Ram Naresh And 2 Others vs State Of U.P.
2017 Latest Caselaw 4826 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on 30.08.2017
 
							Delivered on 22.09.2017
 
Court No. - 51								AFR
 

 
Case :- CRIMINAL APPEAL No. - 1161 of 2014
 

 
Appellant :- Ram Naresh And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.A. Mishra,Arimardan Yadav,J.N.Singh,Sarvesh
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Pratyush Kumar,J.

The instant appeal filed on behalf of the accused-appellants under section 374 (2) Cr.P.C., is directed against the judgment and order dated 27th February, 2014 in S.T. No.149 of 2012 (State vs. Ram Naresh and two others) arising out of Case Crime No.161 of 2012 under section 302 read with section 34 I.P.C., Police Station Thathiya, District Kannauj, passed by Sri Virendra Kumar-II, the then Sessions Judge, Kannauj, whereby all three appellants have been convicted under the said sections and sentenced to undergo rigorous imprisonment for life and to pay Rs.10,000/- each as fine, failing which to further undergo additional imprisonment of one year.

This appeal was heard by the Division Bench of this Court and on 16th September, 2016, separate opinions of the Judges comprising the Bench were delivered. On 16th September, 2016, noticing the difference of opinion, Justice Alok Kumar Mukherjee has referred the matter to Hon'ble The Chief Justice vide separate order 16th September, 2016 noticed here-in-below :-

"The Criminal Appeal No.1161 of 2014 (Ram Naresh and others Vs. State of U.P.) stands allowed by my Senior Brother Judge Hon'ble Mr.Justice Sudhir Kumar Saxena (since retired) and by a separate judgment it stands dismissed by me."

For orders see orders of date passed on the separate sheets.

Owing to difference of opinion between my Senior Brother Judge Hon'ble Mr.Justice Sudhir Kumar Saxena (since retired) and myself (Justice Alok Kumar Muherjee), the matter be placed before Hon'ble The Chief Justice for appropriate orders."

Hon'ble The Chief Justice on 29th September, 2016 nominated me as third Judge to hear the appeal in accordance with provision contained in Section 392, provision thereof is quoted here-in-below:-

"392. Procedure where Judges of Court of Appeal are equally divided- When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion:

Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section that Judge, so requires, the appeal shall be re-heard and decided by a larger Bench of Judges."

The Hon'ble Apex Court in the case of Maddar vs. State, (2002), 6 SCC, 460 has laid down the duties of the third Judge; that he is required to independently examine the matter and express his opinion. Following the mandate given by the Hon'ble Apex Court appeal has been heard a fresh and being disposed of in accordance with the observations of the Hon'ble Apex Court, referred above.

Heard S/Sri J.N.Singh & Armardan Singh, Advocates, learned counsel appearing for the appellants, Sri Rajeev Lochan Shukla, Advocate as amicus curiae and Smt. Archana Singh, learned A.G.A on behalf of the State-respondent and perused the record.

The facts giving rise to the present appeal may be noticed as under:-

That on 5th April, 2012 at 12.25 midnight at Police Station Thathiya, appellant no.1 gave a written application stating therein that he was resident of village Sattar, Police Station Thathiya, Kannauj, seven months ago his daughter Sooli had married with Amit @ Neetu in the temple whose parents had already expired. He used to live in their house and worked as Collection Amin at tehsil Kannauj. He was habitual drinker, used to neglect his work. On 3rd April, 2012, deceased received a notice from tehsil. On the previous evening he was in drunken condition, after taking dinner, they had gone to sleep on the roof. Deceased Amit had gone to his room and closed the door. He did not come out from the room, when appellant No.3 Sooli had gone there, door was locked, on the call it was not opened, thereafter Sooli opened the door from outside by inserting her hands to release the chain. Deceased Amit was hanging on a bamboo, at the alarm of Sooli, deceased was freed away from the noose and taken out of the room but he died. His dead body was lying in the courtyard.

