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2019 DIGILAW 815 (ALL)

Ashok Kumar v. State of U. P.

2019-04-02

DINESH KUMAR SINGH, RAMESH SINHA

body2019
JUDGMENT : Dinesh Kumar Singh, J. Heard Sri Vinay Saran, learned counsel for appellants and learned AGA for the State. 2. This criminal appeal has been preferred against judgment and order dated 17.9.1985, passed by 4th Additional District & Sessions Judge, Etawah in Sessions Trial No.239 of 1983 (Ashok Kumar and others Vs. State of U.P.), whereby the accused-appellants namely Ashok Kumar, Virendra Kumar, Vimal Kumar and Smt. Lakshmi Devi have been convicted under Section 302 read with Section 34 IPC and sentenced with life imprisonment. Out of the above accused-appellants the accused-appellant no.3 namely Virendra Kumar who is the father of the accused-appellant no.1 Ashok Kumar has already died and his appeal has been directed to be abated vide courts order dated 28.8.2018, hence this appeal survives of only three accused namely Ashok Kumar (husband of deceased), Vimal Kumar (brother-in-law of deceased) and Smt. Lakshmi Devi (mother-in-law of deceased). 3. The facts in brief of this case are as follows;- 4. On 26.3.1982, an information (ex. ka.2) given by accused-appellant Ashok Kumar Gupta son of Sri Virendra Kumar resident of Aheripur to the Station House Officer Bakewar, P.S. Bakewar, District Etawah that when he returned home at about 7 PM from his work (he has a Thela of chat), he saw that in one room his wife Geeta Devi daughter of Ram Babu resident of Verhad, District Bhind had committed suicide tying a rope (rassi) around her neck. 5. Thereafter, in ex. ka.3 which is G.D. dated 24.4.1982, report no.23 time 17 hours, it is mentioned that at that time i.e. at 5 PM Head Moharrir has written in the said G.D. that according to post-mortem report no. 92/82 of deceased Smt. Geeta wife of Ashok Kumar Gupta resident of Aheripur aged 20 years, P.S. Bakewar, District Etawah, she died on 25.3.1982 at about 7 PM, an information regarding which was entered in report no.6, time 8 AM, in G.D. dated 26.3.1982 by husband of the deceased namely Ashok Kumar son of Virendra Kumar. After getting the said information it was entered that the said deceased had died due to hanging and because of that after conducting the panchayatnama, dead-body was sent for postmortem. On 22.4.1982, panchayatnama, post mortem report and other papers were received at the police station by post. After getting the said information it was entered that the said deceased had died due to hanging and because of that after conducting the panchayatnama, dead-body was sent for postmortem. On 22.4.1982, panchayatnama, post mortem report and other papers were received at the police station by post. Thereafter, inquiry was started to be made in respect of her death and because due to carbon copy of the postmortem, the cause of death could not be ascertained hence, a reason recorded in the original postmortem was found to be strangulation, the said postmortem report is dated 27.3.1982. Therefore, the case from D-H (Dariyav Hal) was converted into Crime No.91 of 1982, under Section 302 IPC against unknown, in which 25.3.1982 time 7PM was entered as the date and time of death of the deceased and the information thereof was mentioned to have been given on 26.3.1982 at 8AM and the investigation of this case was assigned to S.I. Sri Devi Prasad of P.S. Aheripur. This G.D. No.23 dated 24.4.1982 has been marked exhibit ka-3 on the basis of admission by the defence counsel. 6. The S.I. Devi Prasad (P.W.7) after having assumed the investigation of this case on 24.4.1982, recorded statements of the informant and his companions and on the same day he reached the place of incident and also recorded statements of Gagdish Prasad, Bhagwan Das, Ram Babu, Kailash Chand. On 25.4.1982, he inspected the place of incident and prepared the site plan which is exhibit ka-9. On the same day he recovered one iron sarsi, which was recovered from the house of accused Ashok Kumar and its memo was prepared by him in presence of witness Ram Babu and Kailash, which is exhibit ka-10. On 26.3.1982, he had prepared panchayatnama of the deceased Geeta Devi; the connected papers i.e. photo lash, challan lash, chhithi R.I., chitthi CMO for postmortem were also signed by him and were exhibits ka-11 to 15 respectively. The second chitthi C.M.O. for taking clothes of the deceased were also written by him which is exhibit ka-16. Thereafter, after sealing the dead-body, the same was handed over to constable Bechhe Lal and constable Ranveer Singh for the purposes of postmortem. On 26.3.1982, a rope (rassi) was also recovered from near the dead-body of the deceased and its memo was prepared which is exhibit ka-17 and the same was sealed. The said rope (rassi) is material exhibit-1. Thereafter, after sealing the dead-body, the same was handed over to constable Bechhe Lal and constable Ranveer Singh for the purposes of postmortem. On 26.3.1982, a rope (rassi) was also recovered from near the dead-body of the deceased and its memo was prepared which is exhibit ka-17 and the same was sealed. The said rope (rassi) is material exhibit-1. One sarsi was recovered from the house of accused which is material exhibit-2. The clothes of the deceased i.e. one Dhoti, one Blouse, one Petticoat were material exhibits ka-2 to ka-5. Prior to conducting the postmortem, two kundal of gold, Small ear-ring of gold, a Nathuni of gold, two Kundal of gold, one small Bali of gold, one Nathuni of gold and 6 bichiyas in both the legs were all marked material exhibits 6, 7, 8 and 9. After having completed the investigation, he submitted charge-sheet against the accused on 22.6.1982 which is exhibit ka-18. 7. In cross-examination this witness has stated that the first search of the house of the accused was made on 26.3.1982 in which a rope (rassi) was recovered and not sarsi. Sarsi was recovered from his house on the search made of his house on 25.04.1982. He has denied the suggestion that after having perused the result of postmortem, the recovery of sarsi was shown to have been made falsely from the accused. No letter in respect of asking for dowry was shown to him. Ram Babu (P.W.3) had stated to him that he had given one cycle to accused Ashok Kumar. The informant, Ram Babu (P.W.3) and his son Prem Naresh (P.W.6) had given an application to Superintendent of Police Etawah. He does not know as to whether on 26.3.1982 Ram Babu had come to the police station to lodge report and his report was not written because he was not present at the police station on that date. He had recorded the statement of Kailash Chand, Bhagwan Das and other witnesses also and has denied that on recovery memos he had obtained signatures of the witnesses on blank papers. 8. On the basis of evidence collected by prosecution, the charge was framed against accused-appellants on 16.1.1984, to which they pleaded not guilty and claimed to be tried. 9. He had recorded the statement of Kailash Chand, Bhagwan Das and other witnesses also and has denied that on recovery memos he had obtained signatures of the witnesses on blank papers. 8. On the basis of evidence collected by prosecution, the charge was framed against accused-appellants on 16.1.1984, to which they pleaded not guilty and claimed to be tried. 9. In order to prove its case from the side of prosecution Jagdish Prasad son of Narayan Das as P.W.