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Radhey Shyam and Etc. Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Appeal Nos. 2639 and 2640 of 1981
Judge
Reported in2002CriLJ1227
ActsEvidence Act, 1872 - Sections 27; Code of Criminal Procedure (CrPC) - Sections 161; Indian Penal Code (IPC), 1860 - Sections 34, 302 and 381
AppellantRadhey Shyam and Etc.
RespondentState of U.P.
Appellant AdvocateM. Islam, ;D.N. Wali and ;P.N. Lal, Advs.
Respondent AdvocateV.P. Goel, D.G.A., ;V.K. Shukla and ;B.A. Khan, Advs.
DispositionAppeal allowed
Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under.....g.p. mathur, j.1. i agree with the opinion of my brother hon'ble m.a. khan, j. that both the appeals be allowed and the conviction as well as the sentences imposed upon the appellants be set aside. however i would like to add few words.2. p.w. 14 suresh kumar (husband of the deceased smt. nirmala chaudhary) lived in house no. kd-41 kavi nagar along with his four brothers including p.w. 2 virendra nath agarwal. it has come in the testimony of p.w. 2 virendra nath agarwal that there were seven servants who were working in the house and they all resided in two rooms which were towards the back side of the main residential building. p.w. 6 lekhraj singh who was working as chowkidar has also admitted that at the relevant time 7-8 servants were employed and were working. p.w. 2 virendra nath.....
Judgment:

G.P. Mathur, J.

1. I agree with the opinion of my brother Hon'ble M.A. Khan, J. that both the appeals be allowed and the conviction as well as the sentences imposed upon the appellants be set aside. However I would like to add few words.

2. P.W. 14 Suresh Kumar (husband of the deceased Smt. Nirmala Chaudhary) lived in house No. KD-41 Kavi Nagar along with his four brothers including P.W. 2 Virendra Nath Agarwal. It has come in the testimony of P.W. 2 Virendra Nath Agarwal that there were seven servants who were working in the house and they all resided in two rooms which were towards the back side of the main residential building. P.W. 6 Lekhraj Singh who was working as chowkidar has also admitted that at the relevant time 7-8 servants were employed and were working. P.W. 2 Virendra Nath Agarwal has deposed that he conducted a search in the servant quarter on 1-12-1980 and at that time Sudhir Kumar had accompanied him. During the course of search, he recovered a diary from the possession of Balbir appellant and a post-card from the possession of Radhey Shyam appellant. P.W. 4 Radha Krishna Agarwal has deposed that at about 5 p.m. on 2-12-1980 the appellant Radhey Shyam, who was in police custody, led them to his room (servant quarter) and gave a pant, a baniyan (Ex. 3 and Ex. 4) to the Investigating Officer of the case. These clothes were hanging on a 'algani' (a rope or cord tied at both the ends over which clothes are hung). Thereafter Balbir accused who was also in custody, gave a shirt, baniyan, pant and a underwear (Ex. 5, Ex. 6. Ex. 7 and Ex. 8) which were hanging on a peg fixed in the wall. According to the prosecution, there were blood stains on these clothes but the same had been washed. It looks extremely surprising that the appellants kept their so-called blood stained clothes either on the algani or on the peg which was visible to everyone and that too in the room which they shared with other servants. According to P.W. 2 Virendra Nath Agarwal, he had conducted a search of the servant quarter a day earlier on 1-12-1980 and he recovered such small articles like a diary and a post-card from the possession of the appellant. There is no reason why he could not locate or find out the blood stained clothes which were hanging on a algani or on a peg and had not been kept concealed in a box or in some secret place. Therefore the recovery of the clothes at the pointing out of the accused subsequently in the evening of 2-12-1980, looks highly suspicious.

