Research › Search › Judgment

J&K High Court · body

2001 DIGILAW 319 (JK)

Kuldeep Kumar v. State Of J. &K.

2001-12-04

H.K.SEMA, S.K.GUPTA

body2001
Per S.K. Gupta, Judge: 1. We have heard Mr. J.R. Arora, learned counsel for the appellant, as well as Mr. Ashok Parihar, learned Addl. Advocate General, for the State. This criminal appeal by the husband of the deceased is directed against the judgment and order dated: 21-11-1994 passed by the learned Sessions Judge, Jammu. By means of the aforesaid judgment/order, the appellant has been convicted for committing the murder of his wife and sentenced to imprisonment for life and a fine of Rs, 2,000/- in proof of offence under Section 302 Ranbir Penal Code, Svt. 1989 (1932 A.D.). 2. The sheet anchor of the prosecution case portraited in narration is that, the dead body of Mst. Rani Devi, wife of the accused, was spotted hanging from a tree in village Batal Leher on 5th December, 1992 in the morning. The Chowkidar of the village, PW Panjabu Ram, rushed to Police Station, Jhajjar Kotli and reported the matter. On his report, SHO, Police Station, Jhajjar Kotli arrived in the village, took possession of the dead body and sent it for postmortem examination. The autopsy report disclosed the cause of the death due to Asphyxia, as a result of smothering. As the deceased had died under suspicious circumstances, the police proceeded under Section 174 of the Code of Criminal Procedure, Svt. 1989 (1933 A.D.). The police, after collecting the evidence during inquiry, found that the deceased had not died of hanging, but her dead body was hanged to make it appear that she had committed suicide. The police registered a case under Section 302 Ranbir Penal Code, Svt. 1989 (1932 A.D.) and investigation ensued. It was found during the investigation that the deceased was killed by the accused, her husband, and later on hanged her dead body from a tree so as to make the villagers believe that the deceased had committed suicide. On the conclusion of investigation, the accused was finally sent up to stand his trial for the alleged offence under Section 302 Ranbir Penal Code, Svt. 1989 (1932 A.D.). The Trial Court found him guilty of having murdered his wife, under Section 302 Ranbir Penal Code, Svt. 1989 (1932 A.D.), and sentenced him accordingly. 3. Mr. J.R. Arora, learned counsel appearing for the appellant vehemently urged that there being no direct evidence, the circumstantial evidence relied upon by the Trial Court does not warrant conviction of the accused. The Trial Court found him guilty of having murdered his wife, under Section 302 Ranbir Penal Code, Svt. 1989 (1932 A.D.), and sentenced him accordingly. 3. Mr. J.R. Arora, learned counsel appearing for the appellant vehemently urged that there being no direct evidence, the circumstantial evidence relied upon by the Trial Court does not warrant conviction of the accused. His further contention is that, when the evidence against the accused, particularly when he is charged with grave offence like murder, consists of only the circumstances, it must be qualitatively such that on every reasonable hypothesis, the conclusion must be that the accused is guilty, not fantastic possibilities nor weak inference but rational deductions, which is lacking in this case. Mr. Ashok Parihar, AAG, on the other hand, argued that the circumstantial evidence relied upon by the prosecution is consistent only with the hypothesis that the accused alone is the perpetrator of the crime and has killed his wife and thereafter hanged his dead body from a tree to make it to be a case of suicide. 4. The case of prosecution hinges on circumstantial evidence. The Trial Court has relied upon series of incriminating circumstances proved in the testimony of the witnesses that wholly excluded the innocence of the accused on every reasonable hypothesis to be the probative basis for conviction. 5. The marriage of the accused with the deceased solemnized in March 1991, it is not disputed that the accused was working in Delhi and used to visit his village only twice or thrice a year and, thus, could find very short time to enjoy the company of his wife, deceased Rani Devi. It is also not disputed that accused came from Delhi on 2nd/3rd December, 1992, brought the deceased, his wife, from her parental house on the evening of 4th December, 1992. The deceased was found hanging from a tree in the morning of 5th December, 1992. It is in this perspective to be seen as to whether the deceased committed suicide or was killed when the accused had denied of hanging of her dead body from a tree. 6. The first circumstance in the chain of circumstances depended upon by the Trial Court is that deceased last seen with the accused in the latters house. It is in this perspective to be seen as to whether the deceased committed suicide or was killed when the accused had denied of hanging of her dead body from a tree. 6. The first circumstance in the chain of circumstances depended upon by the Trial Court is that deceased last seen with the accused in the latters house. The evidence provided by PWs, Koushalia Devi, Thoru Ram and Bholi