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2018 DIGILAW 1470 (ALL)

HARENDRA SINGH v. STATE OF U. P.

2018-07-04

SUDHIR AGARWAL, VIJAY LAKSHMI

body2018
JUDGMENT By the Court.—This appeal is directed against the judgment and order dated 15.7.1983 passed by learned Sessions Judge, Basti in S.T. No. 231/1981 arising out of Case Crime No. 187/1980 under Sections 302/34 I.P.C. whereby the learned Sessions Judge has convicted and sentenced the appellants under the aforesaid sections with life imprisonment. 2. At the very outset, it is relevant to mention that both the appellants in this appeal are son and wife of informant of this case respectively. The appellant No. 2, Smt. Chandra Wati died during the pendency of the appeal, therefore, the appeal abated against her vide order dated 16.7.2015 passed by this Court. Now, the only surviving appellant is appellant No. 1, Harendra Singh, the son of informant of this case. 3. We have heard Shri V.P.Mathur, learned counsel for the appellants and Shri Ratan Singh, learned A.G.A. and have gone through the original record. 4. The prosecution case in brief is that the informant Constable Hausila Singh was working in the Civil Police Department at Faizabad at the time of occurrence. His younger bother namely Bhukkud Singh was doing job as salesman at a petrol pump at Kanpur. Deceased Bindu was the newly wedded wife of his younger brother, who after her “Gauna ceremony”, performed about five months prior to occurrence, had come to live with the family of informant jointly in the same house. 5. On 23.7.1980, at 6.35 a.m., a written report was submitted at P.S. Chhawni, District Basti by the informant Constable Hausila Singh mentioning therein that his younger brother’s wife namely Bindu is a woman with dirty mind. She often used to make the house messy by littering urine and faecal matter. On this issue, some quarrel had taken place between her and his wife two days prior to the occurrence i.e. on 21.7.1980. For the aforesaid reason Smt. Bindu committed suicide by hanging herself by a bed sheet. In the evening, when she was called for dinner, she did not reply. The family members went to her room where she was found hanging from the roof. Due to non-availability of some conveyance in the night, the report could not be lodged earlier. 6. On the basis of the aforesaid information, criminal case was registered against unknown accused and the matter was investigated. Inquest proceedings on the dead body was conducted and it was sent for post-mortem. 7. Due to non-availability of some conveyance in the night, the report could not be lodged earlier. 6. On the basis of the aforesaid information, criminal case was registered against unknown accused and the matter was investigated. Inquest proceedings on the dead body was conducted and it was sent for post-mortem. 7. During inquest proceedings, all the witnesses noticed that the room where the deceased was alleged to have committed suicide, was not of such height where one can hang himself or herself. The witnesses were also of the opinion that ligature mark seen on the neck of the deceased was not of such dimension which could have been caused by hanging from a bed sheet. Moreso, when the dead body was sent for post-mortem, the cause of death was found to be Asphyxia as a result of strangulation. Apart from this, some ante-mortem injuries including contusions and abrasions were found on the body of the deceased by the doctor conducting the post-mortem. During the investigation, the Investigating Officer recorded the statements of several villagers and all of them stated that the deceased had not committed suicide, instead she was murdered by the accused-appellants who were found to have absconded from the village. The Investigating Officer, on inspection of the spot, was also of the opinion that no one can commit suicide by hanging at the place where the deceased is said to have committed suicide. 8. In the aforesaid circumstances, the needle of suspicion turned towards the wife and son of the informant i.e. the appellants. When the Investigating Officer searched the appellants they were found to have absconded. Appellant No. 1 could be arrested on 25.11.1980 and appellant No. 2 surrendered on 8.12.1980. After conclusion of the investigation, charge-sheet was submitted against the appellants under Sections 302/34 I.P.C. 9. The case being triable by the Court of sessions, was committed to it where charge under Section 302 read with Section 34 I.P.C. was framed against both the appellants from which they denied and claimed to be tried. 