-1, Bhagwan Das son of Narayan Das as P.W.2, Ram Babu son of Jagan Nath as P.W.3, Kailash Chandra Porwal son of Mata Deen as P.W.4, Ram Babu son of Ram Bharose as P.W.5, Prem Naresh son of Ram Babu as P.W.6 and S.I. Devi Prasad Tiwari as P.W.7 (Investigating Officer) and Dr. P.K. Sharma as P.W.8 have been examined. 10. Thereafter, the prosecution evidence was closed and the statement of accused persons were recorded under Section 313 Cr.P.C. in which all the accused have stated the evidence of prosecution to be false and further stated that they have been falsely implicated in the present case. The accused Ashok Kumar has stated that he had given a written information (ex. ka.2) at P.S. Bakewar on 26.3.1982 in respect of death of Geeta, his wife in which he had mentioned that he had committed suicide by hanging herself with the help of a rope (rassi) in one room. Her postmortem was conducted on 26.3.1982, which is exhibit ka-11. On the day when investigating officer, Sub-inspector Devi Prasad had reached the place of incident and was completing the proceedings of preparing the panchayatnama on 26.3.1982, he had found the dead-body of deceased lying on the ground in front of a room of his house in slanting position. He denied the evidence that he had stated to have killed the deceased by using sarsi of iron and by pressing neck of the deceased by that and that he had got the said sarsi recovered to Sub-inspector Devi Prasad Tiwari (P.W.7) from courtyard of his house. He also denied that prior to recovery of sarsi (material ex. ka.2) he had then out a key from his pocket and had opened the lock of his house. He also denied that prior to recovery of sarsi (material ex. ka.2) he had then out a key from his pocket and had opened the lock of his house. He has denied the fard exhibit ka.1 to have been prepared of the said sarsi in his presence and in the presence of witnesses, he admitted that postmortem of the deceased was conducted in District Hospital, Etawah on 27.3.1982, report of which is exhibit ka-19 but denied that any ante-mortem injuries were found on the person of the deceased. He further denied that on 25.3.1982 at about 7PM he along with other co-accused had committed the murder of the deceased. He also denied that he had written a letter (ex. ka.4) to the father of the deceased asking for dowry and also denied that he had sent letters exhibit ka.4 and 5. Further he denied that he was not satisfied with the dowry given in marriage and was asking for more dowry, he has shown ignorance that father of the deceased Ram Babu (P.W.5) had given an application (ex. ka.7) to Superintendent of Police, Etawah and also showed ignorance about brother of the deceased Prem Naresh (P.W.6) having given any application (ex. ka.8) to Superintendent of Police Etawah. The other accused Virendra has also stated the evidence which has come on record against him to be false and further stated that Prem Naresh and Ram Babu, in collusion with doctor had got the injuries written and that he will submit a written statement separately. Accused Smt. Laxmi has also stated the evidence against her to be false and further stated that she was not at home and had gone to her maternal home. Accused Vimlesh Kumar has given his statement along the same lines and has stated that on the date of incident he was in Barthana which is his Nanihal and was sick. No evidence has been adduced in defence by these accused. 11. After having considered the evidence on record the Trial Court has held all the accused-appellants guilty of above mentioned offence and has awarded them the punishment as narrated above and, therefore, we have to see in the light of arguments made by the learned counsel for the appellants as to whether the conclusion arrived at by the Trial Court is correct or does it require any interference. 12. 12. P.W.1 Jagdish Prasad son of Narayan Das has stated in examination-in-chief that he knows all the accused present in Court as their houses were very near to his own house. The accused Ashok had got married 3 to 4 years ago, he had never heard the accused beating his wife nor had he seen the same. Since, after marriage his wife used to live in matrimonial home sparingly and had come to her matrimonial home only 2 to 3 times. About 1.5 to 2 years have elapsed since her death, he has not seen the accused strangulating or beating the deceased. He had returned from his field at about 7 PM and he saw that there was lot of crowd at the house of accused and people were saying that wife of accused Ashok hanged herself but he had not seen the deceased hanging herself. In cross-examination made by the Government Advocate, this witness has stated that one day prior to the occurrence Prem Naresh, brother-in-law of the accused had come to the village of the accused bringing along with him the wife of the accused and it was not that he had come to take away wife of the accused Ashok. The next day of the death of deceased the father-in-law of the accused Ram Babu and others came there. The courtyard of the accused is not visible from the roof of his house. He had not given any statement to the police, therefore, he could not tell the reason how police had recorded his statement. He denied to have given this statement under threat or fear and also denied to have seen the dead-body inside the house. He has also been cross-examined by the defence counsel but nothing of consequence has been asked. It is evident from the above statement of witness that he has not supported the prosecution case. 13. Bhagwan Das son of Narayan Das has been examined as P.W.2 who is of the same village where the incident is said to have occurred and has stated that he knows all the accused who belong to his village as their houses were close to his house. The marriage of Ashok was performed 3 to 4 years ago in Bhind. Bhagwan Das son of Narayan Das has been examined as P.W.2 who is of the same village where the incident is said to have occurred and has stated that he knows all the accused who belong to his village as their houses were close to his house. The marriage of Ashok was performed 3 to 4 years ago in Bhind. His wife used to come to her matrimonial home sometimes on her own and sometimes with some other person and accused also sometimes used to get her back to her matrimonial home. The wife of Ashok died about 1 years ago in the evening around 6 to 7 PM but he has showed ignorance whether the accused Ashok and his family members used to harass her for dowry. On the date of incident he had come from his tube-well in the evening about 6 to 7 PM and then his daughter had apprised him that accused Ashok was screaming that his wife had hanged herself. He had gone to the house of the accused where other people were also present but he had not gone inside the house near the dead-body and had not seen the accused pressing the neck of the deceased or beating her. It appears from the testimony of this witness that he is not supporting the prosecution case. The permission was sought by the Government Advocate to cross-examine this witness which was granted and he has stated in cross-examination that Jagdish Prasad is his brother, whose house is at a distance of 25 feet from the house of accused but from the said house nothing could be seen in the courtyard of the accused. The Investigating Officer had made him witness of panchayatnama which was filled in front of him and was signed by him, he had seen abrasion on the hand of the deceased. One day