‘No Documentary Evidence To Show Recovered Ashes & Burnt Bones Were Of Deceased’: Allahabad High Court Sets Aside Murder Conviction Of Two

The bench of Justice Kaushal Jayendra Thaker and Justice Arun Kumar Singh Deshwal concluded that the alleged eye witness of the incident did not support the prosecution story and even there was no documentary evidence which could establish that the alleged recovered ashes and burnt bones belonged to the deceased.

The case in brief

As per the prosecution case, the first informant Harbir Singh Arya Advocate (PW-1) had given a Tehrir on October 20, 2011, to the Police Station that his son Lavkesh was married to Pooja (deceased), daughter of Rajveer (appellant no. 1), however, she was not living with him.

He further stated that on October 18, 2011, at 9:30 pm, he received a phone call from one Gajraj Singh informing him that his daughter-in-law/Pooja has been killed by her parents, brother and one Rahisuddin (appellant no. 2) by forcibly administering poison to her just to falsely implicate him, they initially planned to bring the dead body of Pooja at his house, however, since they could not get chance, they disposed of the dead body of Pooja by burning it.

After receiving the aforesaid information, FIR was registered under Sections-302, 201 IPC against Rajveer as well as the mother and brother of the deceased and also against Rahisuddin.

During the investigation, police prepared a site plan of the place of the incident where the deceased was administered poison as well as the place where the ashes and bone of the dead body of the deceased were recovered from and a recovery memo for recovering the ashes and bone was also prepared.

Thereafter, ashes and other remains along with soil of the place of the incident were also sent for chemical examination and thereafter, on the basis of the available evidence, a charge sheet dated under Sections-302 and 201 IPC was filed against the present appellants.

Following the trial, the appellants Rajveer and Rahisuddin were convicted and sentenced to life imprisonment on October 27, 2017, by Additional District & Sessions Judge (FTC), Bulandshahr.

High Court’s observations

At the outset, the Court noted that the sole basis of lodging the FIR by the first informant (PW-1) was the information received by him from Gajraj Singh regarding the murder of the deceased, and subsequently, during the trial, PW-1 stated that the incident of causing death was also witnessed by Budhh Pal Singh, Ravi, Nanak and Sanjay apart from Gajraj Singh.

However, the Court noted that during the trial, Budhh Pal Singh (PW-2) and Nanak (PW-3) did not support the prosecution story and were declared hostile and the sole witness (Gajraj) was also not produced before the trial court to support the prosecution story.

The Court further noted that another witness Ravi, who as per the statement of PW-1 had seen the incident, was not produced before the court by the prosecution and even the witness of motive for causing the murder of Pooja, Bishan Singh (PW-4) did not support the prosecution story, therefore, he was declared hostile.

Regarding the recovery of ashes, the Court observed that the recovery memo for the recovery of ashes and burnt bones of the deceased was not signed by any of the appellants and the witnesses who signed this recovery memo were not produced before the court to prove the aforesaid recovery memo.

The Court also noted that even the Forensic Science Laboratory report did not give any opinion about the origin of recovered ashes and burnt bones. PW-1 in his statement clearly admitted that the appellant.

The Court further found force in the arguments of the appellant that they have been falsely implicated just to pressurize them to enter into the settlement in the cases which were lodged by the appellant- Rajveer and her daughter Pooja against PW1.

The Court also took into account the contention of the appellants that they were convicted on the basis of circumstantial evidence as well as a presumption under Section 106 of the Evidence Act, though the chain of circumstances is itself not complete because there was no eye witness of the incident and entire prosecution case is based on the statement of PW-1 who himself was not the witness of the incident but his information was based on the information received from other witnesses who did not support the prosecution’s story.

Against this backdrop, the Court while setting aside the judgment and order of conviction and sentence, observed thus:

“…in the present case, there is no evidence which connects the appellants with the death of deceased Pooja. As PW-1 was not the eye witness and other alleged eye witnesses who were the source of information to PW-1 did not support the prosecution story and even there is no documentary evidence which could establish the alleged recovered ashes and burnt bones belong to Pooja. Even, the memo of recovery (Ext Ka.6) of ashes and part of the burnt bones is not reliable because same was not signed by the appellants even same was not proved by the SDM under whose direction and supervision the above memo recovery was prepared. The prosecution has also failed to establish the complete chain of circumstances”

Counsel for Appellants: Kamlesh Tripathi, Man Bahadur Singh, Noor Mohammad

Case title - Rajveer Singh vs. State of U.P along with a connected appeal

Case Citation: 2023 LiveLaw (AB) 146

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