# Smt. Vidya Devi & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Criminal Appeal No. 3333 of 1984
- **Bench:** Arvind Kumar Mishra-I, Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vidya-devi-ors-v-state-of-u-p-47998
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302 / 34 &
201
-
Challenge
to-Conviction-
Circumstantial
evidence-the
appellant
with the other co-accused committed the
murder
of
her
daughter-in-law
-The
motive of the incident is also proved by
the prosecution with the evidence of PW-1
and PW2 -The evidence of PW3 connects
the chain of events as he saw appellant
with other co-accused carrying the dead
body of the deceased in a gunny bag
which was later thrown into the nearby
well by them to cause the disappearance
of
the
evidence-The
dead
body
of
deceased was recovered on the pointing
out of the appellant -deceased was
recovered from the well which was later
identified by PW1 the informant/father of
the
deceased-PW
4
has
proved the
statement of Accused appellant by his
evidence as Ex. Ka- 5 therefore, the
recovery of the dead body of the deceased
on the pointing out of the appellant is
admissible
under
Section
27
of
the
Evidence Act-The medical evidence is
quite consistent with the prosecution case
and there is no material available on
record to disbelieve the medical evidence
adduced
by
Doctor.-Moreover,
the
appellant and the other co-accused did
not offer any cogent explanation that they
have
not
committed
the
murder
of
deceased
-The
appellant
failed
to
discharge her burden as cast upon her u/s
106 of the Evidence Act, 1872-All this
evidence indicates that appellant along
with the other co-accused is the author of
the crime and she committed the murder
of her daughter-in-law -The prosecution
has succeeded to bring home the charge
against the appellant u/s 302/34 and 201
IPC beyond a reasonable doubt. The trial
court has rightly convicted and sentenced
the appellant.(Para 1 to 45)

B. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is
put to the accused and the said accused
either offers no explanation or offers an
explanation which is found to be untrue,
then the same becomes an additional link in
the chain of circumstances to make it
complete.(Para 43)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,618 of 46,964. This is a partial read: ask again with offset=39618 for what follows._

12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
173
Accused appellants are in jail. They shall
serve out the sentence imposed upon them
by the Trial Court.

83. Copy of this judgment alongwith
lower court record be sent forthwith to the
Court concerned for compliance.
----------
(2022) 12 ILRA 173
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 3333 of 1984

Smt. Vidya Devi & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.B.L. Gour, Sri Pradeep Kumar Mishra

Counsel for the Respondent:
D.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 302 / 34 &
201
-
Challenge
to-Conviction-
Circumstantial
evidence-the
appellant
with the other co-accused committed the
murder
of
her
daughter-in-law
-The
motive of the incident is also proved by
the prosecution with the evidence of PW-1
and PW2 -The evidence of PW3 connects
the chain of events as he saw appellant
with other co-accused carrying the dead
body of the deceased in a gunny bag
which was later thrown into the nearby
well by them to cause the disappearance
of
the
evidence-The
dead
body
of
deceased was recovered on the pointing
out of the appellant -deceased was
recovered from the well which was later
identified by PW1 the informant/father of
the
deceased-PW
4
has
proved the
statement of Accused appellant by his
evidence as Ex. Ka- 5 therefore, the
recovery of the dead body of the deceased
on the pointing out of the appellant is
admissible
under
Section
27
of
the
Evidence Act-The medical evidence is
quite consistent with the prosecution case
and there is no material available on
record to disbelieve the medical evidence
adduced
by
Doctor.-Moreover,
the
appellant and the other co-accused did
not offer any cogent explanation that they
have
not
committed
the
murder
of
deceased
-The
appellant
failed
to
discharge her burden as cast upon her u/s
106 of the Evidence Act, 1872-All this
evidence indicates that appellant along
with the other co-accused is the author of
the crime and she committed the murder
of her daughter-in-law -The prosecution
has succeeded to bring home the charge
against the appellant u/s 302/34 and 201
IPC beyond a reasonable doubt. The trial
court has rightly convicted and sentenced
the appellant.(Para 1 to 45)

B. In a case based on circumstantial
evidence where no eyewitness account is
available, there is another principle of law
which must be kept in mind. The principle is
that when an incriminating circumstance is
put to the accused and the said accused
either offers no explanation or offers an
explanation which is found to be untrue,
then the same becomes an additional link in
the chain of circumstances to make it
complete.(Para 43)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Md. Younus Ali Tarafdar Vs St. of W.B. (2020)
AIR SC 1057 AIR Online 2020 SC Page-238