Devi, is to the effect that they requested the accused to come from Delhi as the deceased was residing in her parental house for the last two months. The accused came to his parental house in the village on 2nd December, 1992. It is also in their evidence that the accused took the deceased alongwith him on 04-12-1992 in the evening. The deceased was seen alive with the accused on the evening of 4th December, 1992 by Gopal Singh and Romel Singh, PWs, when they were proceedings towards their village. Even the accused also admitted to have brought deceased with him from his in-laws house on the evening of 04-12-1992. He further admitted that when he went to bed at night, the deceased was still awake. The accused also did not dispute that the dead body of the deceased was found hanging from the tree in the morning, but expressed ignorance about the circumstances leading to her death. So it is established beyond any pale of doubt that the deceased was seen last alive with the accused on the night of December 04, 1992 and in the next morning, her dead body was seen hanging from a tree. The autopsy of the deceased was conducted by Dr. C.S. Gupta who returned a finding that, in his opinion, death, in this case, is due to Asphyxia as a result of smothering. According to Dr. Gupta, ligature mark and abrasions on the neck of the deceased were found in the postmortem because there was no damage to the skin underneath the ligature mark. There was no fracture of cervical vertebrae and these types of symptoms, in the opinion of the doctor, are not possible in case of suicidal death by hanging and emphasized that ligature marks of the postmortem as there was no injury under beneath the skin. Dr. There was no fracture of cervical vertebrae and these types of symptoms, in the opinion of the doctor, are not possible in case of suicidal death by hanging and emphasized that ligature marks of the postmortem as there was no injury under beneath the skin. Dr. Gupta further opined that smothering is possible by placing a piece of cloth on the mouth and nose to block the flow of air into the lungs, which causes suffocation. The finding recorded by Dr. C.S. Gupta after conducting the postmortem examination of the dead body of Rani Devi are reproduced as under:- External Injuries: 1. A ligature mark 2 cm in width present above the thyroid cartilage in the neck obliquely, all around the neck with a brasions along the ligature mark at places. 2. Both eyes closed partially, bruising of inner side of lower lip was present on the right side. Ear lobules, finger tips blue in colour Internal findings: Lungs-Petechial hemorrhages were present over the surfaces of both lungs. All other organs were congested. Opinion: In my opinion, death in this case was due to asphyxia, as a result of smothering.....� The opinion of Dr. Gupta is in accord with what is written in Modis Medical Jurisprudence and Toxicology. It is clearly recited in the book of Modis Medical jurisprudence that in homicidal smothering effected by forcible application of the hand over the mouth and nostrils bruises and abrasions are often found on the lips and angles of the mouth, and alongside the nostrils 7. Mr. J.R. Arora, appellants counsel, however, strenuously urged that there are common features in case of suicidal death and death by smothering. His further submission is that there being no direct evidence of smothering. The accused could not be implicated to have caused the death of Mst. Rani Devi by smothering and, thus, this circumstance cannot be said to have been established against him. There does not appear any substance in the argument of the appellants counsel, as Dr. His further submission is that there being no direct evidence of smothering. The accused could not be implicated to have caused the death of Mst. Rani Devi by smothering and, thus, this circumstance cannot be said to have been established against him. There does not appear any substance in the argument of the appellants counsel, as Dr. Gupta has given a clear finding that the dead body of the deceased has been hanged from a tree after causing her death by smothering and so is the prosecution narration of the occurrence that the accused committed murder of his wife by keeping a piece of cloth in the mouth and nose, and thereafter, hanged her body from a tree to appear that it was suicide by hanging. When admittedly, the deceased and the accused were together during night, it could be explained only by the accused as to how she had died and from his plea of ignorance, the only inference of guilt could be drawn against him. 8. Disclosure statement made by the appellant, while in police custody, as a consequence of which, a piece of cloth, danda and stair-case were discovered, is another incriminating evidence appearing against the accused in the chain of circumstances. The discovery, mostly and really, is as regard the authorship of the concealment. Conduct and concealment are incriminating circumstances and their discovery becomes relevant and admissible under Section 27 of the Evidence Act. For the applicability of Section 27 of the Evidence Act, two