SUNITA versus STATE OF HARYANA on 30 July 2019

[2019] 10 S.C.R. 779

SUNITA

v.

STATE OF HARYANA

(Criminal Appeal No. 546 of 2010)

JULY 30, 2019

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Penal Code, 1860 – s.302 – Murder – Prosecution case wasthat one dead body was found burning on ‘Bitora’ (conical storageof cow dung cakes) – Post-mortem of the remains of body wasconducted – It was found to be a dead body of a female – DNA testwas conducted – The bones and tissues of the dead body matchedwith DNA profile of PW-3 and his wife – It was body of ‘S’, daughterof PW-3 – FIR was lodged – As per prosecution, deceased and theappellant were familiar with each other and both had gone to avillage together – Further, PW-4 had seen appellant with thedeceased and her two children on 03.01.2004 going towards avillage and when he was returning back he saw appellant on aScooty with a gunny bag on it footrest – PW-5 also deposed that hesaw the deceased along with her two minor children in the house ofthe appellant at about 5 pm on 03.01.2004 – Appellant was convictedfor murder – The appeal against the said judgment was dismissedby the High Court – On appeal, held: High Court required appellantu/s. 106 of the Evidence Act to explain the circumstances underwhich the body parts of the deceased came to be recovered from theburning ‘Bitora’ – The finding of the High Court was erroneousinasmuch as ‘Bitora’ was not in possession of the appellant muchless exclusive and it was located in an open field of another person– Further, such explanation would be necessary, if the prosecutionhad discharged the initial onus on it – Therefore, the appellant wasnot required to explain the circumstances of body parts being foundin ‘Bitora’ – Further, PW-4, 5 were inimical towards the appellantinasmuch as she had filed a suit for claiming a estate, a right whichwas denied by the said witnesses – Thus, their statements cannot berelied upon readily in absence of corroboration – The other evidenceof the prosecution was of extra-judicial confession made to PW-12,which is again untenable – There was no blood mark on the Scooty

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Arecovered – Therefore, the only evidence against appellant was oflast seen by PW-4 and 5 and such evidence does not complete thechain of circumstances so as to maintain conviction of the appellantfor an offence u/s. 302 IPC – Thus, the appellant acquitted of thecharges levelled against her – Evidence Act, 1872 – s.106.

BAllowing the appeal, the Court

HELD : 1. The prosecution story is that the deceased andthe appellant planned to visit a village together to wish the birthof nephew of the deceased sometime back. On way, they stoppedat another Village. The deceased had no occasion to be in thatCVillage unless she accompanies appellant who is cousin of herhusband. Therefore, the needle of suspicion is on the appellant.[Para 13] [787-E-F]

Conclusion

2. According to (PW-3), height of deceased ‘S’ was 5’whereas as per (PW-4), the lady with the appellant at the busDstop was 5’7". There is a margin of approximation in the heightof the deceased stated by (PW-3) and (PW-4), but such discrepancyis a factor to test the veracity of the statement of (PW-4). (PW-4)deposed that he had seen the appellant with a gunny bag placedon the footrest of a Scooty driven by the appellant. The carryingof a weight of a dead body on a Scooty is not believable. StillEfurther, (PW-4) has left his father, after his father started livingwith appellant and started staying with his grandfather (PW-5).There is a civil suit (Ex. D-5) filed by the appellant to claim estateof father of PW-4. Therefore, such statement has to be takenwith pinch of salt as it is by a person, who is inimical to the accused.FThe statement of (PW-5) is only to the fact that he had seen thedead body recovered from ‘Bitora’ (conical storage of cow dungcakes). Though, he deposed that he had seen the deceased onJanuary 3, 2004 in the house of appellant but again this is astatement of a witness who is at loggerhead with the appellant.Therefore, such statement cannot be relied upon readily in theGabsence of any corroboration. Therefore, the only evidenceagainst the appellant is of last seen by (PW-4) at 2 pm and that of(PW-5) at 5 pm and later in the night, appellant with a gunny bagon her Scooty by PW-4 at 2 am. Such evidence does not complete H

the chain of circumstances so as to maintain conviction ofthe appellant for an offence under Section 302 IPC. [Para 15][788-B-E]