This application was entered into Rapat No.4 dated 5th April, 2012, S.I. Ganesh Prasad Mishra, P.W.-3 proceeded to the spot and held inquest proceedings in the morning. Dead body was sent for postmortem examination, in the meantime, elder sister of the deceased Preeti Arun alongwith her maternal grandfather reached the village and gave a written report at the police station. Postmortem examination of the dead body was conducted on 5th April, 2012 at 2.30 p.m. Cause of death was opined to be asphyxia due to ante mortem strangulation. On that day at 9.30 p.m. by Rapat No.47, Case Crime Nos.161 of 2012 was registered on the basis of written application of Preeti Arun. Preeti Arun P.W.-2 stated therein that her brother Amit Arun was working as Collection Amin at tehsil Sadar. He used to live at village Sattar, for about 4-5 months altogether he was enticed away by appellant no.3 Smt. Sooli and appellant no.2 Smt.Lajjawati and he had started to live there. They used to enjoy his pay, at about 10.00 p.m. on 4th April, 2012, all the three appellants and one Kallu, son of appellant nos.1 and 2 ( declared juvenile by Juvenile Justice Board) had murdered his brother by strangulating him. It was further stated by her that her brother was unmarried. Due the greed of obtaining job and money her brother was murdered, Sooli had two husbands already but she claimed her brother to be her husband.

After registration of Case Crime No.161 of 2012, investigation was taken over by the then Station Officer S.I. Radhvan Kumar Singh, P.W.-6, who inspected the spot, examined the witnesses, arrested the accused persons and submitted the chargesheet. All four named persons were chargesheeted, Juvenile Justice Board Kannauj vide its order dated 26.5.2012 declared non-appellant accused Kallu @ Kurpan juvenile, his matter was separated. All the three appellants stood for trial before the Court of Session, they were charged under section 302 read with 34 I.P.C. which they denied and claimed to be tried.

In order to prove the charges, on behalf of the prosecution, in documentary evidence, besides other papers, written report, Exhibit Ka-1, inquest report Exhibit Ka-2, diagram dead body Exhibit Ka-3, Challan lash (Form No.13) Exhibit Ka-4, letter to C.M.O Exhibit Ka-5, postmortem report Exhibit Ka-6, copy of general diary No.47 dated 5.4.2012 Exhibit Ka-7, site plan Exhibit Ka-8 and chargesheet Exhibit Ka-9, were filed. In the oral evidence, six witnesses were examined thereafter statements of the appellants under section 313 Cr.P.C. were recorded. In the defence three documents, copy of Rapat No.4 dated 5.4.2012 of general diary, letter dated 28th December 2013 of District Magistrate and notice issued by tehsildar dated 31st March, 2012 were filed.

Learned Sessions Judge has found the prosecution version trustworthy and defence version untrustworthy. He has found all the appellants guilty of committing murder of deceased Amit Arun and convicted and sentenced the appellants, as above.

Feeling aggrieved the instant appeal has been filed.

On behalf of the appellants, it has been submitted that this is a case based on circumstantial evidence. Defence version how the deceased died has come into light first, it is duly supported by copy of Rapat No.4 dated 5th April, 2012 alongwith notice dated 31st March, 2012 issued by tehsildar Sadar to the deceased. Learned counsel for the appellants further has submitted that oral account given by Smt.Brahaspati Devi P.W.-1 is not trustworthy. She claims to have reached the house of appellants at 10.00 p.m. alongwith her jeth and jethani but they did not made any effort to take the deceased to the doctor.

Learned counsel for the appellants further has submited that Ashok, Jeth of Smt. Brahaspati Devi, P.W.-1, and Prabhudayal maternal grandfather of Preeti Arun P.W.-2 were witnesses of inquest and they had accepted the correctness of the opinion reached at the inquest proceedings, which had started on the information of appellant no.1 Ram Naresh. This shows that at the time of starting of inquest proceedings prosecution version was not in existence.

Learned counsel for the appellants has further submitted that Smt.Brahaspati Devi, P.W.-1 is the aunt of the deceased and bore enmity to the appellants because on account of deceased living with the appellants, she did not get salary of the deceased.

On behalf of the appellants, it has also been submitted that F.I.R has been lodged at 9.30 p.m. whereas Preeti Arun had reached the village at 7.00 a.m. There is no explanation of the delay in lodging F.I.R, which makes the prosecution version of doubtful probity.

Learned counsel for the appellants has also submitted that the appellants had no motive to murder the deceased, only on the basis of suspicion they should not have been convicted by the court below. The impugned judgment is based on conjectures and surmises, evidence has not been properly appreciated.

On behalf of the State, these arguments have been repelled and learned A.G.A has submitted that the prosecution has succeeded in proving the case against the present appellants beyond reasonable doubt. According to learned A.G.A, the appellants wanted to grab the property of the deceased a fact which he communicated to his aunt and sister and further appellant no.3 by representing herself to be wife of the deceased wished to obtain government job under Dying in Harness Rules.

