NIRANKAR SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal appeal has been directed against the Judgment and order dated 3.8.2006 passed by Additional Sessions Judge / FTC ? I Ghaziabad in Sessions Trial No. 753 of 2004 convicting the appellant Nirankar Sharma for the offence punishable under Section 302 of IPC and sentencing him for life imprisonment and a fine of Rs. 6,000/- and in default of fine, to further undergo a sentence of one year. The brief facts are that Prem Raj, (P.W.1) submitted a handwritten report dated 15.1.1993 to Police Station ? Garh Mukteshwar, District ? Ghaziabad, alleging therein that in his village Khilwai, the house of Sukhveer Singh was lying vacant and since about five months, driver Nirankar Sharma (accused) was residing there along with his wife Smt. Anita and son Soni aged about five years. For the past three days, the outer door of the house was open and the inner door was shut and a lock was hanging on it. It is further alleged that Smt. Anita and her son Soni had not been seen since then and when in the evening it appeared that stink was emanating from the house, then he and other villagers opened the inner door and saw the dead body of Smt. Anita and her son Soni lying on the cot. It is also alleged that it appeared that someone had murdered them.

(2.) ON the basis of the said written report, an FIR was lodged at Police Station Garh Mukteshwar as Case Crime No. 24 of 1993, under Section 302 of IPC on 15.1.1993 at 00.15 O' Clock against unknown culprits. The investigation of the matter was handed over to Satya Pal Singh, Station Incharge, Police Station- Garh Mukteshwar. The panchayatnamas of the dead bodies of Smt. Anita and Soni were prepared by Sub-Inspector Gopi Chand and postmortem was got conducted. ON 15.1.1993 at 11.15 a.m. the accused / appellant Nirankar was taken to the Police Station by Raj Pal (P.W.3) and Devi Saran of the village and was handed over to the custody of the police on the basis of extra judicial confession made by him before the said persons. He also made confession before the police about his guilt in committing the murder of Smt. Anita and her son Soni due to his wife having illicit relations with some other person. During investigation, the statement of the witnesses were recorded and on the pointing out of the appellant Nirankar, the rope, used in committing the murder was recovered from the house of the accused and fard of the said recovery was prepared. After completing the investigation, charge sheet under Section 302 of IPC was submitted by the Investigating Officer in the Court. In support of the prosecution as many as seven witnesses namely Prem Raj, P.W.1, Dinesh Kumar, P.W.2, Rajpal, P.W.3, Bablu, P.W.4, Mool Chand, P.W.5, Dr. J.K. Verma, P.W.6 and Sub-Inspector, Satya Pal Singh, P.W.7 were examined. In documentary evidence, the prosecution produced written report Exhibit Ka-1, panchayatnama of the dead body of deceased Smt. Anita, Exhibit Ka-2, panchayatnama of the dead body of Soni, Exhibit Ka-3, postmortem report relating to dead body of Smt. Anita, Exhibit Ka-4, spot map, Exhibit Ka- 5, recovery memo of rope, Exhibit Ka-6, spot map of recovery, Exhibit Ka-7, charge sheet, Exhibit Ka-8, Chik FIR, Exhibit Ka-9 and copy of GD No.4 dated 15.1.1993 regarding registering of the case, Exhibit Ka-10. The other papers like postmortem report of dead body of deceased Soni, Exhibit Ka-11, Police Form No. 13, Exhibit Ka-12, letter to CMO for postmortem, Exhibit Ka-13, Photo of dead body of deceased Anita, Exhibit Ka-14, Namoona Seal, Exhibit Ka-15, letter to CMO for returning clothes of deceased Anita, Exhibit Ka-16, Form No. 33, Exhibit Ka-17, Form No.13 relating to deceased Soni, Exhibit Ka-18, letter relating to return of clothes of deceased Soni, Exhibit Ka-19, letter to CMO for postmortem and dead body of deceased Soni, Exhibit Ka-20, letter to R.I., Exhibit Ka-21, photo of dead body relating to deceased Soni, Exhibit Ka-22, namuna seal relating to Soni, Exhibit Ka-23 and form No. 33 relating to deceased Soni, Exhibit Ka-24 were also produced. The formal proof of the said Exhibits No. 11 to 24 were admitted by the counsel for the accused. P.W.1, Prem Raj is the first informant who got lodged the FIR. He has stated that the accused Nirankar had been residing in the house of Sukhveer Singh as tenant since September-October 1993 (it appears that under confusion 1993 was written instead of 1992) along with his wife Anita and son Soni. Since the night of 12.1.1993, he had not seen Anita and Soni and the outer door of the house was open, whereas, the inner door was shut and a lock was hanging on it. ON 15 January, 1993, stink was coming from the house, then he and other people of the Mohalla opened the door and found the dead bodies of Anita and Soni lying on a cot. This witness has further stated that Nirankar was last seen by him 3-4 days earlier when the dead bodies were recovered. He was a Bus Driver.

(3.) LEARNED counsel for the appellant has contended that there is no eye account of the alleged incident and from circumstantial evidence the appellant cannot be connected with the offence of killing of his wife and son. He has also contended that the prosecution witness Rajpal, (P.W.3), who was a witness of extra judicial confession and Mool Chand, (P.W.5), the witness of alleged recovery of rope have become hostile and have not supported the prosecution version. It is also contended that the appellant had no motive to commit the murder of his wife and son. It is also contended that the medical evidence is also incompatible with the prosecution version and thus the guilt of the accused could not be proved beyond reasonable doubt. LEARNED AGA has contended that the evidence produced by the prosecution has fully proved the charge levelled against the appellant for committing the murder of his wife and son. It is also contended that the circumstantial evidence adduced by the prosecution are fully consistent and reliable to prove the guilt of the appellant. In this matter there is no evidence of eye account regarding the incident and the entire matter rests on circumstantial evidence. For proving the guilt of the accused on the basis of circumstantial evidence, certain tests must be satisfied. The Hon'ble Apex Court in Padala Veera Reddy V. State of A.P. and Ors, AIR 1990 SC 79, has laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: