Ram Kumar Singh vs The State Of U.P.
2015 Latest Caselaw 567 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgment
 

 
Case :- CRIMINAL APPEAL No. - 1184 of 2005
 
Appellant :- Ram Kumar Singh
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Arun Kumar Singh Chauhan, Amrendra Kumar, Maneesh Kumar Singh, S. P. Pandey, Sonia Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore, J.

Hon'ble Anant Kumar, J.

(Per Surendra Vikram Singh Rathore, J.)

1.Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material available on record.

2.The instant criminal appeal has been preferred by the appellant-Ram Kumar Singh challenging the judgment and order dated 12.08.2005 passed by learned Sessions Judge, Rae Bareli in Sessions Trial No.62 of 2003, relating to Case Crime No.98 of 2002, under Sections 498-A, 302 IPC, Police Station Deeh, District Rae Bareli, whereby the appellant Ram Kumar Singh and one Anita Singh were convicted for the offence under Section 302 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs.5000/- each with default stipulation of one year additional imprisonment. For the offence under Section 498-A IPC both the accused persons were sentenced to undergo rigorous imprisonment for a period of two years each and also with fine of Rs.500/- with default stipulation of three months' additional imprisonment.

3.Convict Anita Singh had filed a separate criminal appeal bearing No.1140 of 2005 but during pendency of the said appeal Anita Singh expired, hence her appeal was abated vide order dated 12.05.2015.

4.According to the prosecution case, the complainant Virendra Bahadur Singh had solemnized marriage of his sister Vijay Laxmi alias Pinki (deceased) aged about 24 years in the year 1992 with the appellant Ram Kumar Singh. After the marriage, the behaviour of Ram Kumar Singh and Smt. Anita Singh was very bad with the deceased and they used to beat her and treat her with cruelty and also used to threaten her with dire consequences. On 16.06.2002 the appellant Ram Kumar Singh had gone to the parental house of the deceased to attend a marriage ceremony. Even in her parental village the appellant had beaten her and threatened her with dire consequences. Reason for said behaviour was that the deceased was issue less. On 05.07.2002 in the morning at about 7.30 a.m. the younger brother of the appellant viz Shiv Ram gave an information on telephone to the complainant that Vijay Laxmi has died because she had consumed poison. On this information the complainant went to the matrimonial home of the deceased and found the dead body of his sister lying in verandah in the house of the appellant. Thereafter the complainant lodged an FIR at the police station Deeh which was registered at 15:50 hours. The distance from the police station to the place of occurrence was 7 kilometers.

5.After registration of the case the investigation started. The inquest proceedings were conducted and thereafter the dead body was sent for post mortem. During investigation the appellant Ram Kumar Singh made an extra judicial confession of this offence before Vansh Bahadur, PW-6 and Gaya Prasad. Initially, this case was registered under Section 306 IPC and was investigated by Shiv Sharan Singh S.I. but after perusal of post mortem it was converted under Section 302 IPC and investigation was handed over to PW-5, C.O. Pratap Narayan and ultimately the charge-sheet was filed by PW-8 Shiv Narayan Upadhyaya. The post mortem of the deceased was conducted on 06.07.2002 at 4.00 p.m. and duration in the said post mortem report was reported to be one and half day.

6.According to the post mortem report following injuries were found on the body of the deceased:-

(a) Contusion 6.5 cm. x 4.0 cm. on left occipital region of skull 12 cm away from right ear.

(b) Contusion 32 cm x 40 cm in front of chest extending between both the shoulders.

(c) Contusion 25 cm x 10 cm on the right arm and forearm.

(d) Contusion 14.5 cm x 6 cm on the left arm and outer side multiple contusion on the face involving both eyes and both ..... at places.

(e) Contusion on the lip.

(f) Contusion 2.5 cm x 7.5 cm on right knee.

In the opinion of the doctor the cause of death was asphyxia as a result of suffocation. This post mortem was conducted by a team of two doctors. The other doctor also agreed with the findings reported in the post mortem report.

7.After completing the investigation, the charge-sheet was filed against both the accused persons.

8.The case of the defence was that the deceased had gone to attend the call of nature in the night towards jungle. Hearing her cries some villagers and the appellant Ram Kumar Singh went there and they found that some unknown person was sitting on her chest and causing injuries to her due to which she died while she was being brought back to her house.