10. The prosecution, in order to prove its case, produced eight witnesses in all. A brief description of the witnesses is as follows: P.W.1 is the first informant, Constable Ram Hausila Singh, who is the father of appellant No. 1 and husband of appellant No. 2. 10. The prosecution, in order to prove its case, produced eight witnesses in all. A brief description of the witnesses is as follows: P.W.1 is the first informant, Constable Ram Hausila Singh, who is the father of appellant No. 1 and husband of appellant No. 2. P.W.2 is Prithvi Raj Singh, who is the Gram Pradhan of the Village Khamariya Sujat where the occurrence has taken place. P.W. 3 is Dr. S.G. Tekriwal, who has conducted the autopsy of the deceased. P.W.4 is Ram Shabd, who is a resident of the same village and is a neighbor of the appellants. P.W.5 is Ishwar Dawan, who is also a resident of the same village and a relative (Phupha of deceased) as the deceased was the daughter of his wife’s brother. P.W.6 is Sub-Inspector Uma Shankar Dwivedi who has conducted the inquest proceedings. P.W.7 is Sub Inspector Rajdeo Singh who was posted as Head-Moharrir at P.S. Chhawani in the year 1980. He has registered the case and has made relevant entries in the General Diary. P.W.8 is Sub Inspector, Bharat Singh who was Station Officer Incharge of P.S. Chhawani at the time of occurrence. He is the Investigating Officer of this case. 11. After conclusion of the prosecution evidence, the statement of the appellants were recorded under Section 313 Cr.P.C. in which they admitted the fact that informant Constable Hausila Singh is their father and husband respectively. It was also admitted by them that the deceased was the wife of younger brother of informant who was living with them at that time, whereas her husband was doing job at Kanpur. However, they denied from all the allegations, expressed their ignorance to some facts and alleged their false implication. No evidence in defence was adduced by them. 12. The learned trial Court, after appreciating the evidence, found the appellants guilty under Sections 302 read with Section 34 I.P.C. and sentenced them with life imprisonment accordingly. 13. The legality and correctness of the impugned judgment has been challenged in this appeal by the learned counsel for the appellant mainly on the following grounds: 1. Learned Trial Court has convicted the appellants without a proper appreciation of evidence. 2. The findings recorded by the learned trial Court are perverse. 3. There is no eye-witness of the occurrence. 4. It is a case of circumstantial evidence and the chain of circumstance is incomplete. 5. Learned Trial Court has convicted the appellants without a proper appreciation of evidence. 2. The findings recorded by the learned trial Court are perverse. 3. There is no eye-witness of the occurrence. 4. It is a case of circumstantial evidence and the chain of circumstance is incomplete. 5. The F.I.R. itself shows that the deceased was mentally challenged as she often used to ease herself inside the house. 6. At the time of occurrence, the appellant No. 1 was not present at his house and the deceased committed suicide in his absence, but the learned trial Court has wrongly disbelieved his plea of alibi. 14. On the aforesaid grounds, learned counsel has prayed that the appeal be allowed and the appellant be acquitted. 15. Per contra, learned A.G.A. has vehemently opposed the appeal by contending that all the circumstances of this case clearly show that the deceased has been mercilessly done to death inside the four walls of the house where no person other than the deceased herself and the accused appellants were present at that time. Learned A.G.A. has contended that the evidence clearly reveals that the height of the room where the occurrence took place was less than 7 feet and it was impossible for any one to commit suicide in that room by hanging. Moreso, the cause of death was found to be strangulation and not hanging. The contention of learned A.G.A. is that under these circumstances, the burden under Section 106 of Evidence Act, was on the appellants to explain as to how and by whom the deceased was strangulated to death, but they miserably failed to do so, therefore, the learned trial Court has rightly held the appellants guilty. There is no need to interfere with the findings arrived at by the learned trial Court in the judgment impugned and the appeal is liable to be dismissed. 