# Sunita & Ors v. State of U.P

- **Citation:** (2022) 4 ILRA 92
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-04
- **Case number:** Criminal Appeal No. 5712 of 2008
- **Bench:** Manoj Kumar Gupta, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunita-ors-v-state-of-u-p-48369
- **Pages:** 15

## Headnote

Evidence Law - Indian Evidence Act, 1872-
Section 24- Extra-judicial confession made
by
the
accused
Sunita
before
near
relations was without undue influence,
coercion or pressure. It was voluntary, no
suggestion
was
made
in
the
crossexamination
that
such
extra-judicial
confession are tempted or non-voluntary.
Thus, the said extra-judicial confession is
reliable and admissible evidence being
trustworthy and accepted as a whole.
There is no enmity of Sunita against Raju
& Amit Chopra.

Where the extra- judicial confession made by
the accused is voluntary and without any undue
influence, inducement or coercion, the same can
be relied and accepted by the court.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Conduct- From the cogent &
trustworthy evidence, it is proved that
accused Sunita, wife of the deceased, who
was present in the room, at the time of
incident,
did
not
interfere
or
made
struggle with the other accused to save
the life of her husband. She had not made
any noise or even hue and cry/scream;
she was not only silent spectator of the
incident but also offered assistance in
commission of the crime. Thus, the
inaction shown by the accused Sunita
indicates that she has mala fides and
knew everything about murder of her
husband.

The conduct of the accused, who was the wife
of the deceased, at the time of commission of
the offence would be a relevant fact for being
considered by the court.

Evidence Law - Indian Evidence Act, 1872-
Section 106- Burden of proof where the
facts are especially in knowledge of the
accused- From the evidence, it is proved
that at the time of incident, accused
Sunita was in the room with her husband,
so Sunita is the best witness for the
murder of her husband. Section 106 of the
Evidence Act lays down that "when any
fact is established within the knowledge
of any person, the burden of proving that
fact is upon him." Thus, how the husband
of Sunita had been murdered is especially
within her knowledge that who has killed
him and she has not made any noise to
save the life of her husband. Accused
Sunita failed to discharge the burden of
proving these facts. This fact also goes
against Sunita and indicates that she
knows the actual assailant, which has
been disclosed by her in her extra-judicial
confession.

Settled law that the burden of proof lies upon
the person where the facts are especially in
knowledge of that person and failure to
discharge the said burden with a credible
explanation is bound to draw an adverse
inference against the accused. ( Para 43, 46,
48)

Criminal Appeal rejected. (E-3)

Judg

## Text

_Characters 0–39,827 of 50,392. This is a partial read: ask again with offset=39827 for what follows._

92 INDIAN LAW REPORTS ALLAHABAD SERIES

36. Therefore, sending of the entire
contraband for chemical examination will not
render the recovery of contraband and
chemical examination report of forensic
science
laboratory
Ex.Ka-11
as
inadmissibility.
From
analysis
and
appreciation of evidence led by prosecution,
it is proved beyond reasonable doubt that the
contraband recovered from the accusedappellant was found to be Charas and for
possessing of which he has no authorisation
letter.

37. So far as the argument of learned
counsel for accused-appellant regarding nonproduction
of
specimen
seal
of
the
contraband in the court is concerned, it is
proved beyond reasonable doubt that the
recovered contraband was sent to FSL for
chemical examination and it was opened after
comparing with specimen seal and was after
taking sample for chemical examination and
was resealed by FSL authorities and there is a
presumption that public authorities will
discharge their duties according to law. There
is no evidence on record which establishes
that the accused has complained to higher
authorities regarding illegal planting of the
contraband by PW-1 and PW-2.

38. In above circumstances, I find no
substance in the argument of learned counsel
for the accused-appellant that the law laid
down by High Court of Allahabad in
Mohammad Mustafa (supra) is applicable in
this case being distinguishable from the fact
and circumstances of this case. Therefore, it
is proved beyond reasonable doubt that the
accused-appellant has signed the consent
letter Ex.Ka-1 and deliberately omitted '0'
after "Mo", which is written in Hindi to
mislead the prosecution and the court as well.
From the evidence on record, it is established
that the contraband Charas 5 kg and 150 gm
was recovered from accused-appellant. It is
also proved beyond reasonable doubt that the
search was made without prior information as
surprise in secluded place grove in the late
evening, therefore, non-joinder of the such by
independent witness will not affect the
prosecution case. Point of determination (i) to
(iii) are decided accordingly. Therefore, it is
held that learned court below has rightly held
the accused-appellant guilty for offence
punishable under Section 20(b)(ii)(C) of
NDPS Act. The court has awarded the
minimum punishment that is rigourous
imprisonment for 10 years with a fine of
Rs.1,00,000/-, therefore, it cannot be said that
the sentence awarded by the learned court
below was severe. This appeal is liable to be
dismissed and, accordingly, the appeal is
dismissed. Consequently, the impugned
judgement of conviction and order of
sentence dated 29.4.2013 passed by court
below is hereby confirmed.
----------
(2022)04ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.04.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 5712 of 2008

Sunita & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Pankaj Kumar Tyagi, Sri Abhishek
Kumar Srivastava, Sri Ajay Singh, Sri Amar
Nath Mishra, Sri Indra Bhan Yadav, Sri R.S.
Kushwaha,
Smt.
Archana
Tyagi,
Ms.
Sushma Devi, Sri V.K. Rai, Sri V.K. Shukla,
Sri V.S. Shukla

Counsel for the Respondent:
4 All. Sunita & Ors. Vs. State of U.P.
93
A.G.A.

