Allowed

Rakesh Babu Gupta v. State of U.P.

Allahabad HC6 Mar 2020CRLA/4965/2005

Case brief

AI extract

What is this about?

The Supreme Court allowed the criminal appeal against a conviction for murder and conspiracy. The Court held that the prosecution failed to establish motive, conspiracy, or the last-seen circumstance beyond reasonable doubt, rendering Section 106 of the Evidence Act inapplicable.

What did the court decide?

The judgment and order dated 9.11.2005 is set aside; the appellant is acquitted of the offences charged and released forthwith unless wanted in any other case.

Rakesh Babu Gupta Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2020)

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Reserved Delivered on : 6.3.2020

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Court No. 43

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Case :- CRIMINAL APPEAL No. - 4965 of 2005

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Appellant :- Rakesh Babu Gupta Respondent :- State of U.P. Counsel for Appellant :- Dushyant Kumar,Amit Misra,Anurag Mishra,Desh Raj Singh,Noor Mohammad,R.P.S.Chauhan,Sanjive Kumar Gupta Counsel for Respondent :- Govt. Advocate,Brahma Singh,Vishnu Kumar

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Hon'ble Pankaj Naqvi,J. Hon'ble Saurabh Shyam Shamshery,J.

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(Delivered by Pankaj Naqvi, J.)

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This criminal appeal is preferred against the judgment and order dated 9.11.2005 passed by Addl. Sessions Judge (Court No.8, District Moradabad in S.T. No. 20 of 2002 ( State Vs. Rakesh Babu Gupta and others ) convicting/ sentencing the appellant under Section 302 read with 120-B IPC to life imprisonment with fine of Rs.5000/- and a default sentence of 6 months.

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The prosecution case is as under:

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(a) The sister of PW-1 was married to accused- Rakesh Kumar Gupta 17 years ago, couple used to reside along with Rajesh (brother-inlaw), and Pawan (nephew). All the above accused used to harass the sister so much so that she was ousted from her matrimonial house, but with the intervention of relatives of the informant (PW-1), her matrimonial ties were restored, but the accused were not happy on her return.

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(b) PW-1 along with his nephew-Tillon @ Arvind (PW-5) visited the

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house of his sister on 15.9.2001 at around 8 at night, and saw that the accused Rakesh Babu Gupta was assaulting his sister as also stating that he would not now permit her to live with him. While assault was on co-accused Ramesh, Premlata and Geeta were also present. PW-1 requested accused to spare his sister and that he be counselled, but accused Ramesh said that all this was inevitable.

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(c) PW-1 on 16.9.2001 at about 5:30 A.M, learnt that his sister had been murdered. He along with PW-5 (nephew), Harish (brother), wife of PW-1 and others left for the residence of the victim, came across her blood stained body on the floor of the room while the accused had absconded.

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(d) PW-1 being convinced that the accused were responsible for the murder of his sister got a report scribed from one Amit Chauhan and submitted the same at P.S. Majhola, which became a basis for lodging an FIR as Case Crime no. 484 of 2001, under Section 147, 302 IPC on 16.9.2001 at 7:30 A.M, against Rakesh Babu Gupta, Rajesh, Premlata, Geeta and Pawan.

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(e) During investigation, the prosecution gave a new colour to its case, as that of conspiracy of husband to murder his wife. The accused persons including a contract

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killer co-accused Vineet were presented before the media with a news caption that “Ex-Armyman got murdered his wife by a hired assassin”. After investigation, all the other accused stood exonerated and charge sheet came to be submitted only against accused Rakesh Babu Gupta and Vineet under Section 302 / 120-B IPC.

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(f) Accused Rakesh Babu Gupta and Vineet were put on trial for offences under Sections 302/120-B IPC. The prosecution examined PW’s-1 and 5 as witnesses of last seen on 15.9.2001, PW’s-2 and 3 as witnesses of extrajudicial confession, PW-4, a lawyer and a neighbour of the appellant, who telephonically informed PW-1 as regards the death of the victim. The others were formal witnesses. The trial court examined CW-1 a bank official.

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(g) The defence claimed false implication as also involvement of the local police in implicating the accused. The defence examined DW-1, brother of the appellant to prove alibi of accused Rakesh Babu Gupta. DW-2 is the constable, who was present along with accused Vineet, Rakesh, Pawan and Premlata at a press conference presided by the S.P, on 17.9.2001. DW-3 is the jail doctor, who examined the injuries of accused Vineet Kumar Gupta in police custody at District Jail on 20.9.2001. DW4 is the father of accused Vineet, who sent a telegram on 17.9.2001 to I.G, Bareilly Zone and D.I.G, Moradabad

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about illegal arrest of his son.

