IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT Satish Nirankari Vs. State of Rajasthan (D.B. CRIMINAL APPEAL NO.382/2004) D. B. Criminal Appeal under Sec.374 (2) Cr.P.C. against the judgment dated 27-3-2004 in Sessions Case No.187/2001 passed by Shri S.S. Purohit, RHJS, Special Judge (Communal Riots/ Mansingh Murder) Jaipur. Date of Judgment: February 19, 2007. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE R.S.CHAUHAN Mr. Suresh Sahni ] for the appellant. Mr. Mahendra Shandilya] Mr. R.M. Sharma ] Mr. Sudhir Jain ] Mr. M.L.Goyal, Public Prosecutor for the State. Mr. Biri Singh Sinsinwar] for the complainant. Mr. Kamlendra Sihag ] BY THE COURT: (PER HON'BLE Shiv Kumar Sharma,J.) Challenge in this appeal is to the judgment dated March 27, 2004 of the learned Special Judge (Communal Riots/ Mansingh Murder) Jaipur whereby Satish Nirankari, the appellant before us, was convicted and sentenced as under:- U/s.302 IPC: To suffer imprisonment for life and fine of Rs.500/-, in default to further suffer three months simple imprisonment. U/s.309 IPC: To suffer simple imprisonment for six months and fine of Rs.200/-, in default to further suffer one month imprisonment. Sentences were ordered to run concurrently. 2. The prosecution story is woven like this:- Informant Pramod Bhatnagar (Pw.12) handed over a written report on November 2, 1995 at Police Station Gandhi Nagar Jaipur with the averments that on the preceding day around 5.30 PM his daughter Pooja (since deceased) proceeded to attend MBA classes. When she did not return till 9 PM, he became worried. Around 10 PM he was informed by one Ashok that Pooja was admitted to SMS Hospital Jaipur. He rushed to the hospital where he found Pooja dead. On being enquired it came to his notice that it was Satish (appellant) who had killed Pooja by administering and squeezing her neck. On that report a case was registered and investigation commenced. Dead body of Pooja was subjected to autopsy, statements of witnesses were recorded, necessary memos were drawn, the appellant was arrested and on completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Special Judge (Communal Riots/ Mansingh Murder) Jaipur. Charges under sections 302 and 309 IPC were framed against the appellant, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 16 witnesses. In the explanation under Sec.313 Cr.P.C., the appellant claimed innocence. It was stated by him that Pooja was madly in love with him and wanted to marry him but her parents did not agree for their marriage. Therefore they both decided to commit suicide and consumed Copper Sulphate. He however consumed small quantity of poison in comparison of Pooja. When Pooja started vomiting he went out of the room for help and when he returned back, he found her hanging. He untied the noose of cable wire and she was removed to the hospital by the neighbours. No witness in defence was however examined. On hearing final submissions learned trial Judge convicted and sentenced the appellant as indicated herein above. 3. As per Post Mortem report (Ex.P-4) following ante mortem injuries were found on the dead body:- 1. A ligature mark 29cm x 0.5cm placed 8cm above supra sternal notch in mid line and is nearly transversly all around the neck, another ligature mark commencing from the left side of the upper border of ligature mark no one above 3cm from the mid line and is running obliquely upwards backwards laterally and disappearing in hairs just post to the left mastoid process and it is 06 cm below left ear labule Right side 2cm from the upper border of ligature mark no one running obliquely upwards backwards and laterally upto below right mastoid process and it is 04cm below right ear lobule the ligature mark number one is deep and upper one is not deeper brown coloured. 