Anoop Singh vs State Of Up
2021 Latest Caselaw 1821 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 90
 

 
Case :- CRIMINAL APPEAL No. - 2779 of 2020
 

 
Appellant :- Anoop Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sheetala Prasad Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajit Singh,J.

This criminal appeal has been filed against the judgement and dated 18.09.2020 passed by Session Judge, Basti in S.T. No. 177 of 2014 (State vs. Anoop Singh), arising out of Case Crime no. 404 of 2014, under Sections 498-A, 304-B and 506 I.P.C. and under Section 3/4 D.P. Act, P.S. Nagar, District-Basti, whereby learned Judge has convicted and sentenced the appellant to 10 years' rigorous imprisonment under Section 304-B I.P.C., 3 years' R.I. with fine of Rs. 5000/- under Section 498-A, in default three months additional imprisonment, 2 years' RI under Section 506 (2) I.PC. and one year's  rigorous imprisonment under Section 4 D.P. Act with a fine of Rs. 5,000/-, in default three months additional imprisonment.

The prosecution story in brief is that against the accused appellant  a criminal case under the aforesaid Sections was registered in the concerned Police Station on the basis of written complaint (Ext. Ka-1) dated 31.03.2014. It was stated in the said complaint that the complainant Manjeet Singh's sister Pinki was married to the present accused appellant on 14.05.2007. Dowry was given by his father as per his capability. Just after the marriage the complainant's sister was being tortured and harassed by her husband for additional dowry. Information for additional dowry was given by the complainant's sister on telephone and having been victimized and harassed with the ill-treatment given to her, she used to come to her parental house (mayaka). She was sent back by the family members to her matrimonial home so as to keep safe her married life.

Further, as per the prosecution case, on 24.03.2014 at about 1:30 P.M. an information on telephone was received by the complainant that his sister had died. The complainant along with others went there and saw the dead body of his sister lying at the door. On her neck a sign of contusion was seen and it appeared that her sister was done to death by strangulation and her dead body was kept out. Nobody was ready to tell the reason as to how she died. On the contrary, a threatative advice was given to the complainant to silently do the last cremation of the deceased, otherwise he would lose his bhanja (nephew) also. With this fear they returned to their house. Deceased's dead body was sent for post-mortem. It has also been alleged in the FIR that the complainant has a suspicion that in the torture of the complainant's sister other persons were also involved with the accused-appellant Anoop Singh and they all have jointly murdered the deceased. About the delay in lodging the FIR, it has been stated that it occurred due to there being risk to the life of the complainant's bhanja (nephew) in the matrimonial house of the deceased. After mental improvement the complainant went to the police station and requested to initiate proceeding after lodging the FIR.

After registration of the First Information Report, the case was investigated by the Investigating Officer and charge sheet was submitted against the accused appellant.

Both the parties i.e. the prosecution as well as accused appellant were afforded ample opportunities to lead their evidence and were also afforded with due opportunity to examine and cross-examine the witnesses of this case.

It is evident from the record that the PW - 8 Daya Shanker Yadav conducted the inquest report (Ext. Ka - 7) on the dead body of the deceased in the presence of Nayab Tehsildar Harish Chandra Srivastava. Thereafter, he also prepared Ext. Ka- 8 and Ext. Ka-12 which are photograph of dead body (photonash) and sample stamp (namuna mohar).

It has also come on record of this case that the PW - 5 Dr. Ajay Kumar Verma with his associate doctor Mahibullah conducted the autopsy of the dead body and during the medical examination it transpired that the deceased was aged about 32 years and her death occurred one day before. From the external examination of the dead body of the deceased it also transpires that after death there was stiffness present in the four parts of the deceased. The eyes and mouth of the deceased's dead body was closed. The face was congested due to pressure, lips had turned blue, tongue and nails too turned blue. The nails on right hand were cut and the nails on the left hand were uncut. Further the doctor has reported the following ante-mortem injuries as well as internal injuries were found on the body of the deceased:-

Antemortem Injuries:

1. Incomplete ligature mark is present on posterior aspect of neck a point 4 cm below (L) ear to a point 7 cm below (R) of ligature within 2 cm x 3 cm in middle part.

2. ( R ) end Ligature mark is 5 cm below chin parchmentization of ligature mark is about posterior 18 cm length.

3. Abrasions are present on (L) side of neck & face in a length of 18 cm angle of mandible 5 mm x 3 mm of size is shown spread away 3 cm away from each of them.

4. 1 cm green abrasion present on (R) angle of mandible.

Internal Injuries.

6 cm x 4 cm size contusion is present over hip of scalp above (R) ear.

Brain congested.

On opening the neck contusion is present on the neck in an area of 8 cm x 6 cm ( R ) neck.

Larynx and trachea congested.

Trachea and Bronchial Tree congested.

Both lungs congested.

Heart's right chamber full, left chamber empty.

Liver including Gall Bladder congested.

 
Urinary Bladder Full 
 
Genital Organs  Non gravid Uterus Nongravid
 
Spinal Cord    Not opened
 

 
Opinion.
 
Time since death about one day.
 
Immediate Cause Asphyxia
 
Due to ante-mortem throttling. 
 

 

Ultimately, the trial proceeding concluded into the conviction of the accused appellant who was sentenced by the impugned judgment and order as narrated above in para - 1 of this judgment.

Hence, the present appeal.

The learned counsel appearing for the appellant submits that the learned Trial Court has not taken into consideration the facts and circumstances of the present case as well as the medical evidence available on record and has wrongly formed its view that the death of deceased had occurred due to strangulation and thus the impugned judgment is liable to be interfered with by this Hon'ble Court. Further, the learned counsel for appellant submits that there was no symptom of strangulation on the body of the deceased.