3. The prosecution had also relied upon the testimony of P.W. 3 Kashi Ram to whom Radhey Shyam appellant is alleged to have made an extra-judicial confession, Kashi Ram was working as chowkidar in A.D.B. School and was not a regular servant in the house of the deceased. He has deposed that he used to look after the cow in the bungalow No. KD-41 for which he was being paid Rs. 70/- per month. According to his statement. Radhey Shyam met him next day in the afternoon and informed that he along with Balbir appellant had committed the murder of Nirmala Devi and had concealed the cash amount stolen from there. His statement shows that though the confession was made to him by Radhey Shyam on 29-11-1980 but he disclosed this fact after three days to the Investigating Officer. His statement does not show that he made any disclosure about this to any family members of the deceased like P.W. 14 Suresh Kumar or P.W. 2 Virendra Nath Agarwal. Three family members and inmates of the house namely P.W. 2 Virendra Nath Agarwal, P.W. 14 Suresh Kumar and P.W. 11 Smt. Kamlesh Agarwal (wife of Vijay Kumar who is brother of Suresh Kumar) have been examined in the case and no one has stated that P.W. 3 Kashi Ram told them anything about the confession alleged to have been made by Radhey Shyam appellant to him. If Radhey Shyam appellant had really made any confession to him, his first reaction should have been to inform the family members of the deceased about the said fact. The evidence is completely silent about it and the only inference possible is that he did not disclose the said fact to any family member though after three days he claims to have informed the Investigating Officer of the case about the alleged confession. There appears to be no reason why Radhey Shyam appellant would make a confession to him. The testimony of P.W. 3 Kashi Ram does not at all inspire confidence.

4. The prosecution has led evidence to show that at the pointing out of Balbir appellant a 'mussali' was recovered and there was some trade of blood on the same. The post mortem report of the deceased shows that she sustained a large number of incised wounds. There is absolutely no injury which may be attributed to a 'mussali'. The mussali was shown to P.W. 5 Dr. O.P. Sharma, who had proved the post mortem report and he stated that if injury is caused by the 'mussali' on a bony part, on a superficial examination, it may look like a incised wound. In his cross-examination, he stated that injury caused by the mussali would not be an incised wound. Therefore the medical evidence does not show that the 'mussali' was used in assaulting the deceased.

5. P.W. 2 Virendra Nath Agarwal has deposed that after getting news about the murder of Nirmala Devi in his office at about 2-30 p.m. he immediately rushed home and saw the body lying in the central hall. At that time his brother Suresh Kumar (husband of the deceased) came out from another room and then he enquired from him whether the report had been lodged. He has further stated that Suresh Kumar then dictated a report to another brother Vijay Kumar and shortly thereafter the police arrived to whom that report was given. The FIR of the case which is relied upon by the prosecution is by P.W. 1 Dr. Yogendra Pal Gupta and not by Suresh Kumar. It is not clear as to what was the report which had been dictated by P.W. 14 Suresh Kumar to Vijay Kumar and was delivered to the police when it arrived at the scene. The testimony of P.W. 20 Jitendra Pal Singh Yadav, Investigating Officer of the case shows that he recorded statement of Suresh Kumar under Section 161, Cr.P.C. on 29-11-1980 wherein there is no mention that a bunch of key-rings made of silver was also stolen.

6. Hon'ble M.A. Khan, J. has drawn some inference against the prosecution on the ground that though the Investigating Officer had asked the doctor to give a report whether any rape had been committed upon the deceased but the doctor who conducted the post mortem examination did not advert to the said aspect of the case. I am unable to agree with the aforesaid part of the judgment. P.W. 20 Jitendra Pal Singh Yadav, Investigating Officer of the case has neither said anything nor has given any ground on the basis of which he suspected it to be a case of rape. Whether any attempt had been made to commit rape upon a lady can either be deposed by the lady herself or in the event of her murder can be visualised or suspected by seeing the condition of the clothes or body or some other circumstance. P.W. 20 was not the first person to see the body of Smt. Nirmala Devi. The crime was first seen by a servant having the name of Govind who informed P.W. 11 Smt. Kamlesh Agarwal wife of Vijay Kumar. Thereafter P.W. 1 Dr. Y.P. Gupta was called who saw the body in the bath room. The body was removed from there and was placed on a bed and then it was placed on a big table. Therefore the Investigating Officer of the case saw the body much later and not at the initial stage. The post mortem examination was conducted by Dr. Vinod Chandra and he wrote a complete post mortem report. Had he found any injury or any other feature which raised suspicion of rape having been committed, the said fact must have been mentioned in the report. It is true that Dr. Vinod Chandra was not examined as a witness as he had gone to Nigeria and the post mortem report was proved by P.W. 5 Dr. O.P. Sharma. Nevertheless there is nothing to indicate that the doctor did not examine all the material aspects which had to be seen. That apart what is to be seen is whether the appellants caused injuries to the deceased Smt. Nirmala Devi which resulted in her death and an attempt to rape or commission of actual rape and thereafter causing injuries cannot make any substantial difference to the fate of the case.

