HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on 28.04.2018 Delivered on 31.08.2018 Case :- CRIMINAL APPEAL No. - 5580 of 2009 Appellant :- Smt. [ENTITY] & Another Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. [ENTITY], J.
Hon'ble [ENTITY], J.
(Delivered by Hon'ble [ENTITY], J.)
1. This appeal is directed against the judgement and order dated 13.03.1991 passed by II Additional Sessions Judge, Shahjahanpur, in [CASE NUMBER], whereby the appellants [ENTITY], [ENTITY] and [ENTITY] have been convicted and sentenced under [SECTION] read with [SECTION] [ACT] with life imprisonment.
2. Heard Sri [ENTITY] assisted by Sri [ENTITY], learned counsel for the appellants and Sri [ENTITY], learned A.G.A. for the State. Perused the lower court's record.
3. The prosecution story in brief is that one [ENTITY] was married to [ENTITY]. It is alleged that [ENTITY] used to take alcohol and on account of this habit, the wife of [ENTITY], [ENTITY] entered into illicit relationship with one [ENTITY] s/o [ENTITY] (hereinafter referred to as '[ENTITY]'). It is alleged that on account of illicit relationship between [ENTITY] and [ENTITY], there was quarrel between [ENTITY] and [ENTITY]. Despite the quarrel between [ENTITY] and [ENTITY], she did not stop her illicit relationship with [ENTITY]. Further story of prosecution is that on 10.01.2005 [ENTITY] got encashed F.D. of Rs.7,000/- on a premature date and gave it to [ENTITY] to discharge the debt. When [ENTITY] came to know about the said transaction, he enquired from [ENTITY] and [ENTITY] alongwith [ENTITY] came at about 8:00 PM to the house of [ENTITY]. Thereafter, [ENTITY] enquired from [ENTITY] about the aforesaid money transaction, on which, [ENTITY] started quarrel with [ENTITY] and [ENTITY] slapped his wife [ENTITY]. On this [ENTITY] instigated [ENTITY] to beat [ENTITY] and [ENTITY] and [ENTITY] started beating [ENTITY]. The prosecution story further is that after sometime [ENTITY] left the house and [ENTITY] closed the door. On the next morning, it was revealed that [ENTITY] had died
4. The brother of deceased [ENTITY] gave written information to the S.H.O., P.S. Marian, District Mirzapur narrating all the aforesaid facts in the complaint, he named [ENTITY] and [ENTITY] as accused and consequently, an FIR was registered on 12.01.2005 on the written complaint of brother of the deceased [ENTITY]. Thereafter, the police started investigating the matter. The inquest memo was prepared on 11.01.2005 at about 09.30 A.M. and preparation of inquest continued upto 11:30 A.M. on the same day. The postmortem was also conducted on 12.01.2004. According to the postmortem report, the cause of death of the deceased was "due to asphyxia caused by throttling".
5. The pieces of broken bangles of [ENTITY] was found near the cot of [ENTITY] and there was blood stain on the cover (Khol) bed (Kathri). Recovery memo was prepared on 11.01.2005, mentioning the recovery of aforesaid articles near the cot of [ENTITY]. After investigation, the police submitted the charge-sheet on 14.06.2005, under [SECTION] [ACT] against the accused appellants. The learned Sessions Judge framed the charges against the accused on 14.06.2005 under [SECTION] of [ACT] which they denied and claimed trial.