9.In order to prove its case, the prosecution has examined PW-1, the complainant of this case, PW-2 Dr. N.M. Mathur, who has conducted the post mortem of the deceased, PW-3 Kusuma Devi, PW-4 Ram Kumari, these two witnesses have been examined as witnesses to the incident which took place in the parental village of the deceased few days prior to the incident where she was beaten and threatened by the appellant. PW-5 is Second Investigating Officer, C.O. Pratap Narayan Trivedi, PW-6 Vansh Bahadur Singh before whom the appellant has made his extra judicial confession, PW-7 Investigating Officer of this case who has converted this case under Section 302 IPC, PW-8 Shiv Narayan Upadhyaya, Sub Inspector, who after completing the investigation has filed charge-sheet in this case.

10.On behalf of the appellant, two defence witnesses namely DW-1 Raghuraj Singh, the father of the appellant and DW-2 Shiv Karan Singh have been examined. DW-1 Raghuraj Singh has proved certain letters which were written by the deceased or by the father of the deceased. PW-2 Shiv Karan Singh has been examined to support the defence theory of the appellant.

11.After appreciating the evidence on record, the trial court convicted the appellant as above. Hence the instant appeal.

12.Submission of the learned counsel for the appellant was that in this case the defence story was wholly reliable. The extra judicial confession, proved by the PW-6, was not the least reliable. In his initial statement recorded under Section 161 Cr.P.C. he has not made any such statement before the Investigating Officer which makes extra judicial confession unreliable. It has further been submitted that the trial court in its judgment has nowhere observed that any burden was on the appellant in view of Section 106 of the Indian Evidence Act to explain the circumstances under which the deceased died, as the death is alleged to have been caused in the residential house of the appellant. In the alternative, it has been argued that the offence would not travel beyond an offence under section 304 part I IPC as the case of the prosecution is that by pressing a pillow on the mouth of the deceased the death was caused. It has further been submitted that by use of a pillow the nature of injuries which were found on the body of the deceased, could not have been caused because pillow is made of soft substance and contusions can be caused only by blow of hard and blunt object.

13.Learned Additional Government Advocate has submitted that in the impugned judgment the trial court has not specifically mentioned Section 106 of the Indian Evidence Act but has observed that the appellant has failed to explain the circumstances. Thus rule of evidence which is laid down in Section 106 was within the mind of the Judge and therefore, simply because Section 106 of the Indian Evidence Act has not been mentioned it would not be of any help to the appellant. The deceased had died inside the house of the appellant. The defence taken by the appellant was absolutely false and the trial court has given cogent reasons to hold that the defence version was false. He has further submitted that letters filed in defence on behalf of the appellant pertains to the year 1998-99 while the incident of this case has taken place in the month of July, 2002. Therefore, the time gap is so huge that the said letters cannot be made a ground to hold that the relations between the appellant and the deceased were very cordial and she was not being treated with cruelty. He has further submitted that the finding which have been noted in the post mortem report clearly indicates that the intention of the appellant was to cause the death of the deceased and therefore the offence would fall within the purview of Section 302 IPC.

14.The first point to be considered is the delay in the FIR. According to the prosecution story, the incident of this case is alleged to have taken place on 04.07.2002 at 22:30 hours while the FIR of this case was lodged on 05.07.2002 at 15:50 hours by the complainant, who admittedly is a resident of different village. He got the information in the morning at 7.30 a.m. on telephone through the brother of the appellant thereafter he came to the village of the appellant and found his sister dead. Then he went to lodge the FIR. So the delay in this case stands well explained. Though there are some contradictory statement of the witnesses regarding the time at which the FIR was registered but the FIR was lodged only on the basis of information furnished by Shiv Kumar, brother of the appellant. So it would not adversely affect the case of prosecution. On the contrary, the defence has come with a definite case that the deceased was done to death by some other person while she had gone to attend the call of nature, therefore, it was the duty of the appellant himself to lodge the FIR but no such FIR has been lodged on behalf of the appellant.

15.A prompt FIR lends credence to the prosecution case but even if the FIR has been lodged with delay even then it would not be a ground to discard the entire prosecution case on this score alone. In the instant case, as stated above, the delay stands well explained. Therefore, mere delay in lodging the FIR, would not adversely affect the prosecution case.

16.On this point the Hon'ble Apex Court has considered the effect of delay in the F.I.R. and has held in the case of Kanhaiya Lal and Others Vs. State of Rajasthan reported in 2013 (5) SCC 655 in para 12 as under:-

12. It is settled in law that mere delay in lodging the First Information Report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered, by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory. In this regard, we may refer with profit a passage from State of H.P. v. Gian Chand reported in [JT 2001 (5) SC 169], wherein a three-Judge Bench of this Court has expressed thus: - "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

13.In Ramdas and others v. State of Maharashtra reported in [2007 (2) SCC 170, this Court has observed that mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court has to consider whether the delay in lodging the report adversely affects the case of the prosecution.

