Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 2168 (ALL)

GURUMUKH SINGH v. STATE OF U. P.

2016-06-09

PRATYUSH KUMAR, VIKRAM NATH

body2016
JUDGMENT : Hon'ble Vikram Nath, J. Hon'ble Pratyush Kumar, J. The above mentioned appeals filed under section 374 (2) Cr.P.C. on behalf of accused appellants are directed against judgment and orders dated 20th July, 2006 passed by Sri Prakash (H.J.S.) Additional Sessions Judge, Court No.6 Ghaziabad in Session Trial No. 1199 of 1998 (State Vs. Gurumukh Singh and others) whereby the appellant Dr. Gurumukh Singh was convicted under sections 498A, 302IPC and section 3/4 Dowry Prohibition Act. He was sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs. 10,000, imprisonment for life and to pay fine of Rs. 20,000/- and to undergo rigorous imprisonment of two years and to pay fine of Rs. 5,000/-. In default of payment of fine he was directed to undergo rigorous imprisonment of one year, two year and six months respectively. Appellant Sanjay Singh was convicted under sections 498A IPC and ¾ Dowry Prohibition Act and sentenced to undergo rigorous imprisonment of three years and to pay fine of Rs. 10,000/-, further to undergo two years rigorous imprisonment and to pay fine of Rs. 5,000/-, respectively. In default of payment of fine he was directed to undergo rigorous imprisonment of one year and six months on both the counts, respectively. Since both the appeals arise out of the same judgment, they have been heard together and disposed of by common judgment and order. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellants, Sri A.N. Mulla and Ms. Ainakshi Sharma, learned AGA for the State and perused the record. Facts giving rise to the present appeal may be summarized as under: That on 22nd October, 1996 at 8.15 p.m. Kishan Pal Singh gave a written report at police station Loni stating therein that 7-8 years ago he married his daughter Padma with Dr. Gurumukh Singh and gave dowry beyond his status but Jaswant Singh and Smt. Gurudevi (parents of the bridegroom) and Dr. Gurumukh Singh and his younger brother Sanjay Singh were not satisfied with the dowry. They started to make additional demand of colour television, VCR and car. When their demands were not met they used to beat and torture Padma. In December, 1994 all the four accused visited his house and reiterated the demand for additional dowry. On 18th November, 1995 they again made demand for additional dowry. They started to make additional demand of colour television, VCR and car. When their demands were not met they used to beat and torture Padma. In December, 1994 all the four accused visited his house and reiterated the demand for additional dowry. On 18th November, 1995 they again made demand for additional dowry. The accused persons abused Padma, humiliated her and asked her to leave their house. Thereafter on 25th November, 1995 their demand was reiterated by Dr. Gurumukh Singh and Sanjay Singh in the presence of family members of the first informant and other respectable members of their caste. When the matter was not amicably settled, the first informant after conversing with his daughter, who was reluctant to leave her sasural on account of her three children, he alongwith others came back but Padma did not come with the first informant. On 11th July, 1996 he was called to Loni on the false pretext where demand for additional dowry was again made. When the matter remained unresolved he took his daughter with him. After 16 days Dr. Gurumukh Singh telephonically threatened Padma and asked her to bring Rs. 2 lakhs with other articles immediately and come to Loni. Wife of the first informant took Padma to Loni without cash and articles demanded by the appellant. She was humiliated there and after leaving Padma there he came back. On 22nd October, 1996 at 1 p.m. an unknown person informed him that some mishap with his daughter had taken place, he must come to Loni immediately. When the first informant along with other family members reached PHC, Loni he found dead body of his daughter in a room. He apprehended that his daughter was murdered by the accused persons for dowry. At this check FIR was scribed, Case Crime No. 551 of 1996 under section 302 IPC was registered at P.S. Loni. Investigation was taken over by S.I. Rajnikant Katara who investigated the matter and submitted the charge sheet against all the four named accused persons. Both the appellants along with co-accused Jaswant Singh and Gurudevi stood for trial before the Court of Session. Appellant Gurumukh Singh was charged under sections 498A, 302 IPC and ¾ Dowry Prohibition Act other co-accused were charged separately