Evidence Law - Indian Evidence Act, 1872-
Section 24- Extra-judicial confession made
by
the
accused
Sunita
before
near
relations was without undue influence,
coercion or pressure. It was voluntary, no
suggestion
was
made
in
the
crossexamination
that
such
extra-judicial
confession are tempted or non-voluntary.
Thus, the said extra-judicial confession is
reliable and admissible evidence being
trustworthy and accepted as a whole.
There is no enmity of Sunita against Raju
& Amit Chopra.

Where the extra- judicial confession made by
the accused is voluntary and without any undue
influence, inducement or coercion, the same can
be relied and accepted by the court.

Evidence Law - Indian Evidence Act, 1872-
Section 8- Conduct- From the cogent &
trustworthy evidence, it is proved that
accused Sunita, wife of the deceased, who
was present in the room, at the time of
incident,
did
not
interfere
or
made
struggle with the other accused to save
the life of her husband. She had not made
any noise or even hue and cry/scream;
she was not only silent spectator of the
incident but also offered assistance in
commission of the crime. Thus, the
inaction shown by the accused Sunita
indicates that she has mala fides and
knew everything about murder of her
husband.

The conduct of the accused, who was the wife
of the deceased, at the time of commission of
the offence would be a relevant fact for being
considered by the court.

Evidence Law - Indian Evidence Act, 1872-
Section 106- Burden of proof where the
facts are especially in knowledge of the
accused- From the evidence, it is proved
that at the time of incident, accused
Sunita was in the room with her husband,
so Sunita is the best witness for the
murder of her husband. Section 106 of the
Evidence Act lays down that "when any
fact is established within the knowledge
of any person, the burden of proving that
fact is upon him." Thus, how the husband
of Sunita had been murdered is especially
within her knowledge that who has killed
him and she has not made any noise to
save the life of her husband. Accused
Sunita failed to discharge the burden of
proving these facts. This fact also goes
against Sunita and indicates that she
knows the actual assailant, which has
been disclosed by her in her extra-judicial
confession.

Settled law that the burden of proof lies upon
the person where the facts are especially in
knowledge of that person and failure to
discharge the said burden with a credible
explanation is bound to draw an adverse
inference against the accused. ( Para 43, 46,
48)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

1. St. of U.P Vs M.K. Anthony (1985) 1 SCC 505

2. Satish & ors Vs St. of Har. (2018) 2 SCC Cr.
652

3. St. of H.P Vs Raj Kumar (2018) SCC Cr. 452

4. Ishwari Lal Vs St. of Chattis. 2020 (1) SCC Cr.
13

5. Sahoo Vs St. of U.P., 1966 AIR 40, 1965 SCR
(3) 86

6. Pyara Singh Vs St. of Punj. (1978) 1 SCR
661

7. Palvinder Kaur Vs St. of Punj. AIR 1952 SC
354

8. Marvadi Kishore Paramanand Vs St. of Guj.
(1994) 4 SCC 549

9. Leela Ram Vs St. of Har. (1999) 9 SCC 525

(Delivered by Hon'ble Om Prakash
Tripathi, J.)
94 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Ms. Sushma Devi, learned
amicus curiae, counsel for appellant nos. 1
& 2, Sri Abhishek Kumar Srivastava,
learned counsel for appellant no. 3, Sri
A.N. Mulla, learned AGA for the State and
perused the record.

2. This criminal appeal has been
preferred against the judgment and order
dated
21.08.2008
passed
by
the
Special/Additional Sessions Judge, Court
No.4, Saharanpur in Sessions Trial No. 294
of 2004, arising out of Case Crime No. 206
of 2004 (State Vs. Sunita & others), Police
Station Kotwali Nagar, District Saharanpur
convicting and sentencing the appellants to
undergo life imprisonment under Section
302/34 of India Penal Code (for short
''IPC') with a fine of Rs.10,000/- each, in
default thereof, to undergo three months
additional imprisonment.

3. The prosecution case in brief is that
complainant, Om Prakash lodged the first
information report on 18.04.2004 at Police
Station Kotwali Nagar, District Saharanpur
with the allegation that on 18.04.2004, at
07:15 am, wife of Charan Jeet @ Babbu
told the informant that last night, at 11:30
pm, four persons who came from Delhi,
were very well known to her husband,
administered him intoxicating material, on
account of which, he became unconscious.
On the next morning, she found her
husband dead. She also said that two days
ago, two men had come to inquire about
her husband. On the basis of written report,
Ex.Ka.1, police registered FIR being Case
Crime No. 206 of 2004, under Section 302
IPC against four unknown persons. During
investigation,
Investigating
Officer
prepared site plan and recorded the
statements
of
the
witnesses.
After
completion of investigation, Investigating
Officer submitted a charge sheet, Ex.Ka.17,
in the Court of Chief Judicial Magistrate,
Saharanpur
under
Section
302
IPC.
Cognizance of offence was taken by the
Magistrate concerned. Thereafter, case was
committed to the Court of Sessions for
trial.