prior to the occurrence the brother-in-law of the accused Ashok had left his sister at the house of the deceased. He has denied that the brother-in-law of accused Ashok had come one day ago to show the wife of the accused. Lastly he has denied any statement to have been taken by Investigating Officer and could not tell its reason as to how the same was found recorded. He has denied that the brother-in-law of accused Ashok had come one day ago to show the wife of the accused. Lastly he has denied any statement to have been taken by Investigating Officer and could not tell its reason as to how the same was found recorded. He in cross-examination by the defence counsel has stated that Gauna of the wife of deceased had taken place one year after the marriage. The brother-in-law of the accused was in the village till afternoon on the date of incident and where he had gone thereafter, he does not know. From the perusal of the statement of this witness, it is apparent that he is not eye witness of the occurrence although he has shown ignorance about the deceased being tortured for dowry. He has turned hostile because of which he has been cross-examined by the Government Advocate and it becomes clear from his statement that the brother-in-law of the accused had come just one day prior to the incident to leave his sister there, thereafter she was found dead. 14. P.W.3 Ram Babu son of Jagan Nath has stated in examination-in-chief that he knows all the four accused present in Court, whose house is just 20 paces away from his house. The wife of the accused Ashok had died about 1 to 2 years ago in the evening at about 4 PM and he had gone to his house and had seen his wife in dead condition in courtyard but he does not know how she died. After hearing commotion he had ascended the roof of Jagdish but nothing could be seen and thereafter he went to the house of Ashok. He had seen the dead-body lying in the courtyard but nothing was seen by him around her neck etc. Jagdish and Bhagwan Das had also ascended the roof with him. No sarsi was taken in possession by the Investigating Officer nor the accused Ashok had stated before him to have pressed the neck of the deceased by the said sarsi. He had put his signatures on the fard exhibit ka.1 without reading the same. Jagdish and Bhagwan Das had also ascended the roof with him. No sarsi was taken in possession by the Investigating Officer nor the accused Ashok had stated before him to have pressed the neck of the deceased by the said sarsi. He had put his signatures on the fard exhibit ka.1 without reading the same. He was also permitted to be cross-examined by the Government Advocate and upon being cross-examined he has stated that the Investigating Officer had not recorded his statement and could not tell the reason as to how the same were recorded and also denied that he had colluded with the accused and because of being neighbour of the deceased and of the same village, he was giving false statement. 15. P.W.4 Kailash Chand Porwal son of Mata Deen has stated in examination-in-chief that he knows all the four accused present in Court. On 25.03.1982, he was in Aheripur where there is one house belonging to accused Ashok. In the said house they were not living during the time of the incident and the said house was vacant. Rest of the two houses of theirs' were 250-300 meters away from the house of accused. The wife of the accused Ashok has died but he has not seen anything. He had gone to see her dead-body on the date of postmortem, prior to that he knew nothing. He also does not remember whether on 25.4.1982, he was in village Aheripur. This witness was shown exhibit ka.2 which is dated 25.4.1982, seeing which he stated that it bears his signatures, hence he would have been present in Aheripur and further stated that a signature had been obtained by one constable but at that time the said paper was blank. He was also sought to be cross-examined by the Government Advocate which was allowed and in cross-examination he has stated that in case police would say to put his signature on blank paper he would make a signature because of fear, but on papers pertaining to property, he would not sign on blank papers. He admitted to be of the same caste which is the caste of accused persons. Hence, he denied to have given statement to the police after having read out the said statement. He admitted to be of the same caste which is the caste of accused persons. Hence, he denied to have given statement to the police after having read out the said statement. He also stated that on 25.4.1982, accused Ashok had confessed to have pressed the neck of the deceased by sarsi and also stated it to be wrong that the paper on which the sarsi was written to have been recovered was read out to him and thereafter his signatures were taken. He denied that he was giving false statement to defend the accused. From the above statements it is apparent that this witness has not supported the prosecution case. 16. P.W.5 Ram Babu son of Ram Bharose has stated in examination-in-chief that he knows accused present in Court who is his Samadhi. The name of wife of accused Virendra is Lakhmi Devi and Ashok who is son of Virendra. His daughter Geeta Devi was married to accused Ashok in the year 1978. The brother of accused Ashok namely Vimal is accused in this case. Further this witness has stated that at the time of marriage Geeta Devi had not come to her matrimonial home and her gauna ceremony had taken place two months thereafter. At the ceremony of chauthi he had sent his son Prem Naresh to Aheripur but accused had not sent her with him to her parental home and demanded dowry, regarding which one postcard was sent to him by accused Ashok in which he demanded one cycle, but for which he had denied to send his daughter. His daughter was at the house of accused. The letter sent by the accused Ashok was in front of him. He has not seen Ashok writing nor does he recognize his writing, but his daughter Geeta Devi had told him that the said writing was that of accused Ashok, on that basis he had stated that the said letter was written by Ashok and was being presented in the same condition as he had received it by post, as it bares seal of the year 1978 of post office which is exhibit ka.4. Further he has stated that thereafter he himself went to Aheripur and requested to send his daughter. Further he has stated that thereafter he himself went to Aheripur and requested to send his daughter. At this accused Ashok told him that if a cycle was given to him, he would send his daughter to her parental home, thereon, he stated that he may take money and purchase a cycle on his own and pursuant to that he had offered the money but the same was not taken by the Ashok. Thereafter, his daughter was allowed to go to her parents house in July, 1978. In Agahan, he came to take Geeta to her parental home, then he had given Rs.300/- to accused Ashok for purchase of cycle and had sent his daughter Geeta Devi with Ashok. He wanted to go to Karauli Devi, therefore, he thought that he would take his daughter Geeta also to Karauli Devi for Darshan and hence, on 26.3.1982, he came to Aheripur, where he received information that his daughter had been killed by the accused persons. Further he has stated that he had sent his son Prem Naresh to bring Geeta on 23.3.1982 but the accused had declined to send her daughter and had demanded the entire items of dowry before she would be