# Smt Ganpati v. State - **Citation:** (2016) 7 ILRA 521 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-15 - **Bench:** Bharat Bhushan, Alok Kumar Mukherjee - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ganpati-v-state-44121 - **Pages:** 10 ## Headnote In this appeal sole surviving appellant Rajmani was convicted under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 201 I.P.C. and sentenced to imprisonment for life and three years rigorous imprisonment in each section respectively along with deceased Smt. Ganpati and Ram Surat vide judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others). We have no hesitation that the appellant is entitled of benefit of doubt as prosecution has failed to prove its case beyond all reasonable doubts. Hence, the criminal appeal is allowed. The judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others) is set aside. The appellant need not surrender before the Court. His sureties are discharged. Let a certified copy of this judgment be sent to concerned court through Sessions Judge Basti within fortnight. Held: Para- Case Law discussed: ## Text 7 All. Smt Ganpati Vs State 521 Further medico legal evidence is fully against the defence of the accused. No sign of hanging were found on the body of the deceased. Hence, by no stretch of imagination it could be accepted that the deceased has committed suicide. Hence, the case of accused neither covered by under section 304 part I IPC nor covered by under section 306 IPC rather it was a preplanned intentional murder. 36. In Raviralalaxmaiah vs. State of Andhra Pradesh (2013) 9 SCC 283 wife was found dead in the house of husband. A false plea of suicide by hanging was taken by the accused who was husband of the deceased. Learned trial court found the charge under Section 302 IPC to be proved against the accused and convicted and sentenced him under Section 302 IPC for imprisonment for life. Hon'ble Apex Court confirmed the findings of the learned trial court and dismissed the appeal holding that the appellant had been doubting the chastity of his wife and therefore had adequate motive to eliminate her. He failed to furnish any explanation as to under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. 37. In the present case also theory of suicide has been negated by the learned trial court. No mitigating substance could be shown to infer that it was an act which can be covered under Section 304 part I IPC. Hence, we are of the considered view that the learned trial court has correctly appreciated the evidence on record and concluded that the accused-appellant was guilty of murder of his wife. Learned trial court has rightly convicted and sentenced the accused under section 302 IPC. Appeal is without any merit and is liable to be dismissed and is accordingly dismissed. Judgment and order of conviction of trial court is hereby confirmed. 38. Accused-appellant Buddhipal Verma is in jail. He shall serve his sentence as imposed by the learned trial court. 39. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.07.2016 BEFORE THE HON'BLE BHARAT BHUSHAN, J. THE HON'BLE ALOK KUMAR MUKHERJEE, J. Criminal Appeal No. - 1235 Of 1983 Smt Ganpati ...Appellant Versus State ...Respondents Counsel for the Appellant: V.P. Mathur, G.P. Mathur, Hemant Kumar 522 INDIAN LAW REPORTS ALLAHABAD SERIES Counsel for the Respondents: D.G.A. In this appeal sole surviving appellant Rajmani was convicted under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 201 I.P.C. and sentenced to imprisonment for life and three years rigorous imprisonment in each section respectively along with deceased Smt. Ganpati and Ram Surat vide judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others). We have no hesitation that the appellant is entitled of benefit of doubt as prosecution has failed to prove its case beyond all reasonable doubts. Hence, the criminal appeal is allowed. The judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others) is set aside. The appellant need not surrender before the Court. His sureties are discharged. Let a certified copy of this judgment be sent to concerned court through Sessions Judge Basti within fortnight. Held: Para- Case Law discussed: (Delivered by Hon'ble Bharat Bhushan, J.) 1. In this appeal sole surviving appellant Rajmani was convicted under Section 302 I.P.C. read with Section 34 I.P.C. and under Section 201 I.P.C. and sentenced to imprisonment for life and three years rigorous imprisonment in each section respectively along with deceased Smt. Ganpati and Ram Surat vide judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others). 2. Appellants Smt. Ganpati and Ram Surat have died therefore, the appeal filed at their instance stand abated. 