2. Sudru Vs St. of Chht. (2019) 8 SCC 333

3. Sangam Lal Vs St. of U.P. (2002) 44 ACC 288

4. Ganpat Singh Vs St. of M.P. (2018) 2 SCC
(Crl) 159
174 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Sharad Birdhichand Sarda Vs St. of Mah.
(1984) 4 SCC 116 (SCC p. 185 para 153-154) :
(AIR 1984 SC 1622, at p. 1655-56, paras 152153):

6. Pattu Rajan V. St. of T.N. (2019) 4 SCC 771
(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. This criminal appeal has been
preferred by the appellants against the
judgment and order of sentence dated
29.11.1984 passed by the 6th Additional
Sessions Judge, Etah arising out of Case
Crime No. 134 of 1983, registered as
Sessions Trial No. 824 of 1984 (State Vs.
Vidya Devi and others), whereby the
learned Additional Session Judge had
convicted the appellants Smt. Vidya Devi,
Netrapal, and Ram Kripal under Sections
302 / 34 I.P.C. and 201 I.P.C and had
sentenced
them
to
undergo
life
imprisonment under Section 302/34 I.P.C.
and rigorous imprisonment of 3 years along
with a fine of Rs. 2,000/- each under
Section 201 I.P.C. In case of default in the
payment of the fine, they were sentenced to
undergo additional rigorous imprisonment
for six months.

2. Two appellants namely Netrapal
and Ram Kripal died during the pendency
of this appeal and the appeal qua them
stood abated vide order dated 10.07.2018
passed by this Court. The only surviving
appellant is Smt. Vidya Devi.

3. Brief facts of the case are that Shiv
Raj Singh, father of the deceased Asha
Devi, submitted a written reportt to Station
House Officer, Sidhpura, District Etah
stating therein that the marriage of his
daughter Asha Devi was performed with
the accused Ram Kripal s/o Netrapal
around 3 1⁄2 years ago. "Gauna Ceremony"
was performed one year after the marriage
post when she started to live with her inlaws. After some time, the accusedappellants Vidya Devi (mother-in-law),
Netrapal (father-in-law) and her husband
Ram Kripal started to blame his daughter
for being of unsound mind, that she did not
perform any household work and that she
also stole bread. He held "Panchayat" in
the village of accused-appellants two to
three times but later he brought her
daughter back with him. On the occasion of
Holi, Netra Pal, father-in-law of his
daughter, took Asha Devi back with him
after giving an undertaking that she would
not be subjected to cruelty or ill-treatment
anymore
in
the
near
future.
The
Complainant continued to enquire about the
wellness of his daughter. Sometime later,
the accused-appellants Vidya Devi and
Netrapal asked the Complainant to marry
his second daughter with their son Ram
Kripal failing which they would not keep
her daughter Asha Devi with them. The
Complainant refused to concede to the
demand and asked them to send back Asha
Devi to him, but they refused.

4. Two days before the date of the
written report, the accused-appellants Ram
Kripal, Netrapal, Vidya Devi and Deo
Singh had beaten his daughter and
dislodged her from their house. Harvansh
Singh, Shiv Lal, Ram Lal Singh, Suraj Pal
Singh,
Udaiveer
Singh
and
others
witnessed the incident and rescued Asha
Devi. They had sent her back to her in-laws
after
making
her
and
her
in-laws
understand.

5. One day before the date of lodging
the first information report, at around 11.00
am one Shiv Lal, a resident of Dhanakar
came to him and informed him that Ram
Kripal, Netrapal and Vidya Devi have
12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
175
caused the disappearance of his daughter
during the preceding night. He along with
Sukhram Singh, Allauddin, Bhikey Ali,
Hari Shankar Tiwari, Sultan, Raj Kumar
and others went to the residence of his
daughter at around 5:00 PM. On enquiring
about the whereabouts of his daughter, he
was told that she was missing and the
accused-appellants Ramkripal and Netrapal
were absconding. He suspected that these
people have killed his daughter and had
caused the disappearance of her dead body.
He believed that it was done due to the
demand for dowry and the second marriage
of Ram Kripal.

6. The Complainant had also filed one
written report Ext. Ka-2 dated 04.01.1982
earlier with the Superintendent of Police
Etah mentioning the dowry demand. He
had then stated that his daughter Asha
Kumari was married to Ram Kripal S/o
Netrapal, resident of Dhanakar, Police
Station Sidhpura, District Bulandshahr.
During the marriage, he had given
ornaments made of gold and silver, clothes
worth Rs. 2,000/- and other articles worth
Rs. 5,000/- to her daughter. But after her
marriage, her husband, mother-in-law and
father-in-law had been regularly demanding
for motorcycle from his daughter, which
was beyond his capacity. Asha Devi's
husband
and her
in-laws
had
been
harassing her and threatening to kill her.
Ram Kripal also threatened to kill his
daughter to perform a second marriage.