17.12. The prosecution intends to prove the guilt of the appellants on the basis of the circumstantial evidence. Admittedly in this case there is no direct eyewitness account of the case.

13. Before considering the material placed by the prosecution to prove its case, we consider it necessary to analyze the legal position as laid down by the Hon'ble Apex Court on the standard of proof required for recording a conviction on the basis of circumstantial evidence.

14. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, Hon'ble the Apex Court has elaborately considered the standard of proof required for recording conviction on the basis of circumstantial evidence and has laid down the golden principles of standard of proof in such cases and has held in paragraph nos. 153 and 154 as under:-

"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;

(I) 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 Bobade & Anr. v. State of Maharashtra (1973) 2 SCC 793 where the following observations were made:

"19. ... Certainly, it is a primary principle that the 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."

(emphasis in original)

(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, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.

18.In a recent judgment in the case of Prakash Vs. State of Rajasthan reported in (2013) 4 SCC 668 Hon'ble the Apex Court has followed the aforementioned golden principles.

"15. In this case the prosecution has proposed to prove the guilt of the accused persons on the basis of following circumstances:-

(i) The appellants were employees of Hotel and were present in the hotel in the night duty;

(ii) They went away from the hotel without giving any information of such incident;

(iii) On the pointing out of one of the accused, the lock and key with which the channel gate of the Hotel was locked, were recovered from a drain;

(iv) There is also evidence of last seen of the appellants with the company of deceased at about 10.30 p.m. while they were viewing T.V.;

(v) There is also circumstance that prior to this incident, some quarrel took place between the two on the question of tip received from the guest.;

(vi) The cause of death was strangulation and several injuries were found on the body of the deceased;

(vii) Card board recovered from the room of the appellants which is Mat Ex-1 in which reason for leaving the Hotel was mentioned."

19.In the instant case circumstances which the prosecution intends to prove against the appellant were as under :

(a) The death of the deceased inside the house of the appellant.

(b) False defence offered by the appellant.

(c) Extra judicial confession made by the appellant before Vansh Bahadur Singh.

(d) The conduct of the appellant in not giving information of the death of the deceased to the police at the earliest and lastly

(e) the findings of the post mortem report which shows that the death was homicidal.

20.Submission of the learned counsel for the appellant was that according to the defence story the deceased died in jungle and not inside the house and the extra judicial confession was not reliable as it is a weak type of evidence. Said witness has not given any such statement in his statement recorded by the police during investigation. Perusal of the site plan prepared by the Investigating Officer shows that the death was caused inside the room in the house of the appellant and the FIR also shows that when the complainant reached there then the dead body was present at the house of the appellant in the verandah of his house. In his statement under Section 313 Cr.P.C. the appellant has given his explanation which reads as under:-

**?kVuk ds le; e`rdk 'kkSp ds fy, taxy dh rjQ x;h Fkh dqN nsj ckn ogkW ls fpYykus ds vkokts vk;h rks eS xkWo esa vU; yksxksa ds lkFk vkokt dh fn'kk es x;k rks ns[kk fd ,d vkneh e`rdk ds Åij cSBk gqvk Fkk rFkk mls ekj jgk Fkk tks ge yksxksa dks ns[kdj Hkkx x;kA ekSds ij e`rdk yxHkx ej pqdh FkhA mls ysdj ge yksx ?kj yk jgs Fks rks og ej pqdh Fkh cksy ugh ik jgh FkhA bldh lwpuk geus Fkkuk iqfyl dks fn;k FkkA**