16. In order to appreciate the aforesaid rival contentions of learned counsel for the parties, we have to independently scrutinise the oral as well as the documentary evidence brought on record by the prosecution. 17. P.W.1, the first informant Hausila Singh has stated that he lives at Village Babu Khamaria, P.S. Chhawni. His younger brother is Bhukkud Singh. The name of his younger brother’s wife was Smt. Bindu. Accused Smt. Chandrawati is his wife and accused Harendra Singh (present appellant) is his son. 17. P.W.1, the first informant Hausila Singh has stated that he lives at Village Babu Khamaria, P.S. Chhawni. His younger brother is Bhukkud Singh. The name of his younger brother’s wife was Smt. Bindu. Accused Smt. Chandrawati is his wife and accused Harendra Singh (present appellant) is his son. His family consisting of his wife, son and a 4-5 years old daughter Uma and his younger brother’s wife were living together jointly in the same house, at the time of occurrence. Smt. Bindu (deceased) had come to his house after her ‘Gauna’ ceremony which had taken place in the month of January or February, 1980. (The incident has taken place on 21.7.1980). On the date of occurrence his son Harendra Singh (present appellant) came to Faizabad at about 8 p.m. and informed him that his Aunt (Smt. Bindu) has committed suicide. He (first informant) immediately proceeded to police station-Chhawni alongwith his son Harendra Singh. Both of them reached the police station at about 10.30 p.m. and apprised the S.H.O. about commission of suicide by his younger brother’s wife. The S.H.O. asked them to go first to their house and then to come back to lodge the report. The first informant came to his house alongwith his son and on reaching their he found that Smt. Bindu had committed suicide by hanging herself. On the next day morning at about 4 a.m. he went to Police Station Chhawni all alone, he reached there at about 6 a.m. At the police station, the Daroga dictated the report which was scribed by him. P.W. has proved the written report which was marked as Exhibit Ka-1. 18. During his cross-examination, P.W. 1 has stated that the highest point of the room where Smt. Bindu had committed suicide is 7 feet from the floor and any person can easily touch its roof by raising the hands. He has further stated that when he reached home, he found the dead body of Smt. Bindu lying on the floor and a bed sheet was found tied from the ‘Dharan’ of the room. 19. P.W.2 Prithvi Raj Singh, is the Village Pradhan of Village Khamariya Sujat for the last 10 years. He has stated that both the accused and deceased Smt. Bindu were living in the same house at the time of occurrence. The first informant Ram Hausila Singh was at Faizabad at the time of occurrence. 19. P.W.2 Prithvi Raj Singh, is the Village Pradhan of Village Khamariya Sujat for the last 10 years. He has stated that both the accused and deceased Smt. Bindu were living in the same house at the time of occurrence. The first informant Ram Hausila Singh was at Faizabad at the time of occurrence. He has further stated that on the day of incident, in the evening at about 7-1/2 p.m., when he returned home, the villagers informed him that the accused Harendra Singh and his mother Smt.Chandrawati had killed Smt. Bindu. When he went to their house and asked from Smt. Chandrawati she stated that Smt. Bindu had committed suicide. Smt. Chandrawati also informed him that she with the help of Shri Ram Shabd Kahar had untied the knot of bed sheet from the neck of Smt. Bindu. P.W.2 has further stated that he had seen the dead body of Smt. Bindu lying down on the door steps. He called the village Chowkidar and sent him to police station to give information about the incident. Several villagers told him that Smt.Bindu was killed by both the accused. He has further stated that when he reached at the place of incident he came to know that accused Harendra had gone to Faizabad to call his father. 