7. Having regard to the other aspects dealt with by my brother Hon'ble M.A. Khan, J. I concur with the final order allowing the appeals passed by him.

M.A. Khan, J.

8. These two appeals are directed against the judgment and order dated 9-11-1981 passed by Sri N.P. Verma, VII Addl. Sessions Judge, Ghaziabad, thereby convicting appellants Balbeer Singh and Radhey Shyam for the offence punishable under Section 302, IPC read with Section 34, IPC and sentencing them to undergo imprisonment for life. The two appellants were further held guilty for the offence punishable under Section 381, IPC and were sentenced to undergo imprisonment for three years R.I. Both the sentences were directed to run concurrently. Since the two appeals arise out of the same judgment and order, they can be disposed of by a single judgment.

9. Brief facts leading to the prosecution of the two appellants are that on 28-11-1980 at about 2-00 p.m. the two appellants in furtherance of their common intention committed murder of Smt. Nirmala Chaudhary at her residence No. KD-41, Kavi Nagar, Ghaziabad by intentionally causing her death with a 'knife' and 'Mossali' and on the same date, time and place, they being employed as domestic servants of Suresh Kumar and Vijay Kumar committed theft in the aforesaid house by stealing cash worth Rs. 10,750/-, one silver purse and golden chain etc. belonging to Nirmala Chaudhary wife of Sri Suresh Kumar.