sent. Further he has stated that about 20 days prior to this incident his son Prem Naresh had brought his sister to his house. When he received a registry from the father of Ashok namely Virendra, then he had brought his daughter Geeta to Aheripur. The said letter written by Ashok was in envelope which is exhibit ka.5 and the registered letter received from the accused Virendra was also being submitted by him which is exhibit ka-6. After receipt of these letters when in the year, 1980, he brought his daughter to Aheripur, his daughter was absolutely healthy and when his son had left his daughter Geeta at Aheripur about 20 days prior to the occurrence, she was in good health. He had heard that accused wanted to marry someone else and because of that he had sent his daughter to Aheripur 20 days prior to the incident. He had heard that accused wanted to marry someone else and because of that he had sent his daughter to Aheripur 20 days prior to the incident. On 23.3.1982 his son went to Aheripur and did not return till 26.3.1982, therefore, he was thinking that his daughter would be there only and from there he would take her to Karuali, accordingly he came to Aheripur on 26.3.1982, where some people told him that his daughter had been strangulated to death by all the four accused and he could not see the dead-body of his daughter. From there he came to Police Station Bakewar, where they made him sit for about 2 to 2.30 hours and thereafter, refused to write the report. On 26.3.1982, he went to Etawah and gave an application after getting it typed to the Superintendent of Police Etawah. The said typed application was exhibit ka-7 proved by this witness. 17. In cross-examination this witness has stated that the acknowledgment due bears his signatures on the date 18.8.1980, which is marked exhibit ka-1. In 1980, he had received only one registry from the side of accused and after being shown the acknowledgment due, he stated that the same was not in the hand writing of Ram Babu Porwal. He further stated that he had not received any other letter. No dowry was agreed upon at the time of marriage to be paid, he does not know whether accused Ashok had purchased a cycle of Rs. 300/- or not. No other letter asking for dowry had come but orally the demand was made. He had not stated to the Investigating Officer about paying Rs.300/- to the accused for purchase of cycle nor had he stated that he had given one cycle. If the Investigating Officer has mentioned about giving of cycle, he may have written the same because he had paid Rs.300/- for its purchase. Although, he had not stated to the Investigating Officer that he had paid Rs.300/- to the accused for purchasing cycle. He denied that there was no dispute regarding dowry and that no such dowry was demanded by the accused. He also denied that his daughter had not told him that letter exhibit ka.4 was in the hand writing of accused Ashok. He denied that there was no dispute regarding dowry and that no such dowry was demanded by the accused. He also denied that his daughter had not told him that letter exhibit ka.4 was in the hand writing of accused Ashok. He had shown all the letters, which have been presented by him before the Court, to the Investigating Officer, but the same were returned to him after having read them. He had also told the Investigating Officer that there was one letter also of the accused in which demand was made for dowry but how the same has not been written in his statement, he does not know. The said letters were returned by the Investigating Officer to him stating that when he appears on date fixed, he would deposit them. He had also not told the Investigating Officer that he had sent his son for Vidai of his daughter, then the accused had not sent her and then he himself went for her Vidai. He has stated it to be wrong that when somebody gets mental ailment, he is taken for Darshan to Karauli Devi. He also stated that because he had heard that accused Ashok was going to marry someone else, his daughter had told that she should be sent to her husband's house, because of this about 20 days prior to the incident she was sent to the house of her husband. He had heard only rumor about the accused going to marry someone else and one of the residents of Aheripur had told about this who had met him on the way but he does not have address of the said person. He had married his daughter to the accused at the instance of his brother of his Bahnoi namely Ram Chandra Gupta resident of village Hanumantpura who had proposed the same. He had written a letter to Ram Nath stating therein that his daughter was being harassed for demand of dowry, which was written in 1980, but no reply of the same was received and the accused called him at his house, he went to the house of accused in the winters. He had not stated to the Investigating Officer that he had sent his daughter 20 days prior to the incident because he had heard a rumor that accused would marry someone else. He had not stated to the Investigating Officer that he had sent his daughter 20 days prior to the incident because he had heard a rumor that accused would marry someone else. He denied that his daughter was dissatisfied with the accused and did not want to live with him and that she had gone many times stealthily from the village Aheripur. He has also denied that on 24.3.1982, he on the pretext of taking his daughter for Devi Darshan, got her sent with his son to Aheripur and himself stayed at Etawah. He also stated it to be wrong that on 25.3.1982, when Prem Naresh became ready to leave from Aheripur, then Geeta Devi (deceased) was not ready to stay at Aheripur and then she was killed. He also denied that Prem Naresh had beaten Geeta Devi. The real bahanoi of Geeta Devi that is Govind was living in village Chandpur, P.S. Ajeetmal, whom his daughter (P.W.5) was married, who has died. The second marriage of Govind had already been performed prior to the marriage of deceased Geeta. Prem Naresh was two years elder to Geeta. In 1980, accused Ashok had worked at Delhi for some days and Govind also used to sell groundnut in Delhi. He has denied that Geeta used to run away to be with Govind in Delhi and used to harass accused Ashok but he stated it to be right that accused Ashok remained in Delhi and he kept deceased Geeta at Aheripur but he stated it to be wrong that his daughter could not stay in Aheripur properly and being harassed, Ashok wrote a letter taking pretext of ailment of his daughter, so that he would come to see his daughter. On 25.3.1982, his son Prem Naresh had gone to his Bau's house in Bakewar, where he stayed at the place of Radheshyam. Prem Naresh had met him in the evening in Etawah on 26.3.1982. On 24.3.1982, his daughter was in good health. Prem Naresh had told him that he had been to Aheripur and had done inquiry about the murder and also told him as to what application he had given because he also had given an application. Prem Naresh had met him in the evening in Etawah on 26.3.1982. On 24.3.1982, his daughter was in good health. Prem Naresh had told him that he had been to Aheripur and had done inquiry about the murder and also told him as to what application he had given because he also had given an application. He does not know the names of those persons in Aheripur who had told him that his daughter was beaten badly and was killed by being strangulated but it was not told by his son to him that his daughter was burnt also. Further he has stated that it is wrong to say that his son Prem Naresh had apprehension that he could also get implicated in murder of Geeta, therefore, after 25.3.1982, he did not go to Aheripur. He further stated that it is wrong to say that in Aheripur none told him that his daughter had been strangulated to death by the accused. 