6. The learned court below has held that [ENTITY] died in his home and [ENTITY] was with him in the night of incident. The pieces of broken bangles were found near the cot of [ENTITY] and there was no evidence on record to establish that [ENTITY] was sleeping in some other room. Learned court below has relied upon the postmortem report and the testimony of P.W. 10 Dr. [ENTITY] to arrive at the conclusion that the nature of injuries found on the body of deceased could not be inflicted by one person. He recorded a finding that at least two persons were involved in throttling the neck of [ENTITY] due to which the bone of respiratory canal was broken. He placed reliance upon the statement of P.W.1 [ENTITY] in recording that it appears that the aforesaid incident had taken place in the manner in which it was narrated by PW 1. On the basis of aforesaid finding, the court below came to the conclusion that the charges under [SECTION] [ACT] stands proved against the accused appellants, and consequently, accused appellants were sentenced with life imprisonment and a fine of Rs. 5,000/-, and in case of non-payment of fine, the accused/ appellants have to undergo further imprisonment for one year.
7. Learned counsel for the accused appellants has contended that the incident as narrated to have taken place in the night of 10.01.2005. All the witnesses produced by the prosecution had turned hostile and there was no evidence on record, which could establish that the murder was committed by accused appellants. While drawing the attention of this Court to the site plan, he submitted that as per the site plan, anybody could enter into the house of [ENTITY] and could have committed the murder. He submits that as per the testimony of P.W. 1 [ENTITY], he was not having good relationship with his brother inasmuch as, he was arrested in the theft of wire and [ENTITY] did not help him in getting the bail. Thus, the submission is that for the aforesaid reason, murder could have been committed by the brother of deceased. He further contends that it is a case of circumstantial evidence and until and unless the prosecution is able to prove complete chain which leads to the conclusion of commission of offence by the accused, the accused appellants could not be convicted. Thus, the submission is that the learned II Additional Sessions Judge has failed to appreciate the legal principle of circumstantial evidence in the instant case and has convicted the appellant despite the fact that the prosecution has miserably failed to establish complete chain of events pointing out towards the guilt of accused. He further submits that there was no eye witness account of the alleged incident and further, since the prosecution could not establish the complete chain of events to point out the guilt of the accused and as such, the conviction of accused is not sustainable in law. In this regard, he has relied upon the judgement of Apex Court in the case of [PRECEDENT].
8. Further submission of the learned counsel for the appellants is that the circumstance of last seen together does not ipso-facto prove that the accused committed the crime. In this regard, he has relied upon the judgement of the Apex Court in the case of [PRECEDENT].
9. Refuting the aforesaid submission of the learned counsel for the appellants, learned A.G.A. has submitted that in the instant case, the accused appellants did not deny the fact that there used to be quarrel between the deceased [ENTITY] and accused [ENTITY] due to her illicit relationship with [ENTITY]. He further submits that the appellants accused did not deny the fact that there was a quarrel between [ENTITY] and [ENTITY], and [ENTITY] instigated [ENTITY] to beat [ENTITY]. Thereafter, both of them started beating [ENTITY]. The presence of [ENTITY] is not denied at the place of incident nor the fact that there was illicit relationship between [ENTITY] and [ENTITY] was denied. Further, he placed reliance upon the testimony of Dr. [ENTITY] PW 10 to submit that according to the doctor, time of death could be one and half day from the date of postmortem which could be around 8:00 PM. on the fateful day. Thus, he submits that the presence of [ENTITY] was established at the time of incident.
10. He further submits that it is established that [ENTITY] was with the deceased on the fateful night from the testimony of PW3 [ENTITY] ( son of Accused NO.1) and DW1 [ENTITY] who in his cross admitted the presence of [ENTITY] at home on the fateful day. Further, she did not give any explanation in her statement recorded under [SECTION] [ACT] as to how [ENTITY] was killed. Thus, in view of [SECTION] of [ACT], the accused appellants have been rightly convicted in the instant case looking to the circumstances. He further submits that the prosecution had substantiated the charges against the accused and as such, in view of [SECTION] of [ACT], the prosecution had discharged its burden and now it is for the accused appellants to prove the fact as to specially within their knowledge as to how [ENTITY] was killed. Further submission of learned A.G.A. is that it is now well settled that evidence of hostile witness can be looked into to the extent it corroborate the prosecution version.