3. The High Court referred to Section 106 of the IndianEvidence Act, 1872 to hold that the appellant was required toexplain the circumstances under which the body parts of thedeceased came to be recovered from the burning ‘Bitora’ . ThisCourt finds that finding of the High Court is erroneous inasmuchas ‘Bitora’ was not in possession of the appellant much lessexclusive. It was located in an open area in the field of ‘RS’. Stillfurther, such explanation would be necessary, if the prosecutionhas discharged the initial onus on it. Therefore, the appellantwas not required to explain the circumstances of body parts beingfound in ‘Bitora’ in the village where she resided with father ofPW-4. The other evidence of the prosecution is of extra-judicialconfession made to (PW-12) brother-in-law of father of deceased.Such statement is again untenable. The prosecution has notproduced on record any special circumstance as to give confidenceto the appellant to make extra judicial confession before (PW-12). The other evidence is recovery of Scooty on the basis ofdisclosure statement made by the appellant. Apart from statementof (PW-4) that he has seen the appellant riding Scooty with gunnybag, there is no other evidence of use of Scooty in a crime. Thereis no blood mark on the Scooty or any other evidence that it wasused by the appellant in disposing of the body. The prosecutionhas failed to prove at what place, victim was murdered. There isno evidence in the manner of cause of death or place of deathavailable on record. Therefore, this Court finds that theprosecution has not been able to prove that it is the appellantand the appellant alone who is guilty of the offence of murder ofvictim. [Para 17] [788-G-H; 789-A-D]

Satpal v. State of Haryana (2018) 6 SCC 610; AsarMohammad v. State of U.P. 2018 SCC OnLine SC 2179– relied on.

Case Law Referencerelied on

(2018) 6 SCC 610

Para 10

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 546 of 2010.

From the Judgment and Order dated 25.03.2008 of the HighCourt of the State of Punjab and Haryana at Chandigarh in CriminalAppeal No. 241-DB of 2006.

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Shaurya Sahay, Amit Kumar, Advs. for the Appellant.

Raj Singh Rana, Pankaj Kumar Singh, Sanjeet Paliwal, AvisekMinj, Vishwa Pal Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by CHEMANT GUPTA, J.

1. The appellant Sunita stands convicted for the murder of Sushila,wife of Shish Pal, by the learned Additional Sessions Judge, Karnal onJanuary 13, 2006. The appeal against the said judgment was dismissedon March 25, 2008.

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2. Shish Pal is son of Dharma and resident of Village Dadola,District Panipat. Shish Pal and Sushila had two children, one son Sagaraged about 3½ years and one daughter Shivani aged about 1½ years.The accused Sunita is daughter of Roshan, cousin of father of Shish Pal,who was also a resident of Village Dadola. Roshan had three daughters,Ethe other two being Santosh and Geeta.

3. Pirthi Singh (PW-5) is resident of Village Kailash, which is 55kms. from Village Dadola on way to Village Sangatehra (UP), the paternalvillage of Sushila, the deceased. Pirthi Singh’s eldest son Baburam wasmarried with Shiksha Devi. She died about 18-20 years back. BaburamFhad a son Neeraj and a daughter Nirjesh Kumari from his first wife.Sunita is alleged to have married Baburam after death of his first wife.The said fact is disputed by Pirthi Singh (PW-5) though he admits thataccused Sunita was living with his son Baburam and had given birth to ason. It is admitted by learned counsel for the appellant that Sangatehra,a village in Uttar Pradesh, is about 100 kms. from Dadola and VillageGKailash is about 55 kms. from Dadola on way of Sangatehra.

4. The prosecution case is that one Munshi Ram, son of RamDiwaya, resident of Village Kailash, lodged a report (Ex.P/24) at 8:30am on January 4, 2004. He stated that he is a tenant on payment of 1/3[rd]batai over the land of Baburam, son of Pirthi Singh (PW-5). At about 6

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am, he was going towards his field and on his way, Ram Lubhaya, anotherco-villager, told him that someone has set his ‘Bitora’ (conical storageof cow dung cakes) on fire. He saw many persons standing there. Hefound that a foul smell was coming from the fire and noticed the burningof a dead body. On the basis of his statement, the Police went to theplace of occurrence. The inquest report (Ex.P/25) reflected burning ofa dead human body. SI Shamsher Singh (PW-14) went to the place ofoccurrence and made request for postmortem of the remains of thebody to Senior Medical Officer, Civil Hospital, Karnal. However, theMedical Officer sent the flesh and bones to PGIMS, Rohtak vide (Ex.P/8) for opinion by the Board of doctors. On January 5, 2004, thepostmortem was conducted. The report is Ex.P/26. It was found to be adead body of a female. It was on February 4, 2004, the blood samplesof Isham Singh (PW-3) (father of Sushila) and Kanti (mother of Sushila)were taken and sent for DNA test. Report of such DNA test is Ex. P/35 dated June 1, 2004 which shows that bones and tissues match withDNA profile of Kanti and Isham Singh (PW-3). On the basis of report,a formal FIR (Ex.P/10) was lodged on June 15, 2004 by Isham Singh.

