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IN THE HIGH COURT OF ALLAHABAD
Subhash Chandra Sharma, Bachchoo Lal, JJ.
Smt. Meena - Appellant
Vs.
State of U.P. - Respondent
CRIMINAL APPEAL No. -3813 of 2016
With
CRIMINAL APPEAL No. -4374 of 2016
Decided On : 08-03-2021
Indian Penal Code, 1860 - Section 302/34 - Criminal Procedure Code, 1973 - Section 313 - Evidence Act - Section 106 - Committed murder - Circumstantial evidence – Appeal against conviction - Deceased was living with his sister Munni Devi in her house - Girish Chandra Dubey got information that his brother (deceased) had been murdered. On this information, he along with his brothers where dead body of his brother Umesh Dubey was lying in field and there was blood on a cot in courtyard (Aagan) of one Gyan Singh Shakya near to that place - There were blood stains from Aagan to field where dead body was lying - Incident of murder of deceased took place on that unfateful night in courtyard of appellants' house and then dead body was thrown in the field, about 20 meters for from the place of occurrence.
Finding of the Court: There is no eye witness account regarding commission of murder of deceased by the appellants in their courtyard (Aagan) and then throwing the dead body in the field, about 20 meters, away from their house - There is no occular evidence on record proving the complicity of the appellants in the commission of murder of deceased. It is a case of circumstantial evidence. - Perusal of impugned judgment shows that learned Additional Sessions Judge has relied on the statement of P.W.2 in which he had denied the suggestion put by defence that deceased was errant/wanderer and was in bad company on account of which someone had murdered him. On this denial statement of P.W.2 learned court had concluded that deceased was errant and living in bad company. Learned Court had also drawn such inference from the fact of living in his sister's house at Chhatta Dalpal Rai. This is only hypocrisy of the mind of learned Additional Sessions Judge - Prosecution failed at all to prove that the appellants were in occupation of their house with the deceased at the time incident took place or even in the evening on that unfateful night just prior to the commission of crime.
Result: Appeals are allowed
JUDGMENT :
Subhash Chandra Sharma, J.
1. Both criminal appeals emanate from the common judgment and order dated 09.06.2016 passed by learned Additional District & Sessions Judge, Court No. 2, Farrukhabad in Sessions Trial No.122 of 2014 (State Vs. Gyan Singh Shakya) and Session Trial No. 90 of 2015 (State Vs. Smt. Meena) arising out of Crime No. 1116 of 2009 under Section 302/34 IPC, Police Station & District Farrukhabad by which appellants have been convicted and sentenced under Section 302 read with Section 34 IPC with rigorous imprisonment for life and fine of Rs. 10,000/-for each, in default of payment of fine to undergo additional imprisonment for a period of ten months, therefore these appeals are heard and being decided together.
2. The prosecution case in brief is that Girish Chandra Dubey, r/o village Khera Guleriya, Police Station Jahanganj, District Farrukhabad, real brother of deceased Umesh Dubey is informant. Deceased was living with his sister Munni Devi in her house at Chatta Dalpat Rai, Farrukhabad. On 22/23.06.2009 at about 4 a.m. Girish Chandra Dubey got information that his brother (deceased) had been murdered. On this information, he along with his brothers Dinesh Chandra, Mahesh Chandra, Ram Vilash, Anand Mohan and Ram Datt arrived at Muhalla Adiyana where dead body of his brother Umesh Dubey was lying in the field and there was blood on a cot in the courtyard (Aagan) of one Gyan Singh Shakya near to that place. There were blood stains from Aagan to field where dead body was lying. On query he came to know that after committing murder of his brother with sharp-edged weapon, his dead body had been thrown in the field. On this, he believed that Gyan Singh Shakya, his wife and his companion have committed murder and threw the dead body in the field. In this regard, tahreer was got scribed by Anand Mohan Dubey at Kotwali, Farrukhabad on 23.06.2009 at 7.30 a.m. on the basis of which F.I.R. was lodged as crime no. 1116 of 2009 under Section 302 IPC against accused Gyan Singh Shakya and Smt. Meena (hereinafter referred to as appellants).
3. Investigation of the case was handed over to S.S.I. Nasir Husain who proceeded to place of occurrence.
4. He started preparing inquest of deceased Umesh Dubey on 23.6.2009 at 9 a.m. in presence of witnesses. Dead body was got sealed. Other essential papers for the purpose of conducting postmortem of the deceased were prepared. Sealed dead body was handed over to constable Sukhram and constable Govind with papers who brought it to mortuary, Fatehgarh, Farrukhabad.
5. Blood stained and plain soil were collected from the courtyard of appellant-Gyan Singh Shakya and took into possession the ropes used in the cot and bed sheet which were also blood stained. These articles were sealed and recovery memo Ext. Ka-11 and Ka12 were prepared. Thereafter, these articles were sent to F.S.L. for Chemical Examination.
6. Post-mortem of deceased Umesh Dubey was conducted on the same day at about 4.50 p.m. by Dr. Singh Vikram Katiyar and post-mortem report Ext. Ka-5 was prepared, details of which are as below:-
Ante-mortem injuries:(1) Incised wound 12 in number. Both side face and cheecks measuring 7 cm x 1 cm to 3 cm x 0.5 cm muscle to bone deep.
(2) Incised wound 18 cm x 4 cm x muscle deep in front of neck middle part, on dissection all neck structure cut, body of C5 and C6 partially cut.
(3) Incised wound 9 x 3 cm x bone deep on top of left shoulder.
(4) Multiple incised wounds 18 in number in front of abdomen both side measuring 11 c.m. X 4 c.m. To 4 cm x 1.5 cm. Abdominal cavity deep, abdominal cavity exposed, loop of intestines coming out.
Internal examination: Head-NAD, neck-noted, Scalp-NAD, skull-NAD, membranes-NAD, brain-NAD, base-NAD, vertebrae-NAD, spinal cord-not ope
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