Allahabad High Court
Aniraka Prasad Yadav vs State Of U.P. on 3 August, 2022
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved On 05.07.2022 Judgment Delivered On 03.08.2022 Court No. - 45 Case :- CRIMINAL APPEAL No. - 5369 of 2009 Appellant :- Aniraka Prasad Yadav Respondent :- State of U.P. Counsel for Appellant :- Ramesh Sinha,Ravindra Balkrishna Kanhe Counsel for Respondent :- Govt. Advocate Hon'ble Manoj Misra,J.
Hon'ble Syed Aftab Husain Rizvi,J.
Delivered By: Hon'ble Syed Aftab Husain Rizvi,J
1. We have heard Sri Ravindra Balkrishna Kanhere, for the appellant and Sri H.M.B. Sinha, learned AGA for the State.
2. This Criminal Appeal has been filed against the judgment and order dated 31.07.2009 passed by Sessions Judge, Sonbhadra in S.T. No. 32 of 2008 (State vs. Aniraka Prasad Yadav and ors), arising out of case crime no.263 of 2007, P.S. Babhani, District Sonbhadra, convicting the accused-appellant under Section 302 IPC and sentencing him to undergo imprisonment for life, and fine of Rs.1000/- and in default of payment of fine, one month rigorous imprisonment.
Narration of Facts
3. The factual matrix is as follows:
Aniraka Prasad Yadav (appellant) gave an application at P.S. Babhani on 20.12.2007. It was alleged in the application that applicant Aniraka S/o Bechu Yadav is resident of Village- Chainpur, P.S. Babhani, District Sonbhadra. His marriage was solemnized with Chun Kuwar, D/o Hira Lal, Village Semaria, P.S-Raghunathpur, District Sarguja Chattisgarh, 10-12 years before. The age of his wife is 31 years. He has three children namely Mahavir aged about 6 years, Raghuvir aged about 5 years and Jagvir aged about 3 years. His wife was 7-8 months pregnant. She had a stomach-ache from 19.12.2007. Today on 20.12.2007 at about 9:00 am, he has gone to fetch medicine from the village. When he returned back he saw that his wife Chun Kuwar has committed suicide by hanging herself in the osara (veranda) of his house. Her dead body is lying there in the same position. He has given the information of this incident to his in-laws through Ram Dulare. He has informed through telephone No.09977437032 and STD No.07772262138. The aforesaid information was entered in the GD at serial No.20 at 12:30 hrs. The inquest proceeding of the dead body was conducted and it was sent for postmortem examination.
On 21.12.2007, the father of Chun Kuwar (deceased) namely Hira Lal (complainant) P.W.-1 gave a written information at P.S. Babhani alleging therein that he has married his daughter Chun Kuwar to Aniraka S/o Bechu in the year 1995. His daughter was being tortured by her husband and his elder brother and they have beaten her several times. A Panchayat was also held in the village Chainpur. In February-2007 his daughter had gone for labour work at Chainpur Bawali. On issue of preparing meal, Aniraka Prasad went to Brahaman Basti at a distance of 1 km and in front of hundred of labourers brutally assaulted Chun Kuwar, causing her serious injuries and bleeding started from her ears. Labourers rescued her. On receiving this information the complainant with his wife went to the house of his daughter at village Chainpur. Then his son-in-law, his elder brother- Dwarika and Udai Narayan abused them and became ready to assault them. He and his wife went to the village Pradhan and told him about the matter and returned to their house with his daughter, Chun Kuwar. His daughter lived there for 7 months but his son-in-law did not come to take her back. After 7 months his son-in-law came then, after counseling his son-in-law and on his assurance, he sent his daughter back with him but he again beat her two times. On receiving the information, he could not go to the village Chainpur. On 18.12.2007, Jwala Prasad Yadav of village Chainpur told Aniraka and Dwarika Prasad that Aniraka's wife was having illicit relation with Udai Narayan. On this, his son-in-law beat his daughter. On 19.12.2007 his daughter went to the village Pradhan and told him about this incident. At that time, Vijay, Raghuvir, Kamta etc., were sitting there. Pradhan said that he will counsel Aniraka when he returns back but Aniraka did not return till late night. In the night of 19.12.2007 in furtherance of criminal conspiracy hatched by Jwala Prasad, Udai Narayan and Dwarika Prasad and with their aid, Aniraka committed the murder of his daughter. His daughter was having 7 months pregnancy. After committing murder they are trying to portray it as suicide by hanging. None of the villagers of Chainpur who has seen this incident is accepting it as suicide. His another daughter is living in the village Chainpur and she has narrated the entire incident.