under section 498A IPC and ¾ Dowry Prohibition Act. They denied the charges and claimed to be tried. Both the appellants along with co-accused Jaswant Singh and Gurudevi stood for trial before the Court of Session. Appellant Gurumukh Singh was charged under sections 498A, 302 IPC and ¾ Dowry Prohibition Act other co-accused were charged separately under section 498A IPC and ¾ Dowry Prohibition Act. They denied the charges and claimed to be tried. On behalf of the prosecution in order to prove the charges in the documentary evidence besides other papers written report Ext. Ka-1, check FIR Ext. Ka-2, postmortem report Ext. Ka-4, site plan Ext. Ka-5, inquest report Ext. Ka-7 charge sheet Ext. Ka-6 were filed. In the oral evidence six witnesses were examined. Thereafter statements of the appellants were recorded, wherein they denied the facts stated by the prosecution witnesses. According to them they were falsely implicated. In the defence one witness Dr. Indrajeet Sharma D.W.1 was examined and medical papers regarding treatment of deceased Smt. Padma were filed. The learned trial Judge after hearing the counsel for both the parties acquitted Jaswant Singh and Smt. Gurudevi, however, he recorded finding of guilt against both the appellants. According to him it was not a case of suicide but deceased had died due to asphyxia as a result of strangulation. He also found charges of demand of dowry and cruelty proved against the present appellants. Sri Rajiv Lochan Shukla in support of both the appeals has submitted that impugned judgment and orders are illegal. The evidence has not been properly appreciated. According to him from the medical evidence it is established that deceased committed suicide by hanging herself. According to him in the defence medical papers were filed to show that deceased was patient of depression and due to which she committed suicide. He has further submitted that during 10 years there was no complaint of demand of dowry or mal treatment of Padma therefore charges under sections 498A and ¾ Dowry Prohibition Act could not be proved against the appellants. On behalf of the State these arguments have been repelled and it has been submitted that the learned trial Judge has rightly appreciated the evidence. Medical evidence unmistakably indicates that death of the deceased had occurred due to asphyxia as a result of strangulation and appellant being husband failed to explain how the deceased was murdered in his house. On behalf of the State these arguments have been repelled and it has been submitted that the learned trial Judge has rightly appreciated the evidence. Medical evidence unmistakably indicates that death of the deceased had occurred due to asphyxia as a result of strangulation and appellant being husband failed to explain how the deceased was murdered in his house. It has been further submitted that finding recorded by the learned trial Judge are well substantiated from the record, cogent reasons have been given in support thereof. The appeals have no substance and they deserve to be dismissed. In reference to our obligation as an appellate court hearing appeal against conviction, we would like to refresh our minds 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." Before entering into the merits of the arguments advanced on behalf of both the parties we would like to place on record broad features of the evidence adduced by the parties before the trial court. Kishan Pal Singh, P.W.1 is the first informant and father of the deceased. He has reiterated the facts narrated in the first information report. He has proved written report Ext. Ka-1. Kishan Pal Singh, P.W.1 is the first informant and father of the deceased. He has reiterated the facts narrated in the first information report. He has proved written report Ext. Ka-1. Mukesh Kumar Singh, P.W.2 is the brother of the deceased. He has supported the prosecution version contained in the first information report. Smt. Asarfi Devi, P.W.3 is the mother of the deceased. She has reiterated the facts mentioned in the first information report. HCP Sri Krishna Sharma, P.W.4 is the scribe of the check FIR Ext. Ka-2 and he has also proved copy of the report of the general diary Ext. Ka-3. Dr. R.R. Tyagi P.W.5 has deposed that on 23.10.1996 at 2 p.m. he performed the autopsy on the dead body of Smt. Padma, who was aged about 28 years. She died one day ago. On the dead body rigor mortis was present in the lower extremities. Blood was found in the mouth, face was congested. Ligature mark was found on her neck. According to him ligature mark was non interrupted all over the upper most part of neck varying