3. Background facts in nutshell are as follows: The sole surviving appellant Rajmani along with his parents (Smt. Ganpati and Ram Surat) and sister Jhinkani were charged under Section 302 I.P.C. read with Section 34 I.P.C. and 201 I.P.C. on 22.9.1981. It is stated that on 20.2.1981 P.W. 4 Jugun Chaukidar of village Harpur Tola Sunderdas, P.S. Mahuli a resident of village Ratanpura, P.S. Mahuli heard that deceased Smt. Malti wife of Rajmani, appellant had died of burns. He went to the matrimonial home of Smt. Malti at village Harpur Tola Sunderdas but none of charged persons were present at their house. It is stated that only Tejai, the grand-father of surviving appellant was sitting outside the house. The door of the house was closed from outside. Jugan Chaukidar rushed to the Police Station Mahuli and furnished information about the incident. This oral report was recorded into general diary (G.D.) of P.S. Mahuli at about 6:30 pm. on 20.2.1981 (Exh. Ka-1). Sub Inspector, Uday Narayan Singh P.W. 10 went to the spot along with constable Aadya Shankar and others and reached the village Harpur Tola at about 9:30 pm. He went to the house of appellant Rajmani but did not found any person at the house. The house was closed from outside. He could not find the occupants of the 7 All. Smt Ganpati Vs State 523 house in the village. On next day i.e. on 21.2.1981 Tejai the grand-father of sole appellant contacted the police personnel and took S.I. Udai Narayan Singh to the house and opened the lock of the house from the key which he took out from his pocket. The corpse of Smt. Malti was found inside the house. It was identified by Tejai,the grand-father. 4. The inquest proceedings were conducted. Dead body was sent for the postmortem. Meanwhile S.I. Sri Ram Adhar Mishra (P.W. 9) had also reached the village. Sri Ram Adhar Mishra was entrusted formal investigation. After autopsy and investigation a charge sheet was filed against four persons, namely, appellants Rajmani, Ram Surat (father of appellant Rajmani) and Ganpati (his mother) and his sister (Smt. Jhinkani). All of them were tried under Section 302 read with Section 34 I.P.C. and 201 I.P.C. During the course of trial as many as ten witnesses were produced by prosecution out of which four witnesses, namely, Rampati (P.W. 1), Ram Laut (P.W. 2), Udai Raj (P.W. 3) and Jagarnath (P.W. 6) did not support the prosecution story and were in fact declared hostile at the instance of prosecution. The statements of applicants were recorded under Section 313 Cr.P.C. wherein they denied all allegations but refused to produce any oral and documentary evidence in defence. 5. The learned Sessions Judge concluded that deceased Smt. Malti was murdered and that; circumstantial evidence indicates that three accused namely, Rajmani, his father, Ramsurat and his mother Ganpati were responsible for the murder of Smt. Malti. Accused Smt. Jhinkani, the sister of appellant Rajmani was given benefit of doubt despite the fact that evidence against all the four accused persons was identical. The Sessions Judge, therefore, convicted and sentenced appellants, namely, Rajmani, Ramsurat and Ganpati vide judgment and order dated 19.5.1983 as aforesaid. This judgment is under challenge before this Court in this criminal appeal. However appellant Ramsurat and Smt. Ganpati have died, therefore, this Court is only concerned with the appeal of sole surviving appellant Rajmani. 6. Heard Sri Dilip Kumar and Sri Rajrshi Gupta, learned counsel on behalf of appellant and learned A.G.A. Sri Sayed Ali Murtaza on behalf of State. 7. Learned counsel for appellant has submitted that there is virtually no evidence of complicity of appellant. Deceased died on 20.2.1983 somewhere in the day time yet not a single witness of that village is prepared to give evidence against the appellant. He further submits that as many as four prosecution witnesses have not supported the prosecution version. P.W. 8 Bhagwandin, father of deceased Smt. Malti was not examined during investigation. Learned counsel for appellant has further stated that entire prosecution case is based on circumstantial evidence but relevant circumstances have not been established in accordance with the Indian Evidence Act 1872 (Evidence Act) and chain of circumstances is not complete. He has argued that the appellant and his family members were not found on the date of incident either by village Chaukidar or by P.W. 10, S.I. Udai Narayan Singh. The only one family member, Tejai, the grandfather of appellant Rajmani was present. House was locked from outside. Key of the house was with Tejai but neither Tejai was arrayed as accused nor was made witness in this case despite the 524 INDIAN LAW REPORTS ALLAHABAD SERIES fact that Tejai was only the member of the house who was present at the house. Learned counsel for the appellant has submitted that the entire judgment is based on no evidence. 