Chandra Shekhar Yadav vs State Of U.P.
2019 Latest Caselaw 333 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 21.02.2019
 
Delivered on 1.3.2019
 
	Court No.54
 
Criminal Appeal  No. 4644 of 2008
 

 
Chandra Shekhar Yadav                                    ---- Appellant 
 
Vs. 
 
State of U.P. 						 ---- Respondent
 
								
 
	For Appellant		:        Sri R.K. Singh, Advocate
 
	For Respondent/State	:	Sri Amit Sinha, Addl. Govt. Adv. 
 

 
Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Pritinker Diwaker, J

1. This appeal arises out of impugned judgement and order dated 22.07.2008 passed by Additional Sessions Judge, Court No. 2, Deoria in Sessions Trial No. 143 of 2007 convicting accused- appellant, Chandra Shekhar Yadav under Section 302 of IPC and sentencing him to life imprisonment and a fine of Rs. 20,000/-, in default thereof, to undergo one year additional imprisonment.

2. In the present case, name of the deceased is Smt. Malti Devi wife of accused-appellant Chandra Shekhar Yadav. Their marriage was solemnized about 14 years back from the date of incident, i.e. intervening night of 29/30.04.2007 on which date the deceased died unnatural death. FIR Ex.Ka-1 was lodged on 30.04.2007 at 8:45 AM by PW-1, Subhash Yadav, father of the deceased against unknown persons under Section 302 of IPC.

3. Inquest on the dead body of the deceased was conducted vide

Ex. Ka-2 on 30.04.2007 and the dead body was sent for postmortem which was conducted on the same day i.e. 30.4.2007 by (PW-6) Dr. Arvind Kumar Mishra vide Ex. Ka-8.

4. As per postmortem report, following three injuries were noticed on the body of the deceased:

1. Ligature mark all around neck width 0.5 cm, 6 cm above the sternal notch."

2. Abraded contusion 15 cm x 4 cm submandibular area, 3 cm posterior to mehtun. On dissection- Beneath ligature mark sub cutaneum and ecchymosis present. Major vessels ruptured, big haematoma present. Thyroid cartilage #. Airway congested.

3. Subgaleal haematoma of 2 cm diameter present over Lt. occipital region, 5 cm above the occipital protuberance. On dissection E tradulal haematoma of 3 cm diameter present over the Lt. occipital lobe.

5. According to autopsy surgeon, the cause of death of deceased was due to asphyxia as a result of ante-mortem strangulation and shock.

6. After investigation, charge sheet was filed against the accused-appellant Chandra Shekhar Yadav, his father Ram Nagina Yadav and his mother Smt. Sonkesha and while framing charge, the trial Judge has framed charge against all the accused persons under Section 302/34 of IPC.

7. So as to hold accused persons guilty, prosecution has examined nine witnesses, whereas one defence witness has also been examined. Statements of the accused persons were also recorded under Section 313 Cr.P.C in which, they pleaded their innocence and false implication.

8. By the impugned judgment, the trial Judge has acquitted father, Ram Nagina Yadav and mother, Smt. Sonkesha of the appellant of all the charges, whereas the accused-appellant, Chandra Shekhar Yadav has been convicted, as mentioned in paragraph no. 1 of this judgment. Hence, this appeal.

9. Counsel for the appellant submits:

(i) that there is no eye witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence.

(ii) that in the house in question, apart from appellant Chandra Shekhar Yadav, his parents and son of appellant aged about 6 years were also residing and possibility of deceased being killed by some other persons, cannot be ruled out.

(iii) that on the same set of evidence, Ram Nagina Yadav and Smt. Sonkesha have been acquitted and therefore, same benefit ought to have been granted to the appellant, Chandra Shekhar Yadav.

(iv) that there is absolutely no evidence as to where and what manner deceased was done to death by the appellant.

(v) that there appears to be some quarrel between the appellant and the deceased just prior to the incident and on a sudden provocation, if appellant had throttled the deceased, at best, he is liable to be convicted under Section 304 part-I or part-II of IPC.

(vi) that appellant is in jail since last more than 11 years and therefore, after converting his conviction into Section 304 part-I or part-II of IPC, his sentence be reduced to the period already undergone by him.

Learned counsel for the appellant has placed reliance on the judgment of the Apex Court in the cases of Vikramjit Singh alias Vicky v. State of Punjab 2006 LawSuit (SC) 1066 and Ulhas Sudam Gorhe v. State of Maharashtra (Through Chakan Police Station, Pune) 2018 LawSuit (Bom) 1989.