from 1.25 cm to 1.75 cm. knot being under chin, ligature mark of chunni. Underline muscles and fscia ecchymosed. Bleeding from nose was present. He has further deposed that on the body no other mark of injury was found. During the internal examination membranes of lungs, plura, pericarbin and blood vessels were found congested. In his opinion deceased had died due to asphyxia as a result of constriction of neck. He has proved postmortem report Ext. Ka-4. In the postmortem report he has written that the cause of death to be asphyxia due to strangulation. S.I. Rajnikant Katara, P.W.6 is the investigating officer. He has given details of steps taken during the course of investigation. He has proved site plan Ext.5, charge sheet Ext. Ka-6, inquest report ext. Ka-7 and other accompanying papers with the dead body Ext. Ka-8 to Ka-11. The defence witness Dr. Indrajeet Sharma. D.W.1 has deposed that he is M.D. in Psychiatry. On 21st August, 1996 he had made a medical checkup of Padma. He has proved her E.E.G. Ext. Kha-1, its report Kha-2, medical prescription Ext. Kha-3. He has deposed that he advised medication to Padma for depression. Before reassessing and reappreciating the evidence adduced by the parties, we find it convenient to notice some facts which are admitted to the parties. He has proved her E.E.G. Ext. Kha-1, its report Kha-2, medical prescription Ext. Kha-3. He has deposed that he advised medication to Padma for depression. Before reassessing and reappreciating the evidence adduced by the parties, we find it convenient to notice some facts which are admitted to the parties. They may be taken note of as that the appellant Dr. Gurumukh Singh and deceased were husband and wife. They had three children. Dr. Gurumukh Singh at the relevant time was posted in Primary Health Centre, Loni and he had residential accommodation adjacent to PHC wherein appellants and deceased along with her three children were living. On 22nd October, 1996 death of Padma is also not disputed. Here we would take a pause to refer, recall and reiterate the grounds canvassed by Sri Rajiv Lochan Shukla in support of these appeals. They are given as below: (1) There was no demand of dowry, no cruelty or torture was committed by the appellants with Padma. (2) Padma was a patient of depression, she committed suicide. (3) These facts stand proved by medical evidence. (4) The learned trial Judge has erred in appreciating the medical evidence given by Dr. R.R. Tyagi P.W.5 and postmortem report Ext. Ka-4. It is needless to say that in the criminal trial bruden is on the prosecution to prove the charges against the accused persons beyond reasonable doubt. It is for the prosecution to prove that actually demand for additional dowry was made, deceased was harassed and tortured and on that score she was murdered by appellant Gurumukh Singh. The evidence where a married woman who was allegedly subjected to demand of dowry and consequent harassment and torture is not like the other cases. About this offence the only evidence to establish what happened with the deceased is the facts communicated by her to her parents and to some extent allegedly perceived by the parents themselves. On the point of demand of dowry and consequent harassment and torture the evidence is of Kishan Pal Singh (father) P.W.1, Mukesh P.W.2 and Asarfi Devi (mother) P.W.3. First and third PWs are parents of the deceased and second one is her brother. All these three are family members in whom the deceased had confidence, it was natural for her to communicate her woes. Evidence of these three witnesses is of two kinds. First and third PWs are parents of the deceased and second one is her brother. All these three are family members in whom the deceased had confidence, it was natural for her to communicate her woes. Evidence of these three witnesses is of two kinds. First kind is that whenever they met the appellants, they were asked to provide additional dowry and in their presence Padma was harassed and tortured The second kind of evidence is that whatever threats, in this regard, were communicated by Padma to them. These three witnesses are also relatives of the appellants by marriage. Had the marital life been peaceful harmonious and cordial, these three witnesses would have been affectionate and proactive towards appellant Gurumukh Singh. While remembering these facts we have examined their testimonies and we find that all the three witnesses are critical of the behaviour of Dr. Gurumukh Singh. Kishan Pal Singh P.W.1 has referred to the incident which occurred on 19th November, 1995 when he was asked to give Rs. 2 lacs for purchase of car. He has