4. The case was transferred to the
Court
of
Special/Additional
Sessions
Judge, Court No.4, Saharanpur and charge
was framed against the appellants under
Section
302/34
IPC
on
09.08.2004.
Accused-appellants pleaded not guilty and
claimed to be tried.

5. In order to prove the charge framed
against the appellants, prosecution has
examined (PW-1) Om Prakash, (PW-2) Raj
Rani, (PW-3) Sudhir Pal, (PW-4) Raj
Singh, (PW-5) Dr. R.K. Agrawal, (PW-6)
Sandeep, (PW-7) Bina Devi, (PW-8)
Mukesh Rawal, (P.W.-9) Iqbalujama Khan.
Prosecution has proved written report
Ex.ka.1, Panchayatnama Ex.ka.2, letter loss
Ex.ka.3, Photo loss Ex.ka.4, letter CMO
Ex.ka.5, letter R.I. Ex.ka.6, recovery memo
table leg Ex.ka.7, recovery memo wrapper
of medicine Ex.ka.8, recovery memo by
which legs and hands of the deceased were
tied Ex.ka.9, blood stained and simple earth
Ex.ka.10, recovery memo of clothes of
deceased Ex.ka.11, recovery memo of
blood wiped clothes Ex.ka.12, Chick FIR
Ex.ka.13, GD Ex.ka.14, post-mortem report
Ex.ka.15, spot map Ex.ka.16, charge sheet
Ex.ka.17,
report
FSL
Ex.ka.18
as
documentary evidence.

6. P.W.1 complainant Om Prakash
stated that deceased was his cousin. On
18.04.2004, at about 07:00am, Sunita came
to his house and stated that on 17.04.2004,
at about 11:30 pm, four persons came from
Delhi and administered her husband
intoxicating material. Sunita went to
4 All. Sunita & Ors. Vs. State of U.P.
95
another
room.
They
all
assaulted
Charanjeet on his head by leg of table due
to which he has sustained injuries on his
head as a result of which he died.
Charanjeet has two children, who are
mentally disabled.

7. Charanjeet was doing job of
Conductor in Delhi. He had been living in
Delhi since six years. On the day of the
incident, he came along with his wife and
children from Delhi. Sunita is lady of bad
character. Six years ago, at the house of
Sunita at Sharanpur, Charanjeet caught
Sunita red handed with one person. Parents
of Sunita came, made apology, after
accepting the said apology, Charanjeet
pardoned his wife. At the house of
Charanjeet, Ashok Kumar, his wife Bina
and their children lived as tenant. Sunita
told the name of Amit Chopra, Raju and
Dinesh, who were neighbours at her
paternal home in Delhi. Sunita told that all
the four children, who born from the
wedlock of her and Charanjeet, were
handicapped. Two are alive and two died.
Sunita told that she had made illicit
relations with three accused, so that, the
coming generation would be hale and
hearty.

8. P.W.2 Rajrani has stated that the
deceased was his nephew. Her sister's name
was Prakash Rani, who died. Charanjeet @
Babbu was only son of her sister Prakash
Rani. Earlier, Charanjeet lived in Numaish
Camp at Saharanpur, after that, he lived at
his in-laws' house in Delhi along with his
wife and children and doing job of
conductor. Her sister Prakash Rani was
living with P.W.2 Rajrani and at the time of
incident also, her sister was with her in
Ludhiyana. Charajeet @ Babbu died about
two years and nine months ago. When she
knew about the murder of Charanjeet, then
she came along with her sister Praksh Rani
at Saharanpur from Ludhiana. On third day
of the incident, P.W.2 and her sister sat at
her room. All relatives have gone. Her
sister Prakash Rani was very sad and was
lamenting due to murder of his son. Sunita
fell
on
the
legs
of
Prakash
Rani,
apologizing that "she had developed illicit
relationship with Amit Chopra (friend of
his brother). Charanjeet began to suspect on
her and used to be angry with her and
forbades her to meet Amit Chopra. Due to
this, Sunita became annoyed, she and Amit
Chopra made a plan in Delhi to remove
Charanjeet from their way. Amit, Raju,
Dinesh came from Delhi, on 17.04.2004, at
about 09-10 pm and came at the house of
Charanjeet. She administered intoxicating
pills in the sikanji of Charanjeet and he
became unconscious. Thereafter Amit,
Raju, Dinesh and she killed Charanjeet
jointly." This statement was given by
Sunita before PW2 and her sister and also
stated that if she is not pardoned then she
will commit suicide with children.