20. P.W. 3 is Dr. S.G.Tekriwal who has stated that on 24.7.1980, at 3 p.m. he had conducted the autopsy on the dead body of Smt.Bindu (deceased) whose estimated age was about 20 years and at the time of post-mortem 2 days had elapsed since her death. He found her face, breasts and abdomen in swollen condition. Her eyes were half opened, the lips had turned blue, blood was coming out from her nostrils. Her tongue was protruding out. It was also swollen and had turned dark blue in colour. The doctor also found following four ante-mortem injuries on the dead body of Smt. Bindu. (i) Ligature mark 9 cm x1.5 cm-horizontal on front of neck, contusions in lower part of neck-1 cm above clavicle (medial end). The base was pale and the margins were reddish. There was abrasion around the ligature mark and ecchymosis was present in the tissues underlying the ligature mark. (ii) Contusion 6 cm x 4 cm in front of the right forearm-4 cm below the elbow joint. It was oblique. The base was pale and the margins were reddish. There was abrasion around the ligature mark and ecchymosis was present in the tissues underlying the ligature mark. (ii) Contusion 6 cm x 4 cm in front of the right forearm-4 cm below the elbow joint. It was oblique. (iii) Multiple abrasions-7 in number-on the dorsum of left foot in an area of 6 cm x 4 cm just proximal to the root of the toes. (iv) Abrasion 1 cm x 1 cm on the root of the left index finger. 21. The trachea under the ligature mark was found depressed and rings were found fractured. 22. In the opinion of the Doctor, the cause of death was Asphyxia due to strangulation. The Doctor while deposing in the Court has categorically stated that Smt. Bindu’s death could not be a result of suicide by hanging, but it was a clear case of throttling. 23. P.W.4, Ram Shabd, is a neighbor of accused appellants. Though this witness has turned hostile, but his statement shows that he has stated that on the date of occurrence some girls came to his house and informed that the accused Smt. Chandrawati was shouting from inside her house. He rushed to the spot and and saw accused Smt. Chandrawati shouting that “HEY RAM AB KA KARI”. When he enquired into the matter, she stated that her devar’s wife (deceased) Bindu has hanged herself. When he went inside the room, he saw Smt. Chandrawati holding the body of Smt. Bindu by her hands. They opened the knot and took the body in the Courtyard and found her dead. During his cross-examination, this witness has stated that when they had taken out the dead body of Smt. Bindu into the Courtyard, at that time her tongue was not protruding out. Her eyes were also not coming out. He has denied from his earlier statement given to the Investigation Officer that before untying the knot of bedsheet, he had seen Smt. Bindu in a sitting position with both her legs spread and both her hands resting on the floor. 24. P.W.5 Ishwar Dawan, has stated that the deceased was the wife of Bhukkad Singh, who is the younger brother of Constable Hausila Singh. Smt. Bindu was the daughter of his real brother-in-law (Saala). 24. P.W.5 Ishwar Dawan, has stated that the deceased was the wife of Bhukkad Singh, who is the younger brother of Constable Hausila Singh. Smt. Bindu was the daughter of his real brother-in-law (Saala). On the date of occurrence when he was returning from his field and passed from the house of the Hausila Singh, he heard the voice of some women shouting from inside the house “BAAP RE BAAP MAR GAYI”. He has further stated that 15 days prior to the occurrence, the wife of Bhukkad Singh had come to his house and had informed that due to some dispute, she had come to live with them. Thereafter, her in-laws came and took her back. This witness has further stated that when he heard the sound “BAAP RE BAAP MAR GAYI” coming from inside the house, he tried to enter into the house to see as to what was going on there, but he could not do so because the doors were closed from inside. He asked from outside that what has happened, but no one answered. 25. P.W.6, Shri. Uma Shanker Dwivedi and P.W.7, Raj Deo Yadav are formal witnesses. P.W.6, Uma Shanker Dwivedi has conducted the inquest proceedings and has proved the inquest report as Exhibit Ka-3. P.W.7, Raj Deo Yadav has made the relevant entries in the G.D. and he has proved the G.D. Report as Exhibit Ka-7. 26. P.W.8 is Sub Inspector, Bharat Singh who is the Investigating Officer in this case. He has stated about the investigation proceedings. According to him, during the investigation, both the accused persons were not found in the village by him. He tried to search them. On 25.11.1980, accused Harendra Singh was arrested and on 8.12.1980 he was informed that Smt. Chandrwati has surrendered in the Court and has been released on bail. The Investigating Officer has further stated that the witness Ram Shabd had given the statement that before untying the knot from the neck of the deceased, he had seen the dead body in a sitting position with both the legs spread on the earth and both the palms resting on the floor. 