High Court allowed appeals against murder conviction and sentence, acquitting appellants as prosecution failed to prove their presence at the scene or establish motive beyond reasonable doubt.
Conviction and life sentence set aside; appellants released forthwith subject to Section 437A Cr.P.C. wherever applicable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Court No. - 4
Case :- CRIMINAL APPEAL No. - 2312 of 2012 Appellant :- Dhiraj Kumar Gupta Respondent :- State Of U.P. Counsel for Appellant :- Lav Srivastava,Ghanshyam Dubey,M.P. Yadav,Pramod Kumar Dubey,Rama Nand Gupta Counsel for Respondent :- Govt. Advocate,M P S Chauhan
AND
Case :- CRIMINAL APPEAL No. - 2311 of 2012 Appellant :- Brijesh Kumar Gupta & Another Respondent :- State Of U.P. Counsel for Appellant :- Lav Srivastava,M.P. Yadav,Rajesh Kr. Singh,V.P. Srivastava Counsel for Respondent :- Govt. Advocate,Pramod Kumar Dubey
Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.
Heard Sri M.P. Yadav, learned counsel for the petitioner, Sri Manoj Shukla learned AGA for the State
These two appeals are directed against the judgment and order dated 23.5.2012 passed by Additional District and Sessions Judge, Court No.1, Gorakhpur in S.T. No.83 of 2009 (State of U.P. vs. Dhiraj Kumar Gupta and others) arising out of Case Crime No.6 of 2009 under Sections 302/34 IPC, Police Station Kotwali, District Gorakhpur whereby all the accused have been convicted and sentenced to imprisonment for life under Section 302/34 IPC, together with fine of Rs.10,000/- each and in default of the payment of fine, additional imprisonment of three months.
Criminal Appeal No.2311 of 2012 has been preferred by the accused appellant Brijesh Kumar Gupta (brother-in-law of deceased) and Chandra Prakash Gupta(father-in-law of deceased) while Criminal Appeal No. 2312 of 2012 has been filed by Dhiraj Kumar Gupta (husband of the deceased). Since both these appeals arise out of same judgment and order the same are being decided by a common order.
Prosecution case in brief is that PW-1, Funni Lal, gave a written report on 4.1.2009 at police station Kotwali, district Gorakhpur at 18.10 hours stating therein that marriage between his daughter Kiran and Dhiraj Kumar Gupta (Appellant in Criminal Appeal No.2312 of 2012) was solemnized in the year 2000. On 4.1.2009, he received a telephonic call from the appellant-Dhiraj Kumar Gupta at about 3 PM informing him that Kiran had died. His daughter's
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husband-appellant-Dhiraj Kumar Gupta and his relatives had been demanding cash from him and the presence of ligature marks on the neck of his daughter suggested that she has been done to death, hence post mortem on dead body of the deceased-Kiran be conducted.
On the basis of the aforesaid application, inquest was conducted on the body of the deceased Kiran on 5.2.2009 at about 10.30 PM whereafter her dead body was sealed and dispatched to the District Hospital for conducting post mortem. Autopsy on the body of the deceased Kiran was conducted by PW-5, Dr. N.K. Verma who also prepared her post mortem report (Exhibit ka (8)). The post mortem report of deceased Kiran indicated that she had died due to asphyxia as a result of strangulation. PW-1, Funni Lal thereafter filed another written complaint at the same police station stating therein that he is resident of Jhugia Bazar Locality, P.S. Gulariha, District Gorakhpur and marriage between his daughterdeceased, Kiran and appellant-Dhiraj Kumar Gupta, son of Chandra Prakash Gupta resident of Durgavadi Chowk, P.S. Kotwali, District Gorakhpur was solemnised in the year 2000 and although he had given adequate dowry to him at the time of marriage and had happily sent her daughter to her matrimonial home but his son-in-law-appellant-Dhiraj Kumar Gupta, his father Chandra Prakash Gupta (Appellant No. 4 in criminal appeal no. 2312 of 2012) his mother Smt. Arbidana Devi, his younger brothers-Neeraj Kumar Gupta, Brijesh Kumar Gupta (Appellant No.1 in Criminal Appeal No. 2311 of 2012) and his sisters Km. Rinki and Shalu were not satisfied with the dowry given by him at the time of marriage and soon after the marriage they started demanding money from his daughter (deceased) and putting pressure upon her to ask her parents to arrange money required by them for extension of their existing business and when his daughter told him about the demand made from her by her husband and father-in-law he tried to remonstrate with his son-in-law's father but he did not pay any heed to his request and they continued to maltreat and torture his daughter. On 25.12.2008 his daughter Kiran had come to his house and unequivocally told him that if the demand made by her husband and father-in-law is not fulfilled they would kill her. Since the informant was a Government employee drawing a small salary and his financial position was not such, so as to fulfill the demand made by his sonin-law and his other family members from him, he sent his daughter back to her matrimonial home in Durgavadi Chowk, P.S. Kotwali, District Gorakhpur with the assurance that things would improve with the passage of time. On 4.01.2009
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he received a telephonic information from a reliable source at about 3 PM that Kiran had died and on receiving the aforesaid information he alongwith his wife, son and other family members went to the house of Kiran and when they inquired about Kiran from the appellant no. 2, Chandra Prakash Gupta and his other family members became aggressive and endeavoured to conceal the fact that they had caused the death of Kiran.