8. Per contra learned A.G.A. has submitted that it is a case of circumstantial evidence and each circumstance has been established by prosecution by independent and trustworthy evidence. Chain of proved circumstances are complete and they only lead to irresistible conclusion that appellant was guilty of murdering his wife. He has also drawn the attention of this Court towards the fact that the postmortem indicates that deceased was done to death by throttling and later on the dead body was burnt. The learned A.G.A. has also used Section 106 of Indian Evidence Act to buttress his arguments, though the Sessions Judge has not referred Section 106 of Indian Evidence Act in his impugned judgment. 9. A bare perusal of the entire evidence produced by prosecution and the impugned judgment would reveal that there is absolutely no eye witness account of the incident. The prosecution story is that deceased Smt. Malti died of burn injuries in her matrimonial home on 20.2.1981 during day time. Village Chaukidar received information and visited the house of appellant Rajmani but only Tejai the grand-father was present. P.W.4, Jugun Chaukidar talked to Tejai but the details of these talks are not available on record. It is pertinent to point out that Jugun did not ask Tejai to open the house. He did not even see the dead body of Smt. Malti. He rushed to the police station Mahauli and orally informed the police. P.W. 10 S.I. Udai Narain Singh was deputed initially to verify the information and to conduct preliminary proceedings, if required. He reached at the place of occurrence at about 9:30 pm. The house was closed. No family member was available. No proceedings were conducted as it was dark. Next day i.e. on 21.2.1981 early morning Tejai the grand-father of the appellant contacted P.W. 10 S.I. Udai Narain Singh. Tejai then took out a key from his pocket and opened the lock of the house. The dead body of Malti was found inside the Kothari. Tejai identified the corpse of Malti. 10. It is pertinent to point out that neither the appellant nor his parents or even his married sister were present in the house. Only grand-father was present. Interestingly, P.W.10 Udai Narain Singh stated that house was closed but it was not locked when he reached there on 20.2.1981 in the night at about 9:30 pm. and yet in the morning of 21.2.1981 the house was found locked and key of that house was in possession of Tejai. It is also pertinent to point out that even village Chaukidar P.W. 4 Jugun did not ask Tejai to open the house on 20.2.1981 when he reached the place of occurrence on receipt of rumours and whispers floating around the village regarding the death of Malti. It is clear that the dead body was seen by the authorities in the early morning of 21.2.1981 for the first time after opening the locked house and key was found in possession of Tejai. During investigation the statements of several witnesses were stated to have been recorded but most of them have not been produced during trial. The witnesses who were produced by the prosecution, namely, Rampati (P.W. 1), Ram Laut (P.W. 2), Udai Raj (P.W. 3) and Jagarnath (P.W. 6) have not supported the prosecution version. There is no eye witness account of death of Malti. The learned Sessions Judge has considered this point in his judgment but he believed that despite the non availability of eye witnesses or other witnesses the prosecution has been able to establish the certain circumstances or the chain of circumstances which irresistibly lead to only one conclusion 7 All. Smt Ganpati Vs State 525 that Smt. Malti was done to death by appellant and his companions. Now what is the evidence for this conclusion? 11. The learned trial judge has discussed the evidence of P.W. 7 Dr. R.C. Verma, who conducted the autopsy on the body of the deceased. Dr. Verma opined that deceased Malti Devi was first throttled and thereafter burnt by sprinkling kerosene oil. Dr. Verma did not find any line of redness. The body was found in pugilistic state. Skin was cracked. Decomposition had started. The doctor concluded that deceased died on account of asphyxia. He also gave opinion that burn injuries were caused postmortem i.e. first the deceased was throttled and thereafter kerosene oil was sprinkled over the body and then the body was set ablaze resulting in postmortem burns. On this evidence the learned Judge concluded that deceased Malti did not committed suicide and it was a clear cut case of murder. The learned Sessions Judge also noted the evidence of P.W. 7 Dr. Verma wherein he has stated that line of redness was absent in the corpse. 