09. P.W. 2 has stated in her crossexamination that she has problem of
hearing and vision. Her sister Prakash Rani
died one and a half year ago. She had been
living with her since three years. Om
Prakash is son of her sister-in-law (nand).
She has stated that Charanjeet died on 17th
April but she does not remember the year
of his death. She has stated that she has no
knowledge of her hearing and vision
problem. Charanjeet had been living in
Delhi since 3-31⁄2 years before the incident.
He comes to Saharanpur occasionally. She
got
the
information
of
murder
of
Charanjeet from Om Prakash by telephone.
Om Prakash told her that three persons
came from Delhi and murdered Charanjeet.
Sunita apologized on 20th April, 2004, at
that time, P.W.2 and her sister were present
96 INDIAN LAW REPORTS ALLAHABAD SERIES
there. Her sister was weeping. On the day
of the incident, she came from Ludhiana.

10. She stated that she came from
Ludhiana to Saharanpur at about 02:0002:30 pm on 18.04.2004. After the incident,
she went back to Ludhiana. Her sister
Prakash Rani sold his house. She heard that
at the house of Charanjeet, some persons
came at about 09-10 pm. Sunita had
apologized to her mother-in-law.

11. P.W.3 S.I. Sudhir Pal has stated
that on 18.04.2004, at about 10:00 am, he
has prepared inquest report, letter CMO,
letter R.I., photograph of dead body,
recovery memo of one wooden table,
wrapper of medicines. Recovery memo of
clothes by which legs and hands of the
deceased was tied with white patti on his
head, one pink dupatta by which his legs
were tied. Recovery of blood stained earth
& plain earth, blood stained clothes, green
trouser
of
the
deceased,
brown
undergarment etc. were sealed.

12. P.W.4 Constable Raj Singh
deposed that on 18.04.2004, he has written
chick FIR, Ex.Ka.13 and GD, Ex.Ka.14.
Witness has proved FIR and G.D.

13. The postmortem examination,
Ex.ka.15, was conducted on the dead body
of the deceased, Charan Jeet @ Babbu by
Dr. R.K. Agarwal on 18.04.2004 at 03:00
pm. The cause of death was shock and
haemorrhage as a result of ante-mortem
injuries at about half day before the time of
postmortem.
Post-mortem
report
was
proved as Ex.ka.15 by P.W.5.

14. P.W.6 Sandeep deposed that he
lives in the same locality where Charanjeet
@ Babbu died. Charanjit had gone to
Delhi. On 17/18.04.2004 at around 11:00
pm, he had forbidden three persons from
ringing the bell of his house, in front of
Police Inspector, he did not even recognize
the three persons. He also denied having
witnessed the culprits. He is hostile
witness.

15. P.W.7 Bina Devi deposed that
when the murder took place, she was the
tenant in that house and Sunita told about
the murder; the people who came on the
night of the incident did not saw them. On
questioning by the police, she has told that
three people had come, whom the landlord
had disclosed as her relatives, who had
come from Delhi. At 07:00 am, Sunita told
her that four men had killed her husband
and all made him unconscious. She also
denied having witnessed the culprits. She is
hostile witness.

16. P.W.8 Mukesh Rawal deposed that
Sunita is his sister, she was married to
Charanjit
Singh,
who
worked
as
a
conductor in a private bus in Delhi. Amit
Chopra lived in a rented house near the
house of the deceased and this witness.
Sunita has an illicit relationship with Amit
Chopra. This witness has forbade Amit
Chopra to meet Sunita. When he told the
deceased Charanjit about Sunita's illicit
relationship, he came to Saharanpur with
Sunita and his children.

17.

PW9
Investigating
Officer
Iqbalujama Khan along with SI Sudhir Pal
and other police personnel has visited the
spot
on
18.04.2004.
Wooden
table,
nitrogen, medicine cover and clothes to
which the head, legs and hands of deceased
Charanjit were tied, blood stained clothes
and other clothes were recovered and
prepared
recovery
memo.
During
investigation, he came to know that Sunita
is a woman of bad character. He tried to
4 All. Sunita & Ors. Vs. State of U.P.
97
take statement of the wife of the deceased,
but he was unsuccessful. On 19.04.2004,
statement of Witnesses, namely, Sandeep
Soni, Smt. Bina, Lal Bahadur, SI Sudir Pal
were recorded. On the same day, statements
of the deceased's mother and aunt (mausi)
were also recorded. With the help of Sunita
and Sandeep, accused Amit, Raju and
Dinesh were arrested from Saharanpur bus
stand and their statements were also
recorded. Charge sheet, Ex.ka.17, Report of
the Vidhi Vigyan Prayogshala, Ex.ka.18,
broken wooden table, Ex.ka.1, Dupatta,
Clothes etc., Ex.ka2, Ex.ka.13 were proved
by the witness.

