HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved On : 18.04.2017

Delivered On : 19.05.2017

Court No. – 36

Case :- CRIMINAL APPEAL No. 3822 of 2011

Appellant :- Mukesh Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Rajeev Kumar Singh Parmar,Jai Shanker Audichya,K.K.Mishra,Manish Kumar Tripathi,Narendra Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Hon’ble Mrs. Rekha Dixit,J.

(Delivered by Hon’ble Mrs. Rekha Dixit, J.)

1. This appeal assails the correctness of the judgment and order dated 23.05.2011 passed by Additional Sessions Judge, Badaun, in ‘State of U.P. Vs. Mukesh Kumar and Others’. The Additional Sessions Judge has convicted the appellant-accused Mukesh Kumar and sentenced him to undergo life imprisonment under Section 302 I.P.C. and a fine of Rs. 15, 000/-, in default, to undergo two years additional imprisonment.

2. Briefly stated, prosecution case against the appellant is that his marriage with Rama, sister of the informant Virender Pal was solemnized on 03.05.2009. The appellant and his family members demanded Hero Honda motorcycle, colour TV and a buffalo in dowry which could not be meted out by the family of Rama. The informant went to village Lalomai to bring his sister along with him but Mukesh, Amar Singh, Urmila wife of Sri Amar Singh, Sher Singh and Sunita wife of Sri Sher Singh refused to send her with him. On 19.10.2009, he came to know about the death of his sister Rama and immediately rushed to Lalomai along with his family members and some other villagers. When he reached there, he saw the dead body of his sister lying in a room in front of the door in the house of the appellant.

3. The informant Virendra Pal lodged the first information report scribed by Radhey Shyam. On the basis of the aforesaid written report, a case u/s. 498A/304B IPC and section 3/4 of Dowry Prohibition Act was registered on 19.10.2009 at 13.10 p.m. and the dead body of the deceased Rama was sent for post mortem to District Hospital, Badaun where it was examined by Dr. A.K. Gautam (PW7) who proved the same Ex. Ka-3. Ante mortem injuries mentioned in the postmortem report are as follows:

(i) Incomplete ligature mark of size 24cm x 2cm over upper part of the neck, 2 cm below right ear, 7 cm below chin, 06 cm below from left ear, 9 cm below occipit c gap of 7 cm between the ends of mark on right side back of neck. Under line tissue eccymosed and thyroid cartilage fractured.

(ii) Abraded contusion 2.5 cm x 1 cm over lateral aspect of right elbow.

(iii) Abraded contusion 3 cm x 2 cm over right side chest 7 cm below nipple.

(iv) Several postmortem insect eaten marks present over front of the chest and abdomen and front of left thigh.

4. The case was initially investigated by C.O. Radhey Shyam (P.W.-6) and subsequently the investigation was transferred to C.O. City Sri V.K. Sharma. The appellant Mukesh was charged u/s. 498-A/304-B IPC and sections 3/4 of Dowry Prohibition Act on 09.08.2010, further an alternative charge u/s. 302 IPC framed on 11.02.2011.

5. To bring home the guilt of the appellant, the prosecution has examined eight witnesses and no evidence either oral or documentary has been adduced in defence. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., he denied all of them and also stated that he has falsely been implicated in this case. Further, he has stated that the dead body of the deceased was found in a forest away from his house and the police, on the instigation of his opponents, placed the dead body in his house and got prepared the inquest report accordingly. The trial court held that the appellant Mukesh Kumar committed murder of the deceased Rama and the prosecution established the circumstances holding the appellant guilty under section 302 I.P.C. and sentenced him to undergo life imprisonment, and a fine of Rs. 15, 000/-, in default, to undergo two years imprisonment. Aggrieved by the verdict of conviction, the appellant preferred this appeal.

6. Learned counsel for the appellant submitted that the information of the death of Rama was sent to her family members by the appellant himself. The complainant had not written any FIR himself but the same was scribed by one Radhey Shyam. The marriage of the appellant with the deceased was a dowry-less marriage as both the families were of middle class. It has also been argued that the ligature mark found on the neck of the victim was incomplete which indicates towards her death by committing suicide through hanging. The family members of the deceased examined as prosecution witnesses have turned hostile and not supported the prosecution story.

7. Per contra, learned AGA for the State contended that the prosecution has established the guilt of the appellant in the murder of deceased Rama in this case. The F.I.R. version has fully been supported by medical evidence, based on the said evidence, the Court below rightly convicted the appellant and the impugned judgment and order warrants no interference.