On the basis of the aforesaid written report, after perusing the carbon copy of the post mortem report of deceased Kiran dated 5.1.2009, PW-6- Head Constable 10- Aswini Kumar Pandey vide Report No. 34 at 18.10 hours, registered Case Crime No. 6 of 2009 under Section 302 IPC against the appellants and their other relatives at P.S. Kotwali, District Gorakhpur. The carbon copy of the GD Entry (Exhibit Ka(1)) was proved by PW-6 Head Constable, during the trial. The investigation of the case was started by PW-8 Sudhanwa Singh Tomar who after recording the statements of the informant and other witnesses proceeded to the place of occurrence and after inspecting the same prepared it's site plan (Exhibit Ka(12)) at the behest of PW-1, Funni Lal, informant. After completing the investigation he submitted the charge sheet (Exhibit Ka(13)) against accused appellants Dhiraj Kumar Gupta, Brijesh Kumar Gupta and Chandra Prakash Gupta under Section 302 I.P.C. before C.J.M. Gorakhpur who committed the case for trial of the accused to the Court of Session Judge, Gorakhpur where it was registered as S.T. No. 83 of 2009 and made over for trial from there to the court of Additional Sessions Judge, Court no. 1, Gorakhpur who on the basis of the material on record and after hearing the prosecution as well as the accused appellants on the point of charge framed charge against all the accused appellants under Section 302/34 I.P.C. The accused appellants abjured the charge and claimed trial. The prosecution in order to prove its case against the accused-appellants examined as many as 8 witnesses of whom informant-PW-1, Funni Lal (father of the deceased), PW-2, Ravi Shankar Gupta (brother of the deceased) and PW-3, Smt. Indrawati (mother of the deceased) were examined as witnesses of fact while PW-4, Jai Prakash Singh who had conducted inquest on the body of the deceased-Kiran on 5.1.2009 and prepared her inquest report and other related documents (Exhibit ka(2) to Exhibit ka(7)) and dispatched the body of deceased Kiran to District Hospital for conducting post mortem, PW-5, Dr. N.K. Verma had conducted post mortem on the body of the deceased and prepared her post mortem report (Exhibit ka(8)), PW-6 who had
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prepared the G.D. Entry on the basis of which Case Crime No.6 of 2009 under Section 302 IPC was registered against accused-appellants at P.S. Kotwali, District Gorakhpur. PW-7, Chandrabhan Tiwari who had recorded the application given by PW-1, informant, Funni Lal at PS- Kotwali on 4.1.2009 (Exhibit ka(11/01)) with the prayer for conduction of post mortem on the dead body of his daughter-Kiran in the GD vide a Rapat No.37 at 18.20 hours dated 4.1.2009 and proved the same as Exhibit ka (10) and PW-8, S.I. Sudhanwa Singh Tomar who had investigated the case and submitted chargesheet against the accused and proved the same as Exhibit ka(13), were produced as formal witnesses.