10. The prosecution allegations are that on 28-11-1980 when all other male persons residing in house No. KD-41, Kavi Nagar, Ghaziabad, were away in connection with their business occupation, the two appellants, who were domestic servants found Smt. Nirmala Chaudhary all alone and after committing her murder, the two appellants committed theft of various articles in the house of Smt. Nirmala Chaudhary. One Govind, the domestic servant of the house in which the deceased was living went to Dr. Y.P. Gupta, P.W. 1 at about 2.000 p.m. and informed him that the condition of Smt. Nirmala Chaudhary is not good. On this information Dr. Y.P. Gupta, reached house No. KD-41, Kavi Nagar, Ghaziabad belonging to Suresh Kumar and his wife Smt. Nirmala Chaudary and found that Smt. Nirmala Chaudhary, was lying in a pool of blood in the Bath-room of her house. Dr. Y. P. Gupta, who was a family Doctor of Smt. Nirmala Chaudhary, examined her and found her dead. Accordingly Dr. Y.P. Gupta, P.W. sent a written report Ext. Ka-1 at the police station Kavi Nagar. Immediately thereafter all the male members of the family including the husband of Smt. Nirmala Chaudhary was informed of the incident and all of them including other ladies and children assembled within no time and the police also reached the scene of occurrence. On 1-12-1980 Virendra Nath, P.W. 2, the real brother of Suresh Kumar, husband of Smt. Nirmala Chaudhary, went to the servant quarters, which existed behind the house No. KD-41, Kavi Nagar, in which the two appellants and other domestic servants were residing. The servants were summoned and search was taken. A diary was found in the luggage of appellant Balbir Singh and a Post Card was also found in which it was mentioned that the appellant Balbir Singh had been in dire need of money. Accordingly the aforesaid letter was handed over to the police. The prosecution story further is that on 2-12-1980 the appellants were arrested and during the course of interrogation appellant Radhey Shyam had disclosed that he had washed the clothes which he was wearing at the time of committing murder of Smt. Nirmala Chaudhary. On the pointing out of accusedappellant Radhey Shyam a blue coloured pant and a Baniyan' belonging to the appellant Radhey Shyam were recovered which had been washed but the blood stains were still visible. Accordingly a memo Ext. Ka-3 and Ext.Ka-4 were prepared and it was duly attested by the witnesses. The same day, on 2-12-1980 on the pointing out of assused-appellant Balbir Singh, a shirt, an underwear and a Baniyan were recovered and all these clothes were washed away but blood stains were still visible on these clothes. Thus recovery was duly attested by the witnesses and Ext. Ka-5 was prepared the same day. On 2-12-1980 while the accused persons were in the custody of the police, on pointing out of the accused-appellant Radhey Shyam, a sum of Rs. 10,750/- in a handkerchief and a silver purse were recovered and the aforesaid recovery under Section 27 of the Evidence Act was attested by the public witnesses and a memo Ext. Ka-6 was prepared. Similarly accused-appellant Balbir Singh was arrested by the police and on his pointing out a bunch of keys belonging to Smt. Narmala Chaudhary was recovered which the accused had concealed on the Water-tank of the bath-room and it was recovered on his pointing out. The said recovery was also attested by the witnesses and a memo Ext. Ka-8 was prepared. On the pointing out of accused-appellant Balbir Singh a 'Mossali' was also recovered which had blood stains, with which the appellant is said to have attacked Smt. Nirmala Chaudhary and a memo Ext. Ka-12 was allegedly prepared. An attempt was also made by the arresting Officer to get the knife recovered with which the appellants had allegedly assaulted Smt. Nirmala Chaudhary. An attempt was also made to trace out the gold chain which Smt. Nirmala Chaudhary was wearing at the time of incident, which the accused-appellants had allegedly taken away. However, no knife nor the golden chain could be recovered and a memo Ext. Ka-32 to this effect was also prepared. In the meantime the body of Smt. Nirmala Chaudhary was sent to the District Hospital, Ghaziabad for post-mortem examination and the post-mortem report Ext. Ka-6 was prepared. The Investigating Officer also made an attempt to take finger print from the handle of the doors of both rooms and the same were also compared. The blood of Smt. Nirmala Chaudhary was also chemically examined. Investigating Officer recorded statements of the witnesses and after completing the necessary formalities and investigation chargesheet was submitted against the two appellants.

11. The appellants pleaded not guilty to the charges framed against them and claimed to be tried. Their defence is that they have been falsely implicated in this case due to fact that they had been poor persons and nobody came forward to defend them.

12. In support of its case, the prosecution examined as many as 20 witnesses. They are: Dr. Y.P. Gupta, P.W. 1, Virendra Nath Agarwal, P.W. 2, Kashi Ram, P.W. 3, Radha Krishna Agrawal, P.W. 4, Dr. O.P. Sharma, P.W. 5, Lekhraj Singh, P.W. 6, Kishan Swaroop Sharma, P.W. 7, Vishnu Dayal, P.W. 8, Bharat Bhushan, P.W. 9, Sheo Chand P.W. 10, Smt. Kamlesh Agrawal P.W. 11, G.S. Shatnagar P.W. 12, Shahi Ram Sharma P.W. 13, Suresh Kumar P.W. 14, Ashok Kumar Gupta, P.W. 15, Sheo Shanker P.W. 16, Prem Pal Singh P.W. 17, Krishna Kumar Chhabra P.W. 18, Asgar Ali P.W. 19 and Jitendra Pal Singh Yadav P.W. 20. The defence examined no witness.

13. The learned lower Court, it is unfortunate, did like to translate the evidence recorded in Hindi into English and has at all not assigned any reason whatsoever as to what is the basis of finding and on what reasonings he likes to record the verdict of conviction of the appellants. It is really unfortunate that such a senior Judicial Officer did not discharge his duty properly and simply recorded the verdict of conviction without at all scrutinising and weighing the evidence adduced in this case.