2. Hematoma 5cm x 4cm on occipital region. Medical Board that conducted autopsy on the dead body opined that the cause of death was asphyxia due to pressure on neck with ligature. SEQUENCE OF EVENTS: 4. We shall advert to the facts alleged by the prosecution and the sequence of events that had happened on November 1, 1995 as emerging from the prosecution evidence. 5. Deceased Pooja was a student of MA English Literature and simultaneously she joined evening classes of Management course of American Institute. She was 23 years of age. Satish (appellant) was non- metric and Pooja fell in love with the appellant while she was teenager. She wrote a few love letters to the appellant during that period. On November 1, 1995. Pooja left her house at 5.30 PM, but she did not reach to MBA classes. Around 10 PM one Ashok informed the father of Pooja that she was admitted to the Hospital. When parents of Pooja reached hospital they found Pooja dead. 6. Statements of some important witnesses are required to be considered. Vidhya Bhushan Advocate (PW.1) in his deposition stated that the house D-9, Indrapuri belonged to his daughter Priyambda and its construction was almost complete. Key of the house usually remained near electricity meter so that labourers could do their work. Although Mahesh was not his son, he was living with him since his childhood. In the year 1990-91 he got installed Dish-antenna in the house and its controll room was at the ground floor. Satish who was a mechanic of dish-antenna associated with Mahesh in that work. On November 1, 1995 Vinod Gupta Advocate informed him over telephone around 8.30 PM that in his house at Indrapuri a girl was lying unconscious and a boy was pelting stones. Thereupon he directed Mahesh to make inquiry. Mahesh later on informed him that from his house one boy and a girl were removed to the hospital. He further stated that site-plan (Ex.P-1) was drawn in his presence and in the ground floor of his house a register, purse, wrist watch, small box of vermilion, metal glass, glass-ware containing Copper sulphate Neela-thotha, Fruit juice and many other articles were found. In cross-examination he stated that two cable wires were hanging from the railing of staircase. Garlands of rose and Glass bangles were also lying. He also stated that he had seen Pooja (deceased) once when she came to his house with Satish. Satish wanted to marry her and he advised Satish to seek permission of their parents. 7. Mahesh Sharma (PW.2) deposed that the house D-9 Indrapuri was in the name of Vidhya Bhushan's daughter Priyambda. In that house he with the assistance of appellant installed Dish-antenna. When the business of Dis- antenna was in progress, one day the appellant came to the house with a girl whose name was Daisy. On November 1, 1995 around 9 PM Vidhya Bhushan directed him to go to the said house. On reaching the house he was informed by neighbour Vinod Gupta that a boy and a girl consumed poison and they were vomiting. Karni Singh ji thereafter took them to SMS hospital. 8. Dr.S.K.Pathak (PW.3), who conducted autopsy on the dead body of Pooja, stated that hematoma measuring 5cm x 4cm was found on occipital region. There were ligature marks on the neck that could be caused by a rope or cable wire. 9. Vinod Kumar Gupta Advocate (PW.4) deposed that plot No.D- 9 adjacent to his house, belonged to Vidhya Bhushan Advocate. On November 1, 1995 around 9 PM while he was sitting on dining table he noticed that somebody was pelting stones at his house. He came out of the house and found that on plot No.D-9 a boy was vomiting. The boy told him that he and his girl-friend consumed poison. The boy made request to save him and gave telephone number of his brother. Vinod Gupta communicated information about the incident to Vidhya Bhushan and the brother of the boy. After fifteen minutes three persons came on a scooter and the girl was removed to the hospital. 