Manoj vs State Of U.P.
2012 Latest Caselaw 5191 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                      Reserved 
 

 
                  CRIMINAL APPEAL No. 4043 of 2002
 
                        ( under Section 374(2) Cr.P.C.)
 

 
Manoj son of Ram Swaroop resident of village Shivpur Mandir Colony, Police Station T.P. Nagar, District Meerut.
 
                                                                                  ...Appellant
 
                                  versus
 
State of U.P.                                                           ...Respondent

Counsel for the appellant:    Sri Prashant Kumar Singh,Advocate
 

 
Counsel for the respondent: Ms. Usha Kiran, AGA                  
 

 
HON. RAKESH TIWARI, J
 
HON. ANIL KUMAR SHARMA, J
 

 
                     ( Delivered by Hon'ble Rakesh Tiwari, J.)
 

 
	     Heard Sri Prashant Kumar Singh, learned counsel for the appellant, Ms. Usha Kiran, learned AGA for the State and perused the record. 
 

 

The appeal challenges the validity and correctness of the impugned judgment and order dated 20.9.2002 passed by the Additional Sessions Judge, Court No. 14, Meerut in S.T. No. 519 of 2000, State versus Manoj convicting and sentencing the appellant under Section 302 IPC to undergo life imprisonment and fine of Rs.5,000/- and in default to pay fine to further undergo six months' imprisonment. All the sentences were ordered to run concurrently.

The prosecution story in nutshell is that a written report on the dictation of Munish Johnson son of Sri E.W. Johnson was penned down. It was submitted on 18.1.2000 by the first informant/complainant Colvin Singh son of Sri Arthar Singh resident of 29 Ektapuram, Meerut to the SHO police station Civil Lines, Meerut interalia that his daughter Doris was married to Manoj son of Sri Ram Swaroop resident of Ektapuram, Meerut about 9 years back. She was being harassed by her husband, who was not providing her house-hold expenses and threatened many a times to drive her from the house. It was also averred that on 18.1.2000 he was informed that his daughter Doris has been found dead hanging from the ceiling fan in the house of Manoj. When he reached there he came to know that Manoj had killed her and then hanged her body from the ceiling fan.

Chik report was made at 14.50 P.M. and case crime no. 25 of 2000, under Section 302 IPC. on 18.1.2000 against Manoj was registered. The investigation of the crime was taken over by SSI Sri Prahlad Singh. The I.O. inspected the spot on the same day i.e. 18.1.2000 and prepared the inquest as well as the recovery memo of 'Dupatta' 'Bidi' and 'Blade' was made in presence of the witnesses.

The post mortem examination on the cadaver of deceased Smt. Doris was conducted on 19.1.2000 at about 3.00 P.M. On examination her age was determined to be about 30 years, who had died about a day and half earlier. Her tongue protruded out with Lips, nails echymosised and eyes congested.

The post mortem report showed position of the body and injuries on it.

1.One incised wound over the front part of the right wrist measuring 1.5 cm. x .3 cm. x skin deep. Stained with clotted blood.

2.Both lungs congested and distended.

3.Liver, spleen, brain, pancreas also congested.

4.Hyoid bone fractured with echymosis in surrounding tissues.

5.Spine and spinal chord normal.

6.Tongue protruded out & echymosis Lips, Nails echymosised with congestion of eyes.

Post mortem injuries.

1. One ligature mark around the upper part of the neck

2.5 cm. in width and 31 cm. in length with interjection at

left side of the neck 2.5 cm. below the left ear.

No echymosis present below the ligature mark.

In the opinion of the Doctor the death has occurred due to asphyxia as a result of strangulation.

After investigation the chargesheet was submitted against the accused- appellant, the case was then committed to the Court of Session where charge under Section 302 IPC was framed against the accused-appellant, who pleaded not guilty and claimed to be tried.

The prosecution examined 11 witnesses to prove its case, out of these Colvin Singh, P.W.1, Nitisa, P.W.2, Ahuti, P.W.3, Smt. Manajri, P.W.5 and Mohini, P.W.9 were witnesses of fact. Orisan Michel, P.W.4 was witness of inquest. Dr. M.C. Agarwal, P.W.6 had conducted the post mortem of the deceased and submitted report. Constable Vinod Kumar, P.W.7, SI Sri Subhash Chaudhary, P.W.8, Head Constable Narendra Singh, P.W. 10 and I.O. Sri Prahlad Singh, P.W.11 were the formal witnesses in the case.