12. Ordinarily in the case of burn, a line of redness involving the whole skin is formed around the part. It is a permanent line persisting even after death. This line of redness is not found in postmortem burns. In the instant case Dr. R.C. Verma (P.W. 7) did not find line of redness on the body of deceased Malti. This conclusion is based merely on negative evidence. Ordinarily, line of redness is found on the burns caused during life. But there have been cases, where line of redness is not found even in the case of burn injuries caused during life. If burn injuries are caused to a living person who dies immediately from shock due to burn then line of redness may be absent. So the conclusion of P.W. 7 Dr. R.C. Verma is based on the surmise that deceased did not die immediately but there have been cases in the burn injuries of living persons where line of redness is not found (Modi's medical jurisprudence and toxicology). If we go through the postmortem report and the testimony of P.W. 7 Dr. R.C. Verma, it would reveal that the conclusions of Dr. Verma are based on half baked data. He has failed to give a specific reason for the conclusion that deceased Malti was throttled prior to the death. He has in fact testified that he did not find any external injuries for the simple reason that it was not possible to unearth them on account of extensive burn injuries. We do not believe that Dr. Verma would have been able to find ligature mark in either external or internal examination for the simple reason that body was completely and extensively burnt. Details of ecchymosis of blood in subcutaneous tissue of neck were not recorded by him. Their dimensions were not detailed. In our opinion the evidence of throttling is rather weak. The body of deceased was deeply burnt. Skin was cracked. Dr. Verma himself admitted that it was not possible to decipher any injuries. W.U. Spitz and R.S. Fisher have recorded that it is not possible to conclude with naked eye or by histological examination whether burns occurred immediately before death or soon after (WU Spitz, R.S. Fisher Medicolegal investigation of death, CC Thomas 1973 261). In such situation circumstantial evidence alone will provide the answer. In the instant case no such evidence is visible. In fact, it is evident that observations of doctor are based on examination of deceased with naked eye only. But fact of the matter is that even if it is assumed that victim died on account of throttling and thereafter her body was burnt, it does not necessarily indicate that victim was done to death by appellant. 526 INDIAN LAW REPORTS ALLAHABAD SERIES 13. We have perused the testimonies of all witnesses. Role of appellant or his companions have not been delineated at all. There is not a single witness who has mentioned the role of appellant. A careful perusal of judgment would reveal that learned Sessions Judge merely held the appellant guilty on account of his absence from the place of occurrence. The learned Judge has concluded that appellant has admitted his presence during his statement recorded under Section 313 Cr.P.C. and that; his presence automatically makes him liable to explain the circumstances of death of deceased. The learned Sessions Judge has written few reasons for holding appellant guilty of the offence of murder (i) When Sub Inspector Udai Narain Singh, P.W.10, reached the house of accused in the evening of 20.2.1981, not a single accused was present at their house. The house was closed from outside. Sub Inspector did not enter the house in the night of 20.2.1981 and next day at about 5:30 Tejai the grand-father of appellant Rajmani took a key from his pocket and opened the lock of Kothari in which the dead body of Smt. Malti was lying. The learned Judge concluded that as Kothari was locked from outside and none of the appellants were present which indicates that they were responsible for murder, inasmuch as they were absent from house even on 21.2.1981. They did not care to meet S.I. Udai Narain Singh, P.W. 10. (ii) The Police arrested co-accused Smt. Ganpati (now deceased) from village Natwa on the information given to him by unknown informant and the learned Sessions Judge found this conduct of Smt. Ganpati (deceased) highly suspicious. (iii) The learned Judge also found the conduct of appellant and his companions suspicious on account of fact that they did not inform the Police about the incident. The Judge believed that natural conduct should have been go to the Police Station immediately to inform the Police about the incident and lodge a report. (iv) Another circumstances found highly suspicious by the Judge is that appellant and his companions did not accompany the dead body of Smt. Malti after inquest to the mortuary. 14. The aforesaid circumstances relied on by learned Judge would indicate that the appellant and deceased companions have been convicted only on the perceived suspicious conduct of accused persons. There is not an iota of evidence against the appellant and his companions. In fact not a single witness has even mentioned their role in connection with the murder of deceased Malti. The learned Judge totally forgot the basic principle of criminal jurisprudence which says that every accused is innocent till found guilty and that; it is a duty of prosecution to prove its case by positive evidence. 