also referred the incident which occurred on 11th July, 1996 when they were called to Loni on false pretext. Padma complained to them that she was beaten by her in-laws. She had shown them marks of injuries on her person. During cross examination statement of Kishan Pal Singh P.W.1 on these two points not only remained intact but he was not even suggested that on these two dates such incidents did not occur. Mukesh Kumar Singh P.W.2 is the elder brother of the deceased. He has referred a telephonic call from Dr. Gurumukh Singh asking him for money to purchase a car with the threat in case the demand was not met he would torture and murder his sister. On this point he was not subjected to any cross examination. He was not given even a suggestion that he was falsely deposing. Smt. Asarfi Devi P.W.3 has also given details how demands for dowry were made, how Padma was tortured. During cross examination her testimony also remained unshaken. These three persons had love and affection for Padma. For 7-8 years they treated Dr. Gurumukh Singh as their near and dear one. Had his relations with Padma been cordial and Padma had been decently treated by Gurumukh Singh, they would not have deposed against Dr. Gurumukh Singh in such fashion. During cross examination her testimony also remained unshaken. These three persons had love and affection for Padma. For 7-8 years they treated Dr. Gurumukh Singh as their near and dear one. Had his relations with Padma been cordial and Padma had been decently treated by Gurumukh Singh, they would not have deposed against Dr. Gurumukh Singh in such fashion. Their testimonies inspire confidence of the Court. Their testimonies have ring of truth in them. For the above reasons we are not accepting the argument advanced on behalf of Dr. Gurumukh Singh that no demand for dowry was made by him. Relying on these testimonies we hold that deceased and these witnesses were subjected to demand of dowry and when those demands were not met, Padma was tortured and harassed and beaten by Dr. Gurumukh Singh. Here we would like to clarify that on this point we have critically examined the testimonies of these three witnesses but we did not find that other appellant Sanjay Singh was equally blamed by these witnesses for making demand of dowry or torturing Padma. In reference to Dr. Gurumukh Singh on this point we find that finding recorded by the learned trial Judge are well substantiated from the record but in reference appellant Sanjay Singh we find that learned trial Judge has erred in holding Sanjay Singh to be guilty of making demand for dowry and torturing Padma. The only reason for this error appears to be that at the time of death of Padma appellant Sanjay Singh was also living with Dr. Gurumukh Singh and the deceased. We are clear in our minds that the prosecution has failed to adduce cogent evidence to show that appellant Sanjay Singh made demand of dowry to Padma and consequently harassed and tortured her. Now the question remains whether death of Padma was suicidal or homicidal. According to defence it was suicidal. According to prosecution it was homicidal. At great length on this count we have been addressed by learned counsel for both the parties. Various authorities have been referred before us. The learned trial Judge on the basis of medical evidence has held the death of Padma to be homicidal and the appellant Gurumukh Singh unable to give satisfactory explanation for her homicidal death. He being husband was found guilty of committing murder of Padma. Various authorities have been referred before us. The learned trial Judge on the basis of medical evidence has held the death of Padma to be homicidal and the appellant Gurumukh Singh unable to give satisfactory explanation for her homicidal death. He being husband was found guilty of committing murder of Padma. It is the usual practice in criminal appeals first to examine the evidence of prosecution so as to ascertain whether it could prove the charge against the accused persons successfully only thereafter defence evidence is considered. Though here learned counsel for the appellant has submitted before us the evidence of the defence and tried to persuade us that it was a case of suicide but we think that the better course is that first evidence of prosecution should be examined by us. Main features of the deposition of Dr. R.R. Tyagi P.W.5 have already been noticed by us. During cross examination nothing could be extracted which would cast doubt about his impartiality, fairness and correctness of the deposition. He has in straightforward manner answered the questions put to him by the defence. He has frankly admitted that except the ligature mark he did not find any other external mark of injury. He has also admitted that trachea was not found fractured. Inspite of these two facts he was clear in his mind that facts observed by him during the postmortem examination are correct. In favour of strangulation he has given two reasons that ligature mark is continous and it is below the thyroid. This fact has been disputed by the learned counsel for the appellant by saying that in the postmortem report seat of legature mark has been noted at upper most part of the neck. 