10. Karni Singh Rathore Advocate (PW.13) in his deposition stated that on November 1, 1995 around 9 PM he had gone to the house of his relative Anand Singh Rathore at Satya Vihar Colony for taking dinner. As soon as he reached one boy of Video Parlour came to him and requested him to save the life of his brother. He then carried a boy and a girl to the hospital. The condition of the girl was serious. CONTENTIONS RAISED: 11. We have heard the rival submissions. Learned counsel for the appellant vociferously criticsed the impugned judgment and canvassed as under:- (i) The prosecution failed to establish motive behind the guilt. (ii) Following material facts were left unnoticed by the learned trial Judge:- (a) Pooja had left her house on November 1, 1995 at 5 PM and this fact is established by the statements of Pramila Bhatnagar (PW.9) and Pramod Bhatnagar (PW.12) but there is no evidence as to where she remained from 5 pm to 9 PM. (b) There is no evidence from where the accused purchased Sindoor (Vermilion), Bindi and Bengals. (c) There is no evidence as to who did the make-up. (d) There is no evidence from where poison was purchased and who had administered poison. (e) There is no evidence as to who were the associates of Ashok. Even Ashok had not been examined by the prosecution. (f) Appellant also consumed poison and was admitted in hospital for about 5 months. (iii) There is no definite opinion of the doctor that death of Pooja was homicidal. The possibility that the death could be suicidal could not be ruled out. (iv) As per Modi's Medical Jurisprudence & Toxicology there are 16 main distinctions in death caused by hanging or strangulation. According to medical evidence second ligature mark was ending towards back of the neck and it was oblique going upwards and ligature mark was shining. The hyoi bone was intact there was no fracture of larynx and trachea. There were not scratches, abrasions and bruises on face, mouth and ears. There were no abrasions and ecchymosed around about the edges of ligature mark. Subcutaneous tissues under ligature mark were white, hard and glistering. There were no injury to muscles of neck. The saliva was dribbling. If the death would have been by strangulation then fracture of larynx and trachea and hyoi bone was a must, there should have scratches abrasions and fingernail marks and bruises on the face neck and other parts of the body. Saliva would not have dribbling, ligature mark would have been horizontal and not oblique it would have lower down in the neck and not upwards to the chin. There should have been abrasions and ecchymoses round about the edges of the ligature marks. Subcutaneous tissues should have ecchymosed there should have been some injuries to muscles of neck carotid arteries, internal coat should have been ruptured, whereas there was no such rupture. The prosecution failed to prove that the cause of death was homicidal. Dr.S.K.Pathak (PW.3) did not say that death was homicidal in nature. Post Mortem Report (Ex.P-4) also does not say that it was homicidal. (v) The fact that Pooja committed suicide is established from the letter (Ex.P-3) written at page 68 of Register belonged to the deceased. Pramod Kumar (Pw.12) admitted that the register belonged to Pooja. Vidhya Bhusan, Devendra Mohan and Suresh Saini established the recovery of letter (Ex.P-3). (vi) Pooja and accused both were taken out of the house to the hospital by Sh.K.S.Rathore. There is no evidence on record to show that Pooja died earlier. If she would have died, she would not have been taken to hospital. Neither the person who took her in hospital. (vii) It is wrong to argue that Ex.P-3 was written after death. Accused was admitted to hospital and was confined there and Vinod Kumar ASI was deputed to guard the house. He had no opportunity to plant Ex.P-3. The suicide note was drawn when Pooja was alive. There was no opportunity for appellant to plant the letter since he was confined to hospital. (viii) So far as injury on the head of Pooja is concerned the doctor has not opined