11. We have considered the rival submissions of the parties and perused the record.
12. In the instant case, the prosecution produced as many as 10 witnesses. Though, all the independent witnesses PW 1 to PW 6 became hostile , but in the facts of the instant case, it would be useful to notice the statement of P W 1 [ENTITY], brother of the deceased and author of the written complaint, in his statement, he has stated that there was illicit relationship between wife of deceased and [ENTITY], which was the cause of the quarrel between the deceased and his wife. He further narrated the fact that the deceased had several times asked [ENTITY] not to visit his house but despite this objection, the wife of deceased used to call [ENTITY]. He further narrated that his brother i.e. deceased had deposited Rs.7,000/- in a fixed deposit in the name of [ENTITY] which was prematurely encashed by [ENTITY] and was given by [ENTITY] by [ENTITY], and when the said fact came to the knowledge of the deceased, there was quarrel between the deceased and his wife. The wife of the deceased had started abusing the deceased due to which, he slapped [ENTITY]. Thereafter, [ENTITY] had hit the deceased and [ENTITY] instigated the deceased's wife and after that, both of them started beating deceased. He further narrated that the cloth was forcibly put into the mouth of deceased due to which the deceased was not able to speak and in the morning when he went to his brother's house; he found that blood had oozed from nose and mouth of the deceased. He further narrated that when he reached the spot, [ENTITY] was also present and there was murmuring that [ENTITY] and [ENTITY] had killed the deceased. In his testimony, he further stated that [ENTITY] used to stay in the house of deceased and was also very frequent visitor to the house of the deceased. He further narrated that the hands of the deceased were tied and [ENTITY] and [ENTITY] had rod (Chaila) in their hands. The testimony of PW 1 was recorded on 24.06.2006. However, after three months of recording of examination in chief, the cross examination of PW 1 was done on 21.07.2006 on which date PW 1 turned hostile. It is further relevant to notice that there was three months gap between examination in chief of deceased and the date of the aforesaid witness declared hostile witness.
13. There could be every possibility for PW1 to turn as hostile for the reason that the accused being [ENTITY] of PW 1 was close relative which might have led to change his mind. It would also be useful to notice that the written complaint was lodged by PW 1 who is in his examination in chief has stated the same facts which have been written in the written report. Further, at this stage, it is also relevant to notice that the testimony of PW 3 [ENTITY], son of [ENTITY], admitted the fact that [ENTITY] was in the house at the time of murder of deceased which fact finds corroborated with the statement of DW1 recorded during his cross examination. In this regard, it is relevant to mention that the cause of death recorded in the postmortem report is as follows:-
"Dead due to asphyxia caused by throttling as the result of antemortem injury."
14. The statement of doctor (PW10) substantiates the prosecution story. In his testimony, PW10 has stated that the cause of death of deceased was throttling. As per the doctor, the time of death of deceased was about 8:00 PM. He further stated that the deceased had died one and half day before the postmortem which was conducted on 12.01.2004. As per doctor, the respiratory canal was red and there was clot with liquid in the respiratory canal. The bone of respiratory canal was also found broken. The doctor has stated that ligature mark found on the neck of the deceased could come only by throttling of neck.
15. From the facts narrated herein-above, it is established that [ENTITY] was with the deceased at the time of his death. The presence of [ENTITY] was also not denied at the time of death of deceased which according to the testimony of doctor was 8:00 PM. Thus, from the aforesaid testimony and evidence on record, the presence of [ENTITY] and [ENTITY] at the time of death of deceased on the spot of incident was established. The accused in their statement under [SECTION] [ACT] have not clarified the manner in which the alleged incident had taken place nor tendered any explanation as to why they could be falsely implicated in the incident. In this regard, it would be useful to point out the judgement of the Apex Court wherein the Apex Court has affirmed the conviction on the ground of last seen theory in view of [SECTION] [ACT]
16. In the case of [PRECEDENT], the Apex Court has held that the burden of proving the fact specially within the knowledge of accused with regard to the manner of incident is upon the accused. The accused simply cannot get away by keeping quite, offering no explanation with regard to the manner of incident. Though, there presence was proved on the place of occurrence and only the accused was with the deceased at the time of incident.
