- (1.) THIS appeal is directed against the order dated 7-1-1986 passed by the IIIrd Additional Sessions Judge, Unnao. The learned Sessions Judge convicted the accused under Section 394, Part II I. P. C. and awarded rigorous imprisonment for five years. The learned Sessions Judge acquitted the accused under Section 302, I. P. C.
(2.) THE prosecution case, in brief, is that Smt. Gomti wife of Ora Prakash was found dead on 17-7-1984 and therefore, information was given at police station, Asiwan, district Unnao by Chowkidar Ram Charan. It is stated that the appellant Om Prakash killed his wife on 17-7-1984 in between 10 to 12 noon in village Kadirpur, P. S. Asiwan, district Unnao. It is said that in the night in between 16/17-7-1984 Pancham Singh, brother of Om Prakash was sleeping on the roof of his house. It is alleged that sometimes in the night, his Bhabhi Smt. Gomti came on the roof and lay on the same cot with Pancham Singh. It was also alleged that they were involved in sexual intercourse. It is said that Om Prakash accused saw Smt. Gomti lying with Pancham Singh. THE prosecution case further is that in between 6-30 to 7-00 a. m. , Pancham Singh left his house for Lucknow but in the way, he found that he left some papers in his house and, therefore, he returned to his house. At about 11 a. m. . . when he entered into his house, he found Smt. Gomti was lying in the kitchen and something was also coming, out from her mouth Pancham Singh was informed by the father that Om Prakash had gone to village Asiwan and, therefore, he rushed to village Asiwan for calling Om Prakash. In the way, he met with Mansaram who was doing the compounder work in the shop of some doctor. Mansaram came to the house of accused and informed Pancham Singh that Smt. Gomti be brought to Asiwan for medical aid. Smt. Gomti died at about 12 in the noon. After receipt of the report from Chowkidar, police reached the place of occurrence and prepared inquest report and sent the dead body for post-mortem. THE post mortem on the dead body was conducted by Dr. G. B. Lal on 18-7-1984 at about 3-40 p. m. THE report of the post- mortem is Ex. Ka-11. According to doctor, death was caused due to asphyxia due to strangulation. THE case was investigated by Abdul Shakoor Khan, Station Officer of P. S. Asiwan who recorded the statements of several persons and prepared the site plan. He also arrested accused Om Prakash on 22-7- 1984 and thereafter recovered a Dhoti Ex. 1 from the house of the accused Ora Prakash. It was alleged that Om Prakash with the help of this Dhoti strangulated and killed his wife Smt. Gomti. During investigation, statement of Pancham was also recorded under Section 164, Cr. P. C. After completing the investigation, the Investigation Officer submitted charge-sheet against the accused Om Prakash under Section 302, I. P. C. In support of the prosecution case, prosecution examined 8 witnesses. PW 1 Ram Charan is Chowkidar who lodged the report at P. S. Asiwan, district Unnao. PW 2 Laxman Singh is resident of same village and he proved the inquest report prepared by the Investigating Officer. PW 3 is Mansaram who stated that he received information through Pancham Singh that his Bhabhi is ill and, therefore, he reached the house of accused Om Prakash ana found Smt, Gomti in serious condition. PW 4 is Ramesh who is a witness of arrest of accused Om Prakash. He did not support the prosecution case and, therefore, declared hostile. PW 5 is Pancham Singh. Pancham Singh is real brother of accused Om Prakash. In Court, he stated that statement under Section 164, Cr. P. C. was recorded under the pressure of police and he denied the contents of statement recorded under Section 164. Cr. P. C. PW 6 Devi Singh is resident of village Kadirpur and he did not support the prosecution case and, therefore, declared hostile. PW 7 Abdul Shakoor Khan is the Station Officer P. S. , Asiwan and he conducted the investigation of this case. PW 8 is Dr. G. B. Lal, Medical Officer who conducted the post-mortem examination of the dead body of Smt. Gomti. The doctor also found some wounds on the body of Smt. Gomti and according to the doctor, death was due to strangula tion. The accused denied the prosecution case and stated that he was not present in the house on the said date. He stated that he had gone to village Asiwan for bringing medicines for Badhi Amma and he was called from village Asiwan after the incident. He further stated in his statement under Section 313, Cr. P. C. that Pancham was only 6 or 7 years old at the time of his marriage and he was brought up by him as well as Smt. Gomti. He further alleged that his elder son is 16 years of age. The learned Sessions Judge by his order dated 7-1-1986 held that from the circumstances of the case, it is proved that Om Prakash killed his wife as he saw Pancham having illicit relation with Smt. Gomti in the night. According to learned Sessions Judge, the murder WPS committed in the morning when Pancham Singh left the house. I have heard the learned counsel for the appellant and the learned Government Advocate.