conditions are pre-requisite, namely, (i) the information must be such as has caused discovery of the fact; and (ii) the information must relate distinctly� to the fact discovered. The appellant came to be arrested on 21-12-1992 and the disclosure statement, as a consequence of which, a piece of cloth, a danda and stair-case were discovered, was made on 28-12-1992, as is found in the statement of Investigating Officer, PW Showkat Ahmad Khan. According to Investigating Officer, the disclosure statement was made by the accused in presence of Tara Chand, Thoru Ram, PWs. The evidence of the Investigating Officer with regard to the disclosure statement stood corroborated by Tara Chand and Thour Ram, PWs and their evidence to this effect remained uncontroverted. These witnesses have stated unambiguously that the accused, soon after making the disclosure statement, pointed out a place of concealment wherefrom the incriminating articles were recovered. The evidence of the Investigating Officer with regard to the disclosure statement stood corroborated by Tara Chand and Thour Ram, PWs and their evidence to this effect remained uncontroverted. These witnesses have stated unambiguously that the accused, soon after making the disclosure statement, pointed out a place of concealment wherefrom the incriminating articles were recovered. It is further affirmed by Mani Ram, PW, an attesting witness of the seizure memo EXPW-2/3, that the stair-case, danda and piece of cloth were recovered at the instance of the accused in his presence. His statement to this effect remained unshaken. The recovery of stair-case on the pointing of the accused, in pursuance to a disclosure statement, provides an incriminating circumstance pointing to his guilt as the dead body could not have been hanged from the tree without the help of the stair-case. The person, who hanged the dead body from the tree, obviously, was guilty of causing her death by smothering as Dr. C.S. Gupta has negatived the cause of death of the deceased by suicide hanging. Similarly, the recovery of a piece of cloth further provides an additional incriminating circumstance, pointing an accusing finger towards the accused guilty of the murder of his wife, as smothering is possible only by a piece of cloth and the person, who had killed the deceased, could only know the manner in which he had caused the death of the deceased and the place where he had kept the piece of cloth concealed. According to Investigating Officer, Showkat Ahamd Khan, dead body could not have been hanged from the tree without the use of the stair-case. This evidence of the Investigating Officer also remained uncontroverted. The length of the stair-case, described in the seizure memo EXPW-2/3, is 14-10 and the distance from the ground to the branch of the tree, as described in EXPW-17/1, is 14-3". The height of the deceased is given 5-2" and he distance between the ground and her feet is 5-l". So it cannot be believed that the deceased could have been hanged without the use of stair-case. The accused therefore could not have reached to that height while carrying dead body without using the stair-case. The discovery of the stair-case, at the instance of the accused, points to the guilt of the accused and incompatible with his innocence. So it cannot be believed that the deceased could have been hanged without the use of stair-case. The accused therefore could not have reached to that height while carrying dead body without using the stair-case. The discovery of the stair-case, at the instance of the accused, points to the guilt of the accused and incompatible with his innocence. It was, therefore, known only to the accused that the piece of cloth was used in smothering the deceased and the stair-case used for hanging her dead body from a tree because of the distance involved and their recovery, at the instance of the accused, pursuant to a disclosure statement made by him, provides incriminating piece of evidence against him. Only so much of information, as distinctly relates to the facts thereby discovered, is admissible under Section 27 of the Evidence Act. The disclosure statement and the consequent recovery pursuant thereto of a piece of cloth, stair-case and a danda used in smothering the deceased in causing her death and thereafter hanging her dead body from a tree by the use of the stair-case, so as to make the villagers believe it to be a case of suicide, having been established by reliable and trustworthy evidence is, indeed, of such incriminating nature that it would go a long way to furnish proof of the guilt of the accused and connect him with the crime. 