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2017 DIGILAW 1649 (ALL)

BECHEY LAL v. STATE OF U. P.

2017-07-14

ARVIND KUMAR TRIPATHI, SATYA NARAIN AGNIHOTRI

body2017
JUDGMENT : (Author S.N. Agnihotri, J.) 1. Feeling aggrieved with the Judgment and order dated 25.3.1986 passed by learned Sessions Judge, Pilibhit in S.T. No. 150 of 1984 (State Vs. Bechey Lal) arising out of Crime No. 201 of 1983, Police Station (for brevity P.S.) Bilsanda, whereby learned Sessions Judge held guilty to accused-appellant under Section 302 I.P.C. and sentenced him with life imprisonment, appellant filed this Appeal. 2. The factual matrix of the case is that deceased Smt. Munni was married to accused Bechey Lal about 5 to 6 years earlier before her death in the Village Neorapur. On 07.08.1983 Shri Ram Lal, Chowkidar of Village Neorapur, P.S. Bilsanda informed orally to Police Station Bilsanda that he had received information in the Village at morning that in the intervening night of 06/07.08.1983 the wife of accused-appellant Smt. Munni had unbearable pain in her stomach, due to which she had committed suicide. Upon this information Shri Ram Lal Chaukidar PW1 went to Police Station Bilsanda and gave oral information at Police Station about the incident. This information was recorded at Police Station in the General Diary No. 18 dated 07.08.1983 in the evening at 5 p.m., the copy of which is Exhibit Ka-4. On the basis of this information PW6 Shri B.P. Sharma S.I. visited the place of incident at Village Neorapur where he prepared inquest report of the dead body of Smt. Munni and related documents for post mortem of the dead body. Later on he sealed the dead body and sent it to the District Head quarter. Shri B.P. Sharma S.I. PW6 prepared site plan Exhibit Ka-10. Accused was not found at his house. Upon receipt of the post mortem report, it revealed that Smt. Munni had been strangulated and the case was converted under Section 302 I.P.C. The investigation of the case was done by Shri Virendra Pal Singh, the then Station Officer (for brevity S.O.), P.S. Bilsanda and after completing the investigation, he submitted charge sheet Exhibit Ka.3 against the appellant-accused. From the evidence of the prosecution it emerged that Smt. Munni did not conceived after her marriage. The accused-appellant suspected her fidelity also. On these two counts, the accused used to beat Smt. Munni and also said that she was of no use because she was infertile. Accused oftenly said he would kill her and marry with someone else. 3. From the evidence of the prosecution it emerged that Smt. Munni did not conceived after her marriage. The accused-appellant suspected her fidelity also. On these two counts, the accused used to beat Smt. Munni and also said that she was of no use because she was infertile. Accused oftenly said he would kill her and marry with someone else. 3. To prove the guilt of the accused-appellant, prosecution examined as many as six prosecution witnesses (for brevity Pws);- PW1 Shri Ram Lal Chaukidar of Village Neorapur, who proved that after receiving information in the village, he went to Police Station Bilsanda and gave oral information that the wife of accused-appellant Smt. Munni committed suicide due to unbearable pain in her stomach in the intervening night of 06/07.08.1983. This witness has not seen the incident. Thus he is a witness of formal nature. PW2 Smt. Har Dei, mother of Smt. Munni has proved that Smt. Munni complained her that she did not bear any child thats why appellant addressed her with filthy words and used to call her infertile (Banjh). It was also informed by the deceased that appellant-accused suspected her fidelity and oftenly said that she was of no use for him and would kill her. PW3 Shri Deep Chand, the cousin brother of Smt. Munni has stated that he had gone to fetch Smt. Munni from her in-laws house prior to her murder, where he saw that accused was beating Smt. Munni. PW4 Dr. J.K. Goel has stated on oath that he had performed autopsy of dead body of Smt. Munni on 09.08.1983 at 3:15 p.m. and following ante-mortem injuries were found on her person;- 1. Contusion 8cm x 3cm on right side neck 1cm below the lobule of right ear extending towards the back of neck. 2. Contusion 6cm x 4cm on left side neck 2cm below and behind the lobule of left ear. Under neck, subcutaneous tissues eccymosed with laceration of underlying neck mussels. 