as to whether the said injury on head was antemortem or postmortem, therefore the injury on head could not be relied upon to draw a conclusion that force was used with Pooja. (ix) Witnesses Vinod Kumar Gupta, Karni Singh Rathore and Ashok stated that the appellant was not in a fit state of mind and he was semi conscious. Therefore conduct of accused could not be a ground for conviction under section 302 IPC. FACTUAL SITUATION: 12. Factual situation emerges from the material on record may be summarised thus:- (i) There is no eye witness of the occurrence and the case rests on the circumstantial evidence. (ii) Cause of death of Pooja was asphyxia and ligature marks were found over her neck. (iii) Appellant and deceased Pooja were alone in the house of Vidhya Bhushan Advocate, prior to the incident. (iv) Appellant although consumed Copper sulphate, was in his full senses and he drew attention of Vinod Gupta Advocate towards the incident by pelting stones at his house. (v) A register belonging to deceased Pooja got recovered from the place of incident. The register contained a suicidal note (Ex.P-3) allegedly written by Pooja on behalf of herself and the appellant thus:- “Dear Mummy Papa हमदोनोअपनेआपकोख× मकररहेहै।हमएकदसरे ू केǒबनानहȣंरह सकते।हमनेआपकोसमझानेकȧ बहतु कोिशशकȧ लेǑकनआपनहȣंमाने। हमारȣ मौतकाǔजà मेदारकोईनहȣंहमखुदहै। हमारȣ आखरȣ इÍ छायहहै Ǒकहमदोनɉ कोएकसाथएकहȣ िचतापरजलायाजाये। उà मीदहैǑक आपहमारȣ अǔÛ तमइÍ छाजǾरपूरȣ करɅगे। आपकȧ बेटȣ Sd/ Daisy Dear Bhaisahab हमारȣ आखरȣ इÍ छाजǾरपूरȣ करना Sd/ Satish” (vi) According to Pramila Bhatnagar, the mother of deceased, suicidal note was not in the hand writing of Pooja. (vii) In the explanation under section 313 CrPC the appellant claimed innocence and stated as under:- "मɇ दोषीनहȣंहं।ू केसझूंठाहै। पूजाउफ[ डेजीमेरेघरकेपासहȣ रहतीथी। हम दोनɉ केमकानपासपासहȣ थे। हमदोनɉ एकदसरे ू केघरपरआतेजातेरहते थे। पूजामेरेघरपरआतीरहतीथी। बचपनसेहȣ हमारȣ िमऽताघिनं ठहोती चलीगई। हमदोनɉ एकदसरे ू सेÜ यारकरनेलगेथे।एकदसरे ू कोूेमपऽभी िलखतेरहतेथे। Ex.D-6से Ex.D-11 पऽपूजानेहȣ मुझेिलखेथेजोमɇनेपुिलस कोदेǑदयेथे।हमदोनɉ शादȣ करनाचाहतेथे। लेǑकनपूजाकेमाताǒपताहमारȣ शादȣ केǔखलाफथे। Ǒदनांक 21.10.95 कोपूजाकाजÛ मǑदनथाउसǑदनमɇ पूजाकेघरपरखानाखानेगयाथावहांपरपूजावमɇनेउसकेमाताǒपतासे हमारȣ शादȣ कȧ बातकȧ तोउÛ हɉनेसाफमनाकरगुः साहोगािलयांदȣ पूजाको मारावमुझेजानसेमारनेकȧ धमकȧ दȣ। Ǒदनांक 1.11.95 कोपूजामेरेपास आईवबतायाǑकआजमेरेमà मीपापानेमेरेकोबहतु माराहै। रोजमारतेहैव तुझसेिमलनेकोमनाकरतेहै। इसपरहमदोनɉ नेतयǑकयाहमआजहȣ शादȣ करलɅगे। हमदोनɉ मेरेः कूटरपरबैठबाजारगए, वहांसेपूजाकेखुदके िसंगारकासामानचूǑडयांǒबंǑदयाआǑदथी, साथमɅ शादȣ कȧ मालायɅ खरȣदȣ। हमदोनɉ नेभगवानकȧ फोटोकोसा¢ीमानआपसमɅ एकदसरे ू कोवरमाला पहनाशादȣ करली। उसकेबादपूजानेकहाǑकउसके माताǒपतावǐरँ तेदार बहतु खतरनाकलोगहै। वेमुझेवतुà हɅ जानसेमारदɅगे। मɇ अबǔजÛ दानहȣं रहनाचाहती।वआ× मह× याकǾंगी। मɇनेसमझाया वनहȣंमानी। तबमɇनेउसे कहाǑकमɇ भीतुà हारेǒबनानहȣंरहसकता, अÍ छाहैसाथजीयेवसाथमरजाये यहपूजानेकहा। Ǒफरउसनेअपनेमाताǒपताकेनामएकनोटिलखा, ǔजसके उसपरमɇनेभीअपनेहः ता¢रकरǑदयेवपूजानेभीकरǑदये।Ǒफरडȣ-9 इÛ िपुरȣ मकानपरपडेसफेदȣ केसामानसेनीलेथोथेजैसेरंगकेपदाथ[ काजग भरलाई। उसनेमुझेभीǑदयावखुदभीपीगई। मɇनेथोडापीयावमेरेमनमɅ É यालआयाǑकआ× मह× यानहȣंकरनीचाǑहए। ǑफरनहȣंविगलासमɅ छोड Ǒदया। इतनेमɅ डेजीकȧ तǒबयतǒबगडनेलगीवउǔã टयांकरनेलगी। मɇ सहायताकेिलएबाहरभागा। पडौसकेǒवनोदवकȧलकेघरकादरवाजा बजाया, Ǒफरभीबहतु देरबजानेपरभीकोईनहȣंआयातोमɇनेबाहरसेउनके मकानपरप× थरफɅ के। थोडȣ देरबादǒवनोदआयातोमɇनेउसेडेजीकोबचाने कȧ ूाथ[नाकरअपनेभाईकाफोननà बरǑदया। उसकेबादवाǒपसमकानमɅ गयातोदेखापूजातारसेलटककरतडपरहȣ थीǑफरमɇनेभागकरउसेखोलातो वहजमीनपरिगरगई, मɇ भीउसकेपासबैठउसेअटेÛ डकरनेलगा। थोडȣ देर बादमेराभाईअशोकआया, मɇनेकहाǑकपूजाकेमाताǒपताकोबुलालावेतब उसनेकहाǑकपहलेइसकाइलाजकरवानेसेबचसकतीहै। तबमɇनेभीउिचत समझा ǑफरहमɅ अः पताललेगये। वहांपरमɇनेअशोककोपूजाकेघरपर उसकेमाताǒपताकोबुलानेभेजǑदया। इसकेबादमालूमनहȣंÈ याहआ। ु " (Emphasis supplied) SECTION 106 EVIDENCE ACT: 13. As earlier noticed the deceased and the appellant were last seen together and rather were closeted in the lonely house of Vidhya Bhushan Advocate. Therefore