She has further submitted that reason for not fetching medical help has been explained in the statement of Smt.Brahaspati Devi P.W.-1 that she found her nephew dead. According to her Smt. Brahaspati Devi is the neigbour of the appellants, she had no previous enmity. She is natural and probable witness, her testimony is trustworthy. Learned A.G.A further has submitted that delay in F.I.R stands explained by itself. According to her, appellant no.3 claimed herself to be wife of the deceased, her father appellant no.1 gave the information about death of the deceased to the police station. Inquest proceedings were held, conflicting version to that advanced by sister of the deceased was accepted only after autopsy, when cause of death could be ascertained which falsified the defence version.

Smt. Archana Singh, learned A.G.A has also submitted that it is customary in the Indian society specially in rural area that no one wants to interfere in the dispute between the alleged wife and sister of the deceased regarding cause of death.

Her next submission is that object of holding the inquest proceedings is limited. On the basis of opinion of the inquest witnesses, specially when they were not examined before the Court, prosecution version cannot be thrown aside. According to her, Ashok, Jeth of Brahaspati Devi had died and maternal uncle of the sister of the deceased has not been summoned by the defence to show that he had accepted the cause of death written in the inquest proceedings in absence of the version unfolded by Smt. Brahaspati Devi, P.W.-1.

Learned A.G.A has also submitted that after testimony of Dr. Nitin Vaish, P.W.-4, who conducted the postmortem examination, there remains no doubt that death was homicidal, her submission is that when theory of suicide stands falsified and death had taken place in the house of the appellants, burden was on them to explain how the deceased met his end. Thus, she has exhorted the Court to raise a presumption under section 106 I.P.C. that murder was committed by the appellants.

In reference to my obligation as an appellate court hearing appeal against conviction, I would like to refresh my mind by recalling the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

Now I proceed with the evidence adduced by the parties before the trial court. First I would like to place on record brief summary of deposition of prosecution witnesses.

Smt. Brahaspati Devi, P.W.-1, states that deceased Amit Arun was her nephew, after death of his father he received employment as Collection Amin under Dying in Harness Rules. Three months before the incident he started to live in the house of appellant no.1. He developed illicit relations with appellant no.3 Sooli. The pay received by the deceased was taken by the appellants which they used and spent, they started pressurizing the deceased to transfer his property in their names. This fact was communicated by the deceased to her. He also informed her that when he refused to do so, they became angry. She further states that between the house of the appellants and her there is only one wall. On 4th April, 2012 at about 10.30 she heard commotion coming from the house of Ram Naresh, she reached there running alongwith her brother-in-law Ashok and sister-in-law Snehlata. There she saw that all the appellants were pressing the deceased. On her query they uttered that they did not know what happened suddenly. When she accused them for murdering the deceased, all the appellants and Kallu ran away. During the night they kept watch on the dead body and informed the relations of the deceased. In the morning, sister of the deceased Preeti Arun reached there.

Preeti Arun P.W.-2 has reiterated the family relations and allegation regarding illicit relations of the deceased with appellant no.3 and the deceased spending money on her. She has also deposed that all the appellants started to pressurize the deceased to transfer his property in the name of the appellant no.3. When he refused according to the witness, her brother had apprehended that he would be murdered. According to her, she advised him to come to Hardoi. On 4th April, 2012 at about 11-11.30 p.m. she received telephonic information from her aunt about death of her brother. In the morning she alongwith her maternal grand parents reached there and saw the dead body of her brother in the courtyard of appellant no.1. Her uncle, aunt and other villagers were present there. Accused were absent. Police was present on the spot, they completed the formalities and send the dead body for the postmortem. Appellant No.3 had two husbands, she proved the written report Exhibit Ka-1.

S.I. Ganesh Prasad Mishra, P.W.-3 has conducted the inquest proceeding. He has proved inquest report Exhibit Ka-2, diagram dead body Exhibit Ka-3, challan lash Form-13 Exhibit Ka-4 and letter to C.M.O Exhibit Ka-5.

Dr. Nitin Vaish P.W.-4 has stated that on 5th April, 2012 at 2.30 p.m., he conducted the postmortem examination on the dead body of the deceased. According to him, probable time death was within one day. Rigour mortis was partly present in the upper extremity and fully present on the lower extremity, eyes were closed, mouth was partially open, froth was came out of it. He has noticed one linear abrasion 11 c.m. x 1.5 c.m. on the left side of neck below thyroid cartilage 2 c.m. below angle of mandible. During internal examination he found brain and its membrane congested, other internal organs contested. Ecchymoses was present. Hyoid bone on left side was fractured, lungs were congested, in the intestine 100 gm pasty material was present. In the large intestine, fecal matter and gases were present. According to him, cause of death was asphyxia as a result of ante mortem strangulation. Death could have taken place at 10.30 p.m. on 4th April, 2012.