17. In the case of [PRECEDENT], the Apex Court reversed the acquittal of accused and after applying principle of [SECTION] of [ACT] convicted the accused. In this regard, paragraphs 16 to 19 of the said judgment are relevant and are reproduced hereinbelow:
"16. [ENTITY]'s Medical Jurisprudence and Toxicology on strangulation explains that strangulation can be defined as the compression of the neck by a force other than hanging. Ligature strangulation is a violent form of death, which results from constricting the neck by means of a ligature or by any other means without suspending the body. On internal injuries [ENTITY]'s Medical Jurisprudence says that it should be noted that the hyoid bone and superior cornuae of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation.
17. In [PRECEDENT], while appreciating somewhat similar facts, this Court observed as under: -
"4 The post-mortem report prepared on autopsy conducted by Dr [ENTITY] (PW 8) shows that there was ligature mark on the neck of the deceased which was ante-mortem. The opinion of the doctor is clear and definite that such ligature mark of 5 cm width in horizontal position cannot be caused by hanging but could have been caused by strangulation. Medical evidence, therefore, completely falsifies the case of the appellant that on his return from the field to his house he had found his wife hanging and thus she had committed suicide. The conduct of the accused is also not natural. When he found his wife hanging by the neck, he neither raised any hue and cry nor called any villagers living nearby. He all alone brought down the body hanging from the roof. He thereafter did not report the matter immediately. When villagers collected, he took a plea that she had committed suicide. He also did not report the matter on his own but, as is deposed by [ENTITY] (PW 2), Kotwar, it is on his insistence and of the Sarpanch that he reported the matter to the police. These witnesses also stated that the wife had complained in the past to the Panchayat that the appellant was ill-treating her and was not providing her food.
5. After hearing learned counsel appearing and on going through the record, we find no ground to take a different view of the evidence. The accused in his examination under [SECTION] [ACT] had admitted that he was in the house and on hearing a sound had rushed to find his wife hanging by the neck. His defence that his wife committed suicide has been found to be false and the same is not corroborated by medical evidence. The above facts coupled with the circumstances that they were not leading a congenial marital life, the unnatural conduct of the accused subsequent to the incident, the spot map (Ext. 7) showing the rafter of the roof to be at such height as was unapproachable for committing suicide cumulatively lead only to one irresistible conclusion that the accused alone was the author of the crime and had taken a false defence that he had seen the deceased to have committed suicide by hanging herself."
18. In the present case, the appellant has got hurriedly buried body of his wife before anyone from the parental side of his wife could reach. On going through copy of the post mortem report in the record of the case it reveals that apart from the injuries mentioned above, regarding the condition of the body, the Medical Officer PW-5 Dr. [ENTITY], who conducted post mortem, has observed that the tongue of the deceased was protruded from mouth from teeth inside the mouth, which further corroborates homicidal death of the deceased.
19. [SECTION] of the [ACT] provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it is proved on the record that it was only the appellant who was staying with his wife at the time of her death, it is for him to show as to in what manner she died, particularly, when the prosecution has successfully proved that she died homicidal death."
18. In the case of [PRECEDENT], the Supreme Court had set aside the acquittal of accused on the basis of last seen theory and further held that though, the initial burden was on the prosecution to substantiate the charges, but once the burden is discharged, it is for the accused to prove the fact specially within his knowledge. In the said case, the Apex Court in paragraph 11 further held that even the evidence of hostile witness to the extent it corroborates the prosecution version can be relied upon.