18. Statement of accused under Section
313 Cr.P.C was recorded, accused Sunita has
denied her illicit relations with anyone and
also stated that her husband Charanjeet @
Babbu had come to Saharanpur for taking
rented money. She denied the incident dated
17.04.2004 and also denied having given any
intoxicating tablet to her husband. She has
stated that she had not told Om Prakash about
the incident. Lastly, she stated that the
prosecution witnesses are deposing falsely
only because of property dispute. Statement
of the accused Raju under Section 313
Cr.P.C. was recorded, he denied the incident
dated 17/18.04.2004 and he also denied the
illicit relations of Sunita with anyone.
Statement of the accused, Amit Chopra under
Section 313 Cr.P.C. was recorded. He has
denied having knowledge about Sunita and
her family and he also denied the illicit
relations with her and denied the incident
dated 17.04.2004. He has stated that
Investigation Officer has arrested him from
his house and he also stated that the
prosecution witnesses are totally false.

19. Accused had examined DW-1
(Aruna) in his defence. She stated that her
sister Sunita had no illicit relation with
accused and some unknown persons came
on 17/18.04.2004 and murdered Charanjeet
@ Babbu.

20. Learned counsel for the appellants
has submitted that they have been falsely
implicated in this case and has also
contended that the case is based on
circumstantial evidence. There is no eye
witness of the incident. There is no
evidence of illicit relationship of Sunita,
Amit Chopra and Raju. There is no motive
established by the prosecution for causing
this serious offence. Evidence given by the
witnesses are not reliable and accused are
innocent and liable to be acquitted.

21. These arguments were opposed by
learned AGA and submitted that accused
Sunita had given natural and unambiguous
extra-judicial
confession
before
near
relatives, which is trustworthy. Chain of
circumstantial evidence is complete and
case against the present appellants is
proved beyond reasonable doubt.

22. So far as the FIR of the case is
concerned, incident took place in the fateful
night on 17/18.04.2004. FIR was lodged by
Om Prakash, who is cousin of the deceased.
On 18.04.2004, at about 08:45 am, under
Section 302 IPC Crime No. 119 of 2004,
P.S. Kotwali Nagar, District Saharanpur.
The incident took place in the intervening
night of 17/18.04.2004 from 11:30 pm till
morning. The place of incident is 2km far
from the police station. It is alleged in the
FIR that at about 07:15 am, wife of the
deceased Sunita told him that at about
11:30 pm, four persons came from Delhi;
all were very well known to her husband;
they administered her intoxicating material.
Sunita found her husband Charanjeet @
Babbu dead in the morning. Murder had
been committed by those persons. This
98 INDIAN LAW REPORTS ALLAHABAD SERIES
written report was prepared by the
complainant Om Prakash and given to the
police station within two hours. He had not
mentioned the name of the assailants. He
had reported only on the basis of what was
told by Sunita (wife of deceased). Written
report was proved by PW1 as Ex.Ka.1 and
Chick FIR has been proved by PW4
(Constable Raj Singh), Ex.ka.13 and
Kayami GD Rapat No.17, Ex.ka.14, there
is nothing in the cross-examination of
PW4, which shows that FIR is ante-time. It
is apparent that FIR has been lodged
promptly without any consultation.

23.

The
main
question
for
determination is that what was the motive
for the incident by the accused, why they
killed the deceased Charanjeet @ Babboo.
P.W.1 has stated that Sunita and Charanjeet
had two children, both are mentally retarted
and physically handicapped. Charanjeet
was doing the job of conductor for the last
six years in Delhi. Charanjeet and Sunita
along with their children came in the
evening on the date of the incident. Sunita
is a woman of loose character. About 6-6 1⁄2
years ago, deceased caught Sunita in his
home with a male in an objectionable
condition. The members of parental side of
Sunita and her father came and tendered
apology. Charanjeet accepted the apology
and pardoned his wife. Ashok Kumar along
with his wife Bina and their children lived
as tenant in the house of the deceased.
Sandeep is neighbour. Sunita told the name
of Amit Chopra, Raju and Dinesh, who
were neighbours at her paternal home in
Delhi. Sunita told that all the four children,
who
born
from
her
wedlock
with
Charanjeet, were handicapped. Two are
alive and two had died. Sunita told that she
had developed illicit relations with three
accused, so that, the coming generation
would be hale and hearty. There is nothing
contrary in the cross-examination of the
witness PW1.

24. P.W.2 (Raj Rani) is the maternal
aunt, aged about 75 years, she also deposed
that deceased was the only son of her sister
Prakash Rani. Prakash Rani used to live
with her in Ludhiana. She was in Ludhiana
with her at the time of incident. Sunita
made extra-judicial confession before her
that "she had illicit relationship with Amit
Chopra. Charanjeet began to suspect her
and used to be angry and forbade her to
meet Amit Chopra. Because of this, she
made a plan in Delhi with Amit Chopra to
end Charanjeet. She mixed intoxicating
pills in juice (sikanji) and served to
Charanjeet. Thereafter, with the help of
Amit, Raju and Dinesh, all the four have
committed the murder of Charanjeet."
Nothing adverse came in the crossexamination of the witness.

25. PW.8 Mukesh Rawal, adopted
brother of the accused Sunita, had stated
that there was illicit relationship between
Amit Chopra and Sunita, then, he forbade
Amit
Chopra
from
meeting
Sunita.
Charanjeet also came to know this fact, so
he went to Saharanpur along with her wife
Sunita and children. Sunita was detained in
jail with her children. About four years ago,
Sunita met him in court and repented that
she had committed a mistake and she with
the help of Amit Chopra, Raju and Dinesh
killed Charanjeet, kindly help her. He has
not seen Raju and Dinesh ever. Amit
Chopra had also told the name of coaccused Raju and Dinesh.