The accused-appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and alleged false implication. In addition, the appellant, Dhiraj Kumar Gupta (Appellant No.1 of Criminal Appeal No.2312 of 2012) stated that two days before the occurrence on 4.1.2009, he had gone to visit the house of his sister in Area-Garun, PS- Kotwali, Deoria where he had fallen ill and he had to stay back at Deoria where he had received information about the incident on which he alongwith his brother-in-law, Ram Narayan Gupta had reached Gorakhpur at about 7 PM in the evening. On the date of the incident he was not present in Gorakhpur.
Similarly, appellant-Chandra Prakash Gupta and Brijesh Kumar denied their presence in the house on the date of occurrence. The defence examined Ishu Gupta, Ram Narayan Gupta and Ugrasen Kumar Gupta as DW-1, 2 and 3 respectively for establishing their respective alibis.
Learned Additional Sessions Judge, Court No.1, Gorakhpur, after considering the submissions advanced by learned counsel for the parties and after scrutinizing the evidence on record, produced by them convicted all the three appellants under Section 302/34 IPC and awarded life imprisonment to them together with fine of Rs.10,000/- each and in default of payment of fine two months additional rigorous imprisonment each.
Learned counsel for the appellants submitted that none of the prosecution witnesses of fact examined during the trial have deposed that they had seen the appellants in or around their house on the date of incident, there is nothing on record to suggest the involvement of appellants in the murder of the deceased. The prosecution has further failed to establish the motive for the crime and since the death of Kiran had occurred nine years after the marriage, as such, no
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statutory presumption on any count could be drawn more particularly when the appellants have not been chargesheeted or tried for the offence under Section 498A IPC. The entire case of prosecution rests purely on circumstantial evidence and the prosecution having miserably failed to lead any evidence even remotely connecting the appellants with the offence for which they have been convicted, neither the recorded conviction of the appellants nor the sentence of life imprisonment imposed upon them can be sustained and are liable to be setaside.
Per contra, learned AGA submitted that the deceased having died in her matrimonial home and the prosecution having succeeded in proving that her death was homicidal, a very strong burden was cast upon the accused appellants to explain the circumstances under which Kiran had died an un-natural death and the accused appellants having miserably failed to come up with any statutory explanation for the suicide of Kiran in their house no fault can be found with the approach of the trial court in convicting the appellants for the homicidal death of Kiran and awarding sentence of life imprisonment to them. The impugned judgment and order do not suffer from any illegality or infirmity requiring any interference by this Court. Both the appeals lack merit and are liable to be rejected.
We have very carefully considered learned counsel for the parties and perused the entire lower court record.
The only question which arises for our consideration in this case is that whether the prosecution has been able to prove its case against the accusedappellants beyond all reasonable doubts or not?
Record shows that facts which are not disputed between the parties are that marriage between the deceased Kiran and appellant-Dhiraj was solemnized in the year 2000. Kiran died in her matrimonial home on 4.1.2009. Post mortem on the dead body of the deceased-Kiran was conducted on 5.1.2009 at about 4 PM by PW-5, Dr. N.K. Verma, who also prepared and proved her post mortem report (Exhibit ka(8)). The post mortem report of deceased-Kiran indicated following anter-mortem injury:-
“Abraded contusion, swelling present in middle front of neck of size 10cm x 2 cm, one cutting skin underneath at places hemorrhage present. On opening trachea deeply congested, hyoid bone fractured.
Cause of death was asphyxia as a result of strangulation.”
PW-5 in his examination-in-chief categorically deposed that the deceased
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had died due to strangulation and the ligature marks which are found on the neck of the deceased could be caused by some other person and it was not possible for her to have strangulated herself and in no case it can be said that she had committed suicide. It was possible that the deceased had died on 4.1.2009 at about 3 PM. Thus the medical evidence on record indicates that the deceased Kiran had not committed suicide but she was strangulated to death by someone else in her matrimonial home.
The question which next arises for our consideration is that whether the appellants are guilty of the offence under Section 302 read with Section 34 IPC. The fact that the death is as a result of culpable homicide is beyond doubt but the question is whether the appellants could be said to be the author of the crime. The entire case of the prosecution rests purely on circumstantial evidence. It is true that the death had occurred in the matrimonial home of the deceased in which all the appellants were living alongwith deceased.
