SUNITA versus STATE OF HARYANA

Citation: [2019] 10 S.C.R. 779 · Decided: 30-07-2019 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUNITA
v.
STATE OF HARYANA
(Criminal Appeal No. 546 of 2010)
JULY 30, 2019
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Penal Code, 1860 – s.302 – Murder – Prosecution case was
that one dead body was found burning on ‘Bitora’ (conical storage
of cow dung cakes) – Post-mortem of the remains of body was
conducted – It was found to be a dead body of a female – DNA test
was conducted – The bones and tissues of the dead body matched
with DNA profile of PW-3 and his wife – It was body of ‘S’, daughter
of PW-3 – FIR was lodged – As per prosecution, deceased and the
appellant were familiar with each other and both had gone to a
village together – Further, PW-4 had seen appellant with the
deceased and her two children on 03.01.2004 going towards a
village and when he was returning back he saw appellant on a
Scooty with a gunny bag on it footrest – PW-5 also deposed that he
saw the deceased along with her two minor children in the house of
the appellant at about 5 pm on 03.01.2004 – Appellant was convicted
for murder – The appeal against the said judgment was dismissed
by the High Court – On appeal, held: High Court required appellant
u/s. 106 of the Evidence Act to explain the circumstances under
which the body parts of the deceased came to be recovered from the
burning ‘Bitora’ – The finding of the High Court was erroneous
inasmuch as ‘Bitora’ was not in possession of the appellant much
less exclusive and it was located in an open field of another person
– Further, such explanation would be necessary, if the prosecution
had discharged the initial onus on it – Therefore, the appellant was
not required to explain the circumstances of body parts being found
in ‘Bitora’ – Further, PW-4, 5 were inimical towards the appellant
inasmuch as she had filed a suit for claiming a estate, a right which
was denied by the said witnesses – Thus, their statements cannot be
relied upon readily in absence of corroboration – The other evidence
of the prosecution was of extra-judicial confession made to PW-12,
which is again untenable – There was no blood mark on the Scooty
   [2019] 10 S.C.R. 779
779
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SUPREME COURT REPORTS
[2019] 10 S.C.R.
recovered – Therefore, the only evidence against appellant was of
last seen by PW-4 and 5 and such evidence does not complete the
chain of circumstances so as to maintain conviction of the appellant
for an offence u/s. 302 IPC – Thus, the appellant acquitted of the
charges levelled against her – Evidence Act, 1872 – s.106.
Allowing the appeal, the Court
HELD : 1. The prosecution story is that the deceased and
the appellant planned to visit a village together to wish the birth
of nephew of the deceased sometime back.  On way, they stopped
at another Village.  The deceased had no occasion to be in that
Village unless she accompanies appellant who is cousin of her
husband. Therefore, the needle of suspicion is on the appellant.
[Para 13] [787-E-F]
2. According to (PW-3), height of deceased ‘S’ was 5’
whereas as per (PW-4), the lady with the appellant at the bus
stop was 5’7".  There is a margin of approximation in the height
of the deceased stated by (PW-3) and (PW-4), but such discrepancy
is a factor to test the veracity of the statement of (PW-4). (PW-4)
deposed that he had seen the appellant with a gunny bag placed
on the footrest of a Scooty driven by the appellant.  The carrying
of a weight of a dead body on a Scooty is not believable.  Still
further, (PW-4) has left his father, after his father started living
with appellant and started staying with his grandfather (PW-5).
There is a civil suit (Ex. D-5) filed by the appellant to claim estate
of father of PW-4. Therefore, such statement has to be taken
with pinch of salt as it is by a person, who is inimical to the accused.
The statement of (PW-5) is only to the fact that he had seen the
dead body recovered from ‘Bitora’ (conical storage of cow dung
cakes).  Though, he deposed that he had seen the deceased on
January 3, 2004 in the house of appellant but again this is a
statement of a witness who is at loggerhead with the appellant.
Therefore, such statement cannot be relied upon readily in the
absence of any corroboration.  Therefore, the only evidence
against the appellant is of last seen by (PW-4) at 2 pm and that of
(PW-5) at 5 pm and later in the night, appellant with a gunny bag
on her Scooty by PW-4 at 2 am.  Such evidence does not complete
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the chain of circumstances so as to maintain conviction o

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