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(h) The trial court after evaluating the evidence was of the view that the involvement of accused Vineet Kumar Gupta was manouvered for ulterior motives acquitted him, but convicted accused Rakesh Babu Gupta (husband) under Sections 302, 120-B IPC on the premise that not only the prosecution proved the motive but also established that it was he, who conspired with his relatives to eliminate his wife.

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We have heard Sri Viresh Mishra, the learned Senior Counsel assisted by Sri Amit Mishra for the appellant, Sri Sushil Kumar Tiwari, holding brief of Sri Brahma Singh for the informant and Sri Rupak Chaube, the learned A.G.A.

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Learned Senior Counsel for the appellant canvassed the following submissions:-

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(i) A case of circumstantial evidence, where the prosecution miserably failed to prove the motive, which otherwise was a must.

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(ii) The prosecution also failed to establish the vital links in the chain of circumstances.

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(iii) The trial court acquitted accused Vineet, who was

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alleged to have conspired with the appellant on the ground that conspiracy was not established as recovery of offensive weapons and cheques as proof of payments for contract killing were found to be planted, thus the conviction of appellant under Sections 302, 120-B IPC is not sustainable.

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(iv) The alleged extra-judicial confession is wholly unreliable.

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Per contra, the learned A.G.A, would submit that the relations between the couple were strained so much so that she has not been nominated as a beneficiary to receive the service benefits of her husband (appellant), an army personnel, death took place inside the house and as prosecution had successfully established the visit of the prosecution witnesses on 15.9.2001 in which they witnessed unruly behaviour of the appellant with his wife, plea of alibi having failed would inevitable lead to only one conclusion that it was the appellant husband, who was not indicating as to how and under what circumstances was his wife murdered in the house, i.e, he failed to discharge the burden under Section 106 of the Evidence Act. He relied on Trimokhi Maroti Kirkan Vs. State of Mahrashtra , (2006) 10 SCC 681 , in support of his contention.

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The marriage of appellant with the victim was 17 years old. It has nowhere come in evidence that in all these years, victim ever shared cruel treatment over demand of dowry or otherwise at the hands of her husband either with her parents or with PW-1 (brother). The prosecution although alleged demand of dowry but the same could not be established. Merely because the victim was not shown as a nominee to claim service benefits in the event of death of appellant would not ipso facto mean in absence of any other attending incriminating circumstances that the appellant had enough of her. We on above evidence have our own doubts as regards the existence of any motive. This be not construed that appellant and his wife were not having bitter moments. The evidence nowhere indicates that the relation between the couple prior to 15.9.2001 were so strained that the appellant was contemplating to get rid off his wife.

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The visit of PW’s-1 and 5 to the house of appellant on 15.9.2001, wherein they came across not only unruly conduct of the appellant-husband qua his wife but physical assault and life threats also, was introduced by the prosecution to indicate that the alleged assault was a trigger for the appellant to kill his wife as the marriage between the couple was 17 years old and there was no

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complaint on the part of the victim of any torture by the appellant or his family members. It is indeed intriguing that neither were there any injuries on the victim nor her clothes were torn, as alleged by PW’s-1 and 5. The Police Station is only at 5 minutes walking distance, yet neither these witnesses least one of them a real brother of the victim makes any effort to desist the appellant from assaulting his sister nor is any complaint made to the police either. PW-4 is a lawyer residing in the vicinity, an acquaintance of PW-1 yet the witness does not confide in him as regards assault at the victim.

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Co-accused Vineet stands acquitted under Sections 302/ 120-B IPC. The case of the prosecution is that accused Rakesh Babu Gupta (husband) conspired along with his family members and acquitted co-accused Vineet to eliminate his wife. The appellant faced trial under Section 302/120-B IPC and not Section 302 IPC simplicitor. No appeal against acquittal of co-accused Vineet is brought to our notice. Consequently the conviction / sentence of the appellant under Section 302/120-B IPC cannot be sustained.

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It is well settled that in a criminal trial the initial burden is on the prosecution to establish its case beyond reasonable doubt. But there is an exception to the aforesaid principle, where occurrence is alleged to have

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taken place inside the premises, where availability of any outside witness is absolutely ruled out. This poses a serious challenge to the prosecution to establish the guilt of accused in absence of any outside witness. To meet such contingency, the prosecution can take recourse to the provisions of Section-106 of Evidence Act, which is quoted hereunder--

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“ Section-106: – Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

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(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

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(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him. ”

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Law regarding Section 106 of the Evidence Act as propounded by the Apex Court in State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 382 , is as under:-

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“The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any

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explanation which might drive the court to draw a different inference.”