27. The Investigating Officer has proved the site plan as Exhibit Ka-8 and has categorically stated that the height of the “kothari” where the occurrence took place was about 6 feet. 27. The Investigating Officer has proved the site plan as Exhibit Ka-8 and has categorically stated that the height of the “kothari” where the occurrence took place was about 6 feet. Its ‘Dharan’ was bow shaped and its highest point was 7-1/2 ft from the floor. 28. After the conclusion of the prosecution evidence, the statement of the appellants were recorded. The appellant Harendra Singh stated that he had been falsely implicated by the Investigating Officer Bharat Singh due to some land dispute between him and one Parmeshwar Singh, who is a relative of Investigating Officer. He has also stated that on the date of occurrence, he was not present at the spot and had gone to village Haraiya and his cousin brother Virendra Singh had informed him about the suicide of his aunt Smt. Bindu. Thereafter, he went to Faizabad and informed his father about the incident. 29. Smt. Chandrawati also stated that their relative Parmeshwar Singh with the help of Sub Inspector, Bharat Singh has falsely implicated them and they are innocent. However, both the accused have admitted the fact that at the time of occurrence, they were living in the same house with the deceased Smt. Bindu whose husband was doing job at Kanpur. In reply to most of questions put to them by Court under Section 313 Cr.P.C., both the appellants have either expressed their ignorance or have denied from its truthfulness by stating “Galat Hai.” 30. No evidence was given by the appellants in their defence. 31. On a careful consideration of the aforesaid evidence as discussed above, we find that it is not a case of suicide, but it is a case of murder as specifically stated by the Doctor himself and also by the villagers and the panch witnesses. The symptoms found on the dead body like ante-mortem injuries, including multiple abrasions and contusions in front of fore arm, elbow joints and toes, the rings of the trachea being found fractured and depressed, clearly indicate that it is a case of murder and not suicide. A close examination of injury No. 1 makes it clear that the ligature mark has been found on the lower part of the neck just 1 c.m. above the clavicle (medial end). A close examination of injury No. 1 makes it clear that the ligature mark has been found on the lower part of the neck just 1 c.m. above the clavicle (medial end). The doctor who has conducted the post-mortem has categorically stated that in a case of suicide by hanging, ligature mark appears above the adams apple, while in a case of murder by strangulation or throttling, the ligature mark is below the adams apple. In the present case, the ligature mark has been found below the adams apple which also strengthens the fact that it was not a case of suicide by hanging but of throttling. 32. Now the question is who could have murdered a 20 years old innocent young newly wedded bride? 33. The deceased has been done to death inside the four walls of house where no one other than the appellants and deceased were present at the time of occurrence. 34. The appellants in their statements recorded under Section 313 Cr.P.C. have admitted the fact that the deceased Smt. Bindu was living with them jointly in the same house. They have also admitted that her husband Bhukkud Singh was not present in the house at the time of occurrence as he was living at Kanpur in connection with his job. From the statements of witnesses, it is also evident that both the accused appellants were present in their house on the date of occurrence. 35. The plea of alibi taken by the accused Harendra Singh that he had gone to Village Haraiya at that time cannot be relied upon because the burden to prove this plea was on the appellant himself, but he has not adduced any evidence in support of it. 36. The Hon’ble Apex Court in the case of Ram Naresh v. State of Chattisgarh, (2012) 4 SCC 257 , has held as under: “It was for the accused to prove that he was not present at the place of occurrence and was entitled to the plea of alibi.” In the aforesaid case also, the accused had taken this plea in his statement under Section 313 Cr.P.C., but the Hon’ble Apex Court did not accept his plea in the absence of any corroborative evidence. 37. 37. In Daroga Singh and others v. B.K. Pandey, (2004) 5 SCC 26 , also, the Hon’ble Supreme Court upheld the decision of High Court in not accepting the plea of alibi in the absence of any corroborative evidence. 