it was for the appellant to explain as to how and in what manner deceased died. Section 106 of the Evidence Act provides thus:- “106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” Section 106 states an exception to the general rule laid down in Section 101 that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue. Section 101 is based on the Rule INCUMBIT PROBATION QUI DICIT, NON QUINEGAT. In Shambhu Nath Vs. State of Ajmer (AIR 1956 SC 406) it was indicated that Section 106 is an exception to section 101 which lays down the general rule about the burden of proof but in a criminal case as per criminal jurisprudence the burden remains on the prosecution to prove its case beyond reasonable doubt in order to secure the verdict of guilt. In Deonandan Vs. State (AIR 1955 SC 801) the Apex Court held that Section 106 does not cast any burden upon the accused, but when he throws no light at all upon facts which ought to be especially within his knowledge and which could support any theory or hypothesis compatible with his innocence, the court can also consider his failure to adduce any explanation in consonance with the principle. 14. In Sawai Vs. State (AIR 1974 SC 778) it was observed that the burden of proving a plea specially set up by an accused certainly lies upon him, but neither Section 103 nor Section 106 can absolve the prosecution from discharging its general or primary burden proving its case beyond reasonable doubt. It is only when prosecution has made out prima facie case the question arises of considering facts of which burden of proof may lie upon the accused. 15. Bearing the ratio propounded by the Supreme Court in mind we proceed to consider the circumstances that have been found established by the learned trial Court. 16. The first circumstance was that death of Pooja was homicidal in nature. Dr. S.K.Pathak (PW.3), Chairman of Medical Board which conducted autopsy on the dead body, did not say as to whether the death of Pooja was homicidal or suicidal. He however stated that there was antemortem hematoma measuring 5cm x 4cm on the occipital region and ligature marks found on the neck could be caused by a rope or cable wire. It is contended by learned counsel for the appellant that where the case of the prosecution is based upon the circumstantial evidence and the circumstances so relied by the prosecution are indecisive albeit some swings in favour of homicides and yet some others in favour of suicide and specially when the prosecution version is of homicidal death and the defence version is of suicidal death in that eventuality the court has to give the benefit of doubt to the accused. Reliance is placed on State of Maharashtra Vs. Sanjay (2004)13 SCC 314 and Sharad Birdhichand Vs. State of Maharashtra (1984)4 SCC 116. 17. Learned counsel further contended that because of omission on the part of prosecution to establish the nature of death of deceased, vis-a-vis homicidal, suicidal or accidental the accused cannot be made to suffer. Reliance is placed on State of Punjab Vs. Bhajan Singh (1975)4 SCC 472 and R. Rajendran Nair Vs. State of Kerala 1998 SCC (Cri) 254. 18. We have pondered over the submissions. There is nothing on record to establish that Pooja was seen in the lonely house of Vidhya Bhushan Advocate. It was only the appellant who stated in his explanation that when he came back to the house he saw Pooja hanged:- "... उसकेबादवाǒपसमकानमɅ गयातोदेखापूजातारसेलटककरतडपरहȣ थी Ǒफरमɇनेभागकरउसेखोलातोवहजमीनपरिगरगई, मɇ भीउसकेपासबैठ उसेअटेÛ डकरनेलगा। 19. As already noticed the appellant gave a detailed explanation under section 313 CrPC. According to him when Pooja after consuming copper sulphate started vomiting, he went out of the house for seeking help. It is therefore difficult to believe that Pooja had such a strength that even after consuming poison, she would have hanged herself. 