Constable Narain Das, P.W.-5 is the scribe who has registered Case Crime No.161 of 2012 in Rapat No.47 of general diary at 9.30 p.m. on 5th April, 2012. He has proved copy of the Rapat Exhibit Ka-7.

S.I. Radhwan Kumar Singh, P.W.-6 is the investigating officer who gave details of the steps taken in the course of investigation. He had proved site plan Exhibit Ka-8 & chargesheet Exhibit Ka-9.

The appellants in their statements recorded under section 313 Cr.P.C. have denied the facts stated by the prosecution version, except that deceased was brother of Preeti Arun, P.W.-2, he was employed as Collection Amin and used to live at village Sattar. According to them, death of the deceased was informed by appellant no.1 at the police station in the midnight. Appellant no.3 was the wife of the deceased. They admitted that inquest proceedings were held in their courtyard. Dead body was sent for postmortem examination, death had taken place one day before. They also admitted that deceased had one ante-mortem injury linear abrasion 11 c.m. x 1.5 c.m. on the left side of his neck. According to them, they had been wrongly chargesheeted on account of enmity. Deceased had married appellant no.3, thereafter, he stopped giving his salary to his uncle and aunt, for that reason, Brahaspati Devi P.W.-1, aunt of the deceased became inimical to them. Deceased was negligent in his service, he had embezzled government money, when he had received departmental notice he committed suicide. Preeti Arun P.W.-2 had falsely implicated them. She wanted to get service under the Dying in Harness Rules.

No oral evidence was given in the defence. Copy of Rapat No.4 dated 5th April, 2012 has been filed on record, its contents have already been noticed in the beginning of the judgment. The other two papers filed on behalf of the defence are public documents, they need no formal proof. First paper is 42-A. It is an answer furnished on behalf of the District Officer, Kannauj on 28th December, 2013 informing that on the death of the deceased Amit Arun, his sister Km.Simmi Arun has been given employment as Class IV employee under the Dying in Harness Rules. Paper 43-A is the show cause notice dated 31.3.2012 issued by Tehsildar Sadar Kannauj to the deceased pointing out that as for him standard recovery amount was Rs.1 lac per month but in six months he could recover only Rs.1,50,825/- which was below standard. It was also mentioned in the show cause notice that he failed to get his records verified, he used to remain absent without leave from his duties. He was to furnish his explanation within two days otherwise his pay for the month of March would not be drawn and other action could be taken against him.

Death of the deceased on 4th April, 2012 is admitted to both the parties. According to prosecution version, death was homicidal. According to defence version, it was suicidal, ordinarily medical evidence clinches this issue and considering the fact that medico legal authorities had drawn fine definition between asphyxia as a result of ante-mortem hanging and ante-mortem strangulation. The learned A.G.A in his reference had drawn attention of the Court towards judgment dated 9th June, 2016 delivered by the Division Bench of this Court in Criminal Appeal Nos. 4375 of 2006 and 4374 of 2006. In this judgment, Division Bench of this Court had extensively reviewed the views of three medical authorities and tried to find out clinching signs who could be said to distinguish whether death was homicidal or suicidal. I can do no better than reproduce below the words of the Division Bench. Its observation is quoted here-in-below:-

"Here we are required to visit what various authorities say about gray area between ante mortem strangulation and hanging.

Asphyxia is a generic name. It may be caused due to hanging, strangulation, suffocation and drowning. Therefore, according to both versions death by asphyxia is not disputed the only dispute is whether it was suicidal or it was homicidal. Generally hanging is considered to be suicidal and strangulation is considered to be homicidal but we have to remember two things that there are exceptions in both the cases and Dr. Gurumukh Singh is a medical man and he cannot be taken to be a layman who is unaware to human body.

Three medical authorities have been cited before us; one of Cox, one of Dr. Parikh and one of Dr. Modi.