18. This is the star witness of the prosecution, who is father of the deceased and has stated that he had heard rumour about the accused Ashok going to marry someone else and hence, he sent his daughter deceased Geeta to her husbands' house (house of accused Ashok) about 20 days prior to the occurrence, where all the four accused had strangulated her to death. It is evident that he is not an eye witness of the occurrence but has stated so on the basis of certain persons having told him of that village that his daughter was beaten and was strangulated to death but he is unable to give names of those persons who had actually told him about this. He has also stated that when he had sent his daughter with his son to Aheripur and when he (his son) had not returned till 26.3.1982, he thought that he would take his daughter along for Darshan of Karauli. Therefore, he would reach Aheripur himself on 26.3.1982, but there he came to know that his daughter had been killed. Thereafter, he came to P.S. Bakewar and gave an application to lodge report but the police had refused to register the same and then he came to Etawah on 26.3.1982, and gave an application, after getting it typed, to the Superintendent of Police Etawah which is exhibit ka-7. He could not see the dead-body of his daughter. 19. Thereafter, he came to P.S. Bakewar and gave an application to lodge report but the police had refused to register the same and then he came to Etawah on 26.3.1982, and gave an application, after getting it typed, to the Superintendent of Police Etawah which is exhibit ka-7. He could not see the dead-body of his daughter. 19. P.W.6 Prem Naresh who is the brother of the deceased has stated in examination-in-chief that his sister was married to accused in 1978, and he knows all the accused. After the said marriage Ashok wanted dowry, his father had given a cycle by which he was not satisfied and started harassing his sister. At the ceremony of chauthi a demand was made of a cycle by the accused and due to non-fulfillment of the same his sister was not sent, whereafter he came back to his village and thereafter, his father Ram Babu came to Aheripur for his sister's vidai and after the cycle was given sister was also sent. In the month of Agahan in the year 1980, his father had brought his sister Geeta from Aheripur but thereafter, his Bahnoi (accused Ashok) did not come to take Geeta to her matrimonial home and he started hearing about the Ashok going to get married to someone else hence, 20 days prior to the incident he took his sister to Aheripur to the house of accused. On 24.3.1982, he had come for vidai of his sister from Aheripur because his father was going to Karauli Devi. 20 days prior to the incident, his sister was in absolutely good condition having no ailment. On 24.3.1982, accused did not send her and asked for dowry failing which she was threatened to be killed. On 24.3.1982, he went to Bakewar at the house of his Bua. On 26.3.1982, he went to Aheripur then he came to know that Geeta had been strangulated to death. He had got an application written by an Advocate which was signed by him and was given to Superintendent of Police which is exhibit ka-8. On 26.3.1982, his father met him in mortuary. The postmortem of her sister was performed on 27.3.1982. 20. In cross-examination this witness has stated that he does not know the name of the said Advocate from whom he had got the application written. On 26.3.1982, his father met him in mortuary. The postmortem of her sister was performed on 27.3.1982. 20. In cross-examination this witness has stated that he does not know the name of the said Advocate from whom he had got the application written. He had not told that Ashok asked for dowry and was threatening to kill the deceased for non-fulfillment of the same. Regarding the threat given by the accused Ashok on 24.3.1982, no written complaint was made by him. He has stated it to be wrong that on 24.3.1982, he had gone to reach Geeta to village Aheripur and had returned from there on 25.3.1982 sometime in the afternoon. When he had reached Aheripur on 24.3.1982, Geeta was not sent with him, hence on the same day he had gone away from there and had stayed at Bakewar, with him, his father had not come as he was staying back in his village. On 26.3.1982, there was huge crowd in Aheripur but he does not know name of anyone though, he had asked the person who told his name to be Krishna but he was resident of which place he does not know, that person told him that it was being talked about that after killing the dead-body was being taken somewhere to be burnt. He had not got written in respect of the body being burnt nor in respect of there being injury in neck. The dead-body had been sealed, then only he reached Aheripur where police was there. In village few persons told about the murder to have been done at 4.30 PM and some, in the night at 9 PM but it is wrong to say that on 25.3.1982 when after leaving Geeta Devi he began to move away from Aheripur, Geeta Devi told him that he had brought her there on the pretext that she would be taken to Karauli Devi and that she would not stay there. He has stated it to be wrong that he had done any marpeet with Geeta Devi and that he went away stealthily from Aheripur. On 24.3.1982, when he had come from Aheripur at that time all the four accused were at home along with his sister Geeta. He had not got written in respect to cycle in the report because at such time many things one forgets. On 24.3.1982, when he had come from Aheripur at that time all the four accused were at home along with his sister Geeta. He had not got written in respect to cycle in the report because at such time many things one forgets. He denied the suggestion that he had not gone to Aheripur. No interrogation was made from him by the Investigating Officer on 26.3.1982 in Aheripur and he had not stated any story from his side. His father had to go to Karauli on 26.3.1982. On 24.3.1982 when he was refused to take Geeta with him unless dowry demand was fulfilled then he did not come straight-back to his village rather stayed at Bakewar which falls on the way and stayed at the house of his bua and his bua stated that when his Phufa would come, he would be sent to Aheripur with him and he will arrange for vidai of his sister. On the said date his Phufa had gone for sale of clothes (feri) and also did not return on 25.3.1982. He has denied it to be wrong that he was stating wrong fact that on 24.3.1982, he returned from Aheripur and had gone to Aheripur again on 26.3.1982. He has further stated that he had not got written in his application that he had come to take his sister to Karauli Devi and he had not told about it to Investigating Officer also. He has stated it to be wrong that he was holding the mental condition of his sister to be answerable for her death. The application which he had got written by an Advocate does not bear any date, but the same was written on 26.3.1982 and on the same date it was given also. 21. It is evident from the statement of this witness that he is a real brother of the deceased who