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. 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 1 Face Pale and petechiae are not common It is livid, congested and full of petechiae 2 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 3 Base Pale, hard and parchment like Soft and reddish 4 Subcuta neous Tissue It is white, hard and glisterning below the mark Ecchymoses present below the mark 5 Neck Stretched and elongated Not so 6 Hyoid Bone Fracture is common Fracture is rare 7 Thyroid Cartilage Fracture is rare Fracture is common 8 Tongue Swelling and protrusion are not so common Are well marked 9 Salvia Usually runs out of mouth Absent 10 Bleeding From the nose, mouth and the areas are not so common From the nose, mouth and ears are common 11 Involuntary discharge Of the faeces and urine are not common Are commonly seen 12 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 1 Mostly suicidal. Mostly homicidal. 2 Face-usually pale and petechiae rare. Face-Congested, livid and marked with petechiae. 3 Saliva-Dribbling out of the mouth down on the chin and chest. Saliva-No such dribbling. 4 Neck-Stretched and elongated in fresh bodies. Neck-Not so. 5 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. 6 Bleeding from the nose, mouth and ears very rare. Bleeding from the nose, mouth and ears may be found. Saliva-No such dribbling. 4 Neck-Stretched and elongated in fresh bodies. Neck-Not so. 5 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. 6 Bleeding from the nose, mouth and ears very rare. 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 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. 8 Abrasions and ecchymoses round about the edges of the ligature mark, rare. Abrasions and ecchymoses round about the edges of the ligature mark, common. 9 Subcutaneous tissues under the mark-White, hard and glistening. Subcutaneous tissues under the mark-Ecchymosed. 10 Injury to the muscles of the neck-rare. Injury to the muscles of the neck-Common. 11 Carotid arteries, internal coats ruptured in violent cases of a long drop. Carotid arteries, internal coats ordinarily ruptured. 12 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. 13 Fracture-dislocation of the cervical vertebrae-Common in judicial hanging. 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. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body-Usually present. 15 No evidence of sexual assault. Sometimes evidence of sexual assault. 16 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 classical 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. 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 dissection 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 1 Suicidal usually Homicidal usually 2 No signs of struggle Signs of struggle 3 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 4 Abrasions and bruises around ligature mark rare Abrasions and bruises around ligature mark common 5 Dissection of ligature mark reveals a dry and glistening white band of subcutaneous tissue Dissection of ligature mark reveals ecchymosed subcutaneous tissue 6 Neck usually stretched Neck not stretched 7 Fracture of hyoid rare Fracture of hyoid not rare in throttling cases (in the aged) 8 Fracture of laryngeal cartilages and tracheal rings rare Fracture of laryngeal cartilages and tracheal rings common 9 Injury to carotid arteries in cases with a long drop Injury to carotid arteries common 10 Injury to muscles of neck rare Injury to muscles of neck common 11 Fracture dislocation of cervical vertebrae common in judicial hanging Fracture dislocation of cervical vertebrae rare 12 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 13 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 14 Face usually pale Face congested and with pronounced petechiae 15 Bleeding from nose and mouth very rare Bleeding from nose and mouth common When we have considered all the three details given by the celebrated experts, we 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. R.R. Tyagi has categorically stated that underlying muscles and fascia were ecchymosed. 