On the aforesaid written information crime No.263 of 2007 under section 302 was registered at 16:00 hrs against Aniraka Prasad Yadav, Dwarika Prasad, Udai Narayan and Jwala Prasad. The investigation of the case was taken by S.O., Shubh Narayan. On the same day, he recorded the statements of Chick/ GD writer, complainant Hira Lal and other witnesses. On the indication of complainant, he inspected the place of occurrence and prepared the site plan (Ex. Ka-8). From the place of occurrence the Investigating Officer seized one rope allegedly used in the hanging and prepared its memo. In subsequent dates, he recorded the statements of other witnesses and after completion of the investigation submitted the charge-sheet against the accused Aniraka Prasad Yadav and Dwarika Prasad Yadav for offence under Section 302 IPC exonerating the other named accused of the FIR namely Udai Narayan and Jwala Prasad.
4. The case was committed to the court of session. The sessions Judge on 28.03.2008 framed charge under Section 302 IPC against the accused Aniraka Prasad Yadav and Dwarika Prasad Yadav. The accused pleaded not guilty and claimed for trial. In oral evidence, the prosecution examined eight witnesses while in documentary evidence 13 documents Ex.Ka.1 to Ex.Ka.13 were produced.
The statements of the accused were recorded under Section 313 Cr.P.C. and incriminating circumstances put to them. Both the accused denied the prosecution evidence. Accused Aniraka Prasad Yadav in his additional statement said that he is living separately from Dwarika before the incident. He has informed the police about the incident. Accused Dwarika Prasad in his Additional statement has said that he is living separately with his brother and does labour work. In defence one witness Ram Keshwar Dubey (D.W.-1) was examined.
The learned trial court after hearing the arguments, by the impugned judgment and order held Aniraka Prasad Yadav guilty for the offence under Section 302 IPC and sentenced him as above while acquitted Dwarika Prasad Yadav.
Prosecution Evidence.
5. According to autopsy report, postmortem was conducted on 21.12.2007 at 12 noon.
External Examination The deceased was of average built body. Rigor mortis was present over upper limb, lower limb and back, paused in the neck. There was no putrefaction. Eyes were opened and mouth was closed. Tongue was inside tooth margins. Vaginal discharge was present. The following ante-mortem injuries were found on the body:
1. Depressed contused mark over neck upper part, 25 cm x 1 cm. Directed anterior ward upward, depressed on back and lateral side of neck anteriorly, skin thinned out, 6 cm below ear right side, 5 cm below ear left side. Depressed mark to heel length was 133 cm.
2. Another mark left side neck, 4 cm x ½ cm beginning from previous mark up left side thyroid cartilage, 6.5 cm below left ear.
3. Abrasion 1.5 cm x 0.3 cm transverse from right side mark, 6 cm below mid chin point, depressed mark just below chin 3x2 cm.
Internal Examination:
The skin became thin at place of mark on the neck. Blood was found in tissue. Carotids both side compressed, veins compressed Membrane was congested. Brain was congested. Tongue and hyoid bone were intact. Trachea was congested. No bruising. Both lungs were congested. Fine frothy secretion on cutting. Left side of heart was empty. Right side of heart was half filled with dark blood. Thick liquid matters about 50 ml, was found in stomach. Pregnancy of about 28 weeks was in the womb.