Accused Manoj in his statement under Section 313 Cr.P.C. denied the charge and stated that he had been falsely implicated in the case due to enmity. The accused-appellant Manoj also examined himself as D.W.1 in his defence.

Out of 11 witnesses produced by the prosecution P.W.2 Nitisa, P.W.3, Ahuti and P.W.9 Mohini are child witnesses.

P.W.2 is the niece of the deceased, aged about 8 years who lived with her 'Nani' (maternal grand mother) in the same colony. She stated that Doris was her 'Mausi'. On 18.1.2000 in the morning she was playing in front of her 'Mausi's house she was told by her 'Mausa' that an injection had been given to her 'Mausi' and she should not be disturbed. Thereafter, he locked the front gate. Her elder sister had come after some time to ask Doris for food . As the main gate was locked she went inside by jumping over the boundary wall and found Doris hanging dead from the ceiling fan in her room.

In her cross-examination she stated that there are about 40 houses in the colony between the house of her 'Mausi' and the house of the maternal grand mother; that she normally visited her 'Mausi' every day and also recognizes Manoj her 'Mausa' the accused present in the Court. Relevant extract of her statement reads thus:-

^^Mksfj'k esjh ekSlh yxrh Fkh efguk tuojh dk Fkk Mksfj'k ds vkt ls ejs fdrus fnu gks x;s irk ughaA eSa le; ugha crk ldrh eSA lqcg ds le; [ksy jgh Fkh [ksyrs le; eq>s eukst ekSlk th feys FksA csVk vUnj er tkuk rsjs ekSlh ds bUtDlu yxk;kA eS ukuh ds ikl jgrh gwWaA edku feyk ugha gS FkksMh lh nwjh gSA ckn esa esjh cM+h cgu eksfguh vk;h ekSlk th us bUtD'ku yxkus dh ckr dgdj ckgj ls rkyk yxk fn;k Fkk rFkk pkHkh vUnj Qsad nh Fkh esjh cgu vk;h rks xSyjh esa nks Bksi [kqu dh iM+h Fkh esjh cgu vUnj x;h esjh cgu nhokj ls dwn dj vUnj pyh x;h Fkh xsV FkksMk lk [kqyk gqvk Fkk mlus xsV esa ls ns[kk Fkk fd ekSlh yVdh gqbZ gSA fQj eq>s irk py x;k Fkk fd ekSlh dh e`R;q gks pqdh gSA

esjh ukuh os ekSlh ds chp esa djhc 20 edku gSA fdlel dh NqV~Vh esa 3&4 fnu igys ukuh ds ;gka vk;s FksA ekSlh ds ikl [ksyus vk tkrs FksA

eukst gkftj vnkyr gSA eSa bUgsa igpkurh gwWa ;g esjs ekSlk th gSaA

esjs lkFk vkSj rhu cPps [ksy jgs Fks tks esjh cjkcj ds FksA tc rd eSa [ksyh rc rd cPps [ksysA eksguh esjs ckn vk;h FkhA eksguh eq>s ukuh ds ?kj feyh FkhA tc eSa ukuh ds ?kj igqWap x;h Fkh rd eksguh ukuh ds ?kj vk;h Fkh eSa eksguh ds lkFk dgha ugha x;h esjh eksguh ls dksbZ ckr ugha gqbZA eSaus vius ekSlk th dh ckr ?kj ij fdlh ls ugha crk;hA iqfyl okyks us esjs laca/k esa c;ku fy;k FkkA tks ckr eSus njksxk th dks crk;h Fkh eSa ugha crk ldrh fd ?kVuk ds fdrus fnu ckn eSa ;g ckr njksxk th dks crk;h FkhA njksxk th ls igys bl ?kVuk dh ckr eSaus fdlh dks ugha crk;h FkhA ;g dguk xyr gS fd eSa iqfyl ds dgus ij >wBh xokgh ns jgh gwWaA ;g dguk xyr gS fd bl ?kVuk ds ckjs esa esjs lkeus dksbZ ckr dskbZ ckr uk vk;h gSA vkSj ukuk o iqfyl ds dgus ij >wBh xokgh ns jgh gwWaA