14. At the very out set it may be observed that there is no eye-witness account available in this case to support the prosecution version. In fact nobody did see the appellants committing the murder of Smt. Nirmala, Chaudhary, who was admittedly all alone in her house. Her husband was away in connection with his business assignment and no other family member of the house has come forward to depose that Smt. Nirmala Chaudhary at the time of her murder did make any noise or that any family member was attracted near the scene of occurrence on or before the time of commission of murder. The case in fact is based on circumstantial evidence alone as no direct evidence had been adduced, nor it was possible to adduce such evidence. The law on the point is quite clear and established that the circumstantial evidence should be of unimpeachable nature and the chain of circumstances should be so well connected that it may lead to one and the only one inference that the appellants did commit the murder. It may now be seen as to whether the evidence adduced by the prosecution in this case is of an unimpeachable nature and the chain of circumstances is such that it clearly points out towards the guilt of the appellants.

15. The post-mortem report Ext. Ka-6 on record reveals that Smt. Nirmala Chaudhary did sustain as many as 14 incised wounds of various dimensions and on all parts of the body. She also sustained two minor abrasions which have been mentioned as injuries Nos. 14 and 15 in the post-mortem report. This clearly shows that Smt. Nirmala Chaudhary was attacked with sharp edged weapons and an attempt has been made by the prosecution to show that the accused persons did make a statement before the arresting officer that they had thrown the blood stained knife near the water-tank and simi larly the gold clain belonging to Smt. Nirmala Chaudhary was also thrown by them in the flush system of the house. The Investigating Officer made an attempt to find out the said blood stained knife and the gold chain and even the flush system was broken. However, nothing at all was found and a memo to this effect was made vide Ext. Ka-32. Thus the evidence adduced by the prosecution that the accused Radhey Shyam did make an statement that the blood stained knife was thrown near the tank is totally false. Evidence has been adduced to the effect that even after the murder of Smt. Nirmala Chaudhary no outsider was allowed to come inside the house and if accused Radhey Shyam had at all thrown the blood stained knife near the Tank, it must have been found there near the Tank as alleged and the alleged blood stained knife would have been the main evidence pointing towards the guilt of the appellants that it was that knife by means of which injuries were caused to Smt. Nirmala Chaudhary as the post-mortem report reveals that Smt. Nirmala Chaudhary did sustain as many as 14 incised wounds. Similarly gold chain belonging to Smt. Nirmala Chaudhary, which accused-appellant Radhey Shyam has allegedly thrown in the flush system, was also not found despite all serious attempts by the Investigating Officer and, therefore, the alleged recovery said to have been made under Section 27 of the Evidence Act leads to no result and this evidence adduced by the presecution is totally false, that accused Radhey Shyam even made any statement that he committed murder of Smt. Nirmala Chaudhary with the knife and her gold chain was thrown in the flush system of the bathroom. An attempt has been made by the prosecution to show that 'Mossali' was recovered at the pointing of accused Balbeer Singh and according to the prosecution the accused-appellants had made an statement before the Investigating Officer and other public witnesses that it was with the help of this 'Mossali' that the murder of Smt. Nirmala Chaudhary was committed. The said 'Mossali' was recovered at the pointing of accused Balbeer Singh on 2-12-1980 from the kitchen of the family of the deceased. It was admittedly washed away. However a story has been developed by the prosecution that the aforesaid 'Mossali' had a spot and on that spot, there were blood stains. In this regard we may observe that the alleged recovery under Section 27 of the Evidence Act was made on 2-12-1980, four days after the alleged occurrence and according to the prosecution, the said 'Mossali' was washed away and kept in the kitchen itself of the family of the deceased. It is strange that the 'Mossali' which was admittedly washed away had still blood stains on it. No reasonable or prudent man can believe this fact that the 'Mossali' which is a smooth iron article could have a deep spot in which blood stains were still available even after 4-5 days of the alleged murder and win after having been washed away. This story set up by the prosecution is totally false and does not at all inspire confidence. Furthermore, as we have already pointed out above that Smt. Nirmala Chaudhary did sustain as many as 14 incised wounds and only two small abrasions on her body. Had the aforesaid 'Mossali' been used as weapon of attack, there is no reason as to why it would have caused just minor abrasion and that too on non-vital part of the body of Smt. Nirmala Chaudhary. The non-existence of injuries which could have been caused by 'Mossali', by itself shows that the story of alleged recovery of blood stained 'Mossali' on the pointing out of the accused Balbeer Singh is totally false and concocted and it does not at all inspire confidence.