7. The written report Ext. Ka-3 was
entered in the Police station concerned at
rapat No. 11. (Ext.-Ka 4). Based on this
written report, case crime No. 134/82 was
registered. The investigation was entrusted
to S.I. Tota Ram (PW. 4). He recorded the
statements of the complainant and other
witnesses. He rushed to village Dhanakar.
He recorded the statement of the appellant
Vidya Devi. She told him that she along
with her son and husband had committed
the murder of Asha Devi. They had put her
dead body in a gunny bag and after tying it,
along with a piece of stone, threw it into a
nearby well. On the pointing of the
Appellant Vidya Devi, a gunny bag was
pulled out from the well. A dead body of a
female was recovered from this bag which
the Complainant identified as of his
daughter, Asha Devi.

8. The inquest report (Ext. Ka-7) was
prepared. After the preparation of relevant
documents, the dead body was sent for
post-mortem.
The
post-mortem
was
conducted and a report ( Ext. Ka-14) was
prepared by the Doctor. During the
investigation,
the
investigation
officer
executed
certain
relevant
documents,
collected the evidence and after the
conclusion of the investigation, a charge
sheet (Ext. Ka-13) came to be filed u/s
302/201 against the appellants Smt. Vidya
Devi, Netrapal and Ram Kripal along with
Deo Singh, Rakshpal and Rajpal under
Section 302/201 of IPC.

9. The learned trial court framed
charges against the appellant/accused Ram
Kripal, Netra Pal, Smt. Vidya Devi under
Section 302 I.P.C. read with Section 34
I.P.C. and charges under Section 201 I.P.C.
against the accused Netrapal, Ram Kripal,
Vidya Devi, Deo Singh, Rakshpal and
Rajpal. The accused did not plead guilty
and therefore they came to be tried by the
learned Trial Court for the aforesaid
offences.

10. To bring home the charge against
the accused, the prosecution examined
three witnesses of fact, namely, PW-1 Shiv
Raj Singh, (complainant), PW-2 Sukh Ram,
176 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-3 Udaivir Singh and two formal
witnesses namely, PW-4 S. I. Tota Ram
(Investigating officer) and PW-5 Dr. S. R.
Gupta, Medical Officer. (who conducted
the post-mortem)

11. After close of the prosecution
evidence, the statement under Section 313
Cr.P.C. of the accused-appellant Vidya Devi
was recorded, in which she had admitted that
the deceased was married to her son Ram
Kripal. She denied all the allegations made
against her. She stated that she had never
demanded any dowry from Asha Devi. She
had never beaten or harassed Asha Devi. The
Complainant was never asked to marry his
second daughter with her son Ram Kripal.
No "Panchayat" took place in their village.
She along with her husband and son did not
kill Asha Devi. They did not throw the dead
body of Asha Devi into the nearby well after
putting it inside a gunny bag. She did not give
any statement to the Investigating Officer and
the body of the deceased Asha Devi was not
recovered on her pointing out. The witnesses,
deposed falsely against her, being the
relatives of the complainant and due to
enmity.

12. No evidence in her defense was
produced by the appellant before the trial
court.

13. Hearing both the sides and after
appreciating
the
evidence,
facts
and
circumstances of the case, the Learned Trial
Court recorded conviction and passed the
sentence against the appellant as aforesaid.
Accused Deo Singh, Rakshpal and Rajpal
were acquitted by the trial Court.

14. Being aggrieved by the impugned
judgement and the order, the accusedappellant has preferred the present criminal
appeal.

15. We have heard Sri Pradeep Kumar
Mishra, learned Amicus Curiae for the
appellant and Sri Sunil Kumar Tripathi, Sri
Alok Kumar Tripathi, Sri Om Prakash and
Sri M. P. Singh Gaur, learned Additional
Government Advocates for the State and
perused the record placed before us. We
have also re-appreciated the entire evidence
on record.

16. On the basis of the evidence
available on record, it has to be determined
as to whether the accused-appellant had
committed the murder of Asha Devi and
with
the
intention
to
cause
the
disappearance of the evidence, threw away
her dead body into the nearby well.