In the treatise written by Cox, he had taken note of differences between hanging and strangulation given at Table 3.2.1. The relevant table is reduced as under:

Table 3.2.1

Difference between Hanging and Strangulation

Trait

Hanging

Ligature strangulation

Face

Pale and petechiae are not common

It is livid, congested and full of petechiae

Ligature mark

Oblique usually seen high up in the neck above the thyroid cartilage and incomplete

Transverse, completely encircles the neck and usually below the thyroid cartilage

Base

Pale, hard and parchment like

Soft and reddish

Soft and reddish

Subcuta neous Tissue

It is white, hard and glisterning below the mark

Ecchymoses present below the mark

Neck

Stretched and elongated

Not so

Hyoid Bone

Fracture is common

Fracture is rare

Thyroid Cartilage

Fracture is rare

Fracture is common

Tongue

Swelling and protrusion are not so common

Are well marked

Salvia

Usually runs out of mouth

Absent

Bleeding

From the nose, mouth and the areas are not so common

From the nose, mouth and ears are common

Involuntary discharge

Of the faeces and urine are not common

Are commonly seen

Seminal Fluid

Usually seen at the glans penis

Rarely seen

Dr. Modi has also indicated differences indicating hanging and strangulation. These differences are given below in tabulated form.

Hanging

Strangulation

Mostly suicidal

Mostly homicidal.

Face-usually pale and petechiae rare.

Face-Congested, livid and marked with petechiae.

Saliva-Dribbling out of the mouth down on the chin and chest.

Saliva-No such dribbling.

Neck-Stretched and elongated in fresh bodies.

Neck-Not so.

External signs of asphyxia, usually not well marked.

External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect.

Bleeding from the nose, mouth and ears very rare.

Bleeding from the nose, mouth and ears may be found.

Ligature mark-Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchmentlike.

Ligature mark-horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.

Abrasions and ecchymoses round about the edges of the ligature mark, rare.

Abrasions and ecchymoses round about the edges of the ligature mark, common.

Subcutaneous tissues under the mark-White, hard and glistening.

Subcutaneous tissues under the mark-Ecchymosed.

Injury to the muscles of the neck-rare.

Injury to the muscles of the neck-Common.

Carotid arteries, internal coats ruptured in violent cases of a long drop.

Carotid arteries, internal coats ordinarily ruptured.

Fracture of the larynx and trachea-Very rare and that too in judicial hanging.

Fracture of the larynx and tracea-Often found also hyoid bone.

Fracture-dislocation of the cervical vertebrae-Common in judicial hanging.

Fracture-dislocation of the cervical vertebrae-Rare.

Scratches, abrasions and bruises on the face, neck and other parts of the body-Usually not present.

Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body-Usually present.

No evidence of sexual assault.

Sometimes evidence of sexual assault.

Emphysematous bullae on the surface of the lungs-Not present.

Emphysematous bullae on the surface of the lungs-May be present.

Dr. Parikh in his celebrated book has discussed the difficulties in diagnosis on death from hanging. According to him such diagnosis is easy where clasical features of hanging are found but according to him all the features are seldom present together. He further says that some times ligature mark may not be oblique. It may be circular. He further describes when ligature is twice or thrice rolled around the neck ligature mark would be confusing. Dr. Parikh has also dealt with the question; how to ascertain death had occurred due to strangulation. According to him presence or absence of ligature mark is not determinative. According to him disscetion of neck would reveal evidence of ante mortem violence on the underlying tissues. Dr. Parikh has also given differences in case of hanging and strangulation in tabular form. These differences may be referred as under:

Violent Asphyxial Death

Hanging

Strangulation

Suicidal usually

Homicidal usually

No signs of struggle

Signs of struggle

Ligature found in position, above thyroid cartilage, mark incomplete, directed obliquely upward with a gap indicating position of the knot with no damage to the skin in the gap

Ligature may not be with the body but when found, usually completely encircles the neck horizontally below thyroid cartilage. There may be more than one turn of ligature and there is always some damage to skin underneath

Abrasions and bruises around ligature mark rare

Abrasions and bruises around ligature mark common

Dissection of ligature mark reveals a dry and glistening white band of subcutaneous tissue

Dissection of ligature mark reveals ecchymosed subcutaneous tissue

Neck usually stretched

Neck not stretched

Fracture of hyoid rare

Fracture of hyoid not rare in throttling cases (in the aged)

Fracture of laryngeal cartilages and tracheal rings rare

Fracture of laryngeal cartilages and tracheal rings common

Injury to carotid arteries in cases with a long drop

Injury to carotid arteries common

Injury to muscles of neck rare

Injury to muscles of neck common

Fracture dislocation of cervical vertebrae common in judicial hanging

Fracture dislocation of cervical vertebrae rare

Saliva running out of the angle of the mouth vertic ally down along the neck and front of chest and abdomen