Statement of P.W.3, Ahuti, the second child was recorded on 16.1.2000. She stated that she lives with her 'Nani' in the colony; that on 18.1.2000 her mother was killed. She had gone on 18.1.2000 to her mother as usual. She used to meet her mother daily at about 8.30 A.M before going to school. and had taken tea with her on the fateful day but her father had neither taken tea nor had talked to her properly on that date. After she had gone to school where she was informed by Nitisa that her mother had died and she came back with her to the house. Regarding strained relations with her mother and accused Manoj she stated that their relationship was not good and they used to fight as her father did not give expenses to her on time and that her father used to tell her mother that he will first remove her from his way and then remarry another woman. About two years earlier,her father had taken her mother to the roof and had pushed her down. In that incident her mother had received injuries on her head.

In her cross-examination she was given a suggestion that she is daughter of Ashok with whom her mother had married prior to her marriage with Manoj. The suggestion was denied by her saying that she has neither heard that Sri Ashok was her father nor had seen him. Rather she knows Manoj as her father and recognized him as such. She also stated in her cross-examination that she lives with her maternal grand mother and mother and that in the school where she studies name of Manoj has been written as her father. She also denied the suggestion that her mother Doris was not the wife of Manoj her father. Relevant extract of her testimony reads thus:-

"vkgqfr [email protected] Jh eukst mez 12 o"kZ fo|kFkhZ d{kk 6 dh Nk= fu0 29 ,drkiqje esjB us vkt fnukad 16-1-2001 dks l'kiFk c;ku fd;k fd a

eSa dle dk eryc le>rh gwWaA dle [kkdj lgha cksyk tkrk gSA eSa fxurh tkurh gwWaA fxurh lquh lgh crkbZ x;hA xokg us fxudj crk;k fd lIrkg esa 7 fnu gksrs gSaA lky esa 12 eghus gksrs gSa 18-1-2000 dks esjh ekSlh dh gR;k gqbZ Fkh 8 eSa 8 [email protected] cts viuh eEeh ds ikl xbZ Fkh eSa viuh ekeh o ukuh ds ikl jgrh FkhA eSa Ldwy tkus ls igys jkst lqcg dks eEeh ls feydj tkrh FkhA ftl fnu dh ;g ?kVuk gS ml fnu Hkh eSa lqcg 8 [email protected] cts ds yxHkx eSA eEeh ls feyus xbZ Fkh eSaus eEeh ds ikl pk; ih FkhA ikik u ml fnu pk; Hkh ugha ih vkSj esjs ls Bhd ls ugha cksysA eukst esjs ikik gSaA mlds ckn eSa Ldwy pyh xbZ FkhA eq>s Ldwy fufrFkk cqykdj ykbZ FkhA fufrFkk us dgk Fkk fd rqEgkjh eEeh dh MsFk gks xbZ gS rqe ?kj pyksA eSa ?kj vk x;h Fkh esjs ikik dk O;ogkj esjh eEeh ls vPNk ugha FkkA os esjs ikik eukst eEeh ls >xMk fd;k djrs FksA Vkbe ij [kpkZ Hkh ugha nsrs FksA ftl fnu eEeh ejh ml fnu Hkh ?kj esa dqN ugha A ?kVuk ds nks lky igys ikik us eEeh dks /kDdk nsdj Nr ls uhps fxjk fn;k Fkk eEeh ds lj esa pksV yxh FkhA ikik esjh eEeh dks ;g dgk djrs Fks fd rqEgs eSa vius jkLrs ls gVk nwWaxk vkSj nwljh 'kknh dj ywWaxkA

eSaus ;g ugha lquk gS fd v'kksd esjs ikik Fks vkSj u gh eSaus mUgs ns[kk gSA

eSaus viuh eEeh ds lkFk eukst dks gh ns[kk gS blfy;s eSa dgrh gwWa fd eukst gh esjs ikik gSA eSa 10 lky ls eukst dks vius ikik ds :i esa ns[k jgh gwWaA eukst o esjh eEeh lkdsr es jgk djrs FksA