15. As far as the statement of appellant under Section 313 Cr.P.C. is concerned, the answer to the first two questions would indicate that appellant was merely conveying that they were resident of village Harpur Tola Sunderdas, P.S. Maholi and they used to live in the same house during relevant times. We believe this answer is not specific to the date of occurrence. The admission on the part of the appellants is merely a generic and general answer. Of course, they used to live in house shared by deceased Smt. Malti, but the answer does not conclusively establish that they were present inside the house at the time of occurrence. They might have gone somewhere else. It was duty of prosecution to establish that appellants were present inside the house at the time of incident and that; house was exclusively in possession of only appellants and deceased on the date and time of occurrence. There is not even whisper to this effect from the side of prosecution. Not a single witness has made reference to the presence of appellant at the time of incident. On the 7 All. Smt Ganpati Vs State 527 contrary when P.W. 4 Jugun visited the house in which occurrence allegedly took place, he only found Tejai, grand-father outside the house. P.W. 4 Jugun did not ask Tejai to open the house. Jugun has specifically asserted that no one was present at the house other than Tejai. Tejai has not been nominated as accused by investigator or produced as witness during the course of trial. 16. When on 21.2.1981 P.W. 10 Udai Narain Singh visited the house which was opened by Tejai, none of the accused appellants were present at place of occurrence. There is no evidence to demonstrate that the house where the body of deceased was found was exclusively in possession of appellants at the time of occurrence. No one has even whispered about it. Fact of the matter is that appellants were not present at the house for days. 17. It is true that sometimes the disappearance of accused persons can be considered as suspicious conduct but it does not necessarily mean that they committed the murder. There can be variety of reasons for absence of appellant from the house. They might have been busy in some private work. Smt. Ganpati (now deceased) was arrested in another village Natwa on the information furnished by unknown informant. It is possible that Smt. Ganpati might be visiting the relative. They might have panicked or got frightened. It is possible that appellant received information of death of Smt. Malti rather late and dreaded the consequences. All these things are in the realm of speculation. But then trial Judge has also passed the judgment merely on the basis of conjecture and speculation despite the fact that there is no evidence to suggest that place of occurrence was in exclusive possession of accused persons at exact time of occurrence. It was the duty of prosecution to establish roles of accused persons by positive evidence. No such evidence has been given. As the appellants were not present at the place of occurrence, therefore, to presume that they were aware of the incident and they did not deliberately give the information to the Police and did not accompany dead body to the mortuary, is absolutely a conjecture. There is no evidence to demonstrate that appellants were aware of the death of deceased. Learned Judge has assumed that the appellants were in possession of knowledge of death of deceased Malti despite the fact there is absolutely no evidence to establish this knowledge. The impugned judgment does not rest on positive evidence. It depends entirely on the suspicions, conjectures and surmises of the learned Judge. 18. Fact of the matter in criminal cases, burden of proof is always on prosecution. It is accepted principles of criminal jurisprudence that the burden is always on prosecution and never shifts. The criminal law presumes every accused is innocent unless proven guilty by trustworthy evidence and accused is entitled to the benefit of every reasonable doubt. The present case is based on circumstantial evidence wherein the roles of appellants have not been delineated at all. Appellants were even not found on the place of occurrence. Tejai who was in possession of the key of the house has not been prosecuted. Surprisingly, the motive of murder was not even discussed in this case. Once the prosecution evidence was on the verge of conclusion, prosecution perhaps realized this lacuna and produced P.W. 8 Bhagwandin, father of deceased who testified that appellants were not happy with the dowry given. Marriage of deceased Malti was solemnized some 15-16 years prior to his testimony and that; second marriage (Gauna) was performed after 7 years of marriage. Meaning thereby that deceased Malti was living in matrimonial home for several years 528 INDIAN LAW REPORTS ALLAHABAD SERIES prior to her death. This witness has testified that appellants pressurized him to give additional dowry and that he could not pay the dowry, therefore, the appellants were unhappy. P.W. 8 Bhagwandin has stated that the Panchayat was organized to put pressure upon the appellants. The prosecution has not produced any evidence to support the organization of this