21.Thus the perusal of the aforesaid defence of the appellant shows that he was present in his house at the relevant time and he himself had seen the said occurrence wherein he has alleged that only one person was sitting on the chest of the deceased and he has not stated that two persons were involved in the said incident. While DW-2 who also went to the said place in the jungle, as told by the appellant in his defence alongwith appellant, has stated that one person had closed the mouth of the deceased and the other person was beating her. Thus this defence witness has not stated that any person was sitting on the chest of the deceased and he gives evidence that two persons were involved in the said incident. Therefore, the version of the incident as narrated by the appellant himself stands contradicted by the evidence of his own defence witness wherein he has stated that only one person was sitting on the chest of the deceased and seeing them he ran away. Apart from it, though the appellant has stated that he has given the information of such incident to the police but there is no documentary evidence of such information. No question was put to the Head Moharrir who has prepared the chik report and G.D. of this case, regarding any information given by the police at the police station wherein a different version of the said incident was given by the appellant. Thus virtually the appellant has come with a false defence and no effort was made by him to lodge the FIR of this case. It is pertinent to mention here that Shiv Kumar who happens to be the real younger brother of the appellant gave an information to the complainant on phone on the next day in the morning that the deceased has died as she consumed poison. Thus a false information was given from the close family members of the appellant regarding the cause of death of the deceased which gives rise to the inference that by the time the information was given by the appellant, the story as narrated by the appellant in his defence under Section 313 Cr.P.C. was not in the minds of the appellant or any member of his family. This fact also falsifies the defence story. Learned trial court has also rightly disbelieved the defence story.

22.Next submission of the learned counsel for the appellant is that in the judgment the learned trial court has not mentioned section 106 of the Indian Evidence Act and has not specifically mentioned that any liability is on the appellant to explain the circumstances under which the deceased died. But perusal of the impugned judgment shows that at several places in the judgment the trial court has observed that it was the duty of the appellant to explain the circumstances under which the deceased died. It is true that specifically section 106 of the Indian Evidence Act was not mentioned but it does not make any difference because Section 106 of the Indian Evidence Act is a rule of evidence and does not create any legal requirement that the appellant must be informed of his such burden to explain the circumstances. The appellant was represented through a counsel during trial so he was under a legal obligation to explain the circumstances under which the deceased died.

23.Section 6 of the Evidence Act reads as under:-

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

Hon'ble the Supreme Court in the case of P.N. Krishna Lal and others Vs. Govt. of Kerala and another reported in [1995 (Supp) 2 SCC 187] held in paragraph-46 as under:--

"46. It is thus settled law even under general criminal jurisprudence that Sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge. When the prosecution establishes the ingredients of the offence charged, the burden shifts on the accused to prove certain facts within his knowledge or exceptions to which he is entitled to. Based upon the language in the statute the burden of proof varies. However, the test of proof of preponderance of probabilities is the extended criminal jurisprudence and the burden of proof is not as heavy as on the prosecution. Once the accused succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again on to the prosecution to prove the case against the accused beyond reasonable doubt, if the accused has to be convicted."

24.In the pronouncement of the Hon'ble Apex Court in the case of Suresh and another Vs. State of Haryana reported in (2015) 2 SCC 227, Hon'ble Apex Court has observed in para 9 as under:-

9. Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan Vs. Jaggu Ram.

(emphasis added by us)

25.At this juncture, we would like to quote the pronouncement of Hon'ble the Apex Court in the case of State of Rajasthan Vs. Kashi Ram reported in [(2006) 12 SCC 254], Hon'ble Apex Court in paragraph-23 has held as under:--

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. (emphasis added)"

26.In the instant case it is an admitted fact that at the time of the incident the appellant was present in his house because he has come with a defence that he was present in the house and he heard the cries of his wife and reached there so he has admitted his presence in the house. His defence has been found to be false in view of the discussion made above. According to the admitted case of the prosecution the incident was caused inside the room thus the case of the prosecution is that the appellant committed the murder of his own wife in his own dwelling house.

27.1. Hon'ble the Apex Court in the case of State of Rajasthan v. Thakur Singh reported in JT 2014 (8) SC 50 has observed in paragraph 50 as under:-

"In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra [JT 2006 (9) SC 50 : 2006 (10) SCC 681] this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said:

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."

28.In a recent pronouncement of Hon'ble Apex Court, in the case of Ratnesh Kumar Pandey Vs. State of Uttar Pradesh reported in (2015) 3 SCC 536 has observed in para 10 as under:-

"10. The question for consideration is ; whether the chain of circumstances noted and found proved against the appellant leads to the only hypothesis in respect of the guilt alleged against the appellant? With what perspective in mind, when we consider the circumstances noted by the trial court which we have in seriatim referred to in the earlier part of the judgment we find that when the appellant and the deceased were living together immediately before the death of the deceased the whole burden was upon the appellant to show as to who else was responsible for the killing of the deceased. Except the evidence relating to the prior grievances expressed on behalf of the deceased to PW-1 as regards the beatings inflicted on her by the in-laws of the deceased there was no other version placed before the court for implicating anybody else to have any grievance as against the deceased. Keeping the said situation in mind when we consider the circumstances noted by the courts below which were duly supported by the legally acceptable evidence on record, it will have to be stated that the burden was heavily upon the appellant to show that he had nothing to do with the killing of the deceased."