According to opinion of the doctor, cause of death was asphyxia due to pressure over neck. Viscera was preserved.
The autopsy surgeon Dr. U.P. Pandey (P.W.-8) has proved autopsy Report Ex.Ka-13.
6. Prosecution has produced 6 other witnesses. Hira Lal (P.W.-1) is the complainant. In his examination-in-chief he has stated that deceased Chun Kuwar was his daughter and was married to accused Aniraka in the year 1995. 5-6 years before the incident, his daughter was doing labor work at a pond. His son-in-law brutally assaulted her there. Bleeding started from her ears. On information, he went to her Sasural where his son in law and Dwarika got ready to assault him. Jwala Prasad and Udai exhorted them. Thereafter he went to the house of Pradhan and told him the entire incident who promised to settle the things. His daughter was at his house for about seven months and thereafter, she was sent back to her husband's house. When he got the information of the death of his daughter on telephone at 12- O' Clock he went to the house of Pradhan of village Chainpur, the sasural of his daughter and enquired. Then he got the tehrir scribed by Pradhan. He submitted the Tehrir at police station Babhani and lodged the report.
7. Bali Ram Yadav (P.W.-2) is brother-in-law (Sister's husband) of the deceased. The witness has stated that the marriage of his sister-in-law (sali) Chun Kuwar was solemnized with Aniraka of his village. Out of the wedlock, three issues were born. One year before the incident, on occasion of Holi, his father-in-law Hira Lal came to the house of Aniraka for vidai of Chun Kuwar. But Aniraka started to abuse and assault Hira Lal. Then Hira Lal went to the house of Pradhan. Pradhan said that matter will be settled. After some days Hira Lal took away Chun Kuwar to his house. She remained there for 7 months. Thereafter she was sent to her in-laws house where she was being ill-treated by her husband. Jwala Prasad and Udai Narayan counselled Aniraka but he continued to beat Chun Kuwar. The witness stated that in the night before the incident he was returning from his sasural to his village Chainpur. When he reached in front of the house of Aniraka he heard cries and saw the maar-peet. He remained there for 10 minutes witnessing the maar-peet and abusing. One day before it, his sister-in-law Chun Kuwar had made a complaint to the Pradhan that Jwala, Udai Narayan, Dwarika and Aniraka will kill her. The Pradhan told that he will counsel them tomorrow but in the night, the incident happened. In the morning, he came to know that Chun Kuwar hanged herself and died. On this information, he went to the house of Aniraka with other villagers. He saw that rope was tied in the neck of Chun Kuwar, her left hand was resting on the cot. Her both knees were on the ground. This scenario indicated that she did not hang herself. Rather, she was killed and thereafter hanged with a rope. He gave the information of the incident to his father-in-law.
8. Smt. Sita Kunwar (P.W.-3) is the sister of the deceased. In her examination-in-chief, she has stated that Chun Kuwar was her younger sister. She was married with Aniraka who resided in her village. In the previous night of the day of the incident at 11:00 pm she along her husband were returning from her maternal home (Maika). When they reached in front of the house of Aniraka they heard cries and shrieks of Chun Kunwar. They stopped there for 5 to 10 minutes. Thereafter shrieks stopped. Then they proceeded to their house. On the next day, in the morning, her husband had gone to in-laws house. She had gone to graze her cattle at bandhi. There her jeth- Suraj Prakash came and asked her to go home. She asked what is the matter then she was told that her sister Chun Kuwar had hanged herself. Then she came at the house of Chun Kuwar. The door of the house was closed. It was opened in front of her. She saw from the entrance that Chun Kuwar was hanging. Her knees were resting on the ground and one hand was on the cot. It appeared from looking at her dead body that she had not hanged herself, rather she has been murdered and then hanged.