3. Contusion 10cm x 4cm on back and middile of right fore-arm. 4. Contusion 6cm x 6cm on outer and middle aspect of left arm. On internal examination, brain, its membranes, pleura, larynex, trachea, bronchi, and both the lungs were found congested. Hyoid bone was found fractured. Heart on right side was full of blood. Liver and spleen were also found congested. 4. Contusion 6cm x 6cm on outer and middle aspect of left arm. On internal examination, brain, its membranes, pleura, larynex, trachea, bronchi, and both the lungs were found congested. Hyoid bone was found fractured. Heart on right side was full of blood. Liver and spleen were also found congested. In the opinion of doctor, Smt. Munni had died due to asphyxia caused by strangulation. 4. PW6 Shri B.P. Sharma, who was posted as S.I., P.S. Bilsanda, visited at Village Neorapur on 08.08.1983, Shri Sharma found that the dead body of Smt. Munni was lying on the ground in the house of the appellant-accused. Shri Sharma prepared inquest report and other documents and sent the body for postmortem to the District Head Quarter. 5. Under Section 313 Cr.P.C. accused-appellant denied all allegations levelled against him and asserted that his wife Smt. Munni had suffered unbearable pain in her stomach in the night due to which she had committed suicide. 6. We have heard Shri A.K. Sachan, Advocate with Shri Saurav Sachan, learned counsel for the accused-appellant and learned A.G.A. and gone through the entire record including the judgment of Learned Sessions Judge very cautiously and consciously. 7. Learned counsel for the accused-appellant submitted that there was no motive to kill Smt. Munni (deceased). She was residing with accused-appellant happily, since she was suffering from unbearable pain in her stomach due to which she has committed suicide. There is no reliable evidence against accused-appellant to hold him guilty. 8. Per contra learned A.G.A. submitted that the deceased was issue less after elapsing of 5 to 6 years after her marriage and accused was suspecting her fidelity and was oftenly used to say that she is barren and hussy thats why he would kill her and marry someone else. Due to this reason accused-appellant has murdered Smt. Munni. 9. In the light of above rival submissions and after examining the record very cautiously we are of the opinion that from the evidence it is proved beyond doubt that Smt. Munni died in the intervening night of 06/07.08.1983 in the house of accused-appellant. Appellant did not refute this fact that Smt. Munni died in the intervening night of 06/07.08.1983 at his house. From the evidence, it is also proved that the death of Smt. Munni did not occur in the normal Course of nature and she died due to strangulation. 10. Appellant did not refute this fact that Smt. Munni died in the intervening night of 06/07.08.1983 at his house. From the evidence, it is also proved that the death of Smt. Munni did not occur in the normal Course of nature and she died due to strangulation. 10. Prosecution alleged that there was motive for accused-appellant to kill Smt. Munni because she was issue-less and did not bear any child after elapsing of 5 to 6 years from the date of her marriage. The accused was suspecting fidelity of Smt. Munni for which he used to beaten to Smt. Munni. This fact was proved by PW2 Smt. Har Dei and PW3 Shri Deep Chand. PW2 Smt. Har Dei stated on oath that whenever her daughter had come to her house, complained her that accused-appellant has beaten her and said that she was an infertile woman (Banjh) and of no use for him and he would kill her and would marry again. PW3 Shri Deep Chand, prior to the death of Smt. Munni, had gone to the Village of accused-appellant to fetch Smt. Munni at the request of PW2 Smt. Har Dei, where he saw that accused-appellant was beating Smt. Munni. The accused-appellant did not sent Smt. Munni with him. Accused-appellant has cross-examined these two witnesses at length but nothing could be extracted in favour of accused-appellant from the evidence of these two witnesses. It is proved beyond doubt that Smt. Munni did not bear any child after elapsing about 6 years from her marriage thats why accused-appellant was dissatisfied and was also suspecting fidelity of Smt. Munni, hence there was a strong motive for accused-appellant to kill Smt. Munni. 11. Next question which arises for consideration is that whether Smt. Munni has committed suicide by hanging herself or she was murdered by accused by violent asphyxia. 