Saliva may not have escaped from mouth but if so, usually blood tinged and may not be vertically down

External signs of asphyxia may not be well marked when death is due to any cause other than asphyxia

External signs of asphyxia usually well marked because of considerable violence that is commonly employed

Face usually pale

Face congested and with pronounced petechiae

Bleeding from nose and mouth very rare

Bleeding from nose and mouth common

When I have considered all the three details given by the celebrated experts, I find it most illuminating that violence to underlying tissues is a significant evidence to indicate that asphyxia is a result of strangulation. In the present case Dr. Nitin Vaishya, P.W.-4 has categorically stated that pleura, lariynx and Trachea were congested. Ecchomosis was present. He has further stated that left side hyoid bone was fractured. Both lungs were deeply congested. This shows that underlying tissues were subjected to ante mortem violence which could only be a result of strangulation. Such violence is not possible by the use of ligature dhoti.

In the light of the observations quoted here-in-above, I propose to examine the evidence of Dr. Nitin Vaish, P.W.-4 with the help of the inquest report and statement of S.I. Ganesh Prasad Mishra, P.W.-3, who conducted the inquest proceeding. Dr. Nitin Vaish, P.W.-4 was cross examined on behalf of the defence on the point where a person would be strangulated he would throw hands and legs thereby might sustain injuries on them or his clothes may be torned. Dr. Vaish candidly admitted that he did not find any sign of resistance on the dead body of the deceased. He also admitted possibility that linear abrasion could be caused by rough ligature, except that he found no abrasion on the neck but in trachea ecchymoses was found and left side hyoid bone was fractured to show that it was a case of strangulation, the defence heavily relied on the statement of S.I. Ganesh Prasad Mishra, P.W.-3 according to whom inquest proceeding started at 7.30 and concluded at 9.00 a.m. In the cross examination he says that appellants were present there but Preeti Arun and his maternal grandfather were not there. Thereafter volunteered that maternal grandfather had already come. According to him, in the opinion of all persons present there, death was due to hanging and linear abrasion could have caused by the string. Except linear abrasion, there was no ante-mortem injury on the person of the deceased. Inquest report Exhibit Ka-2 substantiates his evidence to the extent that witness No.2 maternal grandfather of Preeti Arun had joined inquest proceeding as witness but thereafter his testimony is contradictory to the facts recorded in the inquest proceeding. In the cross examination he says that eyes of the deceased were not half opened but at page 1 under the head 'condition of dead body' of the inquest report, he has written 'eyes half open'. In the inquest report he has written mouth closed, lips open, teeth were visible, fingers of both the hands were half closed. Here I remember that in the application, appellant no.1 Ram Naresh has claimed that his daughter had found deceased hanging by a bamboo with noose of dhoti in his neck. It was not a bed-sheet, dhoti normally is of soft material, hence, opinion of S.I. Ganesh Prasad Mishra, P.W.-3 linear abrasion could have been caused by rassi, is incorrect. According to defence version, noose was of dhoti, it was not a rassi. In the inquest report at page-1, in the relevant column, requiring the inquest holding officer to mention articles and weapon found from the dead body or nearby, there is endorsement by the witness 'nil', thus, alleged noose of dhoti was not taken into possession by him and contrary to defence version, he was using the word rassi (string) and more-so when the appellants did not join the inquest proceedings, only on the basis of memory he is saying that they were present on the spot it does not appear to me a credible account of inquest proceeding.

From this observation, theory of the defence becomes suspicious and I find testimony of Dr. Nitin Vaish, P.W.-4 duly supported by entries made by him in the postmortem report Exhibit Ka 6. He has no motive to depose falsely against the present appellants, in discharge of his official duties, he had performed the autopsy. He has withstood test of cross examination successfully. I find him to be a reliable witness and when his testimony is considered in juxtaposition with medico legal authorities, referred here-in-above, I am in agreement with his opinion that deceased had died due to asphyxia as a result of ante mortem strangulation.

Homicidal death of the deceased is established but prosecution has to further prove that it was caused by the appellants. The star witness for prosecution is Brahaspati Devi, P.W.-1, aunt of the deceased, living in the house adjacent to the house of the appellants. Considering the proximity of her house with the place of occurrence, she is a natural and probable witness. She was in a position to hear the noises coming from the house of the appellants during the night time. The deceased was her nephew parents-less and living in the house of the appellants in spite of her disapproval, therefore, for her there was every reason to be anxious about the safety of her nephew and her curiosity. For this reason, I hold her to be a natural and probable witness.