38. Moreover, in the written report Exhibit Ka-1, there is no mention of the fact that the accused-appellant Harendra Singh had gone to Village Haraiya at the time of occurrence. The first informant, in his statement has stated that his son Harendra Singh reach Faizabad at 8 p.m. and informed him about the occurrence. He has nowhere stated that his son Harendra Singh had gone to Village Haraiya on the date of occurrence. 39. The words used in the F.I.R. for the deceased i.e. “a woman with dirty mind” also indicate the feeling of hatred which the first informant and his family had towards the deceased Smt. Bindu. The evidence on record shows that P.W.5 heard someone shouting from inside the house that “BAAP RE BAAP MAR GAYI” he tried to go inside the house, but found the doors closed from inside. He tried to inquire from the inmates of the house as to what was the matter by calling them from outside, but no one answered. 40. All these circumstances lead to one and only conclusion that the murder of Smt. Bindu (deceased) was committed by the appellants and by none else. 41. If Smt. Bindu had really committed suicide, there was no reason why the main door of the house was bolted from inside at that time. 42. Section 106 of the Evidence Act, 1872 provides that “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 43. In the present case, the occurrence has taken place inside the four walls of the house in which only the accused-appellants and the deceased were present at the time of occurrence. Thus, it was only within the knowledge of accused-appellants as to who committed the murder of Smt. Bindu, if it was not committed by them. Therefore, the burden under Section 106 of Evidence Act was on the accused-appellants, in view of the admitted fact that they were residing with the deceased in the same house, but they failed to do so. 44. “A man can lie, but the circumstances do not”. Therefore, the burden under Section 106 of Evidence Act was on the accused-appellants, in view of the admitted fact that they were residing with the deceased in the same house, but they failed to do so. 44. “A man can lie, but the circumstances do not”. In the present case, the circumstances established on record by the prosecution clearly tells the true story and the circumstances so established leave no doubt that in all probability, the murder of Smt. Bindu has been committed by the accused-appellants and by no one else. All the circumstances of the present case are conclusive in nature and exclude all possibilities and hypothesis, except the guilt of the accused-appellants. 45. It is also noteworthy, that the appellants have given evasive answers by denying most of the fact by stating “GALAT HAI” OR “NAHI MALOOM.” 46. The Hon’ble Apex Court in the case of Munna Kumar Upadhyay v. State of Andhra Pradesh, (2012) 6 SCC 174 , has held as under: “If the accused gives incorrect or false answers during the course of his statement under Section 313 Cr.P.C., the Court can draw an adverse inference against him and as the conduct of accused would tilt the case in favour of prosecution.” 47. In the case of Ram Naresh (supra), the Hon’ble Apex Court has observed as under: “The object of recording of a statement under Section 313 Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires, but once he does not avail the opportunity, the consequences in law must follow”. 48. 48. In State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254 , the Hon’ble Apex Court has observed as under: “In a case resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him under Section 106 of the Evidence Act, that itself provides the missing link, if any, in the chain of circumstances proved against him.........Section 106 of the Evidence Act, does not shift the burden of proof in a criminal trial, it is always upon the prosecution, but it lays down the rule that when the accused does not throw any light or focus, which are specially within its knowledge and which could not separate any theory or hypothesis, compatiable with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain.” 49. In view of the above discussion, we do not find any force in the appeal requiring any interference in the judgment impugned. The appeal is liable to be dismissed and is accordingly dismissed. 50. The order of conviction and sentence passed by the learned trial Court is confirmed. 51. The appellant is on bail. His bail bonds are cancelled and sureties are discharged. He be taken into custody forthwith and sent to jail to serve out the sentence. 52. The lower Court’s record alongwith the copy of the judgment be sent back to the Court below for necessary compliance.