5. On January 9, 2004, Shish Pal, husband of the deceased Sushilainformed Isham Singh (PW-3) that he had seen the photographs of hismissing children, Sagar and Shivani, in a newspaper, said to be withManav Sewa Sangh, Panipat. Shish Pal also informed that Sushila wasnot with the children in Panipat. Isham Singh reached Village Dadolabut, in the meantime, Shish Pal got the children back from Panipat.

6. Isham Singh has appeared as PW-3 and deposed that, on January16, 2004, he came to know that one lady was burnt in ‘Bitora’ at VillageKailash. He went to Village Kailash along with his brother-in-lawKashmir Singh (PW-12) and came to know that aforesaid incident hastaken place during the intervening night of 3[rd]/4[th] January, 2004. Theaccused was the suspect.

7. The investigations were conducted by SI Shamsher Singh (PW-14), SI Ramesh Chand (PW-19) and Inspector Baljinder Singh (PW-20). After completion of the investigations, the appellant was made tostand trial. On an application filed by the prosecution, one Ashok Kumarand Seth Pal were made to stand trial but both the co-accused standacquitted by the trial Court itself.

8. Learned counsel for the appellant argued that the prosecutionstory is unbelievable and full of contradictions. The entire prosecution ABCD

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Acase is the evidence of last seen by Neeraj (PW-4), son of Baburam andPirthi Singh (PW-5), father of Baburam. It is argued that both the personsare inimical towards the appellant inasmuch as the appellant has filed asuit for claiming estate of Baburam as his wife which right is denied bythe said witnesses. It is argued that Neeraj (PW-4) is said to have seenthe appellant with the deceased and her two children on January 3, 2004Bat the turn from G.T. Road towards his village when he was returningback from Karnal at about 2 pm. Neeraj (PW-4) further deposed that atabout 2 am in the intervening night of 3[rd]/4[th] January, 2004, when he gotup for urinating, he found Sunita going on a Scooty with a gunny bagplaced on its footrest. In the morning, he saw ‘Bitora’ situated in theCfield of Ratan Singh burning from a distance. At about 9 am, he sawcrowd gathered there and he along with his three friends went there.The Police also reached at the spot. Part of the cross-examinationrelated to the role of other two co-accused Ashok Kumar and Seth Palwhich is not relevant at this stage. He deposed that lady with the appellantwas of a height of 5’7". The father of deceased Sushila, Isham SinghD(PW-3) has deposed that Sushila was 5’ in height. It is, thus, argued thathad the witness seen the deceased with the appellant, he would havenoticed the height correctly. It is also argued that Neeraj (PW-4) hasnot identified Sushila when he allegedly saw her with the appellant whichis quite unbelievable as he was a step son of the appellant. It is furtherEargued that it is impossible to ride a Scooty with a dead body in a gunnybag on the footrest, therefore, prosecution story is full of inherentimprobabilities.

9. Learned counsel for the appellant submitted that Pirthi (PW-5)deposed that he has seen the deceased along with her two minor childrenFin the house of the appellant at about 5 pm on January 3, 2004. However,in cross-examination, he admits that his statement was recorded 7-8days after burning of ‘Bitora’ but he has not stated that he has seen thedeceased with minor children in the house of Sunita.