8. We have considered the rival contentions and perused the impugned judgment and material on record.

9. In the instant case, the marriage of the appellant Mukesh and the deceased Rama, sister of the informant was solemnized on 03.05.2009. The family members of the appellant demanded Hero Honda motorcycle, colour TV and a buffalo as dowry from the deceased Rama who allegedly informed such demand to her family members. On 19.10.2009, the informant came to know about the death of her sister Rama and when he along with his family members reached the spot, they saw the dead body of the deceased lying in a room.

10. Learned counsel for the appellant has raised vital question regarding the authenticity and truthfulness of eye-witness, i.e., PW1 Vir Pal, PW2 Brajraj, PW3 Shobha, PW4 Baburam and PW5 Sitaram. It has been argued that all the witnesses belong to the family of the deceased and have not supported the prosecution case. As such, the veracity of their testimony is highly questionable. In the context of his arguments regarding the oral testimony of all the above mentioned witnesses, it would be proper to have a reference to their testimonies.

11. PW1 Vir Pal, the informant of the case and brother of the deceased has categorically admitted in his testimony the marriage of the deceased with Mukesh on 03.05.2009. He further stated that his sister never complained of any dowry demand by her in-laws and when he visited her after her marriage, she did not accompany him because of her ill health. Somebody from the village Lalomai informed him about the death of his sister on which, he along with his family members reached the house of Mukesh where they found the dead body of the deceased Rama lying on a bed in a room of the house of the appellant. Since this witness has not supported the prosecution case regarding the demand of dowry, cruelty resulting in the death of the deceased, he has been declared hostile by the prosecution.

12. PW2 Brijraj, the father of the deceased, admitting the date of marriage has specifically denied any demand of dowry by Mukesh, Amar Singh, Urmila, Sunita and Sher Singh. He has further stated that the deceased never complained of any demand of dowry or cruelty due to the same. This witness has corroborated the testimony of PW1 to the extent that the dead body of the deceased was lying on a double bed in the room of the house of the appellant Mukesh. He, however, expressed his ignorance regarding the cause of her death. He has also been declared hostile by the prosecution. Similarly, PW3 Shobha, PW4 Babu Ram and PW5 Sita Ram, all relatives of the deceased have admitted the marriage of the deceased with the appellant and denied any demand of dowry by the family members of the appellant during or after the marriage. It has also been stated by all of them that the deceased never complained about her in-laws in context with any sort of cruelty due to dowry. Consequently, all these witnesses have also been declared hostile by the prosecution. PW6 Radhey Shyam Kole, the investigating officer, PW7 Dr. A.K. Gautam and PW8 S. Alamgir all are formal witnesses who have proved the documentary evidence in their testimonies namely Ex. Ka-2, Ex. Ka-3 and Ex. Ka-4, Ka-3, Ka-6 and Ka-7 respectively.

13. The trial court has accepted the testimonies of PW1 Vir Pal, PW2 Brajraj, PW3 Shobha, PW4 Baburam and PW5 Sitaram regarding the marriage of the deceased with the appellant Mukesh and no demand of dowry by him or his family members. In their examination, all the witnesses of fact have categorically denied any demand of dowry or cruelty towards the deceased after her marriage . Thus, the commission of the offence u/s. 498-A IPC has rightly not been accepted by the trial court beyond reasonable doubt. Further, their testimonies do not substantiate the cause of death of the deceased but for the fact that her dead body was lying on a bed in a room of the house of the appellant and the information regarding her death was not communicated to them by the appellant or his family members.

14. As far as the death of the deceased is concerned, a reference may be made to the statement of Dr. A.K. Gautam (PW7) who conducted the postmortem of the dead body and categorically stated the cause of death of the deceased to be asphyxia due to strangulation. Consequently, it may be concluded that it was an unnatural death. Dr. A. K. Gautam has also clarified that considering the type of ligature mark found around the neck of the deceased, it cannot be a case of hanging, in any manner whatsoever and such mark may be caused by pulling the neck of deceased through a rope with pressure. Further, he has stated that injury nos. 2 and 3 could have occurred possibly due to struggle before death. This evidently indicates towards murder of deceased supported by the recovery of broken bangles also. Therefore, there is no possibility of committing suicide by the deceased.