The second point to be considered is whether she was in a position to see the appellants pressing her nephew in the night. During cross examination, source of light has not been disputed, place of occurrence situates in living place, as it was within the residential house and residents of that house were found awoke by her at the relevant time, in such scenario existence of light is implicit. Even the appellants did not claim that at that time in their house no light was burning. What I find conspicuously absent is that even the witness was not suggested that the witness has not reached their house at the stated time. After considering her statement, I am of the opinion that the witness had the opportunity to see what she had claimed to have seen on the fateful night.

The witness has withstood the test of cross examination successfully. Only one sentence has been made a ground to submit that she is not an eye witness. In this sentence, she says that she had merely seen the appellants pressing the deceased but she had not seen them murdering him.

She is a rustic middle aged family woman. She has given vivid account of the events which had been seen by her on the fateful night. She is not an expert in crime. Section 59 of the Evidence Act provides all facts except the contents of documents may be proved by oral evidence. Section 60 says oral evidence must be direct that is if it refers to a fact which could be seen, it must be an evidence of a witness who says he saw it. Strangulation and process of strangulating are two things, strangulation is the end product and process of strangulating produces that effect. What the witness said denotes that she had seen the appellants in the process of strangulating and result; can death by strangulation can only be inferred, it cannot be seen, therefore, at the risk of being discredited she had stated that she had merely seeing them pressing the deceased not murdering. This shows the honesty of the witness and rules out possibility of any bias in her mind towards the appellants as alleged by them, therefore, her cross examination further strengthens probative value of her testimony.

Lastly her evidence had been attacked on the ground that she had admitted that non-appellant Kallu had beaten her husband on the way and she had reported the matter to the police, if this statement is correct and police did not take any action, it shows that she and her husband are simple persons even they had not pursued that matter in spite of personal suffering and humiliation. Non pursuing the matter shows that she has no prejudice against the present appellants. The defence has not controverted her version that her husband was not beaten by non appellant Kallu. Though she is real aunt of the deceased but only because she is relative of the deceased her evidence cannot be discarded. The Hon'ble Apex Court has not treated such witness to be partison. In the case of Dilip Singh vs. State of Punjab, A.I.R. 1953 SC 364, the Hon'ble Apex Court has observed that close relationship with the victim is not a ground for disbelieving a witness. Ordinarily close relative intends not to screen the real offender. Close relationship with the victim far from being a foundation for criticism of the evidence is often a sure guarantee of truth.

In view of above, I find testimony of Smt. Brahaspati Devi, P.W.-1 without any blemish, she is natural and probable witness, she had seen the occurrence and unfolded it without any bias. I find her to be a truthful witness.

Preeti Arun, P.W.-2 is a formal witness. Between the time of occurrence and in her arrival at the village, sufficient time had passed, for that reason, I do not think her testimony about the occurrence can be said to be relevant under section 6 of the Evidence Act. She has proved written report. She has disclosed the motive i.e. pressure put on her brother by appellant no.3 to transfer his property to the appellant No.3, his refusal to do so, constant annoyance of the appellants and his apprehension that some mishap could occur with him, are relevant under section 32 of the Evidence Act. On this point his testimony has not been subjected to cross examination. In absence of the cross examination, it is unchallenged and worthy of reliance.

Testimonies of S.I. Ganesh Prasad Mishra, P.W.-3, constable Narain Das, P.W.-5 are formal in nature. Testimony of S.I. Ragavan Kumar Singh, P.W.-6 is also formal in nature. It does not help the cause of defence, testimony of Dr. Nitin Vaish has been subjected to detailed examination already and it needs no further deliberation.

In the defence, three documents have been filed, first document has already been commented upon, the other two documents also do not help the defence version. The testimony of Preeti Arun, P.W.-2 was challenged on the ground that she wanted to have the job under the Dying in Harness Rules in place of her brother, for that reason, she was making false allegation against the present appellants and denying the status of appellant no.3 to be the wife of the deceased but from the documents filed by the defence, paper no.42-A, it transpires that younger sister of the deceased Km. Simmi Arun applied for the appointment under the Dying in Harness Rules in place of her brother, thus, Preeti Arun had no personal agenda in lodging the First Information Report and denying the appellant no.3 status of the wife of the deceased.

The other document paper 43-A, show cause notice dated 31st March, 2012, merely shows the deceased that in case the deceased had not submitted his explanation, his salary for the current month would not be drawn. There was no threat to launch criminal prosecution against the deceased nor there were any allegation amounting embezzlement. By this document, motive to commit suicide by the deceased stands falsified.