17. Learned counsel for the appellant
vehemently argued that Vidya Devi, the
surviving appellant, has falsely been
implicated in the present case. Admittedly,
she is the mother-in-law of the deceased
Asha Devi. There is no direct evidence at
all thus, the case of the prosecution rests on
circumstantial evidence. There
is no
eyewitness account of the alleged incident
since
none
has
seen
the
appellant
committing the murder of Asha Devi. The
alleged statement of the appellant made
before the police is not admissible in the
eye of the law since the appellant Vidya
Devi had not been arrayed as an accused
and had not been taken into custody till the
time of making the alleged statement about
the fact that she along with other coaccused had thrown the dead body of the
deceased Asha Devi into the nearby well of
their house. Therefore, the information
relating to the discovery of the dead body
of the deceased Asha Devi cannot be
considered to be the information as
provided under Section 27 of the Evidence
Act. To make his submission good learned
counsel for the appellant vehemently
12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
177
argued that the information relating to the
discovery of the dead body is admissible
under Section 27 of the Evidence Act only
if the accused is in the custody of a police
officer while making such statement
leading to any recovery. In fact, the
appellant did not give any statement about
the manner of commission of the crime and
further the dead body of the deceased was
not recovered on her pointing out. It has
further been submitted that the mental
condition of deceased Asha Devi was not
sound and she had committed suicide on
account of her disease. It has also been
submitted that no proposal was ever made
before the complainant Shiv Raj Singh to
marry his second daughter with Ram
Kripal, the son of the appellant since he
was already married to the deceased Asha
Devi. It has further been submitted that the
deceased Asha Devi was never treated with
any kind of cruelty or harassment. No
motive has been assigned to the appellant
to commit the crime. The judgement passed
by the trial court is bad in law, and
therefore, the appeal is liable to be allowed.

18. Per contra learned Additional
Government Advocate argued that the
marriage of the deceased Asha Devi with
the son of the appellant is admitted. The
relations between deceased Asha Devi and
the appellant were not cordial. The
prosecution has proved the motive and
circumstances by cogent evidence which
resulted in the conviction of the appellant
by the learned trial court. To fulfill their
demand for dowry, the appellant along with
other co-accused used to harass the
deceased Asha Devi and made false
allegations against her that she was a lady
of unsound mind, she did not perform
household work, and she used to steal
bread. The appellants often used to beat her
and for no reason, dislodged her from their
house. To mount pressure upon the
complainant and Asha Devi, the present
appellant along with the other accused
Netrapal (since died) and Ram Kripal
(since died) asked the complainant to
perform the marriage of his second
daughter with Ram Kripal, their son, while
the accused Ram Kripal was already
married to the deceased Asha Devi. It has
further been submitted that the appellant
Vidya Devi along with the other co-accused
Netrapal and Ram Kripal killed Asha Devi,
put her dead body in a gunny bag and threw
it inside the well. It is also submitted that
during the investigation, the appellant
disclosed
the
true
facts
before
the
Investigating Officer and on her pointing
out, the dead body of the deceased Asha
Devi was recovered from the well which
was kept in a gunny bag with a piece of
stone. The dead body was identified by the
complainant to be of his daughter. The
learned trial Court after appreciating the
documentary as well as the oral evidence
available on record rightly convicted and
sentenced the appellant.

19. Making the above submissions,
learned A.G.A. prayed to dismiss the
appeal.

20. As per the prosecution story, Asha
Devi, daughter of the complainant was
married to Ram Kripal. Her husband and
in-laws used to blame her and harass her
for dowry. The complainant did not accept
the proposal to get his second daughter
married to Ram Kripal, so the husband and
in-laws of his daughter killed her on
23.08.1983 and caused the disappearance
of her dead body. After receiving the
written report filed by the complainant,
police reached the house of the appellant
along with him and other persons including
PW-2 Sukhram. During the interrogation
178 INDIAN LAW REPORTS ALLAHABAD SERIES
with the present appellant Vidya Devi, the
manner of commission of the crime was
narrated by her that on the preceding night,
Ram Kripal (her son) and Netrapal (her
husband) held the hands and feet of Asha
Devi and strangulated her to death and
thereafter, threw her dead body in the well
with the assistance of the other accused.
Upon her pointing out the dead body of
Asha Devi was recovered from the well.

21. In view of the aforementioned
facts, it is required to be noted that the case
of the prosecution rests on circumstantial
evidence. There is no direct evidence that
can
suggest
that
the
appellant
had
committed the murder of Asha Devi.

22. In Md. Younus Ali Tarafdar v.
State of West Bengal A.I.R. 2020
Supreme Court 1057: A.I.R. Online 2020
SC Page-238 the Hon'ble Supreme Court
laid out the factors to be considered while
adjudicating the case of circumstantial
evidence observed that:-

" There is no direct evidence
regarding the involvement of the Appellant
in the crime. The case of the prosecution is
on basis of circumstantial evidence. Factors
to be taken into account in adjudication of
cases of circumstantial evidence as laid
down by this Court are :

Admittedly, this is a case of
circumstantial evidence. Factors to be taken
into account in adjudication of cases of
circumstantial evidence laid down by this
Court are :-

(1) the circumstances from which
the conclusion of guilt is to be drawn
should
be
fully
established.
The
circumstances
concerned
"must"
or
"should" and not "may be" established.