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The Apex Court in Badshah vs. State of U.P. (2008) 3 SCC 681 , in paragraphs- 19 & 20 held as under:

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“19. However, in Ram Gulam Chaudhary & Ors. v. State of Bihar [(2001) 8 SCC 311], this Court upheld the conviction of the appellants therein who were alleged to have brutally assaulted the boy. Finding him still alive, a chhura blow was inflicted on his chest and then he was carried away. The Court, opining that the burden to prove was on the accused, stated :

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"Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a Chhura blow was given on the chest. Thus Chhura blow was given after Bijoy Chaudhary had said "he is still alive and should be killed". The Appellate then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the Appellant. The Appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary had not been since seen live. In the absence of an explanation, and considering the fact that the Appellants were suspecting the boy to have kidnapped and killed the child of the family of the Appellants. It was for the Appellant to have explained what they did with him after they took him away. When the abductors withheld that information from the Court there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the

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guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The Appellant by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr. Mishra."

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20. In Sucha Singh v. State of Punjab, Section 106 of the Evidence Act was held to be applicable to cases where the prosecution had succeeded in proving facts for which a reasonable inference can be drawn as regards existence of certain other facts unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.”

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Section 106 places a burden on the accused, who is allegedly present near the victim at or around the time of occurrence as to how and under what circumstances occurrence took place. To invoke Section-106 of the Evidence Act, the prosecution must establish its some incriminating link pointing towards the guilt of the accused, which in other word means the presence of the accused at or around the time of occurrence in the premises, where occurrence has taken place, access to which is not available to any other person. The initial degree of burden placed on the prosecution is very high, which must and not “may” establish the guilt of the

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accused. Once the prosecution discharges its initial burden, the onus shifts upon the accused to explain as to how and in what manner occurrence took place inside the premises. If the accused fails to explain the above circumstances or remains quiet, then it may constitute an additional link in the chain of circumstances pointing towards his guilt.

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The prosecution tried to establish the visit of PW’s - 1 and 5 on 15.9.2001 to the house of victim, which it failed. Once prosecution fails to establish the last seen evidence of PW’s-1 and 5, as also the demand of dowry, then accused – husband cannot be held to be guilty merely on the ground that his alibi was found to be doubtful, as the case of the prosecution was that the appellant hired co-accused Vineet to kill his wife, there was no direct allegation against the appellant that he murdered his wife. Once the prosecution came up with a case of conspiracy, which was not established with the acquittal of co-accused Vineet, then prosecution cannot be said to have discharged the burden by only shifting the onus on the accused to discharge its initial burden of Section 106 of Evidence Act. A false alibi could have constituted an additional link in the chain of incriminating circumstances, provided the prosecution had established some incriminating links pointing towards the guilt of the

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accused. The learned A.G.A, assiduously urged that as the alibi of the accused that he was on a visit to the house of his parents as his mother was unwell did not find favour with the trial court for justifiable reasons that ipso facto would be an additional link in the chain of circumstances. We lest not forget that additional link is that link, which comes to the aid of prosecution, provided the prosecution has established its initial links in the chain of circumstances pointing towards the guilt of the accused. If the prosecution is unable to establish the initial links in the chain of circumstances, it cannot complete its chain with the aid of an additional link.

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We have gone through the judgment of the Apex Court in Trimukhi ( supra ) cited by the learned A.G.A, and in particular paragraph-23 thereof. We are of the considered view that in the cited case, there was evidence to indicate that the husband therein had been torturing his deceased wife prior to the incident by starving her over demand of dowry and the defence that the victim had succumbed to snake bite stood repelled with medical evidence indicating that the victim was strangulated, the law propounded in Trimukhi ( supra ) would not be applicable in the present case, as the prosecution failed to establish the motive, i.e, demand of dowry; victim being tortured, visit of the informant side to

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the house of the appellant on 15.9.2001 as also, conspiracy with co-accused Vineet.

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Thus in view of the aforesaid discussion, the Court is of the view that the prosecution has not been able to establish its case beyond a reasonable doubt, thus the impugned judgment of conviction and sentence cannot be sustained and is liable to be set aside and the appellant be given benefit of doubt.

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The appeal succeeds and is allowed . The judgment and order dated 9.11.2005 is set aside. The appellant is acquitted of the offences, charged. The appellant is in jail, shall be released forthwith unless wanted in any other case.

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Let a copy of this judgment along with record be sent to the learned Sessions Judge, concerned for ensuring compliance within 2 months under the intimation to this Court.

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Order Date :- 6.3.2020

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N.S.Rathour

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(Saurabh Shyam Shamshery,J.) (Pankaj Naqvi.J.)

Rakesh Babu Gupta v. State of U.P.

Case brief

What is this about?

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Rakesh Babu Gupta v. State of U.P.

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