The learned counsel for the appellant submits that the impugned judgment and order has been passed in a cursory manner without taking into consideration the entire evidence available on record, particularly, the medical evidence which clearly goes to show that it was a case of hanging rather than a case of strangulation. The conviction of the accused appellant by the impugned judgment and order is wholly illegal and is liable to be interfered with by this Hon'ble Court.

The learned counsel for the appellant further submits that there was no symptoms of strangulation on the body of the deceased. He submits that from the medical evidence brought on record of this case, it is evident that the hyoid bone of the deceased was intact which is enough to show that she committed suicide by hanging. It is further argued by the learned counsel for the appellant that the doctor has opined in his cross-examination that hyoid bone is found intact in the cases of hanging. The doctor has further clarified in his cross-examination that in the cases of death caused by strangulation there is always possibility that stool and urine come out from the body of deceased. The learned counsel further argues that the doctor has opined that urine bladder (mutrashay) of the deceased was in this case was full of urine. It is further submitted that there was whitening and glistening present on the neck of the deceased and the doctor has opined in his statement that it happens only in the cases of hanging and it is not possible in the cases of strangulation.

Lastly, the learned counsel for the appellant submits that it was a case of hanging and it might be due to many reasons. He has also placed reliance on the Modi's Medical Jurisprudence, which shows difference between hanging and strangulation. The relevant part of which is extracted as below:-

Hanging

Strangulation

1 Mostly suicidal

1 Mostly homicidal

2 Face - Usually pale and petechiae rare.

2 Face - Congested, livid and marked with petechiae.

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

3 Saliva - No such dribbling.

4 Neck - Stretched and elongated in fresh bodies.

4 Neck - Not so.

5 External signs of asphyxia, usually not well marked.

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

6 Bleeding from the nose, mouth and ears very rare.

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

7. 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 parchment like.

7. 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.

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

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

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

9 Subcutaneous tissues under the mark - Ecchymosed.

10 Injury to the muscles of the neck - Rare.

10 Injury to the muscles of the neck - Common.

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

11. Carotid arteries, internal coats ordinarily ruptured.

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

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

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

3 Fracture-dislocation of the cervical vertebrae - Rare.

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

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

15 No evidence of sexual assault.

15. Sometimes evidence of sexual assault.

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

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

The learned AGA supports the impugned judgment and order passed by the learned Trial Court and submits that there is no illegality or infirmity factual or legal. It warrants no interference by this Hon'ble Court.

This Court has gone through the record of this case and has also gone through the above quoted Modi's Medical Jurisprudence showing the difference between the hanging and strangulation and this Court has also taken into consideration the argument of the learned counsel in support of this appeal and if the argument of the learned counsel for the appellant is taken to be correct that it was not a case of strangulation but was a case of hanging, it can be said that there is an apparent illegality, on the face of record of this case, committed by the learned Trial Court while passing the impugned judgment and order of the conviction and sentence. However, at this stage of the matter looking to the statement of the doctor recorded in the impugned judgment and order by the Trial Court, it cannot be said that beyond all reasonable doubts it was a case of hanging and not strangulation as the doctor has not clearly opined that the deceased died due to hanging. The statement of the doctor is reproduced below:-

"Mritika kee mrityu, ek din poorva kee hogi, jo mrityu poorva gala ghontane ke karan dam ghutane se huyee thee."

From the perusal of the above quoted statement of the doctor it cannot be said that the deceased died due to hanging. On the contrary, it is evident from the said statement of the doctor that the deceased died due to strangulation.

During the course of hearing of this appeal, this Court asked the learned counsel to read the statement of the doctor quoted in the judgment, at which the learned counsel for the appellant submits that he does not want to press this appeal on its merit. He on instructions only presses this appeal on the quantam of sentence and requests that a lenient view of the matter should be taken by this Court as the appellant has already undergone substantial period of the sentence and still he is in jail. He next submits that the appellant has remarried and has a minor child and a wife to look after. He is the only bread earner of the family. The sentence awarded to the appellant is excessive and too harsh and it cannot be said to be in proportionate to the offence alleged to have been committed by him.

After going through the record of this case, also taking into consideration the submission made by the learned counsel for the parties and also taking into consideration the statement of the concerned doctor given during his examination and in cross - examination, this Court is of the considered opinion that there is no illegality in the judgment and order in convicting the accused appellant. As such, the conviction of the appellant is hereby confirmed.

This Court is well aware of the law laid down by the Supreme Court on the point of "Proper Sentence" which was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

Looking to the submission of the learned counsel that he does not press this appeal on conviction but only on quantum of the sentence and also taking into consideration that there is a minor child to be looked after by the appellant, who is languishing in jail since 03.04.2014, this Court deems it fit and proper to modify the impugned judgment and order so far as the question of quantum of the sentence awarded to the appellant is concerned.

Accordingly, the conviction and sentence of the appellant of the ten years' rigorous imprisonment under Section 304-B I.P.C. is modified and reduced to eight years' rigorous imprisonment and a fine of Rs. 10,000/- is imposed to be paid by the appellant before his release from the jail. In case of default in payment of fine, the appellant will serve out an additional imprisonment of three months' R.I.

The appeal is allowed partly.

The appellant is in jail since . He will be released from jail on completion of eight years' R.I.

Office is directed to transmit a copy of this order to the learned Sessions Judge, Basti for compliance.

Office is also directed to send back the record of the trial court immediately.

Order Date :- 2.2.2021

LBY