26. Although this fact was denied by
the accused in statement under Section 313
Cr.P.C. but on the basis of corroborated and
credible evidence, it is proved that accused
Sunita and Amit Chopra had illicit
4 All. Sunita & Ors. Vs. State of U.P.
99
relationship. It is also proved that Sunita
gave birth to four disabled children from
the wedlock of Charanjeet. Two died and
two are alive. They are in jail with Sunita.

27. Prior to the incident, deceased
came to know that Sunita had illicit
relationship with Amit Chopra and Raju
due to this, they came from Delhi to
Saharanpur, where, the deceased was
brutally murdered. The motive for causing
murder was begetting of healthy offspring.
That's why, the accused Sunita, Amit
Chopra and Raju planned to get rid of from
deceased Charanjeet. Thus, the prosecution
had succeeded to establish the motive for
the present crime against Sunita, Amit
Chopra and Raju.

28. P.W.-5 Dr. R.K. Agrawal had
performed the post-mortem report of the
deceased on 18.04.2004, at about 03:00
pm. The report is as under :

29. Accused was about 33 years old,
healthy body, eyes and mouth were closed.
Rigormortis was present in both the hands
and legs after the death. Following injuries
were found on the body of the deceased :

(i) torn wound on right side of
head of size 5cm x 1cm x muscle deep.

(ii) torn wound at the centre of
the forehead of size 7cm x 1cm located
deep bone injury.

iii) torn wound on left of head
6cm x 1cm x muscle deep.

iv) torn wound on left of head
4cm x 1cm x muscle deep.

v) torn wound on left-back side of
head of size 10cm x 1.5cm x bone deep x
broken bone under the injury.

vi) torn wound on top of the head
size of 7cm x 1cm x muscle deep.

vii) torn wound on left of head of
size 8cm x 1cm x muscle deep.

viii) torn wound on top of the
head of size of 6cm x 1.5cm x bone deep
and broken bone of injury.

ix) torn wound on right side of
head of size 6cm x 1cm x muscle deep.

x) torn wound on right side of
head of size 2cm x 1⁄2 cm muscle deep.

xi) torn wound on right side of
head of size 4cm x 1cm x muscle deep.

30. The cause of death is due to antemortem injuries, excessive bleeding and
shock half day earlier caused by blunt
object as piece of wood.

31. Deceased had 11 injuries on the
head. The bones of the head had been
injured from many points and there was no
other injury except head. Injuries only on
the head, vital part of the body shows only
intention to kill Charanjeet.

32. The main question before us is
that whether accused Sunita, Amit
Chopra and Raju had killed Charanjeet
on 17/18.04.2004 in the night. This case
is based on extra-judicial confession
made
by
the
accused
Sunita
and
circumstantial evidence. She had made
extra-judicial confession before PW2 (
maternal aunt), aged about 75 years and
PW-1 Om Prakash, who is cousin of the
deceased and in presence of her motherin-law Prakash Rani, who died later on.
PW-8 Mukesh Rawal adopted son of his
father. On the point of extra-judicial
confession,
following
rulings
are
mentioned as under:

33. State of Uttar Pradesh Vs. M.K.
Anthony (1985) 1 SCC 505, it has been
held that :
100 INDIAN LAW REPORTS ALLAHABAD SERIES

"an extra-judicial confession was
made by the accused to his friend. The
court found that the statement was made by
the
accused
was
unambiguous
and
unmistakably conveyed that the accused
was perpetrator of the crime. Testimony of
friend was true, reliable and trustworthy.
Confession of accused on such extrajudicial confession was proper and no
corroboration
was
necessary
which
importance should not be given to minor
discrepancies
and
technical
error.
Generally, extra-judicial confession is
made before an unbiased person, not the
enemy of the accused and that person has
not such motive to speak false statement. It
should be voluntarily unambiguous and
clear. No fact has been concealed with
regard to the incident."

34. Satish and others vs. State of
Haryana (2018) 2 SCC Cr. 652, it has
been held that :

"Extra-judicial confession is a
week piece of evidence, normally by itself,
it can be corroborative only. It should be
proved like other evidence. It is not
necessary that witness should speak the
same about as told by the accused."

35. State of Himachal Pradesh vs.
Raj Kumar (2018) SCC Cr. 452, it has
been held that :

"circumstantial
evidence
of
prosecution establishing circumstances by
cogent
and
convincing
evidence.
Circumstances cumulatively taken, form
accompanied, general pointing out that
murder was committed by accused and
none else, burden under Section 106
Evidence Act not discharged by the
accused.
Accused
should
explain
incriminating circumstances against him."

36. Ishwari Lal vs. State of
Chattisgarh 2020 (1) SCC Cr. 13, it has
been held that :

"extra-judicial confession is a
weak piece of evidence but at the same
time, if the same is corroborated by other
evidence on record such confession can be
taken into consideration to prove the guilt
of the accused."