16. The next evidence which had been adduced by the prosecution is that on 1-12-1980, a letter and a Diary were found in the room of accused Balbeer Singh. The aforesaid letter is dated 22-9-1980 which was at the address of Smt. Nirmala Chaudhary. The contents of this letter shows that the family of accused-appellant Radhey Shyam had been in need of money. The aforesaid recovery of letter and Diary was made without police assistance and it was made by Virendra Nath Agrawal, P.W. 2, the brother of the husband of the deceased. A perusal of the letter aforesaid and the diary does not at all point out towards the guilt of the accused. Sri Virendra Nath Agarwal, P.W. 2, himself admitted in his cross-examination that the recovery aforesaid was made by him suo motu and not at the instance of police or by out-siders. he also admits that even on that day all the domestic servants including the two accused-appellants were present. He does not know as to who had written the letter Ext. Ka-2 and how it was received and from where. Thus the aforesaid recovery is totally false and fictitious and even if it is believed, then the letter aforesaid points out nothing but a fact that some demand of money was there by the family members of the accused Radhey Shyam and it does not mean that accused Radhey Shyam was hardpressed financially that he would like to have committed murder of a house-lady.

17. We may also observe here that a thorough search of all the servant-quarters was made by the male members of the family of the deceased on the date of occurrance itself. All servants were present and remained present throughout and no-body liked.to run away. Admittedly nothing incriminating article was recovered from the possession of any of the domestic servants including the two accused-appellants. Thus the subsequent theory that the police arrested the two appellants and on their pointing out certain articles belonging to the deceased were recovered is also afterthought and does not at all inspire confidence. There is evidence that on 2-12-1980, after 4-5 days of the occurrence, a sum of Rs. 10,750/- belonging to the deceased were recovered on the pointing out of accused Radhey Shyam and the same day a silver purse was also recovered. It is also said that on 2-12-1980 itself on the pointing out of accused Balbeer Singh, a bunch of keys belonging to the deceased was also recovered. In this connection we may observe that the independent witnesses of the alleged recovery are either related to the family of the deceased or they had been under the influence of the male members of the family of the deceased. Besides the fact that this recovery is highly belated, it is also not right according to the provisions of Section 27 of the Evidence Act. The law on this point is quite clear that before the alleged discovery under Section 27 of the Evidence Act, we must have a clear cut statement of the accused which may lead to the alleged recovery. In this case there is nothing on record to show as to what exactly had been the statement of the accused which the accused had voluntarily made and how it led to the alleged recovery.

18. We may observe that the murder of Smt. Nirmala Chaudhary was admittedly committed on 28-11-1980 at about 2-00 p.m. and the same day a hectic interrogation of all the domestic servants was admittedly made by all the family members of the deceased and a thorough search of all the servant quarters was also made and nothing at all was recovered from the possession of the accused persons, therefore, the fact that after 4-5 days of the occurrence, the alleged recovery was made, is not at all believable. It is also come in evidence that after the alleged murder, none of the appellants or any other domestic servants did make any attempt to run away from the house of the deceased. There is no evidence that they were wrongfully or forcefully detained inside the house or servant quarters. There is also evidence that at the time of commission of murder, nobody else was present and, therefore, immediately after the commission of murder, the two appellants might have run away and there was nobody to prevent them from running away. There was also no wisdom of the appellants that have concealed the alleged stolen articles in the house of the deceased. The two domestic servants were accused in this case and were living in the house itself where murder was committed and they might have thrown away money and other articles and atleast they could have made an attempt to run away from the city itself. The presence of the accused persons even upto 2-12-1980 after 4-5 days of the occurrence clearly shows that they were innocent and they were not at all involved in the commission of crime. Thus the evidence of alleged discovery or recovery is not at all believable. The attesting witnesses of the alleged recovery are either the family members of the deceased or their servants or close friends and as such, such a recovery cannot inspire confidence.