12. PW2 Smt. Har Dei and PW1 Shri Ram Lal Chaukidar of Village Neorapur deposed that Smt. Munni died in the intervening night of 06/07.08.1983 in the house of the appellant/accused situated at Neorapur, Police Station Bilsanda. This fact is also supported by PW5 and 6 Investigating Officer and Executor of inquest report that Smt. Munni died in the intervening night of 06/07.08.1983 in the house of the accused-appellant, this factum was not disputed by the accused-appellant. This fact is also supported by PW5 and 6 Investigating Officer and Executor of inquest report that Smt. Munni died in the intervening night of 06/07.08.1983 in the house of the accused-appellant, this factum was not disputed by the accused-appellant. Thus it is proved beyond doubt that Smt. Munni died on the date and place as noted above. 13. Accused-appellant contended that Smt. Munni died by hanging herself from the roof of the house. PW1 Shri Ram Lal Chaukidar of the Village who was informed by the accused-appellant in the morning of 07.08.1983 that his wife Smt. Munni died in the preceding night by hanging herself. Upon receiving this information PW1 visited the house of accused-appellant where he found that the body of Smt. Munni was lying on the floor and a small piece measuring one yard of rope was lying near the body of Smt. Munni. When he enquired about the cause of the death of Smt. Munni, accused-appellant replied that due to unbearable pain in her stomach she has committed suicide in the night by hanging herself from the roof with the help of a rope. PW4 Dr. J.K. Goel proved that there were two ante-mortem injuries upon the hands whereas two ante-mortem injuries were on the neck of the deceased. Dr. further stated on oath that these two injuries which were found on the neck were circular in nature and were non-continuous thus in the opinion of Dr. Goel, Smt. Munni died due to asphyxia caused by strangulation. Since the facts and circumstances of the case reveals, that Smt. Munni died in the night in the house of the accused-appellant that's why none could see the occurrence except the inhabitant of the house in which accused-appellant was also inhibited. If Smt. Munni committed suicide there would have been no injury on her hands. Appellant did not explain how these two injuries in the hands were caused to deceased. It is not the case of appellant that some one else or unknown intruder committed murder of Smt. Munni. Since there is no direct evidence thats why in the facts and circumstances of the case in view of Section 106 Inidan Evidence Act. There would only be inference that Smt. Munni was murdered by accused-appellant creating obstruction in the wind pipe of the deceased. 14. Since there is no direct evidence thats why in the facts and circumstances of the case in view of Section 106 Inidan Evidence Act. There would only be inference that Smt. Munni was murdered by accused-appellant creating obstruction in the wind pipe of the deceased. 14. PW1 Shri Ram Lal Chaukidar stated that there was a piece of rope measuring about one yard lying near the body of Smt. Munni. PW6 Shri B.P. Sharma, S.I. who visited the place of occurrence in the morning of 08.08.1983, has not found the piece of rope near the body or anywhere in the house of appellant. The rope was neither tight in the neck nor it was hanging at roof of the house where, it was said that Smt. Munni hanged herself. Accused-appellant failed to explain what has happened with rope or where it has gone or who displaced it, or took away. There was only accused-appellant and his family members in the house. If Smt. Munni died due to hanging herself with rope certainly the rope, which was alleged to have been used by the deceased, should be found by PW6 Shri B.P. Sharma, but it was not found there. PW-1 Shri Ram Lal Chaukidar stated on oath that in the room of which roof Smt. Munni hanged herself, was about 10-12 feet high. It is impossible to believe that Smt. Munni would have committed suicide by hanging herself with the help of a rope measuring about one yard in length in a room ceiling of which was about 10-12 feet high. Thus it is not believable that Smt. Munni hanged herself with the help of one yard long piece of rope. Moreover as per the deposition of PW4 Dr. J.K. Goel, there was no sign of hanging because no such type of injury was found on the neck of Smt. Munni which indicate that it was a case of self hanging. Admittedly Smt. Munni had died in the night in the house of accused-appellant. Thus appellant was under obligation to explain in which circumstances Smt. Munni died, because appellant/ accused has special knowledge about the facts and circumstances. Accused-appellant contended and suggested that Smt. Munni had died due to hanging herself because she could not