(2) the facts so established should
be consistent only with the hypothesis of
the guilt of the accused, that is to say, they
should not be explainable on any other
hyopothesis except that the accused is
guilty;

(3) the circumstances should be
of a conclusive nature and tendency;

(4) they should exclude every
possible hypothesis except the one to be
proved; and

(5) there must be a chain of
evidence so complete as not be leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused."

23. In Pattu Rajan V. State of Tamil
Nadu (2019) 4 SCC 771, the Apex Court
observed the nature of evidence in the case
of circumstantial evidence and held that:-

"30. Before we undertake a
consideration of the evidence supporting
such circumstances, we would like to note
that the law relating to circumstantial
evidence is well settled. The Judge while
deciding matters resting on circumstantial
evidence should always tread cautiously so
as to not allow conjectures or suspicion,
however strong, to take the place of proof.
If
the
alleged
circumstances
are
conclusively proved before the Court by
leading cogent and reliable evidence, the
Court need look any further before
affirming
the
guilt
of
the
accused.
Moreover, human agency may be faulty in
expressing the picturisation of the actual
incident, but circumstances cannot fail or
be ignored. As aptly put in this oft-quoted
phrase:" Men may lie, but circumstances do
not".

31. As mentioned supra, the
circumstances
relied
upon
by
the
prosecution should be of a conclusive
12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
179
nature and they should be such as to
exclude every other hyopothesis except the
one to be proved by the prosecution
regarding the guilt of the accused. There
must be a chain of evidence proving the
circumstances so complete so as to not
leave
any
reasonable
ground
for
a
conclusion of innocence of the accused.
Although it is not necessary for this Court
to refer to decisions concerning this legal
proposition, we prefer to quote the
following observations made in Sharad
Birdhichand
Sarda
V.
State
of
Maharashtra, (1984) 4 SCC 116 (SCC p.
185 para 153-154) : (AIR 1984 SC 1622,
at p. 1655-56, paras 152-153):

"153. A close analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstances from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned "must or should" and not "may
be" established. There is not only a
grammatical but a legal distinction between
"may be proved" and "must be or should be
proved" as was held by this Court in
Shivaji Sahabrao Bobde V. State of
Maharashtra 1973 Cri L.J 1783 where the
following observations were made:

Certainly, it is a primary principle
that accused must be and not merely may
be guilty before a Court can convict and the
mental distance between "may be and
"must be" is long and divides vague
conjectures from sure conclusions."

(2) the facts so established should
be consistent only with the hypothesis of
the guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstances should be
of a conclusive nature and tendency.

(4) they should exclude every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

154. These five golden principles,
is we may say so, constitute the panchsheel
of the proof of a case based on
circumstantial evidence."

24. The Hon'ble Supreme Court
concerning
the
cases
based
on
circumstantial evidence in Ganpat Singh
Vs. State of Madhya Pradesh (2018) 2
Supreme Court Cases (Criminal) 159,
held that:-

"There are no eyewitnesses to the
crime.
In
a
case
which
rests
on
circumstantial evidence, the law postulates
a twofold requirement. First, every link in
the chain of circumstances necessary to
establish the guilt of the accused must be
established by the prosecution beyond
reasonable
doubt.
Second,
all
the
circumstances must be consistent only with
the guilt of the accused. The principle has
been consistently formulated thus:

"The normal principle in a case
based on circumstantial evidence is that the
circumstances from which an inference of
guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite
tendency unerringly pointing towards the
guilt of the accused; that the circumstances
taken cumulatively should form a chain so
complete that there is no escape from the
180 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusion
that
within
all
human
probability the crime was committed by the
accused and they should be incapable of
explanation on any hypothesis other than
that of the guilt of the accused and
inconsistent with his innocence."