19. Now coming to the alleged extra judicial confession, said to have been made by accused Radhey Shyam to Kashi Ram, P.W. 3, who was another Chaukidar in the compound of the family of the deceased. P.W. 3 Kashi Ram, has stated that on the next day of occurrence appellant Radhey Shyam came to him and disclosed that he and Balbeer Singh had committed murder of Smt. Nirmala Chaudhary yesterday and they had concealed the money which they have stolen and the same be taken from them as they are unable to come out of the house.

20. We have examined the statement of Kashi Ram, P.W. 3 and we find that it is totally unreliable. There was absolutely no compulsion with accused Radhey Shyam to have made such a confession before Kashi Ram, PW. 3. The amount of Rs. 10,750/- was not such a big amount which could not have been concealed by a person. Instead of concealing that amount, the appellant when he was being kept under surveillance would have really thrown away the amount and it cannot be believed for a moment that Radhey Shyam would have made such a confession volunarily to Kashi Ram, P.W. 3, thereby implicating himself in this case. In this connection we may observe that the Investigating Officer did record the statement of this witness after a month of the alleged occurrence and similarly the witnesses of alleged recovery were examined by the Investigating Officer after a month of the occurrence. Once the Investigating Officer was so prompt in his dealings that he got the articles recovered on 2-12-1980, that was justification with him in withholding to record the statement of these witnesses for a month. This by itself shows that the evidence of the alleged recovery is fictitious and it does not inspire confidence. Similarly the evidence of alleged extra judicial confession is also totally false.

21. As a result of our discussion the evidence on record and circumstances of the case we find that the case against the accused-appellants is not proved to the hilt and beyond all reasonable doubt. There may be suspicion against the appellants as they were domestic servants, yet suspicion alone, is not sufficient enough to point out towards the guilt of the accused persons.

22. We may also point out towards yet another very important aspect of the matter. When the dead body of Smt. Nirmala Chaudhary, was sent to the District Hospital for post-mortem, the Investigating Officer had clearly mentioned in his letter of request to the Chief Medical Officer that this factor be also proved as to whether Smt. Nirmala Chaudhary, was at all subjected to rape before her murder was committed. The Doctor who had conducted the post-mortem was not examined by the prosecution on the ground that he had gone abroad and a substitute of the Doctor has been examined in this case and he clearly admits that no such finding was recorded by the Medical Officer, who conducted the post-mortem that Smt. Nirmala Chaudhary was subjected to rape. The Investigating Officer himself has very clearly stated that he had made a specific request that this aspect of the matter be also proved into. It appears that the evidence on this point has been purposely withheld in order to conceal the real facts and to defend the dignity of the family and instead the domestic servants were planted in a case of theft and the matter has been twisted in the manner that the domestic servants had committed murder of Smt. Nirmala Chaudhary for the purpose of committing theft.

23. From the evidence and circumstances on record it can safely be gathered that the evidence of theft and alleged recovery of Rs. 10,750/- is not at all convincing. It further appears that the medical evidence regarding rape has been purposely concealed and with held so that the family may not be further defamed at any rate. The case against the accused-appellants is not proved to the hilt and beyond all reasonable doubt and the appeals deserve to be allowed.

24. Accordingly the two appeals (Criminal Appeal No. 2639 of 1981 and Criminal Appeal No. 2640 of 1981) are allowed and the judgment and order dated 9-11-81 passed by VII Additional Sessions Judge, Ghaziabad are set aside. The two appellants Radhey Shyam and Balbeer Singh are held not guilty of the offence punishable under Section 302, IPC read with Section 34, IPC and also under Section 381, IPC. They are acquitted of the same. They are in Jail and shall be released forthwith if not wanted in any other case.


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