19. In paragraph 6 of the judgment in the case of [PRECEDENT], Apex Court has held that the evidence of hostile witness can be looked into to the extent it corroborates the prosecution story. Paragraph 6 of the said judgment is reproduced herein-below:-
" But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court - [PRECEDENT]; [PRECEDENT] and [PRECEDENT] that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye-witnesses was challenged by the prosecution in cross-examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident."
20. In the case of [PRECEDENT], the Apex Court has held that the evidence of hostile witness should not be discarded and reliance on any part of any such witness by both the parties are permissible. In paragraphs 33 and 34 of the said judgment, the Apex Court has laid down a distinction between hostile witness and favourable witness. Paragraphs 33, 34 and 52 of the said judgment are reproduced herein-below:-
33. The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing [ENTITY]'s Digest of the Law of Evidence).
34. In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the extent to which he considered necessary in the interests of justice. With the leave of the court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever.
52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.
21. The principles enunciated in the aforesaid judgment are applicable in the facts of the instant case, for the reasons given above i.e the presence of accused persons on the place of incident at the time of death of deceased were established as per the postmortem report and testimony of PW1, PW3 & PW10. Further, the accused under [SECTION] [ACT] had not rendered any explanation as to how the murder of [ENTITY] took place. The motive behind the murder was also established inasmuch as, it is established on record that there was illicit relationship with wife of deceased and [ENTITY] and wife of deceased had given Rs.7,000/- to [ENTITY] which caused anger to the deceased and a quarrel had taken place. At the time of death of deceased and deceased was beaten by his wife and [ENTITY].
22. Since it is established on record that only the accused were present on the spot and thus, it could be only the accused who could explain the manner of murder of deceased. It is further useful to notice that P W 1, who turned hostile, had not disputed the fact that the written complaint was lodged by him narrating the incident and imputing the motive for killing the deceased by [ENTITY] and [ENTITY].
23. Now, coming to the argument of learned counsel for the appellants, firstly, the argument which has been raised in appeal here on the basis of site plan that anybody could enter the house of deceased and even the brother of deceased could murder the deceased for the reason that the deceased did not help him in getting the bail in an incident of theft. There is fallacy in the aforesaid argument of the learned counsel for the appellants, for the reasons that the accused who were alone present on the spot of occurrence did not render any explanation with regard to the murder of deceased.
24. From the facts narrated above, it is not a case where prosecution had failed to establish the complete chain of events pointing the guilt towards the accused and thus, the judgment of the Apex Court in [PRECEDENT] (supra) is not applicable in the facts of the present case.
25. So far as the other judgment of the Apex Court in the case of [PRECEDENT] (supra) relied upon by the counsel for the appellants with regard to the principle that merely non-explanation of being last seen together with the deceased on the part of the accused itself cannot lead to prove the guilt of accused. In the said case, the Apex Court had acquitted the accused on the ground that there was no other evidence except that the accused was last seen with the deceased. In such facts, the apex court has held that the conviction of the accused cannot be sustained on the last seen theory.
26. In the case in hand from the facts narrated above, it is established beyond reasonable doubt the motive of murder of deceased and the presence of accused persons on the spot and no explanation furnished by the accused with regard to the manner in which the murder had taken place in the testimony under [SECTION] [ACT] leads to point finger at the accused with regard to the commission of the offence.
27. On a careful scrutiny of the impugned judgement, we are of the considered opinion that the learned trial court has not left any stone unturned while analysing the evidence and after a thorough appreciation of the evidence, has given a well reasoned judgement, convicting and sentencing the appellants, which does not require any interference by this appellate court. The appeal is devoid of merits and it is liable to be dismissed.
28. The appeal is accordingly dismissed.
29. The appellants are on bail. They shall be taken into custody forthwith and shall be lodged in jail to serve out the remaining sentence as awarded by the trial court vide impugned judgement.
30. A copy of this judgement be sent to the court concerned by FAX for immediate compliance.
31. Lower court's record alongwith copy of judgement be sent back to the court concerned.
Order Date :-31.8.2018 [ENTITY]