Thus the appellant was under legal obligation to explain the circumstances under which his wife died. This burden is cast upon the appellant in view of the Section 106 of the Indian Evidence Act which reads ad under:-

29.Very important circumstance against the appellant is that the defence of the appellant has been found to be false and deceased died in his own house and at that time the appellant was present in his house. He being the husband must have remain present in the room. No information of such incident, at any point of time, was given by the appellant to any authority and a false information of suicide by consuming poison was given by Shiv Kumar to the complainant, on the basis of which the FIR was lodged under Section 306 IPC. The post mortem report revealed that the cause of death was not poisoning but the cause of death was homicidal, therefore, the case was converted. The Investigating Officer has also stated that after the incident the appellant and the other accused absconded and were not present in the house. This conduct of the appellant also becomes relevant. Thus the appellant in the facts of the instant case could not discharge the burden which was on him under Section 106 of the Indian Evidence Act. In the case of Joshinder Yadav Vs. State of Bihar reported in 2014 Cri.L.J. 1175, the Hon'ble Apex Court has convicted the husband with the aid of Section 106 of the Indian Evidence Act while in the said case all the witnesses of fact from PWs- 2 to 7 had not supported the case of the prosecution and had turned hostile.

30.The prosecution has examined PW-6 Vansh Bahadur Singh who has stated that after getting the information of the death of Vijay Laxmi he alongwith Virendra, Gaya Prasad and Bum Bahadur went to the place of occurrence where the appellant took him and Gaya Prasad separately. Appellant after holding feets of Gaya Prasad started weeping and asked them to save him as he has committed a blunder. He told them that he alongwith his Bhabhi has caused the death of the deceased by pressing a pillow on her face and at that time Anita Singh (his bhabhi) was holding feets of the deceased. In his cross-examination he has stated that he reached at the place of occurrence at about 10 a.m. and the complainant went to lodge the FIR. The inquest proceedings took place at about 1 p.m. he has admitted in his cross-examination that the appellant made this confession to him before lodging the FIR.

31.Submission of the learned counsel for the appellant is that when this fact came to the notice of this witness even then he had not disclosed this fact to the Investigating Officer when his statement was taken. The Investigating Officer, PW-7 S.I. Shiv Sharan Singh has stated that the statement of this witness Vansh Bahadur Singh was recorded on the same day by him but he has not informed regarding extra judicial confession on that date. But he has stated that Vansh Bahadur Singh told him that he has firm belief that the offence has been committed by the appellant Ram Kumar Singh and Anita Singh. He has further stated that during investigation, the fact that the death was caused by smothering the deceased with the help of a pillow never came to his notice during investigation. But the next Investigating Officer PW-8 S.I. Shiv Narayan Upadhyaya on this point has stated that he again recorded the statement of Vansh Bahadur Singh because in his statement he had told the earlier Investigating Officer that he had firm belief that the offence was committed by the appellant Ram Kumar Singh and Anita Singh and in order to seek the explanation of this belief his statement was again recorded. It is true that there is no dispute to the fact situation that witness has told the subsequent Investigating Officer regarding the extra judicial confession made by the appellant. Learned trial court in the impugned judgment has observed that this conduct of PW-6 Vansh Bahadur Singh cannot be said to be abnormal. In our considered opinion, it would not be sufficient to discard his otherwise reliable evidence. On the day when the confessional statement was made by the appellant, this witness disclosed to the Investigating Officer that he had firm belief that such offence has been committed by the appellant and Smt. Anita Singh. The second Investigating Officer when asked for the reason for his such belief, then he gave the clarification of it. Thus this conduct of the witness cannot be said to be abnormal. Learned trial court has also relied upon the extra judicial confession as stated by PW-6 Vansh Bahadur Singh. Submission of the learned counsel for the appellant that extra judicial confession is a very weak type of evidence and no conviction can be recorded on such weak evidence;