PW-1, Funni Lal in his examination-in-chief has deposed that when he had reached her daughter's matrimonial home on receiving information about her death, the appellant-Dhiraj Kumar Gupta was present there. However, in his cross examination, he categorically deposed that when he arrived at the matrimonial house of his daughter none of the appellants were present there. The other two witnesses of fact produced by the prosecution during the trial also deposed the same facts.
We have very carefully scanned the statements of all the three witnesses of fact examined by the prosecution during the trial to bring home the charge framed against them but none of them have deposed that the appellants were at or around their residence at the relevant time. The incident had taken place at about 3 PM and at that time the male members of the house are not expected to remain present in their house. All the three accused appellants have categorically stated in their statements under Section 313 Cr.P.C. that they were not present at their house on the date of incident. For establishing their alibis they had examined three witnesses, DW-1-Ishu Gupta, DW-2-Ram Narayan Gupta, DW-3-Ugrasen Kumar Gupta. Even if we disbelieve the evidence of the defence witness, the marriage being about nine years old no statutory presumption on any count could be drawn against the accused-appellants specially in view of the fact that the appellants were neither chargesheeted nor tried for the offence under Section
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498A IPC or Section ¾ D.P. Act for having allegedly demanded dowry and maltreated and tortured the deceased for non-fulfillment of demands of dowry. Apart from the strangulation marks nothing has been found in the post mortem report regarding any other bodily injury. The absence of any case as regards dowry or related harassment also nullifies the element of presence of any motive on the part of the appellants. Neither any witness has been examined to suggest that the appellants were present in or around their house at the time of the incident nor there are any other supportive circumstances such as discovery of any relevant evidence. The prosecution having not been able to establish the presence of appellants at the place of occurrence at the time of incident the accused-appellants cannot be presumed to be guilty of the offence with which they have been charged for, their failure to explain the circumstances under which the deceased Kiran had died in her matrimonial home by invoking Section 106 of the Indian Evidence Act.
We stand fortified in our view by the observations made by the Apex Court in State of Rajasthan vs. Ramanand reported in (2017) 2 Supreme Court Cases (Cri) 632. Paragraph-10 of the aforesaid judgment which is relevant for our purpose is being produced here below:
“ The question then arises whether the respondent was guilty of the offence under Section 302 IPC read with Section 201 IPC. The fact that the deaths are as a result of culpable homicide is beyond any doubt but the question is whether the respondent could be said to be author of the crime. The entire case of the prosecution on this count rests purely on circumstantial evidence. It is true that the deaths have occurred in a room occupied by the respondent along with wife, Anita and daughter Ekta. But no witness has been examined to suggest that the respondent was at or around his residence at the relevant time. The marriage was more than 10 years old and as such no statutory presumption on any count could be drawn, more particularly, when none of the prosecution witnesses had supported the case of prosecution as regards demands of dowry and harassment. Apart from strangulation marks nothing was found in the post-mortem report regarding any other bodily injury. The absence of any evidence as regards dowry or related harassment also nullifies the element of presence of any motive on part of the respondent. None of the prosecution witnesses alleged anything against the respondent nor are there any other supporting circumstances such as discovery of any relevant fact.”
Thus upon the holistic view of the facts of this case and a critical evaluation of the evidence on record we find that the prosecution has not been able to prove by any cogent or reliable evidence that the appellants were the author of the crime.
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Hence, neither the recorded conviction of the appellants nor the sentence of life imprisonment awarded to them can be sustained and are liable to be set aside.
Consequently, both the appeals are allowed .
Appellants are in jail since 5.1.2009. They shall be released forthwith unless they are required in connection with some other case, subject to the condition that they shall comply with the provisions of Section 437 A of Cr.P.C.
Order Date :- 24.5.2018 Deepika
3 issues framed by the court
Whether the prosecution proved beyond reasonable doubt that the appellants murdered the deceased through circumstantial evidence.
Whether the absence of latent injury in post-mortem report and lack of seized ligature negated the prosecution case.
Whether statutory presumption of guilt could be drawn against appellants nine years after marriage absent dowry harassment charges.
Colour shows how this judgement treated each authority
State of Rajasthan vs. RamanandRelied on¶39
State of Rajasthan vs. Ramanand
3 provisions across 3 enactments
Dhiraj Kumar Gupta
Brijesh Kumar Gupta
Chandra Prakash Gupta
State Of U.P.
Bala Krishna Narayana
Rajiv Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