bear the stomach pain, in the fateful night. Thus appellant was under obligation to explain in which circumstances Smt. Munni died, because appellant/ accused has special knowledge about the facts and circumstances. Accused-appellant contended and suggested that Smt. Munni had died due to hanging herself because she could not bear the stomach pain, in the fateful night. PW2 Smt. Har Dei stated on oath that her daughter was never complained about pain in her stomach, accused also failed to prove by any cogent, reliable or documentary evidence that Smt. Munni was suffering with severe pain in her stomach on that very fateful night or on any other day prior to her death, that's why she ended her life by hanging herself. Since there is no reliable evidence or explanation was given by the accused-appellant thats why the provision of Section 106 of the Evidence Act comes in the picture which is read as under; "Section 106 in The Indian Evidence Act, 1872-- 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. Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him." 15. According to Section 106 of the Evidence Act, if any person has special knowledge of any facts, it is his obligation to prove that fact or give explanation. Since Smt. Munni died in the night in the house of appellant where he was present. Thats why it was the obligation of appellant to prove how Smt. Munni died and how two injuries caused in her both hands. Accused/appellant failed to prove or satisfied the Court how Smt. Munni died and who murdered her. Thats why there would be only and only inference that she had been murdered by appellant/accused. Thus it is proved that Smt. Munni was murdered by appellant/accused. 16. Besides this, after the death of Smt. Munni, accused-appellant did not care to inform to the police and chose to inform police through PW1 Shri Ram Lal Village Chaukidar. Thats why there would be only and only inference that she had been murdered by appellant/accused. Thus it is proved that Smt. Munni was murdered by appellant/accused. 16. Besides this, after the death of Smt. Munni, accused-appellant did not care to inform to the police and chose to inform police through PW1 Shri Ram Lal Village Chaukidar. Accused escaped from the scene of occurrence when PW6 Shri B.P. Sharma, Sub-inspector visited at the place of occurrence and remained absconding about one and half month. This indicate that accused was involved in the murder of Smt. Munni that's why he was absconding for saving himself from the clutches of the law. These circumstances also indicate the criminality of the accused-appellant in the death of Smt. Munni. 17. PW2 Smt. Har Dei, mother of the deceased and mother-in-law of accused-appellant stated on oath that her daughter was issue-less thats why accused was beating her daughter and addressed her that she was a hussy and barren lady, and he would kill her. So many times witness tried to pacify to accused-appellant but he again and again assaulted physically to her daughter. This fact was supported by PW3 Shri Deep Chand who stated on oath that when he had gone to the house of the accused-appellant to fetch Smt. Munni, he saw that accused had been beating to Smt. Munni. Thus from the evidence of these two witnesses it is evident that accused-appellant was not satisfy with his wife because she did not conceived after elapsing of 5 - 6 years of their marriage. 18. In view of the above discussions we are of the opinion that the statements made by the PW2 Smt. Har Dei and PW3 Shri Deep Chandra are in conformity and inconsonance and there is no infirmity in their statements. The statement of these two witnesses coupled with statement of PW4 Dr. J.K. Goel are believable and on relying these witnesses learned Sessions Judge rightly held guilty to accused-appellant. The judgment of learned Sessions Judge is well reasoned and there is nothing wrong. There is no merit in the appeal and the same is liable to be rejected. 19. Consequently the present appeal is dismissed. The Judgment and order of learned Sessions Judge under challenged is hereby confirmed. 20. Let the judgment be notified to learned Sessions Judge within 15 days for compliance. There is no merit in the appeal and the same is liable to be rejected. 19. Consequently the present appeal is dismissed. The Judgment and order of learned Sessions Judge under challenged is hereby confirmed. 20. Let the judgment be notified to learned Sessions Judge within 15 days for compliance. Learned Sessions Judge submit report of compliance within 30 days thereafter.