25. PW1 Shiv Raj Singh is the
informant and father of the deceased Asha
Devi, who had stated in his evidence that
he performed the marriage of his daughter
with accused Ram Kripal and after "Gauna
Ceremony" his daughter started to live at
her in-laws' house. Accused Netra Pal,
father-in-law, Ram Kripal, her husband and
Vidya Devi, her mother-in-law began to
blame her that she was of unsound mind
and she used to steal bread. He organized
Panchayat and brought back his daughter
along with him. After some time the
accused Netrapal assured him that her
daughter Asha Devi would not be subjected
to any ill-treatment. With this belief, Asha
Devi was sent back with him. After some
time, the accused Netrapal and Vidya Devi
asked the informant to marry his second
daughter with their son Ram Kripal but he
did not concede. After 15 to 20 days, he
was informed that his daughter was
missing. He reached the house of his
daughter but she was not found there. The
accused persons were also not there. He
came to know that his daughter had been
killed by her in-laws. He submitted a report
to the police station concerned and also
accompanied the police to the village of the
accused-appellant Vidya Devi. Accused
Vidya Devi told that on the fateful night at
around midnight, she held Asha Devi's feet,
her husband Netrapal held the ears and her
son Ram Kripal strangulated Asha Devi to
death. To cause the disappearance of the
dead body, Ram Kripal and Netrapal called
Rakshpal, Ram Pal and Dev Singh. All
these people including Vidya Devi, the
appellant, put the dead body of Asha Devi
in a gunny bag and tied it with a rope of
plastic. Ram Kripal carried the gunny bag
over his head and threw it into the well near
Pursara. Netrapal carried a piece of stone
which was also kept inside the bag. The
accused Vidya Devi led the investigating
officer along with the informant and other
persons and pointed toward the well from
where the gunny bag was pulled out
containing a dead body of a female which
was identified by the complainant as of his
daughter. Recovery memo Ext Ka-1 was
prepared which bore his thumb impression.
This witness has also identified the rope of
the plastic and the piece of stone which was
found with the dead body. He also stated
that the accused were making the demand
for a motorcycle from his daughter. He has
also proved the written report as Ext. Ka 2.

26. PW2 Sukh Ram in his testimony
had stated that he was present in the village
along with Bhikari, Allaudin, Shiv Raj
Singh and others when Shiv Lal resident of
village Dhanakar came and informed that
Asha Devi was beaten up by her in-laws
and was dislodged from her house. On
20.08.1983 at around midnight, Asha Devi
was killed by her in-laws. He along with
Shiv Raj Singh and other persons reached
the house of Asha Devi and found her
missing. Accused Ram Kripal and Netrapal
were also not there. Accused Vidya Devi
was present there and she told that she
along with her husband Netrapal and son
Ram Kripal had committed the murder of
Asha Devi and had thrown her dead body
into a nearby well. PW2 is the witness of
the recovery of the dead body and also the
witness of the recovery memo.

27. PW 3 Udaivir Singh is the witness
of two facts. He is the witness of illtreatment by the accused of deceased Asha
12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
181
Devi and more importantly, he is the
witness of the incident that when he went
to ease himself at around 4:00 am, he saw
the accused Netrapal, Ram Kripal and
Vidya Devi and others heading towards the
drainage.
Accused
Ram
Kripal
was
carrying a gunny bag over his head.

28. PW 4- S. I., Tota Ram is the
Investigating Officer of this case, he has
executed all the relevant documents during
the course of the investigation which are
proved by him before the trial court. On the
basis of the statement made by the accused
Vidya Devi, he recovered the dead body of
the deceased Asha Devi from the place
pointed out by accused Vidya Devi and
prepared the recovery memo Ext. Ka-1. He
proved the statement of accused appellant
Vidya Devi as Ext. 5 after filing its copy at
the time of his deposition. He prepared the
site plan of the place of recovery of the
dead body Ext. Ka-6 and also the site plan
of the place of occurrence as Ext. Ka-12.
Apart from these, inquest report Ext. Ka-7,
Challan dead body Ext Ka-8, Photo of the
dead body Ext. Ka-9, Letter to R.I. and
C.M.O. Ext. Ka 10 and Ext. Ka-11
respectively, were also prepared. The dead
body was sent for post-mortem by him.
After recording the evidence of witnesses
and concluding the investigation, he filed
the charge sheet against the accused
persons being Ext. Ka-13. This witness had
proved the gunny bag, piece of stone, and
piece of rope as the material exhibits.

29. PW 5, Dr. R. S. Gupta has stated
that on 24.08.1983, he conducted the postmortem of the deceased Asha Devi and
prepared his report which is proved as Ex.
Ka14. He found the following injuries;-

"No superficial external injury
seen on her body but hematoma was
present in the neck muscles on both sides.
Corua of Hyoid bones and thyroid cartilage
was found fractured on both the sides.
Trachea
larynx
pharynx
are
grossly
congested. "

According to him, the death of
Asha Devi had taken place 3-5 days before
the date of post-mortem. In his opinion the
cause of death was asphyxia.

