B.S. Chauhan, J. - (1.) These appeals have been preferred by the State of U.P. against the judgment and order dated 25.04.2003 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos. 14 and 60 of 1981, reversing the judgment and order of the Sessions Court dated 20.12.1980 in Session Trial No. 382 of 1980 passed by the learned District Judge, Saharanpur, by which both the Respondents stood convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter called as Rs. IPC) and had been awarded life imprisonment.
(2.) The brief resume of the facts as emerging from the FIR and the evidence adduced by the parties is set forth: (A) One Rashmi, deceased, aged about 30 years had been married to Suresh Kumar (accused, acquitted by the Sessions Court), but her relations with him and her mother in law always remained strained. They had no child. Suresh Kumar obtained a decree of divorce on 30.01.1980 under Section 13 of the Hindu Marriage Act, 1955 and as per the decree, Rashmi, deceased, was permitted to reside in a room with an enclosed open area towards its West, apart from the rest of the house, and she was granted maintenance @ Rs. 150/- per month till her life time or remarriage, whichever was earlier. Being aggrieved, Rashmi, deceased, had preferred an appeal against the said decree of divorce dated 30.01.1980 and the same was pending before the District Judge, Saharanpur. (B) On 15.0.5.1980 at about 9.00 P.M., S.I. Brahm Pal Singh (PW.6) of Police Station Sadar Bazar accompanied by Head Constable Balvir Singh (PW.7) and other two constables was on a routine check-up and general patrolling. On reaching the West of Adarsh School in the close vicinity of the house of Rashmi, deceased, he and his companions heard shrieks emanating from the house of Suresh Kumar accused known as "Jagadhari Walon Ki Kothi". The police party saw three persons scaling down the wall of the Sahan towards West of the room under the occupation of Rashmi, deceased. (C) On being challenged and flashing of torch light, two of them ran towards North West and the third towards South. On a chase, the present two Respondents who were running towards North West, were caught hold by Samay Singh (PW.8) and one Sharif who was present there. The other accused who ran towards South, managed to escape. He was named as Suresh Kumar by the present two Respondents after they had been apprehended. The Respondents led the police party inside the Sahan of the said house. The lock inside the door opening in the Sahan was broken by S.I. Brahm Pal Singh (PW.6) and a woman was seen lying unconscious on the floor in the room on a cot. In the meanwhile, Mahesh Kumar (PW.3), (brother of Suresh Kumar), also came down from the upper storey besides other persons. Mahesh Kumar (PW.3) took Rashmi, deceased, by car to S.B.D. Hospital, Saharanpur. The Respondents had been taken to the police station Sadar Bazar where FIR was lodged by S.I. Brahm Pal Singh (PW.6). However, on receiving the information of death of Rashmi, deceased, at about 11.00 P.M. from Mahesh Kumar (PW.3), the case was converted under Section 302 Indian Penal Code and investigation ensued. (D) The post-mortem of the dead body was conducted by Dr. G.R. Sharma (PW.1) on 16.05.1980, according to which the deceased was about 30 years of age and had died about 18 hours from the time of conducting post-mortem. The doctor found the following ante-mortem injuries on her person: (1) Lacerated wound 1 1/2 cm x 1 1/2 cm x cm x 1/4 on left eyelid with contusion 7.5 x 2 cm extending from left eyelid to left temple region. (2) Abrasion 4 x 1/2 cm on left cheek. (3) Abrasion 1x 1/2 cm x 3/4 cm on left side neck, 2 cm below angle of mandible. (4) Abrasion 1/2 cm x 3/4 cm with contusion 1 1/2 cm x 1 cm on the right side of neck, 4 cm below angle of mandible. (5) Abrasion 1 1/2 cm x 1 cm on back of left shoulder joint top. (6) Abrasion 1 cm x 1 cm on back of left elbow joint. (7) Contusion 5 cm x 3 cm on right forearm upper 1/3rd medial side. (8) Contusion 4 cm x 2 cm on back of inner angle of scapula. (E) Suresh Kumar was also arrested on 23.05.1980 and he was kept bapurdah. He was subjected to test identification parade on 6.6.1980 and was identified by S.I. Brahm Pal Singh (PW.6), Head Constable Balvir Singh (PW.7) and Samay Singh (PW.8) besides Babu Ram and Surendra Pal. As all the three accused pleaded not guilty, they were put to trial. The prosecution, in all, examined 13 witnesses. The Respondent Mohd. Iqram also examined one Bhugan (DW.1), the Pradhan of village Taharpur in his defence. (F) On consideration of the evidence on record, the learned trial court convicted and sentenced the two Respondents as mentioned hereinabove, but acquitted Suresh Kumar (husband of deceased Rashmi) giving him benefit of doubt entirely on the premise that he might have been known to the identifying witnesses from before, and he was shown to the witnesses before being put to test identification. (G) Being aggrieved, the two Respondents filed Criminal Appeal Nos. 14 and 60 of 1981 before the Allahabad High court which have been allowed by the judgment and order dated 25.04.2003. Hence, these appeals.
(3.) Shri R.K. Gupta, learned Counsel appearing on behalf of the State of U.P., has submitted that the High Court committed an error in acquitting the Respondents without appreciating the facts on record. The trial court had convicted the Respondents on circumstantial evidence making clear cut observations that the chain of circumstances was complete; the said Respondents had been arrested from the place of occurrence; their presence was not likely to be there as they were not the residents of the area; there had been no theft or dacoity in the area. Rashmi, deceased, was strangulated with hands without the aid of any weapon. The High Court ordered acquittal on the basis that no weapon had been recovered and probably Suresh Kumar, who had been acquitted by the trial court had committed the murder after committing rape on the deceased, though the trial court had recorded a finding that there had been no violence with the body of the deceased even prior to her strangulation. The High Court has placed reliance on inadmissible evidence which is not permissible in law. The judgment and order of the High Court is liable to be set aside and the appeals deserve to be allowed.;