9. Lal Babu Sharma (P.W.-4) is the formal witness of Panchayatnama. In his examination in chief, the witness has stated that Aniraka lives in his village. His wife Chun Kuwar died, one and a half-two years earlier. The inquest proceeding of the dead body was conducted by police in his presence and the body was sealed. The witness has identified his signatures on the inquest report. The witness has further stated that at the time of inquest proceeding, the police also took into possession the rope which was tied on the neck of the deceased and prepared its memo. The witness has also identified his signature on the memo.
10. S.I. Raj Kumar (P.W.-5) has conducted the inquest proceedings. The witness has stated that on 20.12.2009. He was posted as SI in police station Babhani, District Sonbhadra. On written information about death given by Aniraka Yadav, he along with SI Triveni Prasad reached village Chainpur. On the spot they saw that Chun Kuwar W/o Aniraka Yadav was hanging dead in her osara (veranda). Her both feet were resting on the ground and toes of her feet were touching the ground, her left hand was resting on the cot, three feet rope was tied on the neck of the deceased. There was a black spot of rope. He conducted the inquest proceeding and prepared related papers and sent the body for postmortem examination. The witness has proved the inquest report Ex. Ka-2 and related papers Ex.Ka-3 to Ka-6. The witness has also stated that the rope tied on the neck of the deceased was taken into custody and a memo was prepared. The witness has proved this memo as Ex.Ka-7.
11. S.I. Shubh Narayan (P.W.-6) is the Investigating Officer. In his examination-in-chief the witness has stated that on 19.12.2007, he was posted as SO Babhani, District Sonbhadra. On written application of Hira Lal S/o Munna alias Prem case crime no.263/2007, under section 302 IPC was registered in his presence and he took up the investigation. He recorded the statement of the complainant Hira Lal and other witnesses, visited the place of occurrence and on the indication of the complainant, prepared the site plan. The witness has proved it as Ex.Ka-8. The witness has further stated that on different dates, he recorded the statements of other witnesses and after collecting sufficient evidence, submitted the charge-sheet on 29.12.2007 . The witness has proved it as Ex.Ka-9.
12. Constable Jai Nath Tiwari (P.W.-7) is also a formal witness who has registered the FIR and made its GD entry. The witness has stated that on 21.12.2007 he was posted at P.S. Babhani, Sonbhadra as constable Moharrir. On that date on the written application of Hira Lal, he registered case crime no.263 of 2007 under Section 302 IPC on chik No.63 of 2007. The witness has proved the chik FIR as Ex.Ka-10. The witness has further stated that he entered the description of the case in GD No.24 at 16:00 hrs on the same date. The witness has proved the carbon copy of the GD as Ex.Ka-11.
Defence Evidence.
13. One witness Ram Keshwar Dubey (D.W.-1) has been examined in defence. The witness in his examination-in-chief has stated that he knows Aniraka and Dwarika who lives in his village. Both the accused are living separately before the incident. They are labours and in connection with their work they used to visit different places like Dala, Shaktinagar, Renukoot etc. When they go for work they stay out for a week or 10 days. The witness further stated that incident occurred one and a half year ago. 3 to 4 days before the incident, the accused- Aniraka had gone to Dala for labour work. The wife of Aniraka was pregnant and sick. This information was given to Aniraka, who arrived at his house in the morning at 4-5 am. In the morning, Aniraka visited Dr. Ram Prasad in the village where he and 8 - 10 persons were present. Aniraka told the doctor about the illness of his wife and after taking medicine, Aniraka along with him came to the house of Aniraka. There he saw that in the osara (veranda) of the house of Aniraka, his wife was hanging with a rope tied on her neck and she was dead. The witness further stated that his house is in the neighbourhood of Aniraka. In the night of 19.12.2007, Aniraka was not present at his house. Aniraka visited Dr. Ram Prasad at about 6-7 am.