9. According to Investigating Officer, the place of occurrence was the kitchen in the house of the accused. It was also in his evidence that the kitchen was used for sleeping during night and the bed was also found there. The accused and the deceased, therefore, were together in the kitchen on the ill-star night. It is not denied that the accused are four brothers and living in the house with their parents. There are two rooms in the house. One would, obviously, be occupied by his elder brother, who is married, and the other room for unmarried brothers and parents. Therefore, there is no other room left for the accused except the kitchen to sleep with his wife, whom he had brought from her parents house. When the accused had come to the village after long interval, it was but natural that he would sleep together with his wife at night. Therefore, there is no other room left for the accused except the kitchen to sleep with his wife, whom he had brought from her parents house. When the accused had come to the village after long interval, it was but natural that he would sleep together with his wife at night. In such circumstances, the plea raised by the accused that he went to bed when the deceased was still awake does not provide a mitigating circumstance consisting of his innocence. In normal course, it is the husband, who is expected to sleep with his wife when he had brought her from her parental house, and there being no other place except the kitchen, where the bed was also found, that they would have slept together, as is proved in the evidence of Investigation Officer and supported by other authenticating circumstance. It was for the accused to have extended plausible explanation as both of them were together at night and he alone knew how she died. The accused, therefore, could not pretend ignorance as to how after death, the deceased was hanged. His muteness, therefore, in not-divulging what is expected to know, further provides an incriminating circumstance to link the accused with the commission of the crime. In cases where only circumstantial evidence is available, at the outset, one normally starts looking for motive and opportunity to commit the crime. According to PW, Mst.Pholi Devi, sister-in-law of the deceased, the marriage of the younger sister of the deceased was solemnized about two months prior to the occurrence and the accused was not invited in that marriage. The accused, however, stopped visiting his in-laws house thereafter and his relations with the deceased, therefore, did not remain cordial. This fact is further borne out from the evidence provided by Romel Singh and Gopal Singh, who found the accused scolding the deceased while taking her to home. It is also in their evidence that the deceased was weeping while accompanying the accused to her in-laws house, and the accused had threatened to teach her a lesson. The deceased, however, killed in the same night. The accused and no other person had the opportunity to kill her. Further evidence to discover motive of an offence is found when Kaushalia Devi and Pholi Devi, mother and sister-in-law of the deceased were suggested that the deceased was having illicit relations with her sisters husband, Dharam Chand. The deceased, however, killed in the same night. The accused and no other person had the opportunity to kill her. Further evidence to discover motive of an offence is found when Kaushalia Devi and Pholi Devi, mother and sister-in-law of the deceased were suggested that the deceased was having illicit relations with her sisters husband, Dharam Chand. In order to prove accusation of infidelity of the deceased, accused examined one Kelu Ram, as defence witness, to prove that it was known to every one in the village that the deceased had extra-marital relations with Dharam Chand, her brother-in-law. It was also in the evidence of this witness that the deceased taking advantage of the absence of her husband, used to openly flirt with Dharam Chand, her brother-in-law. No husband would tolerate that his wife leads an adulterous life with some other person during his absence and, thus, provides a strong motive to kill her. The sequence of events having elicited from the narrative of the aforesaid witnesses, the thread may be picked up from the fact that the accused had a grievance for having not been invited on the marriage of the sister of the deceased, while he was taking the deceased to his house from his in-laws house, PWs, Romel Singh and Gopal Singh found him scolding the deceased and threatening her to teach a lesson and the deceased was weeping, that both were together during night before she was killed. The accusation of infidelity against the deceased, and the deceased, as stated by PW, Kelu Ram, leading adulterous life with Dharam Chand during absence of accused, when taken together must have enraged the accused to eliminate her. The possibility of accusation and counter-accusation having been taken place between the accused and the deceased, which impelled the accused to take this extreme step, cannot be ruled out. So far as the accusation of unchasitity of the deceased of having illicit relations with Dharam Chand appear to be false, as marriage of Dharam Chand was solemnized, according to PW Bholi Devi, about two months prior to the occurrence, with Vishno Devi, younger sister of the deceased. Dharam Chand, however, lives in another village far away from the village of the accused. The evidence provided by Kelu Ram, defence witness, in this regard, does not appear to be believable and trustworthy. Dharam Chand, however, lives in another village far away from the village of the accused. The evidence provided by Kelu Ram, defence witness, in this regard, does not appear to be believable and trustworthy. Undoubtedly, motive always lock out in the minds of the accused and sometimes it is difficult to unlock. But people do not act wholly without motive. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim and also further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence is to be construed sufficient to unravel the full dimension of the mental disposition of the offender towards the deceased by killing her. In this case, the proved circumstances sufficiently established the existence of strong motive for the dastardly crime. 10. The conduct of the accused is relevant under Section 8 of the Evidence Act. It is not undesirable that when the husband and wife were together in the room during night alone, the husband does not know how and when his wife was smothered to death. The accused admitted to have found the dead body hanging from a tree in the morning, but feigned ignorance as to how it happened. This plea of ignorance was the conduct, which he alone could explain and omission to offer the explanation after having seen the dead body, he remained a silent spectator till the police arrived there. In such a case, there cannot be any hesitation to come to the conclusion that it is the accused, who is the perpetrator of the crime, In a case of circumstantial evidence, when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers explanation, which is found untrue, then the same becomes an additional link in the chain of circumstances to make it complete. The behaviour and conduct of the appellant, in this case, adjudged by a normal standard, is clearly suggestive of his involvement such heinous crime. 11. Mr. The behaviour and conduct of the appellant, in this case, adjudged by a normal standard, is clearly suggestive of his involvement such heinous crime. 11. Mr. J.R. Arora, learned counsel appearing for the appellant, further argued that the law relating to the circumstantial evidence that the prosecution must prove each of the circumstances, having a definite tendency pointing towards the guilt of the accused and the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis than the one pointing to the guilt of the accused. His further contention is that in the instant case, the prosecution has not proved beyond reasonable doubt and hence the conviction cannot be sustained, by making reference to various judgments. We do not find any merit in the submissions made by the appellants counsel and reference made to the judgments relate to the facts of those particular cases and, thus, do not apply to this case. As is found in the circumstances enumerated above, it was the accused, who brought the deceased from his in-laws house on 04-12-1992 and on the way went on scolding the deceased and threatened to teach her a lesson, the deceased and the accused were also together during night in the room and when the wife was smothered to death and his dead body was found hanging from a tree in the morning, discovery of stair-case used to hang her and the piece of cloth with which she was smothered to death, as a consequence of the disclosure statement made by the accused during investigation, actuated by a motive to kill her and hang her dead body to make the villagers believe to be a case of suicide and fully established by the prosecution, we have no hesitation to come to the conclusion that the charge of murder has been proved beyond reasonable doubt as against the accused-appellant. 12. Every evidentiary circumstance is a probative link. In this case, link after link is forged so firmly by credible testimony and formed a strong chain of sure guilt pointing the accused. Each link, if taken separately, may just suggest, but when hooked on to the next and on again may manacle the accused inescapably. As regards the doctrine of benefit of doubt, the Apex Court in Dharam Dass Wadhwani Vs. Each link, if taken separately, may just suggest, but when hooked on to the next and on again may manacle the accused inescapably. As regards the doctrine of benefit of doubt, the Apex Court in Dharam Dass Wadhwani Vs. The State of Uttar Pradesh, AIR 1975 SC 241, held as under: The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inference flowing from evidence circumstantial or direct.� The law relating to circumstantial evidence no longer remains res Integra and we do not think it necessary to multiply authorities on this point. The circumstances detailed above explicitly having been established by unimpeachable evidence make so strong a mesh that the innocence of the accused is wholly excluded and on every reasonable hypothesis the guilt of the accused is the only inference. We, therefore, do not find any infirmity in judgment and order of the Trial Court and confirm the finding returned of the sentence awarded. In the result, this appeal, therefore, is dismissed and the conviction made and sentence awarded by the Trial Court confirmed. Both the appeal as well as the Reference made by the Trial Court are disposed of accordingly.