10. Learned counsel for the appellant relied upon Satpal v. StateGof Haryana[1]to contend that the evidence of Neeraj (PW-4) and PirthiSingh (PW-5) is weak evidence and by itself is not sufficient to maintainconviction. There is no other evidence to link the appellant with thedeath of Sushila. It has been held that evidence of last seen theory is a H1 (2018) 6 SCC 610

weak kind of evidence by itself to convict upon the same singularly. TheCourt held as under:-

“6. We have considered the respective submissions and theevidence on record. There is no eyewitness to the occurrencebut only circumstances coupled with the fact of the deceasedhaving been last seen with the appellant. Criminaljurisprudence and the plethora of judicial precedents leavelittle room for reconsideration of the basic principles forinvocation of the last seen theory as a facet of circumstantialevidence. Succinctly stated, it may be a weak kind of evidenceby itself to found conviction upon the same singularly. Butwhen it is coupled with other circumstances such as the timewhen the deceased was last seen with the accused, and therecovery of the corpse being in very close proximity of time, theaccused owes an explanation under Section 106 of the EvidenceAct with regard to the circumstances under which death mayhave taken place. If the accused offers no explanation, or furnishesa wrong explanation, absconds, motive is established, and there iscorroborative evidence available inter alia in the form of recoveryor otherwise forming a chain of circumstances leading to the onlyinference for guilt of the accused, incompatible with any possiblehypothesis of innocence, conviction can be based on the same. Ifthere be any doubt or break in the link of chain of circumstances,the benefit of doubt must go to the accused. Each case willtherefore have to be examined on its own facts for invocation ofthe doctrine.”

(Emphasis Supplied)

11. In another Judgment, this Court in Asar Mohammad v. Stateof U.P.[2], reiterated when conviction on the basis of circumstantialevidence can be maintained. The Court held that:- “9. Before proceeding to consider the rival submissions, be it notedthat in the present case, no direct evidence has been produced bythe prosecution regarding the involvement of the appellants in thecommission of the crime. The prosecution rests its case solely oncircumstantial evidence. The legal position as to how such matter 2 2018 SCC OnLine SC 2179

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should be examined has been expounded in Padala VeeraReddy v. State of Andhra Pradesh[3] in the following words:—

“10. ….. This Court in a series of decisions has consistentlyheld that when a case rests upon circumstantial evidence suchevidence must satisfy the following tests:

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(1) the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crime wascommitted by the accused and none else; and C

(4) the circumstantial evidence in order to sustain convictionmust be complete and incapable of explanation of any otherhypothesis than that of the guilt of the accused and suchevidence should not only be consistent with the guilt of theaccused but should be inconsistent with his innocence.(See Gambhir v. State of Maharashtra[4].)

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11. See also Rama Nand v. State of HimachalPradesh[5], Prem Thakur v. State of Punjab[6], Earabhadrapaalias Krishnappa v. State of Karnataka[7], Gian Singh v. Stateof Punjab[8], Balwinder Singh v. State of Punjab.[9]"

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10. In Mulakh Raj v. Satish Kumar[10], the Court succinctlyrestated the legal position in paragraph 4 as under:

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“4. ……Undoubtedly this case hinges upon circumstantialevidence. It is trite to reiterate that in a case founded oncircumstantial evidence, the prosecution must prove all the

circumstances connecting unbroken chain of links leading 3 1989 Supp (2) SCC 706G4 (1982) 2 SCC 3515 (1981) 1 SCC 5116 (1982) 3 SCC 4627 (1983) 2 SCC 3308 1986 Supp SCC 676

9 (1987) 1 SCC 1H10 (1992) 3 SCC 43

to only one inference that the accused committed the crime.If any other reasonable hypothesis of the innocence of theaccused can be inferred from the proved circumstances,the accused would be entitled to the benefit. What is requiredis not the quantitative but qualitative, reliable and probablecircumstances to complete the chain connecting the accusedwith the crime. If the conduct of the accused in relation tothe crime comes into question the previous and subsequentconduct are also relevant facts. Therefore, the absence ofordinary course of conduct of the accused and humanprobabilities of the case also would be relevant. The courtmust weigh the evidence of the cumulative effect of thecircumstances and if it reaches the conclusion that theaccused committed the crime, the charge must be heldproved and the conviction and sentence would follow.”

12. We have heard the learned counsel for the parties and findmerit in the argument raised by learned counsel for the appellant.

13. As per prosecution story, the parental village of Sunita is Dadolai.e. same village as that of Shish Pal, husband of the deceased. Sunita isdaughter of cousin of father of Shish Pal, therefore, she is familiar withthe deceased. Sunita was living with Baburam in Village Kailash, whichis at distance of about 55 kms. from Dadola. The prosecution story isthat the deceased and the appellant planned to visit Sangatehra togetherto wish the birth of nephew of the deceased sometime back. Therefore,both went from Village Dadola to Village Sangatehra and on way stoppedat Village Kailash. The deceased had no occasion to be in Village Kailashunless she accompanies Sunita who is cousin of her husband. Therefore,the needle of suspicion is on the appellant.