Submissions on behalf of appellant:-
14. The learned counsel for the appellant contended that there is no eye witness account of the incident. The prosecution case is based on circumstantial evidence. The marriage of the deceased was solemnized with the accused in the year 1995 and they have three male issues. Deceased was also pregnant at the time of incident. No cogent averments have been made regarding motive of the incident. Whatever has been alleged in the FIR is not proved because the public witnesses examined by the prosecution have stated that the deceased was living with the accused happily and peacefully. There was no dispute between them. It is further contended that as the case is based on circumstantial evidence, motive is important and prosecution has failed to prove it. Learned counsel also contended that the information of the incident was given by the accused himself to the police on the same day which has been entered in the GD. On the basis of information given by the accused, the inquest proceeding was conducted and the body was sent for postmortem examination. The accused has also informed the family members of the deceased regarding the incident. This fact has been admitted by the complainant Hira Lal (P.W.-1). The appellant remained present and did not try to escape, which shows his innocence. It is further contended that on the information given by the appellant, the family members of the deceased came and in their presence the last rites were performed. Till then neither any complaint was made nor any allegations were levelled. After two days of the incident on 21.12.2007 at the behest of someone, the complainant lodged the FIR which establishes that FIR has been lodged after consultation. It is next contended that in the postmortem report except the injuries on the neck no other mark of injuries has been found on the body. Trachea and hyoid bone are found intact. At the time of inquest the dead body was hanging with a rope which has been seized by the Investigating Officer and its memo has been prepared. One of the contusion found on the body is measuring 25 c.m. x 1 c.m. There is no sign of strangulation or throttling, it may be a case of partial hanging due to which ligature mark was not found on the body. It is established from the evidence that deceased was pregnant. The accused has produced the evidence in defence that at the time of the incident he has gone to fetch medicine from doctor as the deceased was having stomach-ache. So the circumstances suggest that as the deceased could not tolerate the stomach-ache, she committed suicide by hanging with a rope. It is further contended that P.W.-3 Smt. Sita Kunwar is the sister of deceased and Bali Ram P.W.-2 is the husband of Sita Kuwar and they have inimical terms with the accused. They have admitted it in their statements. There are major contradictions between the statements of the witnesses on material points. Hence, their testimony is not reliable. As the marriage is beyond 7 years, no presumption will apply. The chain of the circumstances is not complete and there is no sufficient evidence on record to prove that the accused has committed the murder of his wife. The learned trial court has failed to appreciate the evidence. The finding of the learned trial court that it is a case of homicide is against the evidence on record. It is not proved from the evidence that the accused has committed murder by strangulation or throttling rather it is established that the deceased has committed suicide but the court below has given a perverse finding upon this point. The finding of conviction recorded by the learned trial court is perverse and illegal.
Submissions of behalf of respondent- State
15. Per-contra learned AGA contended that from the prosecution evidence, it is established that the conduct of the accused was not good. The deceased was ill-treated by the accused. On one occasion the accused had assaulted her severely in front of other labourers causing bleeding from her ears. These facts and circumstances establishes the motive of the incident. It is further contended that Bali Ram Yadav (P.W.-2) and Smt. Sita Kuwar (P.W.-3) are residents of same village. So they are natural witnesses. They have stated that in the previous night of the incident at 11:00 pm when they were returning from maika of Sita Kuwar, they heard the cries and shrieks of Chun Kuwar. They remain there for 5-10 minutes and when shrieks stopped, they went to their house. In the next morning, Smt. Sita Kuwar got the information that her sister Chun Kuwar has died. It is next submitted that no ligature mark was found on the neck of the deceased and in postmortem, the cause of death is mentioned as asphyxia due to pressure on neck. Dr. U.P. Pandey P.W.-8 in his cross-examination has categorically ruled out the possibility of death by hanging. So from the medical evidence on record, it is fully established that it is a case of homicide and not of suicide. The accused to save himself has tried to create a scenario to indicate that it is a case of suicide. This fact itself shows the culpability of the accused. It is also contended that from the statement of defence witness and the information given by the accused at police station, his presence in the house is established, so burden shifts on him to explain that in what circumstances the deceased has died. The explanation given by the accused is improbable and false. The provision of Section 106 of Evidence Act will apply. From the prosecution evidence, a complete chain of circumstances is established which clearly points toward the guilt of accused. The finding of conviction recorded by the trial court is just and proper. It is neither perverse nor illegal.