30. The present case of the
prosecution consisted on the following
circumstances:-

(i)
Motive
available
to
the
appellant

(ii) Causing the disappearance of
the evidence by the appellant.

(iii) Recovery of the dead body of
deceased Asha Devi on the pointing of
appellant Vidya Devi.

(iv)
Consistency
of
medical
evidence.

31. It requires to adjudicate as to
whether the circumstances form a complete
chain of events that would indicate that the
appellant Vidya Devi along with other coaccused committed the murder of deceased
Asha Devi and caused the disappearance of
her body.

(i) Motive available to the appellant

32. The motive behind the murder of
Asha Devi is stated by PW1 Shiv Raj Singh
in his testimony, that the appellant along
with her husband and her son used to
harass his daughter and blame her for being
of unsound mind and that she used to steal
bread. He organised a ''Panchayat' in the
village to resolve the dispute failing which
he brought back his daughter with him.
After some time, on receiving assurance
from the in-laws of his daughter that she
182 INDIAN LAW REPORTS ALLAHABAD SERIES
would not be subjected to harassment in the
future, he sent his daughter with her fatherin-law Netrapal. He also stated that the
appellant and her husband had asked him to
marry his second daughter with their son
Ram Kripal failing which they would not
keep Asha Devi with them. This demand
was turned down by him. The statement of
PW1 Shiv Raj Singh is corroborated by
PW3 Udaiveer Singh. The testimonies of
PW1 Shiv Raj Singh and PW3 Udaiveer
Singh with regard to strained relations
between the deceased Asha Devi and her
in-laws and regular harassment made by
the appellant are trustworthy and have no
material contradictions. Therefore, it is
established that the appellants were not
happy with the deceased Asha Devi and
they had wanted to re-marry their son.
Therefore, had the motive to eliminate
Asha Devi.

(ii) Causing the disappearance of
the evidence by the appellant

33. PW 3 Udaiveer had stated in his
evidence that at around 4:00 a.m., he went
to ease himself. He saw from a distance of
10 yards that the accused/ appellant
Netrapal, Ram Kripal and Vidya Devi
along with other persons were heading
towards the drainage. Ram Kripal was
holding a gunny bag over his head. In his
cross-examination, he stated that the
Investigating Officer recorded his statement
three days after the aforesaid incident.

34. The evidence of PW3 Udaiveer
forms an important chain of event which
indicates that in the early morning, at
around 4 am, after the fateful night, the
appellant Vidya Devi along with other
accused was seen by him when they were
heading towards the drainage and the son
of the appellant Ram Kripal was holding a
gunny bag over his head. The dead body of
the deceased Asha Devi was recovered
from the same well. Therefore, the
aforesaid evidence forms a chain of the
continuing process towards the recovery of
the dead body of the deceased Asha Devi. It
thus indicates that after committing the
murder of Asha Devi, the appellant Vidya
Devi and other co-accused threw the body
in a nearby well. All the appellants were
seen by PW3 Udaiveer Singh when they
were heading to cause the disappearance of
the dead body. Therefore, the evidence of
PW3 is important evidence under the
circumstances of this case.

(iii) Recovery of the dead body
of deceased Asha Devi on the pointing of
appellant Vidya Devi:-

35. PW-1 Shiv Raj Singh stated in his
evidence
that
after
receiving
the
information from Ravi Lal about the
missing whereabouts of his daughter the
accused Ram Kripal and Netrapal being
absconding, he submitted a written report
to the police station. He along with other
persons accompanied the police party and
reached village Dhanakar. Accused Vidya
Devi
was
present
there
and
on
interrogation, she disclosed that on the
night of the 20th at around midnight, she
along with her husband and her son had
committed the murder of Asha Devi. The
dead body of Asha Devi was kept in a
gunny bag which was carried by Ram
Kripal over his head and thrown into the
well. She also stated that she can get the
body recovered from the well. Based on
this statement, the informant, with other
persons, reached the site of the well and
found a gunny bag inside it which was
carried out and the dead body of his
daughter was recovered. Recovery memo
Ex. Ka1 was prepared which bore his
thumb impression. PW2 Sukhram Singh
12 All. Smt. Vidya Devi & Ors. Vs. State of U.P.
183
also corroborated the evidence of PW1
Shiv Raj as he had also accompanied Shiv
Raj Singh to Village Dhanakar and the dead
body was also recovered in his presence on
the pointing of the accused-appellant Vidya
Devi.

36. PW4 S.I. Tota Ram, the
Investigating
Officer
has
proved
the
recovery memo of the dead body of the
deceased Asha Devi. This witness has also
proved the recovery of the gunny bag, the
piece of stone and the piece of rope as
material exhibits.