37. Sahoo vs. State of U.P., 1966
AIR 40, 1965 SCR (3) 86, it has been held
that :

"an extra-judicial confession may
be an expression of conflict of emotion, a
conscious effort to stifle the pricked
conscience; an argument to find excuse or
justification for his act; or a penitent or
remorseful act of exaggeration of his part
in the crime." Before evidence in this behalf
is accepted, it must be established by
cogent evidence what were the exact words
used by the accused. The Court proceeded
to state that even if so much was
established, prudence and justice demand
that such evidence cannot be made the sole
ground of conviction. It may be used only
as a corroborative piece of evidence. The
High Court did not interfere with the
conviction observing that the evidence of
extra-judicial confession is corroborated by
circumstantial evidence.

Pyara
Singh
Vs.
State
of
Punjab (1978) 1 SCR 661,

Apex Court observed that the law
does not require that evidence of an extrajudicial confession should in all cases be
corroborated. It thus appears that extrajudicial confession appears to have been
treated as a weak piece of evidence but
there is no rule of law nor rule of prudence
that it cannot be acted upon unless
corroborated. If the evidence about extra-
4 All. Sunita & Ors. Vs. State of U.P.
101
judicial confession comes from the mouth
of witness/witnesses who appear to be
unbiased, not even remotely inimical to the
accused, and in respect of whom nothing is
brought out which may tend to indicate that
he may have a motive for attributing an
untruthful statement to the accused; the
words spoken to by the witness are clear,
unambiguous and unmistakably convey that
the accused is the perpetrator of the crime
and nothing is omitted by the witness which
may
militate
against
it,
then
after
subjecting the evidence of the witness to a
rigorous
test
on
the
touchstone
of
credibility, if it passes the test, the extrajudicial confession can be accepted and
can be the basis of a conviction. In such a
situation to go in search of corroboration
itself tends to cast a shadow of doubt over
the evidence. If the evidence of extrajudicial confession is reliable, trustworthy
and beyond reproach the same can be
relied upon and a conviction can be
founded thereon.

Palvinder Kaur Vs. State of
Punjab AIR 1952 SC 354,

"if extra-judicial confession
was not acceptable in part, it has to be
rejected completely. It could be held to
be discredited for some purpose, and
yet accepted as evidence for other
purpose."

38. In the present case, extra-judicial
confession was made by accused Sunita,
first time on the day following the incident
i.e. 18.04.2004 at 07:00 am, before PW-1
complainant (cousin of the deceased) who
was
residing
nearby.
Extra-judicial
confession is as under :

"first of all intoxicating pills were
administered to Charanjeet, then she went
in another room, Sunita told that they
inflicted head injury to Charanjeet by leg of
the table and he died due to the injury
received."

39. In the cross-examination, no
question has been asked about the said
extra-judicial
confession,
but
it
was
suggested that it is wrong to say that Sunita
accused had not stated such fact. FIR was
lodged against four unknown persons but it
will not affect the prosecution case.

40. PW.-2 Raj Rani was 75 years old
and in relation she is aunt (mausi). Sunita
made extra-judicial confession before her
after third day from the incident as under:

"Her sister Prakash Rani was
very sad and was weeping due to death of
his son. Sunita fell on the legs of Prakash
Rani and apologizing that she had
developed illicit relationship with Amit
Chopra (friend of his brother). Charanjeet
began to suspect on her and angry with her
and forbades her to meet with Amit
Chopra. Due to this, she became annoyed,
she and Amit Chopra made a plan in Delhi
to remove Charanjeet from their way. Amit,
Raju, Dinesh came from Delhi, on
17.04.2004, at about 09-10 pm and came at
the house of Charanjeet. She administered
intoxicating
pills
in
the
sikanji
of
Charanjeet, thereafter Amit, Raju, Dinesh
and she killed Charanjeet jointly."

This statement was given by
Sunita before PW2 and her sister and also
stated that if she had not pardoned her then
she will suicide with children.

41. Mother of the deceased Prakash
Rani died later on. P.W. 2 Raj Rani is about
75 years old. She is impartial and has no
enmity with the accused, she has no motive
to give a false statement. P.W. 1 has also no
motive to give false statement. The said
statement of the accused is clear and
102 INDIAN LAW REPORTS ALLAHABAD SERIES
unambiguous and unmistakably conveyed
that accused Sunita and other appellants are
the
only
perpetrator
of
the
crime.
Testimony of aunt PW2 and cousin PW1 is
true, reliable and trustworthy. Both the
witnesses PW1 and PW2 corroborated the
extra-judicial confession made by Sunita.
The extra-judicial confession was made by
Sunita before PW1 on the first day of the
incident and third day of the incident before
PW2.