14. Sushila went missing on January 3, 2004 but no missing reportwas lodged. Isham Singh (PW-3), father of the deceased, lodged theFIR on June 15, 2004 i.e. after the identity of the dead body of hisdaughter was established. He deposed that Roshan, father of theaccused-appellant was looked after by his daughter and that the motiveto take the life of the deceased was that appellant apprehended that herfather may give his property to Sushila. Roshan has appeared as DW-3 who deposed that he was not looked after by the deceased. Therefore,the primary motive is not made out. The children of the deceased werefound at Manav Sewa Sangh, Panipat. Such fact came to the notice of AB

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AShish Pal, husband of the deceased from an advertisement but who leftthe children at Manav Sewa Sangh has not come on record.

15. According to Isham Singh (PW-3), Sushila’s height was 5’whereas as per Neeraj (PW-4), the lady with the appellant at the busstop was 5’7". There is a margin of approximation in the height of theBdeceased stated by Isham Singh (PW-3) and Neeraj (PW-4), but suchdiscrepancy is a factor to test the veracity of the statement of Neeraj(PW-4). Neeraj (PW-4) deposed that he had seen the appellant with agunny bag placed on the footrest of a Scooty driven by the appellant.The carrying of a weight of a dead body on a Scooty is not believable.Still further, Neeraj (PW-4) has left his father Baburam after his fatherCstarted living with Sunita and started staying with his grandfather PirthiSingh (PW-5). There is a civil suit (Ex. D-5) filed by the appellant toclaim estate of Baburam. Therefore, such statement has to be takenwith pinch of salt as it is by a person, who is inimical to the accused.The statement of Pirthi Singh (PW-5) is only to the fact that he had seenDthe dead body recovered from ‘Bitora’. Though, he deposed that hehad seen the deceased on January 3, 2004 in the house of Sunita butagain this is a statement of a witness who is at loggerhead with theappellant. Therefore, such statement cannot be relied upon readily in theabsence of any corroboration. Therefore, the only evidence against theappellant is of last seen by Neeraj (PW-4) at 2 pm and that of PirthiESingh (PW-5) at 5 pm and later in the night, Sunita with a gunny bag onher Scooty by Neeraj at 2 am. Such evidence does not complete thechain of circumstances so as to maintain conviction of the appellant foran offence under Section 302 IPC.

16. The prosecution has been able to prove only death of SushilaFon the basis of DNA test from the body recovered from ‘Bitora’ in theVillage Kailash. Even if the statement of Neeraj (PW-4) is relied uponthat he may not be aware of the identity of the deceased being residentof another village but the fact at best is that the inference can be drawnthat he has lastly seen the deceased with the appellant at 2 pm on JanuaryG3, 2004.

17. The High Court referred to Section 106 of the Indian EvidenceAct, 1872 to hold that the appellant was required to explain thecircumstances under which the body parts of the deceased came to berecovered from the burning ‘Bitora’ at Village Kailash. We find thatHfinding of the High Court is erroneous inasmuch as ‘Bitora’ was not in possession of the appellant much less exclusive. It was located in anopen area in the field of Ratan Singh. Still further, such explanation wouldbe necessary, if the prosecution has discharged the initial onus on it.Therefore, the appellant was not required to explain the circumstancesof body parts being found in ‘Bitora’ in the village where she residedwith Baburam. The other evidence of the prosecution is of extra-judicialconfession made to Kashmir Singh (PW-12) brother-in-law of father ofSushila. Such statement is again untenable. The prosecution has notproduced on record any special circumstance as to give confidence tothe appellant to make extra judicial confession before Kashmir Singh(PW-12). The other evidence is recovery of Scooty on the basis ofdisclosure statement made by the appellant. Apart from statement ofNeeraj (PW-4) that he has seen the appellant riding Scooty with gunnybag, there is no other evidence of use of Scooty in a crime. There is noblood mark on the Scooty or any other evidence that it was used by theappellant in disposing of the body. The prosecution has failed to prove atwhat place, Sushila was murdered. There is no evidence in the mannerof cause of death or place of death available on record. Therefore, wefind that the prosecution has not been able to prove that it is the appellantand the appellant alone who is guilty of the offence of murder of Sushila.