Evidence Law; Dev Bux Yadav @ Pujari (Tantric) Vs. State of U.P. [Allahabad High Court, 27-05-2016]

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Hon’ble Surendra Vikram Singh Rathore,J.

Hon’ble Anil Kumar Srivastava-II,J.

Delivered on 27.05.2016

CRIMINAL APPEAL No. – 924 of 2013 Appellant :- Dev Bux Yadav @ Pujari (Tantric) Respondent :- State Of U.P. Counsel for Appellant :- Avinash Srivastava Counsel for Respondent :- Govt. Advocate AND CRIMINAL APPEAL No. – 932 of 2013 Appellant :- Smt. Asha Devi Respondent :- The State Of U.P. Counsel for Appellant :- K.K. Verma,Avinash Kumar Srivastava,Manoj Kumar Singh Counsel for Respondent :- Govt. Advocate

(Per Anil Kumar Srivastava-II, J.)

1. Shri Avinash Kumar Srivastava, learned counsel for the appellants and Shri Umesh Verma, learned AGA for the State were heard at length.

2. Since both these connected criminal appeals i.e. (CRIMINAL APPEAL No. – 924 of 2013-Dev Bux Yadav @ Pujari (Tantric) vs. State Of U.P.) and (CRIMINAL APPEAL No. – 932 of 2013- Smt. Asha Devi vs.State Of U.P.) arise out of a common judgment, therefore, the same are being decided by a common judgment.

3. Instant appeal arises out of judgment and order dated 29.04.2013 passed by learned Additional Sessions Judge,Court No.2, Faizabad in Sessions Trial No.236 of 2010 arising out of Case Crime No.542 of 2010, under Sections 302 and 201 IPC, P.S. Raunahi, District-Faizabad; State Vs. Dev Bux Yadav @ Pujari (Tantrik) & Smt. Asha Devi wherein accused appellants were convicted under Sections 302 read with section 34 IPC and sentenced to imprisonment for life and fine of Rs.5000/- each, with default stipulation of one month’s imprisonment, under section 201 read with section 34 IPC and sentenced to rigorous imprisonment for three years and fine of Rs.5000/- each, with default stipulation of one year’s rigorous imprisonment. All the sentences were directed to run concurrently.

4. According to the prosecution version, complainant Krishan Chandra Singh @ Raju resident of Barai Khurd, P.S. Raunahi, District- Faizabad, lodged a first information report at Police Station- Raunahi on 20.6.2010 stating that his daughter Kumari Palak aged about three years is not traceable from 10.30 AM. An oral information about missing of Kumari Palak was given at police out-post Satti Chaura at about 5.00 PM. On receiving the information S.I. Mahesh Singh accompanied with constable Ajay Singh and Ajamat came to Village Barai Khurd. They inquired strictly from Asha Devi wife of Satyavir Singh @ Pintu son of Kali Prasad. Asha Devi told that she had no son. On the instigation of (Tantrik) Dev Bux Yadav @ Pujari, that if she will sacrifice one child than she will be blessed with a son, she called Kumari Palak to her house through Shivam Singh @ Shubham Singh who is brother of Asha Devi and strangulated her neck and killed her. In order to get a son, she had kept the dead body in a suitcase and kept it in a large box in her room. She can get it recovered. In the presence of Ram Pratap Singh and Mata Prasad Singh, Asha Devi opened the large box in her room in which dead body of Palak was concealed in a 24″ suitcase of black colour. Dead body of Palak was lying in the house of Asha Devi.

5. On the basis of written report, first information report was lodged and investigation was handed over to the investigating officer Sumeshwar Singh who was station house officer. He proceeded to the place of occurrence and recovered the dead body. Inquest proceedings were conducted on 20.6.2010 at 9.30PM. Dead body was sealed and sent for postmortem. Postmortem was conducted on 21.6.2010 at 2.30 PM . Investigating officer prepared the site plan, recorded the statement of witnesses. After investigation charge-sheet was submitted against the appellants.

6. In order to prove its case, prosecution has produced. P.W. 1 Ram Pratap Singh grand father of the deceased in whose presence dead body was recovered. P.W.2 Chhaya Singh mother of the deceased who was also present at the time when dead body was recovered. P.W. 3 Krishan Chandra Singh father of the deceased and complainant, in whose presence, dead body was recovered and inquest proceedings were conducted. P.W. 4 Constable 470 Ram Sanehi who has prepared the chik FIR and G.D. P.W. 5 Dr. Ghanshaym Singh who had conducted the postmortem on the body of the deceased and found following antemortem injuries:-

Strangulation mark all over the neck size 18cm x 1cm alongwith abrasions and margins situated over coastal cartridge in front of 5cm below chin, 4 cm below both mastoid process.

7. According to the Dr. Ghanshyam Singh, duration of death was about one day. Death was caused due to asphyxia as a result of antemortem strangulation.

8. P.W. 6 constable Nand Lal Verma who is formal witness, P.W. 7 S.I. Sumeshwar Singh investigating officer. P.W. 8 Rajesh Chand Tripathi who has submitted the charge-sheet. P.W.9 S.I. Mahesh Singh Rathore who went to the house of the complainant on receiving information about missing of Palak.

9. In the statement recorded under Section 313 Cr.P.C. Accused Dev Bux Yadav has denied the allegations against him and stated that he is not a Tantrik. He has been falsely implicated due to enmity.

10. Asha Devi has also denied the allegations levelled against her and stated that on 20.6.2010 marriage of her real brother-in-law Atul Singh was fixed. Barat went to Pratrapgrah. Dead body of Palak was recovered in the night of 20/21.6.2010 in the field. Police came and recovered the dead body. She has been falsely implicated.

11. No evidence was adduced in defence.

12. After appreciating the evidence on record. Learned trial court has convicted and sentenced the accused-appellants against which they have preferred the appeal.

13. Learned counsel for the accused/appellants argued that there is absolutely no evidence against the appellant Dev Bux Yadav. He has been convicted on the basis of statement of co-accused Asha Devi which is not admissible in evidence.

14. It is further argued that appellant Dev Bux Yadav is neither a Tantrik nor has any relation with this technique. He is not at all concerned with the death of Palak.

15. On behalf of the appellant Asha Devi it is argued that she has been falsely implicated in this case. There was no motive for her to commit the murder of Palak, who was the daughter of elder brother of her husband. Recovery is not proved under