Allahabad High Court
Lalchand Verma vs State Of U.P. on 14 January, 2020
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 08.01.2020 Delivered on 14.01.2020 Jail Appeal No. 2125 of 2014 Lal Chand Verma ---- Appellant Vs State Of U.P. ---- Respondent For Appellant : Shri Yogesh Srivastava For Respondent/State : Shri Amit Sinha, A.G.A. Hon'ble Pritinker Diwaker, J.
Hon'ble Dinesh Pathak, J.
Per: Pritinker Diwaker, J
1. This appeal arises out of the impugned judgement and order dated 16.10.2004 passed by Additional District & Sessions Judge (Fast Track), Court No.5, Agra in Sessions Trial No. 284 of 2003 (State vs. Lal Chand Verma), convicting the accused-appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and a fine of Rs.2,000/-, in default thereof, three months additional rigorous imprisonment.
2. In the present case, name of deceased is Beena Verma, wife of the accused appellant. Their marriage was solemnized about nineteen years prior to the date of incident i.e. 25.01.2003. Out of the wedlock, the couple had three issues, but all were residing with their maternal grandfather. It is said that on 25.01.2003, accused appellant committed murder of his wife by smothering. Information was given to Sita Ram (PW-4), father of the deceased who immediately rushed to her house. After reaching his home, on 2.2.2003, written report (Ex.Ka.4) was lodged by (PW-4) Sita Ram. Based on which, FIR (Ex.Ka.1) was lodged against the accused appellant under Section 302 of IPC.
3. Inquest on dead body of the deceased was conducted vide Ex.Ka.7 on 25.01.2003 and the body was sent for postmortem, which was conducted by (PW-3) Dr. Anupam Prakash Bhasker vide Ex.Ka.3 on 25.01.2003.
4. As per Autopsy Surgeon, following injuries have been found on the body of the deceased:
Anti mortem Injury (1). Light contusion mark over nose and mouth, contusion mark present over lower lip inner aspect.
Post-mortem Injuries (1). Post-mortem ligature mark 21 cm x 1/2 cm around the mid of all over the neck except 5 cm Right Lat to posterior of neck.
(2) Multiple abrasion mark average size 1/2 cm x 1/2 cm front of neck below the ligature mark. On cut section underlined tissue found non ecymos.
5. The cause of death of the deceased was due to asphyxia as a result of anti-mortem smothering.
6. While framing charge, the trial Judge has framed charge against the accused appellant under Section 302 of IPC.
7. So as to hold accused appellant guilty, prosecution has examined six witnesses. Statement of the accused appellant was also recorded under Section 313 of Cr.P.C. in which, he pleaded his innocence and false implication.
8. By the impugned judgment, the trial Judge has convicted the accused appellant under Section 302 of I.P.C. and sentenced him as mentioned in paragraph No.1. Hence this appeal.
9. Learned counsel for the appellant submits:
(i) that there is no eye witness account to the incident and the appellant has been convicted solely on the basis of weak circumstantial evidence.
(ii) that as the complainant had taken all the three children of the deceased alongwith him and did not allow them to return to the house of the deceased, she was under depression, on account of which she committed suicide.
(iii) that there is delay of about eight days in lodging the FIR and the said delay has not been explained by the prosecution.
10. On the other hand, supporting the impugned judgement, it has been argued by the State counsel:-
(i) that conviction of the appellant is in accordance with law and there is no infirmity in the same.
(ii) that as the appellant was not in a position to maintain his children, under the forced circumstances, complainant Sita Ram Soni (PW-4) took them along with him, so that proper care can be taken.
(iii) that in the house in question, the appellant was residing with the deceased and when the deceased died homicidal death, it is for him to explain as to under what circumstances, the deceased died. No such explanation has been offered by the appellant either by adducing evidence or in his 313 Cr.P.C. statement.
(iv) that post-mortem report of the deceased clearly depicts homicidal death of the deceased and the same is good enough to uphold the conviction of the appellant.
11. We have heard counsel for the parties and perused the record.
12. (PW-1) Bablu is a witness, who gave information to (PW-4) Sita Ram, about the death of the deceased, has not supported the prosecution case and has been declared hostile.
13. (PW-2) Daljit Singh prepared the chik FIR and (PW-3) Dr. Anupam Prakash Bhasker conducted the post-mortem on the body of the deceased.
14. (PW-4) Sita Ram is father of the deceased and the complainant. He has stated that the appellant was not in a position to maintain his family and used to harass the deceased. To make the life of the appellant comfortable, he (this witness) purchased a house for him but yet the appellant was not doing anything. He states that it is he, who was taking care of appellant's children.
15. Rahul Verma (PW-5) is the son of the deceased. He has stated that the appellant used to beat his mother for no rhyme or reason. R.K. Singh (PW-6), the Investigating Officer, has duly supported the prosecution case.
16. Close scrutiny of the evidence makes it clear that the appellant and the deceased were residing alone in a house where the deceased died. Postmortem report of the deceased also supports the prosecution case wherein it has come that the deceased died because of smothering. Nature of ante-mortem and post-mortem injuries further makes it clear that the deceased was done to death by the appellant. In the evidence, it has also come that the appellant was not in a position to maintain his wife and that he used to beat and harass her.
17. In a case where house murder is an issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under Section 313 of the Code of Criminal Procedure nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v State of Maharashtra1 as under:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offeirng no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
18. Further in the matter of State of Rajasthan v Thakur Singh,2 it has been held by the Apex Court as under:
"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) "22 Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22) "22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
19. In the present case, accused-appellant has failed to offer any probable acceptable explanation in relation to homicidal death of his wife. The evidence also makes it clear that in the house in question the appellant was residing along with his wife. In the absence of contrary evidence, the above circumstance is sufficient enough to uphold the conviction of the appellant.
20. Taking the cumulative effect of the evidence, we are of the view that the trial court was justified in convicting the appellant in commission of murder of his wife.
21. The appeal has no substance and the same is, accordingly, dismissed.
22. Learned counsel for the appellant has informed that though the appellant Lal Chand Verma was released on bail during the pendency of the appeal vide order dated 28.03.2017, he failed to furnish surety and as such he is still languishing in jail. If the appellant is already in jail, no further order is required in this respect. However, if he is on bail, he will be taken into custody immediately.
Dated: 14.01.2020
Nethra/C.Mani
(Dinesh Pathak, J) (Pritinker Diwaker, J)