eSa vius ukuk ukuh ds ;gka lkdsr es jgrh Fkh eukst mlh eksgYys lkdsr esa eEeh ds lkFk jgrk FkkA eSa cpiu ls gh vius ukuk o ekeh ds lkFk jgrh gwWaA eq>s ukuk&ukuh us gh ikyk gSA Ldwy esa esjs firk dk uke eukst fy[kk gqvk gSA lar Fkkel baxfy'k ehfM;e esa tc eSa i<+rh Fkh eSa cgqr NksVh Fkh vkSj tc gkoMZ IykLVsV esa i<+rh Fkh rc ejs firk th dk uke eukst gh fy[kk gqvk mijksDr gkoZM Ldwy esa eSa ,d lky ls i<+ jgh gwWaA blls igys lsaV Fkkel esa i<+rh FkhA

eq>s irk ugha fd lsaV Fkkel Ldwy esa esjs firk dk uke v'kksd fy[kk gqvk gS ;k ughaA

;g dguk xyr gS fd eukst dh uk tkudkjh esa firk dk uke eukst fy[kk;k gksA gkoZM Ldwy esa tc ls eSaus gks'k laHkkyk gS eq>s ;gh ekywe gS fd eukst dh gh iq=h gwWaA

esjk bl ?kVuk ds ckjs esa njksxk th us c;ku fy;k FkkA njksxk th dks c;ku nsus ls igys bl ?kVuk ds ckjs esa esjh fdlh vkSj ls ckrphr ugha gqbZ FkhA

;g dguk xyr gS fd esjh eEeh eukst dh ifRu uk gksaA

;g dguk xyr gS fd eukst }kjk eEeh ds lkFk >xMk djus o mudks de [kpZ nsus o eEeh dks Nr ls fxjkus dh ckr eSa xyr dg jgh gWwA ;g Hkh dguk xyr gS fd c;ku tks vkt eSaus U;k;ky; esa fn;k gS og Hkh xyr gSA

esjs ikl bl ckr dk dksbZ dkxth lcwr ugha gS ftlls eukst )kjk >xMk djuk] pksV igqWapkuk o de [kpZ nsuk fd ckr fy[kh gksA

;g Hkh dguk xyr gS fd eukst ikik us jkLrs ls gVkus vkSj nwljh 'kknh djus dh ckr u dgh gksA

;g Hkh dguk xyr gS fd eSa iqfyl ds ncko esa U;k;ky; esa eukst dks vkjksfir djus dk c;ku o 'ks"k >wBk c;ku ns jgh gwWaA"

The third child witness P.W. 9, Mohini, daughter of Sri Ramesh aged about 13 years stated that the name of her 'Mausi' was Doris and that on 18.1.2000 she had gone to her house in the morning to prepare tea for her as she was ill. Doris had taken the tea prepared by her but it was not taken by her 'Mausa' accused Manoj as he was very angry. She had remained with them up to about 10 to 10.30 A.M. and thereafter had returned to her 'Nani's house. When she returned to her 'Mausi's house at about 12.30 to give her food, she found the main gate locked from out side, therefore, she jumped over the small boundary wall and went in where she saw that door of room was partly closed and curtain was hanging. When she had opened the curtain she saw the dead body of Doris hanging from the ceiling fan. On this she immediately ran back and told this to her 'Bua' & other members in the house. In her cross-examination she has stated that she had come to live with her 'Nani' during Christmas vacations. P.W. 4 to P.W. 10 except P.W.5 are formal witnesses.

Smt. Manajri, P.W. 5 is the sister of deceased Doris. She in her testimony stated that relations of accused Manoj with her sister deceased Doris were strained and they used to quarrel; that accused Manoj used to beat, torture and harass her. She also stated that accused Manoj had pushed Doris from the roof about two years before this incident, in which she had received injuries on head and other parts of her body on falling down to the ground. She further stated that Manoj the accused came to her house on the day of incident and told that he was fed-up with his wife ; that he would kill her. She along with her husband used to visit their house. Since Doris was not keeping well therefore, she had told Manoj to get Doris checked up and treated by doctors. In the evening of 21.1.2000 a telephone call was received from police station that Manoj wanted to talk to her and her husband then she went to police station on 22.1.2000. Manoj confessed to her that he had killed Doris by mistake and requested to save him.