15. The entire testimony of factual witnesses clearly establishes the death of the deceased within 7 years of her mariage with the appellant. The death of deceased being unnatural is substantiated by the statement of Dr. A.K. Gautam (PW-7) and also the possibility of struggle before death resulting in other injuries found on the body of the deceased. The testimony of factual witnesses do not establish any demand of dowry as all of them have turned hostile and denied any demand of dowry by appellant or his family members during or after the marriage. As such, the charge under section 3/4 D.P. Act cannot be said to be proved beyond reasonable doubt. To constitute offence under section 304 B I.P.C., it has to be established that the deceased was subjected to cruelty just before her deah on account of dowry. The testimony of witnesses of fact do not indicate any cruelty just before her death on account of dowry which creates suspicion towards the applicability of offence under section 304-B I.P.C., only conlusion which can be drawn as per the statement of the doctor is regarding the unnatural death of the deceased.

16. Now, the only issue to be considered is the alternate charge under section 302 I.P.C. framed against the appellant and convicted thereby.

17. The appellant has been convicted for murder of the deceased on the premise of unnatural death and struggle before death corroborated by medical evidence and recovery of broken bangles, indicating intentional attack on the deceased before her death.

18. The case against the appellant regarding the murder of the deceased is entirely based on circumstantial evidence as there is no direct evidence to establish the same. The entire evidence is to be considered in light of the fact that all the circumstances lead only towards the guilt of the appellant and nothing else. The testimony of factual witnesses has established the fact of the death of the deceased in the house of the appellant and his dead body lying on the bed in a room of his house though they have turned hostile but their testimony to the extent it corroborates the prosecution case, can be accepted and read against the accused as per the established proposition of law. All of them have reiterated the fact of the dead body of the deceased lying on a bed in a room in the house of the appellant. This fact has also been corroborated by PW8 who prepared the inquest report. Having regard to the fact of the dead body of the deceased lying on a bed in the room of the house of the appellant, who else can done her to death but for the appellant. The applicability of Section 106 of the Indian Evidence Act, 1872 is to be considered which reads as follows:

“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.”

19. In view of Section 106 of the Indian Evidence Act, 1872, any fact which is in the specific knowledge of a person has to be established and proved by him. In the present case where the dead body of the deceased was found lying on a bed in the room and house of the appellant, the deceased being wife of the appellant, none other than the appellant can explain as to how she died. In absence of plausible explanation, there appears no reason of not holding the appellant guilty of the same.

20. The appellant has taken a defence in statement u/s. 313 Cr.P.Cthat the body of the deceased was found in a forest away from his house and the police placed the body of the deceased in his house to implicate him. Such averment of the appellant neither appears to be believable nor trust worthy as no corroborative or substantive evidence to support the same has been adduced in the case. Another factor to be taken into account is the absence of appellant and his family members admittedly at the time of preparation of inquest report and when the family members of the deceased reached the spot. It is also noticeable that the information of the death of the deceased was not passed on to her family members by the appellant or his family members. The conduct of the appellant itself appears very suspicious and do create an incriminating circumstance against him. The injuries found on the body of the deceased have not been explained by the appellant, more so, in view of the fact when Dr. A.K. Gautam (PW7) has categorically stated that the said injuries cannot be caused by hanging which rules out a case of suicide, if any. Apart from ligature mark, rest of the injuries do inidicate struggle before the death of the deceased, the cause of such injuries is also not apparent either through any of the defence argument or evidence. Thus it can reasonably be concluded that the entire circumstances lead only towards the guilt of the apellant and none else.

21. In case of circumstantial evidence, the Court has to examine the entire evidence in its entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case at hand, the presence of the body of the deceased in the room of the house of the appellant and the presence of the ligature mark around the neck not due to hanging, non explanation of the injuries present on the body of the deceased, no information given about her death to her family members by the appellant or his family members and absence of the appellant and his family members from the place of occurrence firmly establishes the intentional murder of the deceased in the house of the appellant. The appellant has failed to bring to our notice by pointing any reliable material on the basis of which it could be concluded that he was not guilty of the offence charged with.

22. We, thus, are of the considered opinion that the finding of conviction recorded by the trial court for the offence under section 302 I.P.C. sentencing him to undergo life imprisonment with a fine of Rs. 15,000/-, in default, to undergo two years additional imprisonment does not require interference.

23. For the foregoing reasons, this appeal is liable to be dismissed and is, accordingly, dismissed.

24. The appellant Mukesh is in jail. He shall remain in jail to serve out sentence awarded by the trial court in pursuance of the impugned judgment and order.

25. Registrar General is directed to send a certified copy of this judgement to District Judge, Budaun for necessary information and follow up action accordingly.

(Mrs. Rekha Dixit, J.) (Ramesh Sinha, J.)

Order Date :- 19.05.2017

Madhurima