has clearly stated that about 20 days prior to the occurrence he had brought his sister (deceased) to the house of accused on the rumor that the accused Ashok was going to marry someone else. 21. It is evident from the statement of this witness that he is a real brother of the deceased who has clearly stated that about 20 days prior to the occurrence he had brought his sister (deceased) to the house of accused on the rumor that the accused Ashok was going to marry someone else. He had come to Aheripur to take his sister so that she could accompany her father who was going for Dasharn to Karuali Devi but the accused did not permit her vidai for want of dowry and then he went to the house of his Bua and thereafter, he again went to the house of accused on 26.3.1982 and heard that his sister had been strangulated to death, regarding which he gave an application also in writing at Etawah by getting it written with the assistance of an Advocate which is exhibit ka-8. It is also apparent from his statement that postmortem of the deceased had been conducted when the father of the deceased was there who had met this witness on 26.3.1982 at the mortuary where postmortem was conducted on 27.3.1982. 22. P.W.8 Dr. P.K. Sharma, has stated in examination-in-chief that on 27.3.1982, he was posted as Medical Officer, District Hospital, Etawah and on 11.30 AM he had conducted postmortem of deceased Geeta wife of Ashok Kumar Gupta, whose dead body was brought by constable 304 Bechhe Lal and constable 298 Ranvir in sealed condition and had identified the same, who was 20 years of age and about one and half day had past since her death. The following injuries were found by him on her person;- (i) Contusion 10 cm x 8 cm on the right side of fore-head and scalp on cutting deep tissues of scapular congested. (ii) Abrasion in an area of 4 cm x 3 cm on right side back scapular region. (iii) Abrasion 2 cm x 1.5 cm on left hand. (iv) Ligature mark 20 cm x .75 going from left angel of mouth downward and to right reaching in the middle of neck on outer aspect and then going further down-ward on the right side and reaching just up-to posterior border of lateral aspect of neck deep tissue congested muscle lacerated on opening trachea and larynx congested, blood mixed froth present". 23. 23. He had opined about the death to have happened because of asphyxia due to strangulation and prepared the postmortem report which is exhibit ka-19. He also stated that after seeing material exhibit ka-2 sarsi that the ligature mark in injury no.4 was possible to be caused by the said sarsi and the injury no. 1, 2 and 3 could have been caused by some hard weapon and also stated that the death of the deceased was possible to have taken place in the intervening night of 25/26.3.1982. In cross-examination, this witness has stated that the injury no.1 could have been caused by thick danda or lathi while injury no.2 and 3 could be caused by falling. He also stated that it is possible that in a case of strangulation, larynx, trachea or hyoid bone may get fractured or may not get fractured. It is wrong to say that often in such situation fracture would be found. In matters of hanging it is not often that larynx, trachea are found fractured and in the present case also no fractured was found. The ligature mark itself is a kind of abraded contusion. The duration of death would be six hours on either side. On being cross-examined by Court he further stated that the ligature mark is found on the upper portion of neck in case of hanging and not in lower region, but in case of strangulation, the ligature mark is often found in the middle or lower portion of the neck and also in the rear portion of the neck. In the neck of deceased Geeta the ligature mark was found in middle region of the neck and not in the lower rear portion. If many people would hold the deceased then only strangulation of this kind could be caused by a rope (rassi) and such kind of ligature mark would be possible, failing with it would be impossible to find such mark. It was very much possible that ligature mark could be caused in the neck of deceased Geeta by material exhibit ka-2 (sarsi). There would be no greater difference in ligature mark which would be caused by either rope or sarsi. 24. It was very much possible that ligature mark could be caused in the neck of deceased Geeta by material exhibit ka-2 (sarsi). There would be no greater difference in ligature mark which would be caused by either rope or sarsi. 24. From the above, statement of this witness it is absolutely true that he has proved that the ligature mark which was found on the neck of the deceased was possible to have been caused by the material exhibit ka.2 (sarsi) despite the fact that the hyoid bone had not fractured. He has also expressed the possibility that in such a case of strangulation there could be a possibility that hyoid bone would not get fractured. 25. We have heard the arguments of learned counsel for the accused-appellants who has vehemently argued that this case was initiated on the written report/information given by the accused himself and one month thereafter the father of the deceased and his brother both gave two different applications being exhibit ka-7 and ka-8 that the deceased was strangulated to death by the accused persons and the brother went to the extent of saying that after strangulating his sister she was burnt also. He has stated that this is an after thought. The father as well as brother of the deceased kept silent for a long time and thereafter with ill-motive with a view to falsely implicating the accused-appellants the said applications were given during the trial of the case which have no significance. Further he has argued that the opinion given by the doctor is bizarre that there could be possibility that in a case of strangulation larynx, trachea and hyoid bone would not get fractured because it is 100% sure that in case of strangulation the hyoid bone would stand fractured and that was not the case in the present matter, therefore, it should be treated to be a case of hanging and in the present case the deceased had committed suicide by hanging herself and she was not strangulated to death by the appellants. He has also pointed out towards the conduct of the accused Ashok Kumar (husband) that soon after returning from his work when he reached home at about 7 PM and found his wife to have committed suicide with the help of a rope (rassi), he gave this information at the Police Station Bakewar which shows his innocence but the Trial Court has held him and all other accused-appellants guilty erroneously. 26. He has further stated that mother-in-law i.e. accused-appellant no.4 Smt. Lakshmi Devi is 80 years old as on date. He further argued that the witnesses of recovery of sarsi have turned hostile and hence, the said recovery should not be treated to be not proved. The said sarsi has been shown to have been recovered from the accused one month after the incident which was not have any blood on it, the same has been introduced only after having seen the result of the postmortem of the deceased that the doctor had opined the strangulation to be the cause of death, it was falsely made a concocted case that the said sarsi was used in strangulating the deceased by the accused-appellants. Both the witnesses P.W.3 and P.W.4 who are witnesses of recovery of the said sarsi have turned hostile. He also argued that both the applications which were given by the father and brother of the deceased have no receiving on them and their origin is shrouded in mistry. Therefore, all the accused deserve to be acquitted. 