P.W.4, Orisan Michel is the witness of inquest who testified that he recognizes Doris the deceased who lived in the same locality; that inquest was made in his presence and he had signed on it as a witness.

Dr. M.C. Agarwal, P.W.6 had conducted the post mortem examination of deceased Doris. This witness proved the injuries found in the external and internal examination on the cadaver of the deceased. He opined that the ligature mark injury on the neck shows that the deceased was hanged after strangulating and evidence of some resistances were also found on her body and that her death was possible between 9.00 to 10.00 A.M. on 18.1.2000.

P.W.7 registered a criminal case in the police station against the accused and that he has prepared the inquest report as well as that of 'Dupatta' 'half burnt bidi' and a 'blade' recovered from the place of occurrence. P. W. 10, Head constable Narendra Kumar was carrier of the dead body who stated that he had taken the dead body of Doris for post mortem examination and had handed it over to the Doctor with seals intact. P.W.11 Sri Prahlad Singh is the Investigating Officer, who in his testimony stated that the deceased was found hanging from the ceiling fan by a 'Dupatta'. He had taken photographs of the dead body from various angles and proved the photographs as Ex.Ka-13 to Ex.Ka-23 on record. He also stated that the inquest report was prepared under his supervision and he had sent the dead body along with documents etc. for post mortem examination and that the charge sheet against the accused was submitted by him.

Accused Manoj also entered the witness box as D.W.1 and examined himself on 5.9.2002 stating that he was not present in the house on 18.1.2000 i.e. the day of incident and that deceased Doris was not his wife but a maid who was working for last about one and half years in his house who had been given a duplicate key for ingress and egress in the house for work. In his cross-examination he stated that Doris was a woman of easy virtue and was having illicit relations with many a persons whose name he does not know.

Counsel for the appellant has assailed the findings recorded by the trial Court on the ground that the conviction and sentencing of the appellant is against the weight of evidence on record and is bad in law. The findings are also challenged on the ground that they have no basis having been given on surmises and conjectures and in any case, the sentence passed against the appellant is too severe. It is argued that the FIR is ante-timed and there is no motive at all for the accused-appellant to have done-away with Doris, who was only a maid engaged for doing chores in the house.

He has further argued that the prosecution has failed to establish that the deceased was wife of the appellant and submits that the prosecution witnesses have made improvements in their statements before the trial Court from the statements given by them under Section 161 Cr.P.C. , therefore, all the prosecution witnesses of fact are unreliable.

It is then argued that there are material contradictions in the statements of P.W.1, P.W.2, P.W.3, P.W.5 and P.W.9 and that the appellant has discharged his onus under Section 166 of the Evidence Act by proving that he was not present at the time of incident having gone out for work before the sun-rise.

Per contra, Ms. Usha Kiran, learned AGA, submits that the Doctor has opined that the incident could have taken place between 9.00 and 10.00 A.M. and there could be a variation of 2 hours on either side. She has drawn attention of the Court to the statement of P.W.9, Mohini, who in her testimony stated that she was with Doris till about 10.30 A.M. Therefore, the occurrence could have taken place immediately after she left and between 12.30 P.M. when her body was discovered .

According to learned AGA, the FIR was lodged promptly and a reading of the FIR as well as statement of P.W.1 Colvin Singh would show that Doris was married to accused Manoj about 9-10 years back. The evidence is also on record to the effect that prior to her marriage with accused she had married to Ashok; that her marriage with the accused is testified by the evidence of P.W.5 Smt. Manjri who stated that Manoj was her brother-in-law. P.W.2 and P.W.9 used to address the accused as 'Mausa' and Doris as 'Mausi' and the accused never objected to this relationship. P.W.3, Ahuti also says that accused Manoj is her father and Doris her mother. Even in the school records the name of accused Manoj is recorded as father of Ahuti.