Analysis
16. The first point for consideration is whether the death is homicidal or suicidal. According to inquest report Ex.Ka-2 the dead body was found hanging from a rope in osara (verandah) in front of the door. Both the knees of the victim were resting on the ground with both legs bent from the knees and toes touching the ground with ankle up. Left hand was resting on the cot while the right hand was by the side. S.I. Raj Kumar (P.W.-5) who has conducted the inquest proceeding has confirmed the aforesaid body position in his statement. In such a position of the body, it is not possible that the weight of the body will exert any pressure on the neck. So hanging seems improbable from the position in which the body was noticed. In autopsy report Ex.Ka-13, three ante mortem injuries were found on the neck. The first one is depressed contused mark over upper part of the neck 25 cm x 1 cm, 6 cm below ear on right side and 5 cm below ear on left side. Autopsy Surgeon Dr. U.P. Pandey has stated that this mark was more depressed in the back and side of the neck while in front of the neck, it was less depressed. The skin was thinned off. The second injury is another mark on left side of neck 4 cm X 0.5 cm beginning from first mark up left side of thyroid cartilage and 6.5 cm below left ear. Third one is abrasion 1.5 cm X 0.3 cm, transverse from right side mark, 6 cm below mid chin point. In Autopsy report, no ligature mark was found on the neck. In case of hanging the ligature mark is a prominent sign which is lacking in this case. In internal examination, carotids of both side were compressed, membranes were congested. The cause of death is mentioned as asphyxia due to pressure on the neck. Dr. U.P. Pandey (P.W.-8) in his cross examination has categorically ruled out death as a result of hanging and has stated that in the case of hanging, such marks are absent. It is true that in autopsy report trachea and hyoid bone have been found intact. The doctor has admitted this and stated that no fracture was found in the neck of the deceased. But this cannot be conclusive to establish that it is a case of hanging because fracture of hyoid bone and trachea is not necessary in all cases of strangulation. It depends upon the pressure applied. So the position of the dead body as described in the inquest report, the internal & external examination as mentioned in the autopsy report and the opinion of autopsy Surgeon (P.W.-8) establishes that it is a case of homicide and not of suicide by hanging. So from the medical evidence on record it stand proved that it is not a case of suicide but it is a case of homicide.
17. It is undisputed that accused is the husband of the deceased and both were living in the same house. From the defence evidence, it is also established that on the date of the incident accused was present at his house. Ram Keshwar Dubey (D.W.-1) in his examination-in-chief has stated that on getting information about the illness of his wife, the accused Aniraka had reached his house in the morning at about 4-5 am on the day of the incident. The written information of the death of the deceased was given by the accused himself at police station. In this information, it is alleged that the wife of the accused was 7-8 months pregnant, she had stomach-ache from 19.12.2007. On 20.12.2007 at about 9 am, he had gone to fetch medicine from the village. So from this information also it is established that on the day of incident, accused was present at his house and the deceased was last alive in his company.