37. It is also pertinent to narrate here
the inquest report (Ex Ka 7) which
discloses that the body of deceased Asha
Devi was recovered in the presence of the
informant and other witnesses by the
investigating officer on 23.08.1983. When
the investigating officer reached the site of
the well, he was shown by the villagers that
a gunny bag was floating on the surface of
the water. The bag was pulled out and it
was opened. A dead body of a female along
with a piece of stone was recovered. The
body had been tied with a plastic rope
which was identified by the informant as
that of his daughter Asha Devi. These facts
also corroborate the fact that the accusedappellant had caused the disappearance of
the evidence.

38. Learned Counsel for appellant
Shri Pradeep Kumar Mishra strongly urged
that the appellant Vidya Devi was not in the
custody of the Investigating Officer and
had not been arrayed as an accused,
therefore, the information relating to the
discovery of the dead body of the deceased
Asha Devi is not admissible under Section
27 of the Evidence Act. He further
submitted that the information leading to
the discovery is admissible only if the
person accused of an offence is in the
custody of a police officer and not
otherwise.

39. In Sangam Lal Vs. State of U.P.
2002 (44) ACC 288, the Hon'ble Division
Bench of this Court has observed that:-

"The question which requires
consideration here is what is the meaning
of the word "custody" and whether a person
can be said to be in custody only after he
has been formally arrested by the police
officer. The dictionary meaning of the word
"custody" is--the act or duty of carrying
and preserving; protection. In Guardian and
Wards Act, the word "custody" refers not
only to actual but also to constructive or
legal custody. In Maharani v. Emperor,1
this question was considered and it was
held as follows:

"the word ''custody' in Section 26
or 27, Evidence Act, does not mean ???
custody, but includes such state of affairs in
which the accused can be said to have
come into the hands of a police officer or
can be said to have been under some sort of
surveillance or restriction."

In Chotey v.State of U.P.2 the
Court after referring to the aforesaid
decision observed that there is distinction
between an accused being "under arrest"
and an accused being in "custody". In Re.
Rant Chandran, AIR 1960 Madras 191, it
was ruled that the interpretation of the
word "custody" in various decisions has
proceeded in so far as of suggest that
"police custody" in terms of Section 27
might
well
include
surveillance,
interrogation before arrest etc. Where a
person submits himself to the custody of a
police officer with the consciousness that
temporarily at least he is in such custody,
or
such
control,
whether
formally
authorised in some manner or otherwise.
184 INDIAN LAW REPORTS ALLAHABAD SERIES
This
question
has
been
considered
threadbare in the Constitution Bench
decision of the Apex Court in State of U.P.
v.Deoman Upadhaya,3 wherein para 12 of
the reports, it was held as under:

"(12) There is nothing in the
Evidence Act which precludes proof of
information given by a person not in
custody which relates to the facts thereby
discovered; it is by virtue of the ban
imposed by Section 162 of the Cr. P.C., that
a statement made to a police officer in the
course of the investigation of an offence
under Ch. 14 by a person not in police
custody at the time it was made even if it
leads to the discovery of a fact is not
provable against him at the trial for that
offence. But the distinction which it may be
remembered does not proceed on the same
lines as under the Evidence Act, arising in
the
matter
of
admissibility
of
such
statements made to the police officer in the
course of an investigation between persons
in custody and persons not in custody, has
little practical significance. When a person
not in custody approaches a police officer
investigating an offence and offers to give
information leading to the discovery of a
fact, having a bearing on the charge which
may be made against him he may
appropriately
be
deemed
to
have
surrendered himself to the police. Section
46 of the Code of Criminal Procedure does
not contemplate any formality before a
person can be said to be taken in custody,
submission to the custody by word or
action by a person is sufficient. A person
directly giving to a police officer by word of
mouth information which may be used as
evidence against him, may be deemed to
have submitted himself to the "custody" of
the police officer within the meaning of
Section
27
of
the
Indian
Evidence
Act:...................A
person
who
has
committed an offence, but who is not in
custody, normally would not without
surrendering himself to the police give
information voluntarily to a police officer
investigating the commission of that offence
leading to the discovery of material
evidence supporting a charge against him
for
the
commission
of
the
offence...................."

17. The law is, therefore, well
settled that in order to attract Section 27 of
the Evidence Act, it is not necessary that
the accused should have been under arrest
and it is enough if he has come into the
hands of a police officer or is under some
sort of surveillance or restriction. A person
giving information to the police officer may
be deemed to have submitted himself to the
custody of the police officer within the
meaning of Section 27 of the Evidence Act."

40.