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 chunni. Before coming to any conclusion we would like to clarify that in the present case hyoid bone was not fractured. This point has been brought to the attention of the Court by the learned counsel for the appellant but in the case of Ponu Swamy Vs. State of Tamil Nadu 2008 CriLJ 2563 the Hon'ble Apex Court has observed that fracture of hyoid bone is not a must in all cases of strangulation. This point has been brought to the attention of the Court by the learned counsel for the appellant but in the case of Ponu Swamy Vs. State of Tamil Nadu 2008 CriLJ 2563 the Hon'ble Apex Court has observed that fracture of hyoid bone is not a must in all cases of strangulation. For this reason we are unable to accept the argument advanced on behalf of the appellant that absence of such fracture would tilt the balance in favour of the suicide. Now remains the defence evidence. Much criticism of the impugned judgment is based on non consideration of defence evidence. Consideration of defence evidence is a different thing and placing reliance on it is a different thing. From page 20 to 25 of the impugned judgment the learned trial Judge has discussed the defence evidence in detail. He did not find it to be trustworthy. Examination of Ext. Kha-2 reveals that it did not bear the name of the patient and date on which the test was conducted. He found the prescription written by Indra Jeet Sharma to be sufficient to show that Padma was certainly a patient of depression. The significant aspect noticed by him is that the description was for only seven days. It was recorded for seven more days. Except that paper nothing has been filed to show prior or later treatment of Padma for her depression. On careful examination of these documents we find no reason to differ from the conclusion drawn by the learned trial Judge. For this reason we are unable to accept the argument of the appellant Gurumukh that defence evidence was not properly appreciated. In view of above, we have no hesitation to hold that Padma had died due to asphyxia as a result of strangulation whereas Dr. Gurumukh Singh has claimed that she had hanged herself. Gurumukh Singh is the first person who saw her in a hanged condition. According to him house was closed from the inside. If that was the position of the house, the murderer could not have made exit from the house. This falsify the defence taken by the appellant before the police and the trial court. His falsity of defence is also circumstance which persuades us to conclude that it is Dr. Gurumukh Singh, the appellant who has murdered his wife Padma. Motive has been established. Homicidal death has been established. This falsify the defence taken by the appellant before the police and the trial court. His falsity of defence is also circumstance which persuades us to conclude that it is Dr. Gurumukh Singh, the appellant who has murdered his wife Padma. Motive has been established. Homicidal death has been established. Only opportunity for Dr. Gurumukh Singh to access of the house is established. He is the first person who claims to have seen her in a hanged condition. On these facts and circumstances the only inference can be drawn that it is the appellant Gurumukh Singh who murdered his wife. Therefore, the evidence appreciated by the trial court cannot be faulted upon. In our opinion the charges against the present appellant stand proved beyond reasonable doubt. Findings recorded by the learned trial Judge so far as appellant Gurumukh Singh is concerned are well substantiated from the record. The appeal is devoid of merit. Accordingly Appeal No. 4375 of 2006 is dismissed. So far as appeal of Sanjay is concerned, in view of the discussion made hereinbefore his appeal has substance and to this extent findings recorded in the impugned judgment are erroneous and deserves to be set aside. Accordingly the appeal No. 4374 of 2006 is allowed. Accordingly Appeal No. 4374 of 2006 is allowed. The conviction and sentences awarded to the appellant Sanjay Singh are set aside. The impugned judgment and orders are modified to this extent. Appellant Sanjay Singh is acquitted from the charges framed under section 498A IPC and section ¾ Dowry Prohibition Act. He is on bail. He need not surrender. His personal bond and surety bonds are cancelled. Sureties are discharged. Dr. Gurumukh Singh is in jail. His conviction and sentences are affirmed. He shall serve out his sentences in accordance to law. Office is directed to communicate this order to the court concerned for compliance forthwith and to send back the lower court record.