42. Such extra-judicial confession was
also made before the Investigating Officer by
Sunita which was also heard by Raj Rani and
Prakash Rani. This will not affect the
prosecution case as extra-judicial confession
made by Sunita was given before PW2 and
later on before police which was also heard
by the PW2. Such extra-judicial confession is
also made by the accused Sunita before PW8
Mukesh Rawal, who is adopted son of
Indrasen. He is brother of the accused Sunita.
This witness was neither charge-sheeted nor
permitted by court to be examined and he has
stated that when he went to meet Sunita in
jail/Court three and a half years ago and she
had made above confession is not relevant
because it is not clear that when the extrajudicial confession has been made before
PW8 and why he has not disclosed this fact to
the Investigating Officer.

43. Thus, it is evident that above extrajudicial confession made by the accused
Sunita before near relations was without
undue influence, coercion or pressure. It was
voluntary, no suggestion was made in the
cross-examination that such extra-judicial
confession are tempted or non-voluntary.
Thus, the said extra-judicial confession is
reliable and admissible evidence being
trustworthy and accepted as a whole. There is
no enmity of Sunita against Raju & Amit
Chopra.

44. Spot map of the case has been
proved, Ex.Ka.16, which is not challenged by
the defence. This shows that on the point A
dead body of Charanjeet was lying near
double bed and sofa and this shows that it was
the living room of Sunita. It is also admitted
fact that one tenant Sandeep (PW-6) was also
residing in the same house. This shows that the
deceased, Sunita, Amit Chopra and Raju were
present in the same room where the dead body
of the deceased was lying and no other living
room is shown in the spot map or suggested by
the defence that Sunita was sleeping in another
adjoining room. After the incident, Sunita had
not made any hue and cry or scream for
protection of her husband. She was silent
throughout the night. PW-6, neighbour of the
same premises has also stated that Sunita had
not told about the murder of Charanjeet in the
intervening night of 17/18.04.2004. She had
also not told about the incident to the tenant
Bina Devi PW.7. Accused Sunita told about
the incident to P.W.1 Om Prakash at 07:15 am
and in the meantime, she was silent about the
incident.

45. It is true that every person has
distinct reactions during/after incident.
Some make interference in the incident,
some become silent spectator and some flee
from the spot to save her life. On the point
of reaction, following rulings are necessary
to be mentioned here:

Marvadi Kishore Paramanand
Vs. State of Gujarat (1994) 4 SCC 549,

"Different
persons
react
differently in different situations and
circumstances. No hard and fast rule of
universal application with regard to the
reaction
of
a
person
in
a
given
circumstance can be laid down. Most often
when a person happens to see or come
across a gruesome and cruel act being
4 All. Sunita & Ors. Vs. State of U.P.
103
perpetrated within his sight then there is a
possibility that he may lose his equilibrium
and balance of mind and therefore he may
remain as a silent spectator till he is able to
reconcile himself and then react in his own
way. There may be a person who may react
by shouting for help while others may even
choose to quietly slip away from the place
of occurrence giving an impression as if
they have seen nothing with a view to avoid
their involvement, in any way, with the
occurrence. Yet, there may be persons who
may
be
so
daring,
hazardous
and
chivalrous
enough
to
come
forward
unhesitantly and jump in the fray at the
peril of their own life with a zeal to scare
away the assailants and save the victim
from further assailants."

Leela Ram Vs. State of Haryana
(1999) 9 SCC 525,

"Reaction of eye witness, different
witnesses react differently. There cannot be
any set pattern of or a rule of human
reaction on the basis of non-confirmity
where with a piece of evidence may be
discarded."

46. From the cogent & trustworthy
evidence, it is proved that accused Sunita,
wife of the deceased, who was present in
the room, at the time of incident, did not
interfere or made struggle with the other
accused to save the life of her husband. She
had not made any noise or even hue and
cry/scream; she was not only silent
spectator of the incident but also offered
assistance in commission of the crime.
Thus, the inaction shown by the accused
Sunita indicates that she has mala fides and
knew everything about murder of her
husband.

47. Ex.ka.8, is recovery memo of
wrapper of medicine nitrogen 10mg from
the
place
of
occurrence.
It
was
administered in juice (sikanji) to the
deceased by Sunita, due to which, he
became unconscious. This was necessary
for the accused, because in conscious
position, they were not in a position to kill
the deceased silently. How the empty
wrapper of the said medicine was found
from the place of occurrence is not
explained by the accused in the statement
under Section 313 Cr.P.C. No suggestion
was made in cross-examination that this
wrapper was planted. Due to this, deceased
was not in position to defend himself,
unable to make any hue & cry. It is the case
of prosecution that injury on the head of the
deceased was inflicted through leg of the
table. Recovery memo of wooden table was
proved as Ex.ka.7. The wooden leg of the
table was recovered from the spot. From
the evidence, it is apparent that the wooden
leg of the table has not been sent for
chemical examination to FSL and on the
leg of the table, presence of blood is not
proved.
This
will
not
damage
the
prosecution case. Sunita herself stated that
Charanjeet was inflicted injury on his head
with the leg of the table. There was no
injury on the body of the accused Sunita,
this shows that she had not made any
intervention to save the life of her husband,
who was murdered by the accused.

48. From the evidence, it is proved
that at the time of incident, accused Sunita
was in the room with her husband, so
Sunita is the best witness for the murder of
her husband.