27. The learned counsel for the appellants has relied upon the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others, (2010) 2 SCC(Cri) 299; in which it has been held that a court is not bound by expert's evidence which is to a large extent advisory in nature. The court must derive its own conclusion upon considering opinion of experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes. Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of opinions of experts must take into consideration difference between an expert witness and an "ordinary witness". The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of opinions of experts must take into consideration difference between an expert witness and an "ordinary witness". The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted, how much weight should be given thereto, lies within the domain of the court. Evidence of an expert should, however, be interpreted like any other evidence. 28. We do not have any quarrel with the above principle but we find that in the case in hand the doctor's opinion does not suffer from any infirmity because he has expressed the opinion that in all cases of strangulation/hanging it may not be necessary that the hyoid bone must fracture and taking into consideration the said opinion, the Court has formed its own opinion, for which the citation, which has been relied upon by the learned counsel for the appellants, is also in favour. 29. Learned counsel for the appellants has also provided a comparative table which indicates the distinction of cases of hanging/strangulation and at serial no.12 of the same it is mentioned that in a case of hanging fracture of larynx and trachea is very rare and that too in judicial hanging while in case of strangulation, fracture of larynx and trachea is often found and also hyoid bone is found fractured. 30. Learned counsel for the appellants has also relied upon the case of Nupur Talwar Vs. State of U.P., (2017) 10 ADJ 586 , in which following is held;- "233. The last question which arises for our consideration in this appeal is that whether the learned Trial Judge has rightly applied Section 106 of the Indian Evidence Act to the facts and circumstances of the present case while convicting the appellants of the double murder of their daughter Aarushi and their domestic help Hemraj which had taken place in the intervening night of 15th/16th May, 2008 in their flat L-2 Jalvayu Vihar. Before proceeding to examine the aforesaid aspect of the matter in the light of the evidence on record, we are of the considered opinion that it would be useful to first examine the law on the applicability of Section 106 of the Indian Evidence Act......................................................................................... 246. Before proceeding to examine the aforesaid aspect of the matter in the light of the evidence on record, we are of the considered opinion that it would be useful to first examine the law on the applicability of Section 106 of the Indian Evidence Act......................................................................................... 246. Thus, what follows from the reading of the law reports referred to herein above, is that prosecution has to establish guilt of the accused filtered of all reasonable prognosis favourable to accused to secure conviction and it is never relieved of its initial duty. It is only when the initial burden has been discharged by the prosecution that the defence of the accused has to be looked into. Section 106 of the Indian Evidence Act can not be applied to fasten guilt on the accused, even if the prosecution has failed in its initial burden." 31. On the basis of the above cited ruling it is apparent that it would be applicable in the present case also but we find that this does not help the case of appellants because the prosecution has discharged its initial burden in respect to the offence to have been committed by the accused-appellants and, therefore, this Court is well within its right to take recourse to the provision of Section 106 IPC for fastening guilt upon the said accused. 32. The learned counsel for the accused-appellants has also relied upon in the case of Nagaraj Vs. State Rep. By Inspector of Police, (2015) 2 Crimes(SC) 71, in which it has been held that; Section 313 Cr.P.C. is not intended to nail the accused rather it is for the benefit of the accused, and that the Court in reaching final conclusion must ensure that the principle of natural justice is complied with. When the prosecution proves its case, the burden lies on the accused to prove his innocence and that it is not the other way round. We do not have any dispute with regard to the above legal position and are of the opinion that our conclusion drawn on the basis of evidence is wholly in accordance with the said principle. 33. We do not have any dispute with regard to the above legal position and are of the opinion that our conclusion drawn on the basis of evidence is wholly in accordance with the said principle. 33. On the other hand, the learned AGA has vehemently argued that prosecution has successfully proved its case because the deceased has been found to have died unnatural death inside the house of the accused which has been shown in the site plan by ''X'; by ''A' the courtyard is shown, in the western side of it, in a room there are doors shown by no.1 and 2; by 'B' is shown a room which is not having roof; by 'C' is shown place from where the accused had lifted sarsi of iron and had handed it over; by 'D' is shown the room, the door of which is towards west, in this room it is stated that the deceased had committed suicide by hanging herself, the roof of the said room was kaccha and was four and a half paces long, four paces in width and seven feet in height; by 'E' is shown the place from where rope (rassi) was recovered on 25.3.1982; by 'F' is shown the roof of the house of Jagdish Prasad from where the witnesses had seen the accused strangulating the deceased; the distance of house of Ashok from place 'F' is shown eight paces; by sign (<>), it is shown the passage from where the witnesses came inside the door and saw the occurrence. He further argued that P.W.1 to 4 have turned hostile but the father of the deceased Ram Babu and brother of the deceased Prem Naresh have wholly supported the prosecution case although they are not eye witness of the incident as it was not possible for them to have seen the occurrence as they belong to a different village and, therefore, it was not possible for them at all to witness the occurrence but it was argued that since the death of the deceased has happened inside the house of the accused, it was wholly the bounded duty of the accused to disclose the cause of death and also how the deceased died in which they have miserably failed, therefore, the turning hostile of witnesses P.W.1 to P.W.4 would not make any adverse impact on the prosecution case particularly in view of corroboration of the injuries found upon the deceased by the doctor P.W.8. Since doctor has found few ante-mortem injuries which shows resistance to have been given while she would have been strangulated by the accused and, therefore, he has argued that the judgment deserved to be upheld and appeal deserves to be dismissed. 