10. On the other hand, supporting the impugned judgement, it has been argued by State counsel:

(i) that the conviction of the appellant is in accordance with law and there is no infirmity in the same.

(ii) that in the house in question, the appellant was residing along with his wife and once the dead body of the deceased has been found inside the house and autopsy surgeon has opined the cause of death to be that of asphyxia as a result of ante-mortem strangulation, the entire burden shifts on the accused to explain as to under what circumstances, deceased died.

(iii) that no such probable, acceptable explanation has been offered by the appellant in his statement recorded under Section 313 of Cr.P.C., nor any such defence has bee adduced by him.

(iv) that there is no evidence that there was any quarrel between the appellant and the deceased prior to the incident.

(v) that the case of appellant does not fall under any exception of Section 300 of IPC and therefore, his conviction under Section 302 of IPC cannot be altered into any offence.

11. We have heard learned counsel for the parties and perused the record.

12. PW-1, Subhash Yadav is a father of the deceased, has stated that marriage of the deceased was solemnized with the appellant about 14 years back but the deceased was subjected to cruelty by the accused persons for demand of dowry. He states that after coming to know about the death of the deceased, he had gone to her house and found her dead body lying outside the house. In the cross-examination, this witness remained firm and has reiterated that the deceased was subjected to cruelty for demand of dowry. Though this witness was cross examined at length but on material particulars, he remained firm.

13. PW-2, Basant Yadav, who is a villager, has stated that he saw the dead body of the deceased lying outside the house of the appellant and that she was being subjected to cruelty by the accused persons.

14. PW-3, Mangal Deo Yadav, is the brother of the deceased, who has also made similar allegation as has been made by PW-1, Subhash Yadav.

15. PW-4, Jai Prakash, is a witness of inquest.

16. PW-5, Jai Prakash Lal, conducted inquest.

17. PW-6, Dr. Arvind Kumar Mishra, conducted the postmortem on the body of the deceased.

18. PW-7, Anil Kumar, is first Investigating Officer and did initial part of investigation.

19. PW-8, Anil Kumar Singh, is second investigating officer and completed the investigation and filed the challan.

20. PW-9, Shiv Das Yadav, is a witness in whose cellphone information was sent about the death of the deceased.

21. DW-1, K. Gaushal, has not stated anything specific which may be of any help of the accused. In the statement recorded under Section 313 of Cr.P.C., no defence has been taken by the accused-appellant.

22. In a case where house murder is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under Section 313 of the Code of Criminal Procedure nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v State of Maharashtra1 as under:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."

23. Further in the matter of State of Rajasthan v Thakur Singh,2 it has been held by the Apex Court as under:

"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (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: (SCC p. 694, para 22)

"22 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."

18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22)

"22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

24. Considering the above judgements of the Apex Court and the provisions of law, if we minutely examine the facts of the present case, what emerges is that accused-appellant and the deceased were living together in the house in question and on 30.4.2007, the deceased was found dead in the house.

As per autopsy surgeon, the cause of death was due to asphyxia as a result of strangulation. It is, thus, apparent that the deceased died unnatural death in her matrimonial house.

25. The accused-appellant has failed to offer any explanation in his statement recorded under Section 313 of Cr.P.C., nor has adduced any evidence as to how the deceased died homicidal death in his house. This fact is good enough to uphold the conviction of the appellant for committing the murder of the deceased. The nature of injuries found on the body of the deceased speaks volume and also establishes that he has done the said act intentionally.

26. We find no substance in the argument of the defence that there was some quarrel between the husband and wife and during the said quarrel, on a spur of moment, the appellant had strangulated the deceased by throttling. No such evidence has been adduced by the appellant in this respect nor he has made any such statement recorded under Section 313 Cr.P.C. In absence of any evidence to this effect, we cannot presume anything of our own. The case of appellant does not fall under any exception of Section 300 of IPC and, therefore, his conviction cannot be altered into any lesser offence.

27. Taking the cumulative effect of the evidence, in our considered view, the trial court was justified in convicting the appellant under Section 302 of IPC.

28. The appeal has no substance and the same is, accordingly, dismissed.

29. Appellant is already in jail and therefore, no further order is required.

 
Dated: 1.3.2019			
 
AKK/AV
 
				(Raj Beer Singh, J)       (Pritinker Diwaker, J)