Panchayat. P.W. 8, Bhagwandeen says that he went to P.S. Mahuli to register F.I.R. but the F.I.R. was not registered. There is no evidence on record to demonstrate that Bhagwandeen ever approached the Police Station Mahuli. No G.D. entry regarding presence of Bhagwandeen has been placed on record. The report given by Bhagwandeen has not been shown during course of trial. In any case, even if it is assumed that what Bhagwandeen is saying is correct and that dowry was indeed demanded by appellants that would not necessarily mean that deceased Malti was done to death by appellants. Demand of dowry is one thing but murder of deceased on account of non fulfilment of dowry is another. Appellants have been tried for murder of deceased Malti and there is nothing on record to show the complicity of appellant in the death of deceased Malti. 19. Learned A.G.A. has submitted that it was incumbent upon the accused persons to prove their innocence in view of Section 106 of Evidence Act. We are afraid that application of Section 106 of Evidence Act cannot be done to fasten guilt of murder upon appellant merely because of their silence. Law is very simple. Prosecution has to prove its case beyond all reasonable doubts. Section 106 of Evidence Act cannot be used to make up prosecution's inability to establish guilty by leading trustworthy evidence. Evidence Act lays down that in criminal cases burden of proof is always upon the prosecution and Section 106 of Evidence Act cannot be used to relieve the prosecution of their duty. This section is described to meet certain circumstances in which it would be impossible for prosecution to establish certain facts which are 'especially' within the knowledge of accused. This Section cannot be used to relieve the prosecution of the burden of proof otherwise it would lead to a strange conclusion that in a murder case, burden lies on accused to prove that he did not commit the murder, inasmuch as prosecution can claim in every case that accused was aware of the crime and therefore, he must show that he did not commit the crime. This topsy turvy attitude of criminal adjudication cannot be approved. We believe that learned A.G.A. is not right in applying the Section 106 of Evidence Act to this case. In this present case, prosecution has not demonstrated that the facts related to the murder of deceased was within the exclusive knowledge of appellants only. Admittedly, Tejai was present at the house where dead body of Malti was found. It was Tejai who opened the house when S.I. Udai Narain Singh, P.W. 10 reached the place of occurrence. At least Tejai should have been asked this question for the simple reason that he was in possession of the key of house which was locked from outside. 20. Fact of the matter is that locking of house itself is doubtful. At one place it has been indicated that the house was simply closed from outside and no lock was used in it and another at place it has been stated that on 21.2.1981 lock of the house was opened by Tejai, the grand-father. As far as appellants are concerned, there is absolutely no evidence on record to show that they were aware of murder of deceased or the room in which the corpse of deceased Malti was found was in their exclusive possession at the time of murder. The prosecution has 7 All. Smt Ganpati Vs State 529 not led any evidence to demonstrate the circumstances of departure of appellants from the place of occurrence. Surprisingly, there is no evidence on record to show that the deceased was done to death inside the house of appellants. The only fact produced by the prosecution is that corpse of Smt. Malti was found inside the Kothari of the house. Rest of the things were assumed first by the Investigating Officer and then by the Trial Judge. Where is the evidence to demonstrate that deceased was murdered inside the house? If deceased was first throttled and then burnt; is there any evidence to demonstrate that she was not carried in the house from outside? May be she was throttled out side; or strangulated outside and brought inside the house later on and then burnt. In this scenario, it was incumbent upon the prosecution to show that deceased was murdered at a particular place and then she was burnt at a particular place and such people were involved in her murder. A piece of Sari, which was allegedly recovered from the room, where the dead body of Malti was found, was not even produced before the Trial Judge during trial. 