34. After having gone through the entire record and the judgment of the Trial Court and having heard the arguments of both the sides, we are of the view that this is a case of circumstantial evidence, in which the deceased is found to have died inside the house of accused persons, therefore, under the provisions of Section 106 of the Indian Evidence Act it will be the sole responsibility of the accused to explain as to how the death of the deceased occurred because the deceased was a 20 year old lady. From the evidence it appears that the defence side was trying to take the plea that the deceased had some relationship with Govind who was residing in Delhi. Because of which she wanted to be with him, Govind and probably this could be the reason why she would have committed suicide. 35. From the evidence it appears that the defence side was trying to take the plea that the deceased had some relationship with Govind who was residing in Delhi. Because of which she wanted to be with him, Govind and probably this could be the reason why she would have committed suicide. 35. It was also tried to be taken as a defence by the side of the accused that brother of the deceased could also be the person who might have killed the deceased because he was also present in the village where the accused and the deceased used to reside but we are not inclined to accept these defences because no cogent evidence has been extended from the side of the accused-appellants to this effect. It has clearly come on record that there was some kind of ill-treatment on part of the accused-appellants towards the deceased because of which she was staying away from the accused-appellants and from her matrimonial home and when it was being heard that the accused might marry someone else she was taken by the prosecution side to the house of where she was found dead with the injuries which have been cited above in the postmortem report. 36. We also find that according to the admission of the accused persons, the deceased died on 25.3.1982, at about 7 AM when the accused Ashok Kumar saw that she was lying in dead condition at home and had gone to inform the police that his wife had committed suicide but what prevented him from going immediately to the police in the night to lodge the report in respect of the said incident and he continued to wait till the next day, i.e. 26.3.1982 to inform police at 8 AM. No justification has been given of this delay and the Trial Court's judgment clearly shows that this delay was very fatal for the defence side because they had enough time to concoct a false story about the deceased having committed suicide. No justification has been given of this delay and the Trial Court's judgment clearly shows that this delay was very fatal for the defence side because they had enough time to concoct a false story about the deceased having committed suicide. Moreover, it is also worth noting that when the accused had found the deceased to have committed suicide by hanging with the help of a rope why the dead body was brought down and kept on the ground by them and not waited till the arrival of police so that the police could have seen the deceased in hanging condition to believe the version of the accused that she had committed suicide herself. This act on the part of accused, would show that they tempered with the evidence by bringing down the body and placing it at the place ''X' as shown in the site plan which would be treated to have been done with malafide intention by them only to built a defence theory that the deceased had committed suicide for no reason because even reason has not been given as to why she could have committed suicide. 37. In view of above infirmities and after having gone through the judgment of the Trial Court we find that there is no infirmity in the conclusion drawn by the Trial Court in respect of the accused-appellant no.1 i.e. Ashok who is husband of the deceased because it was his prime duty to immediately report about this occurrence to the police. However we also are of the view that the other accused namely Vimal (brother in-law of the deceased) and Smt Lakshmi (mother-in-law of deceased) although they happened to be inmates of the same house in which this occurrence happened but their implication in the present case appears to be exaggerated one as according to the prosecution case the room in which the murder is alleged to have taken place, as per version of the accused is stated to have been shown by 'D'. It is quite believable that the accused-appellant no.1 namely Ashok Kumar Gupta and his wife deceased would have been living in that room separately and, therefore, it was exclusive liability of the accused Ashok Kumar Gupta only to disclose as to how his wife got murdered and not that of the other inmates of the house i.e., Vimal (brother in-law of the deceased) and Smt Lakshmi (mother-in-law of deceased). We are inclined to give benefit of doubt to the accused-appellants namely Vimal (brother in-law of the deceased) and Smt Lakshmi (mother-in-law of deceased). 38. Now we would like to take up the point of learned counsel for the appellants that the hyoid bone was not found fractured which was bound to happen in case of strangulation and, therefore, it should be treated to be a case of suicide and not strangulation to death/murder. We are not inclined to accept this view because the doctor has very clearly stated that it is not in all cases of strangulation that larynx, trachea or hyoid bone would be found to be fractured, therefore, even if in one case, it is found that hyoid bone would not be fractured in case of strangulation, this case could be treated to be covered in such exception and hence, we find that the postmortem report wholly corroborates the prosecution case that it could be a case that it was the husband i.e., accused-appellant no.1 Ashok Kumar Gupta only who could have killed the deceased. The sarsi which is alleged to have been used is also recovered at the pointing out of the deceased, which though was not found bloodstained but it is understandable that when sarsi would be used in pressing the neck of the deceased there could no possibility of the said sarsi getting bloodstained, we do not find any merit in the appeal of accused-appellant no.1 Ashok Kumar Gupta which deserves to be dismissed while the appeals of accused-appellants namely Vimal (brother in-law of the deceased) and Smt. Lakshmi (mother-in-law of deceased) are allowed. They are held not guilty of offence under Section 302 read with 34 IPC. Since they are on bail, their personal bonds and surety bonds shall stands discharged and in case, they are not wanted in any case they shall be immediately set at liberty forthwith subject to their filing fresh bail bonds in terms of Section 437-A of Cr.P.C. 39. Since they are on bail, their personal bonds and surety bonds shall stands discharged and in case, they are not wanted in any case they shall be immediately set at liberty forthwith subject to their filing fresh bail bonds in terms of Section 437-A of Cr.P.C. 39. As regards the accused-appellant no.1 namely Ashok Kumar Gupta his appeal is dismissed, he is on bail his bail bonds and surety bonds are discharged and he shall be taken into custody immediately and sent to jail to serve out the remaining sentence. 40. Let a copy of this judgment shall be transmitted to the Trial Court along with the original record for compliance immediately.