind with Kamla Rani’s father and Surendra then returned to his own village and informed his brother and other family members in the matrimonial home of the deceased, at Village Mahal. Both brothers accompanied by their father, thereafter rushed to the police station. Around the same time, Dhan Singh (PW-1) and Karamveer (PW-2), who were near the site of incident, after hearing the sound of firing went towards the field and they noticed two miscreants (not appellants), removing ornaments from the body of Kamla Rani. The PW1 and PW2 accosted the looters but showing arms, both looters fled from the scene.
4. The FIR of the incident (which took place around 4.45 pm) was filed at 5.30 pm by Baldev Singh (father of the deceased Kamla Rani) at the Phlawada Police Station. Meanwhile, the appellants and their father Om Prakash also reached the Police Station. Since, maltreatment of the deceased in the matrimonial home was alleged in the FIR, the appellants were detained in the police lock up and four days later, the police formally arrested all three, on charge of conspiracy and murder. In course of investigation, the police also arrested Rajveer and Shiv Kumar alias Pappu, suspecting them to be the two unknown robbers seen by PW1 and PW2, in the act of removing ornaments from the person of the deceased Kamla Rani.
5. The preliminary investigation was done by S.I Ramachandra Singh (PW5), who prepared the Panchnama (Exbt Ka-7) and sent the dead body for autopsy. Few jewellery items and the locked suitcase, found near the body were also seized by the PW-5. Next day i.e. 9.8.1993, the SHO Amrat Lal returned from leave and led the investigation. He seized the scooter from the residence of Baldev and the recovery memo of scooter (Exbt Ka-2) was prepared.
6. The autopsy of dead body of Kamla Rani was done by PW3 Dr. N.K Maheshwari on 9.08.1993 at 4.30 p.m. and he noted the following antemortem injuries on the body;
2. Firearm entry wound of 2.0 cm X 2.5 cm into muscle deep with blackening & tattooing aroun
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