21. We have carefully scanned the entire record. We believe that there is not enough evidence to show the complicity of appellants. Co-accused Jhinkani was acquitted by the trial judge on the identical evidence. The appellant cannot be held guilty merely because he was sharing the dwelling house with deceased. This does not necessarily mean that he was involved in the murder of deceased. The statement given under Section 313 Cr.P.C. merely indicates that appellant ordinarily shared the dwelling unit with deceased Smt. Malti. In our view it does not establish beyond all reasonable doubts that appellant was present inside the house at the time of stated death of deceased Smt. Malti. There is no evidence on record to show that the room where the corpse of deceased was found was exclusively in possession and control of appellant Rajmani at the time of death of deceased Smt. Malti. There is no evidence to demonstrate that this room or house continued to remain in possession of appellant Rajmani till the recovery of dead body by Police. On the contrary there is evidence on record to show that the house in question was found in possession of the grand-father Tejai at least subsequent to the death of deceased and Tejai has not been nominated either as witness or accused. We also believe that the statement of appellant under Section 313 Cr.P.C. was also not recorded in a fair manner. The importance of observing the provisions of Section 313 Cr.P.C. faithfully, cannot be emphasized more strongly. The learned trial Judge should have specifically asked questions about the possession of house at the time of death of deceased Smt. Malti. In the absence of such questions, it cannot be assumed that the appellant was present at the time of death of deceased. 22. In view of the foregoing discussions, we have no hesitation that the appellant is entitled of benefit of doubt as prosecution has failed to prove its case beyond all reasonable doubts. Hence, the criminal appeal is allowed. The judgment and order dated 19.5.1983 passed by the then Sessions Judge, Basti in S.T. No. 116 of 1981 (State Vs. Smt. Ganpati and others) is set aside. The appellant need not surrender before the Court. His sureties are discharged. Let a certified copy of this judgment be sent to concerned court through Sessions Judge Basti within fortnight. -------- 530 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 27.07.2016 BEFORE THE HON'BLE SATYENDRA SINGH CHAUHAN, J. THE HON'BLE ANIL KUMAR, J. Service Bench No.- 1369 Of 2010 Brijendra Kumar Agarwal ...Petitioner Versus State Of U.P. ...Respondent Counsel for Petitioner: P.K. Srivastava Counsel for Respondent: C.S.C 1. Service Law - Departmental Proceedings - Punishment Order - Advice of Public Service Commission - Non-Supply of Copy to Delinquent Employee - Violation of Principles of Natural Justice - Punishment Order Unsustainable. Where, in the course of a departmental enquiry against a government servant, the Disciplinary Authority seeks the advice of the Public Service Commission and such advice is received by the State Government/Disciplinary Authority, it is mandatory that a copy thereof be supplied to the delinquent employee before the final order of punishment is passed. The failure to supply the copy of such advice deprives the delinquent employee of the opportunity to make an effective representation before the Disciplinary Authority with regard to the proposed punishment, and constitutes a violation of the principles of natural justice. In the present case, after the advice of the Public Service Commission, Allahabad was received by the State Government, no copy thereof was furnished to the petitioner before the impugned punishment order was passed. Held: The non-supply of the copy of the advice of the Public Service Commission to the petitioner is fatal to the punishment order; the impugned order of punishment imposing recovery of Rs. 1,81,000/- and reduction of pension by 20% is vitiated and cannot be sustained in law. Relied upon: S.N. Narula v. Union of India & Others, (2011) 4 SCC 591; Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589. 2. Service Law - Departmental Proceedings - Advice of Public Service Commission - Reliance by Disciplinary Authority - Distinction between Cases where Advice is Relied upon and where it is Not - Obligation to Supply Copy Arises only When Relied upon. The obligation to supply a copy of the advice of the Public Service Commission to the delinquent employee is not absolute in all cases. A distinction must be drawn between cases where the Disciplinary Authority does not rely upon the advice of the Public Service Commission and cases where it does. In the former category, it is not necessary to supply a copy of the advice to the concerned employee. However, where the Disciplinary Authority relies upon the advice of the Public Service Commission in arriving at the quantum of punishment or the decision to punish, the copy of such advice must be supplied to the delinquent employee in advance to enable him to make an effective representation; failing which there will be a violation of the principles of natural justice rendering the consequent order of punishment liable to be set aside. Held: As laid down by the Supreme Court in Union of India & Others v. S.K. Kapoor, (2011) 4 SCC 589, the supply of the advice of the Public Service Commission is mandatory wherever the same is relied upon by the Disciplinary Authority.