(3.) THE contention of the learned counsel for the appellant is that there is no evidence on record to prove the guilt of the appellant beyond reasonable doubt. THE evidence on record, according to him is not sufficient to prove that appellant is the person who killed Smt. Gomti and, therefore, appellant is entitled to get benefit of doubt. In the instant case, there is no eye-witness of the incident. Smt. Gomti no doubt was the wife of appellant Om Prakash and according to prosecution case, the motive for killing Smt. Gomti is that appellant Om Prakash saw Pancham Singh with Smt. Gomti in the night. If the appellant saw Smt. Gomti lying with Pancham Singh then he would have killed Smt. Gomti in the night itself but admittedly, nothing has been done in the night. It is also not probable that appellant Om Prakash did not raise even any objection against the immoral conduct of Pancham Singh or Smt. Gomti. Admittedly, Om Prakash did not say anything to Panchara Singh about the night incident. According to prosecution case, she was alive at about 11 a. m and at that time, appellant Om Prakash was not present in the house According to medical report, she was killed by strangulation. THE learned Sessions Judge also recorded a finding that she was killed in the morning by strangulation. As the appellant Om Prakash admittedly was not present in his house at about 11 a. m. , when she was found alive by Pancham Singh as well as PW 3 Mansaram, therefore, it cannot be said beyond reason able doubt that appellant Om Prakash is the person who killed Smt. Gomti because she died due to strangulation. THE theory of learned Sessions Judge that Om Prakash killed Smt. Gomti after Pancham Singh left his house is not believable as Pancham Singh as well as Mansaram found her alive thereafter. If I accept the statement of Pancham Singh recorded under Section 164, Cr. P. C. , even then prosecution case as alleged by the prosecution is not proved against the appellant Pancham Singh stated that he found Smt. Gomti alive at about 11 a. m. He further stated that he called Mansaram (PW 3) who also found her alive at that time. THEre is no suggestion to Pancham Singh that he is not stating correct facts and in fact, he found Smt. Gomti dead at about 11 a. m. In the absence of any such suggestion, it would not be possible to record a rinding that Sml. Gomti was killed before 11 a. m. by the appellant Om Prakash. No doubt, burden lies on the appellant Om Prakash to explain the circumstances in which Smt. Gomti was found dead but in the instant case, according to prosecution case itself, Om Prakash was not present in the house at the time of alleged killing of Smt. Gomti. THE learned Sessions Judge while considering the question of recovery of Dhoti as well as arrest of appellant has already disbelieved the prosecution case. Pancham Singh (PW 5) in his statement stated that he used to lie with Smt. Gomti on one cot in the presence of Om Prakash. On the other hand, Om Prakash in his statement, clearly stated that Pancham Singh was only 6 or 7 years old at the time of his marriage and Om Prakash and Smt. Gomti brought him up to this age. THEre is no evidence on record that Smt. Gomti had loose character. It is also not disputed that Smt. Gomti has a 16 years old son. THE other witnesses examined by the prosecution also stated that they have no information about the loose character of Smt. Gomti. In view of the above mentioned facts, in my opinion, it cannot be said that Smt. Gomti had illicit connection with Pancham Singh and if she had no illicit connection with Pancham Singh then appellant Om Prakash had no motive at all to kill Smt. Gomti. The statement of Paucham Singh recorded under Section 164, Cr. P. C. is also not supported by the medical evidence. In his statement recorded under Section 164, Cr. P. C. , Pancham Singh stated that he found Smt. Gomti alive at about 11 a. in. and she died in his presence. According to him, she died due to some poison. But the doctor who con ducted the post-mortem examination of the dead body of Smt. Gomti clearly stated that she died due to asphysia. Therefore, in my opinion, the statement of Pancham Singh recorded under Section 164, Cr. P. C. is also of no help to the prosecution, The learned Sessions Judge while convicting the accused further gave too much weight to the fact that no family members who were present in the house come forward to support the defence case. It is settled law that initial burden is al ways on the prosecution. If the prosecution has failed to prove the guilt of accused beyond reasonable doubt, then the accused is entitled to get benefit of doubt and he cannot be convicted on the ground that he failed to adduce evidence. As pointed out above, Smt. Gomti was killed in between 11 to 12 noon on 17-7-1984 and at that time, appellant Om Prakash was not present. Therefore, unless and until prosecution proves the guilt of appellant beyond reasonable doubt, burden does not shift on the accused to adduce evidence in defence. As pointed out above, the circum stantial evidence is not so clinching to prove that the appellant is the person who killed Smt. Gomti and, therefore in my opinion, appellant is entitled to get benefit of doubt.;