20. In Modi's Medical Jurisprudence and Toxicology (23rd Edition) it is stated at page 584 that in the case of strangulation, ligature mark – Horizontal or transverse continuous, round the neck below the thyroid, the base of the groove or furrow being soft and reddish is seen. 21. In the case on hand the autopsy report of Pooja demonstrates that ligature mark above supra sterinal notch in mid line transversely all round the neck was found. Hematoma on the occipital region was also seen. 22. Their Lordships of the Supreme Court in Ram Kumar Madhu Sudan Pathak Vs. State of Gujarat (AIR 1998 SC 2732) indicated that the fact that the body of the deceased with a ligature mark around the neck was found on the cot and not hanging demolishes the theory of suicide completely. 23. We are therefore of the opinion that death of Pooja was homicidal. SUICIDE NOTE: 24. Learned counsel for the appellant next contended that the trial court committed manifest error of law by discarding the admissibility of suicide note (Ex.P-3) without having the expert opinion in consonance with section 45 of the Evidence Act and erroneously placed burden upon the accused to prove that Ex.P-3 was scribed by the deceased. Reliance is placed on O. Bharathan Vs. K. Sudhakaran (1996)2 SCC 704. 25. It is well settled that statements made by persons who are dead are admissible as evidence of relevant facts because their evidence cannot in any other manner come on record. This is so by rule of necessity. The only rider in Section 31(1) of the Evidence Act is that they should relate to the “cause of his/ her death” or “the circumstances of the transaction which remitted in his/ her death”. The `death' may be homicidal or suicidal. The `dying declaration' is only a piece of untested evidence and must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. 26. We have incorporated alleged suicide note (Ex.P-3) in the earlier part of this judgment. The said `note' appears to have written on behalf of two persons: "हमदोनोअपनेआपकोख× मकररहेहै। ... हमारȣ मौतकाǔजà मेदारकोई नहȣंहमखुदहै।... " As per the explanation given by the appellant the note Ex.P-3 was written by Pooja in her own hand writing and she put her signatures as `Daisy'. Concededly out of two persons on whose behalf the statement was written one is alive. Therefore in our opinion the alleged note Ex.P-3 does not come within the purview of Section 32(1) of the Evidence Act which provides as under:- “32.(1) When it relates to cause of death- When the statement is made by a person as to cause of his death, or as to any of the circumstance of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question: Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his dealt comes into question.” The Note (Ex.P-3) evidently relates to the circumstances of the transaction that would result in the death of two persons and it cannot be termed as dying declaration of Pooja because another person on whose behalf the declaration was made is alive. 27. Section 67 of the Evidence Act provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's hand writing must be proved to be in his hand writing. In order to prove identity of hand writing any mode not forbidden by law can be resorted to. Two modes are indicated in Sections 45 and 47. Section 45 makes relevant the opinion of experts or persons skilled in some special branch of learning or trade or profession. But the opinion of ordinary witnesses are also sometimes admissible. Section 47 deals only with the question of identification of handwriting. By it handwriting may be proved by the opinion of any person who is acquainted with the handwriting of the person alleged to have written the document. Section 47 reads as under:- “47. Opinion as to handwriting when relevant:- When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed that it to be written or signed was or was not written or signed by that person, is a relevant fact. Explanation:- A person is said to be acquainted with the