After hearing the counsel for the parties and from perusal of records it appears to be undisputed fact that Doris was found dead hanging by 'Duptta' from the ceiling fan in the room of Manoj, the accused in his house. According to the post mortem report collar-bone of the deceased was fractured and blood had oozed out from the broken muscle around it. The tongue was sticking out from the mouth which were clear symptoms of asphyxia. It is clear from the post mortem report that there was an injury on the wrist of the deceased. The time of death according to the Doctor could be 2-4 hours on either side of the estimated time of death between 9.00 to 10.00 A.M.

It is not in dispute that the feets of the deceased were resting on the ground, therefore, death could not have been caused either by hanging by some one as ligature mark on her neck proved that she had been hanged after being done away with by strangulation. The Trial Court on consideration of all the facts and circumstances of the case came to a conclusion that the prosecution had succeeded in bringing home the guilt to the accused in committing of the murder of Doris.

Considering the facts and circumstances of the case and on perusal of record we find that the incident has taken place on 18.1.2000. Sri Colvin Singh father of Doris on receipt of information had promptly lodged the FIR after going to the house of Doris and verifying that she died. He is witness to quarrels amongst accused Manoj and deceased Doris. Three child witnesses of fact have been examined by the prosecution before the trial Court after satisfying itself to their understanding relied upon their evidence to hold accused Manoj as guilty of offence punishable under Section 302 IPC. P.W.2 has specifically stated that while she was playing out side the house of her 'Mausa' he had asked her not to go inside the house to disturb her 'Mausi' as she had been given an injection. He had locked the main gate from outside and had then went away. P.W.3 Ahuti in her cross-examination has stated that she used to meet her mother every day before going to school and on the fateful day also as usual she had gone at about 8.30 A.M. and had taken tea with her and had noted that her father Manoj was not in good mood at that time. He had neither taken tea nor had talked to her properly. The testimony of all the three witnesses aforesaid is consistent. They have also come out with the fact that accused Manoj and deceased were having troubled relationship and he had pushed Doris from the roof about two years back due to which Doris had received injuries on her head.

It is apparent from the reading of evidence that:-

1.Doris had married accused Manoj and they were living as husband and wife for the last about 9-10 years;

2.Their relationship had deteriorated and the witnesses have stated that many a times Manoj used to say that he would remove her from his way and remarry another woman;

3.The conduct of accused Manoj was not good, it was offensive and violent;

4.Prior to the fateful incident, Manoj about 2 years before had pushed Doris from the roof in which she had received head injuries on falling down to the ground;

5.Name of Manoj is registered as father of Ahuti in the School Register;

6.He suspected his wife of having illicit relationship with other persons and had tried to pass her off as maid working in the house but only for the first time in his statement he had denied the relationship;

7.His behaviour was tense on the day of incident i.e. 18.1.2000 and he was angry; and

8.He was the last person seen with the deceased Doris and had confided to Manjari that he had committed a mistake by doing away with Doris.

From the facts narrated above it is clear that accused Manoj had decided to do away with Doris. He had in a planned manner firstly strangulated her and then had hung her with 'Dupatta' from the ceiling fan which is evident from post mortem injury of ligature mark found on her neck.

Thus, it is conclusively proved by the circumstantial evidence that he was the person and no other person who had strangulated Doris to death. This conclusion is also supported by the fact that he was with her and last man seen going out of the house by P.W.2 Nitisa and P.W.3,. Ahuti, who were playing in front of the house. He had locked the door and had asked Nitisha not to enter the house as Doris has been given an injection. His statement that he had gone before sun-rise for work, therefore, does not inspire confidence as his presence in the house is proved from the evidence on record. up to about 10.30 A.M.

For all the reasons stated above, the chain of circumstantial evidence against Manoj the accused is complete to prove his guilt beyond all reasonable doubt. The trial Court has rightly found him guilty for the offence under Section 302 IPC. We, therefore, up-hold the order of conviction and the sentence passed by the trial Court. As a result of the conclusions arrived at by us the appeal is dismissed.

Let a certified copy of this judgment be sent to the concerned Court for its compliance forthwith which should be reported to this Court within a period of one month.

Dated 17.10.2012

CPP/-