32.Submission of the learned counsel for the appellant that the evidence of extra judicial confession is a very weak type of evidence and it cannot be made basis for conviction. First of all, I would like to mention that in this case extra judicial confession is only an additional evidence, apart from this confession of the appellant, there are several other circumstances pointing towards his guilt. So far as the submission regarding the evidentiary value of extra judicial confession is concerned, the pronouncement of Hon'ble Apex Court in the case of Baskaran Vs. State of Tamilnadu reported in (2014) 5 SCC 765 is the complete answer to the said submission. Hon'ble Apex Court in the said case has observed that it is not open to any court to start with presumption that extra judicial confession is insufficient to convict the accused even though it is supported by other circumstantial evidence and corroborated by independent witness. Courts cannot be unmindful of legal position that if the evidence regarding extra judicial confession is found credible after being tested a touch stone of credibility and acceptability it can solely form basis of conviction. In the instant case, in the cross examination of PW-6, his status has not been challenged. The suggestion is that he was a family member of the complainant. So even if this submission is taken to be true then he was the best person before whom the said confession could have been made by the appellant because he was in a position to influence the complainant. The second Investigating Officer has explained the circumstances under which his subsequent statement was recorded wherein he has given the information regarding the extra judicial confession of the appellant. Thus we concur with the view taken by the trial court regarding extra judicial confession of appellant.

33.PW-3 Kusuma Devi and PW-4 Ram Kumari have been examined by the prosecution regarding earlier mis-behaviour of the appellant with the deceased in his parental home when on 16.06.2002 she had gone there to attend a marriage ceremony. At that point of time the appellant had beaten her and had also threatened her with dire consequences which was seen by PW-2 and she has given evidence on this point.

34.Next submission of the learned counsel for the appellant is that in the instant case the death has been caused by suffocation. Suffocation has been described in the Modi's medical jurisprudence and toxicology 24th Edition which reads as under:-

Suffocation:

Definition:- The term, suffocation, is applied to that form of death that results from the exclusion of air from the lungs, by means other than that of the compression of the neck.

Causes of suffocation.

(i) Smothering or closure of the mouth and the nostrils;

(ii) Choking or obstruction of the air passages from within;

(iii) Pressure on the chest (traumatic or crush asphyxia);

(iv) Inhalation of irrespirable gases;

(v) burking.

35.In the instant case the prosecution has come with a case that smothering was done by closing the mouth and nostrils with the help of a pillow but absolutely no mark of any injury was found on the mouth or nostril of the deceased. A big contusion was found on the chest and also on the back of the head of the deceased. But it is strange to note that neither any underlying bones of the skull were found fractured nor any rib of the deceased was found fractured. So what transpires in this position is that the suffocation occurred because of compression which occurred due to heavy pressure on the chest. Usually such type of suffocation occurs in stampede in a crowded place but the position as reported by the doctor in the post mortem report gives rise to the inference that the appellant after sitting on the chest of the deceased pushed her head with force and in this process she succumbed to the compression so occurred by the act of the appellant. In this background the submission of the learned counsel for the appellant has substance that the offence caused by the appellant would not fall within the purview of Section 302 IPC and would be an offence only under Section 304 part I IPC. Learned counsel for the appellant has placed reliance on the pronouncement of Hon'ble Apex Court in the case of Budhi Lal Vs. State of Uttarakhand reported in (2008) 14 SCC 647.

36.In the facts of that case there was direct evidence that the accused Buddhi Lal was sitting on the chest of Sobati Devi and was assaulting her with hands. In that background the Hon'ble Apex Court after a long discussion of the legal aspect, has held in the aforementioned judgment that the offence of the appellant would fall within the purview of Section 304 part I IPC and not under Section 302 IPC. As we have observed earlier that in this case because of compression the deceased suffered suffocation. A big contusion on the chest of the deceased was found but the underlying ribs were not damaged. Likewise there was big contusion on the back of head but absolutely no fracture in any of the skull bone was found. No injury was found on the nostril or on the mouth of the deceased. Thus keeping in view the aforementioned pronouncement of Hon'ble Apex Court we are of the considered view that the offence committed by the appellant would fall within the purview of Section 304 part I IPC and sentence of 12 years rigorous imprisonment would be sufficient to meet the ends of justice.

37.In view of the discussion made above, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant Ram Kumar Singh is hereby converted from Section 302 IPC to Section 304 part I IPC and his sentence is reduced to 12 years and also with fine of Rs.10,000/- with default stipulation of six months' additional imprisonment. The period of detention already undergone by the appellant in the instant case, shall be set off in view of the provisions of Section 428 Cr.P.C. At present, the appellant Ram Kumar Singh is in jail.

38.Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.

 
Order date: 20th May, 2015
 
PAL
 
Crl. Appeal No.1184 of 2005          (Anant Kumar, J.)   (S.V.S. Rathore, J.)