Now I come to the argument advanced on behalf of the appellants. Their criticism against the testimonies of Brahaspati Devi, P.W.-1 and Preeti Arun, P.W.-2 appears to be unfounded and substantiated. The next argument that Jeth of Brahaspati Devi Ashok and Prabhudayal, maternal uncle of Preeti Arun P.W.-2 were witnesses of inquest and they had accepted opinion recorded in the inquest report. This argument is also misconceived because in the inquest report Exhibit Ka-2, word 'Atmahatya' suicide has not been mentioned. Cause of death has been written as 'latakna' (hanging). For simple villagers, there was no cause to raise protest, whatever was written by Darogaji generally means opinion of the authority. Since it was not contradictory to the facts within their knowledge, silence was the only course open to them. I do not think their silence can be taken to be evidence that after inquest theory of murder was concocted.

So far as delay in lodging First Information Report is concerned, considering the peculiar facts and circumstances of the case, as indicated by the learned A.G.A that death of the deceased had been given colour as dispute between alleged wife and sister of the deceased, time taken by the police officer, to take cognizance on the written report of Preeti Arun, P.W.-2 stands explained, I do not think that in the present matter there is any delay in lodging the First Information Report.

On behalf of the defence, the following cases have been referred to show that the impugned judgment is legally unsound:-

1. Gentela Vijayavardhan Rao vs. State of Andhra Pradesh, 1996 Law SC 1299- Reliance has been placed on the observation of the Hon'ble Apex Court made in Paras 16 and 17 of the report, in this case point involve was that there was appreciable interval between the offending act and recording of the statements of victim. Reliance has also been placed on the observation made in Para 15 of the report to persuade the Court that when some interval of time lapsed between making the statement and commission of the crime, the statement made by the person would not become relevant under section 6 of the Evidence Act.

2. Murlidhar vs. State of Rajasthan, 2005 Law Suit, (SC), 884 reliance has been placed on Paras 21 and 24 of the report. In this case, the Apex Court has held that Section 106 of the Evidence Act is not intended to relieve the prosecution from its burden to prove.

In the present case, Smt. Archana Singh, learned A.G.A has urged the Court to draw the adverse inference under section 106 of the Evidence Act against the present appellants for their failure to explain un-natural death of the deceased in their house. For better understanding I quote Section 106 of the Evidence Act as below:-

"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.

As is evident from the provisions quoted here-in-above, this section does not relieve the prosecution from its burden of proof. It only provides that if any fact was specially within the knowledge of the appellants they had to prove that fact. They pleaded that deceased had committed suicide by hanging from bamboo but they could not prove it and the matter had ended there. Section 106 of the Evidence Act does not go beyond that. In other words, falsity of defence cannot be taken into consideration with the help of Section 106 of the Evidence Act. It is merely for the satisfaction of the Court that conclusion already reached by it that the accused-appellants had committed the crime with which they had been charged, is correct one. It is a kind of re-assurance to the finding of guilt already arrived at, it cannot be made basis of conviction.

Now to conclude motive for the crime stands proved from the evidence of Smt.Brahaspati Devi, P.W.-1 and Smt.Preeti Arun, P.W.-2. The commission of crime stands proved beyond reasonable doubt from the evidence of Smt.Brahaspati Devi, P.W.-1 and duly corroborated by the statement of Dr.Nitin Vaish, P.W.-4. The finding of guilt arrived at by me is further fortified by the falsity of defence.

In view of above, all the points raised on behalf of the appellants appear to be without substance. They have been discussed at the relevant places with reasons for their rejection. Appeal is bereft of merit and deserves to be dismissed.

Appeal is dismissed. Conviction and sentences of the appellants are hereby affirmed. They are in judicial custody. They shall serve out their sentences as directed by the learned Sessions Judge.

(PRATYUSH KUMAR)

Order Date :- September 22nd, 2017

SKD

In view of the provisions contained in Section 392 Cr.P.C. and the law laid down by a Division Bench of this Court in the case of Balku vs. Emperor, [Cr.L.J.1948 (49) 264], the opinion expressed by Hon'ble Mr.Justice Alok Kumar Mukherjee (Rtd.) is the view expressed by this Court is the same view, hence, the matter be placed before Hon'ble The Chief Justice for nominating a Bench for delivery of Judgement or order.

(PRATYUSH KUMAR)