18. The accused has denied his presence at the time of incident in the house. The defence version is that the accused at the relevant point of time was away from home as he had gone to fetch medicine for the deceased who was suffering from stomach-ache. There is material contradiction in the defence evidence, on the point of time, when the accused had gone to fetch medicine. In the written information about the death of his wife, the accused has alleged that on 20.12.2007 at about 9 am he had gone to fetch medicine in the village, while Ram Keshwar Dubey (D.W.-1) has stated that Aniraka visited the doctor at about 6-7 am. So there is a difference of about 2-3 hrs in the timing between the oral statement of Ram Keshwar Dubey (D.W.-1) and the written information given by the accused. According to postmortem report Ex.Ka-13 the postmortem was conducted on 21.12.2007 at 12 noon. The estimated time of death is about 28 hrs before the autopsy. So, according to medical evidence, the death may have occurred in the morning of 20.12.2007. It is also established from the evidence that the incident occurred in the morning of 20.12.2007. Thus, the aforesaid contradiction in defence evidence is very material. It is also established from the evidence that the accused has not gone outside the village. Rather, according to defence evidence, he was in the village and had gone to fetch medicine which, in ordinary course should not consume much time. So there is not much gap between the point of time when the deceased was in the company of accused and when she was found dead. In the case of S.K. Yusuf vs. State of West Bengal (2011) 11 SCC 754, the Hon'ble Apex Court has made the following observations:
The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
19. The aforesaid analysis clearly establishes that the last seen theory will come into play and Section 106 of Evidence Act will apply. The accused had to explain the circumstances leading to the death of the deceased. The defence case in this respect is that the deceased has committed suicide which is ruled out from the evidence on record as analyzed above. The explanation offered by the appellant-accused regarding the circumstance under which the deceased has died is improbable, unsatisfactory and not sustainable. The accused-appellant has failed to discharge the burden cast upon him by section 106 of Evidence Act.
20. The most incriminating circumstance is that a scenario has been created to indicate that the deceased has committed suicide. It clearly rules out the possibility of involvement of any outsider. If the murder has been committed by an outsider, there was no occasion and necessity to portray it as a suicide. This circumstance clearly rules out the possibility of involvement of any outsider in the offence.
21. In the FIR, it is alleged that marriage of Chun Kuwar the daughter of the informant was solemnized with accused Aniraka in the year 1995. He used to torture and harass her and on several occasions beat her. In the FIR while specific incident of February, 2007 has also been narrated and it is alleged that in February, 2007 her daughter was engaged in labor work and on the issue of preparation of meal Aniraka assaulted his wife (the deceased) in front of hundreds of labourers. The assault was so brutal that she started bleeding from her ears. The labours had to intervene.
Hira Lal (P.W.-1) the father of the deceased, from his statement has corroborated that on one occasion his daughter was brutally assaulted in front of other labourers by the accused when she had gone to work as a labour. Her ears started bleeding. On getting information, he went to sasural of his daughter where Aniraka and Dwarika became ready to assault him. He made a complaint to the Pradhan where a Panchayat was held and he came back with his daughter who remained at his house for 7 months and no one from her-in-law's side came for her vidai. The aforesaid statement establishes that behavior of accused was not good with the deceased and he used to torture her and beat her. Bali Ram Yadav (P.W.-2) has also deposed about the bad behavior of the accused with his wife. This witness has also stated that the accused used to beat her and he continued it despite counseling. In his cross-examination, the witness has admitted that his relations with the accused was not normal and they were not on talking and visiting terms. So it can be said that the oral evidence of the witness may be hearsay and no reliance can be placed on it. However, even if the testimony of P.W.-2 on this point is disbelieved, from the statement of Hira Lal (P.W.-1), it is established that behavior of accused was not good with the deceased and he used to torture and beat her. This is other circumstance which establishes the motive of the incident against the accused.
22. Prosecution has also relied on the testimony of Bali Ram Yadav (P.W.-2) and Sita Kuwar (P.W.-3) who have deposed that in the previous night of the incident at 11 p.m. they were returning from maika of Sita Kuwar and when they reached in front of the house of accused Aniraka, they heard the cries and shrieks of Chun Kuwar, they stopped there for 5 to 10 minutes. When the cries and shrieks of Chun Kuwar stopped they went to their house. On the next day, the incident happened. It is established from the evidence that both these witnesses reside in the same village. They have admitted in their statement that their relations with accused Aniraka was sour and they were not on visiting and talking terms. So these witnesses are related as well as chance witnesses and also inimical. Hence cautious approach is required while evaluating their oral testimony. There are material contradictions in their statements. Bali Ram Yadav (P.W.-2) in his cross-examination has stated that he had gone to his sasural with his wife 4-5 days before, reached there in the day time and stayed in the night. Thereafter returned back. While Sita Kuwar P.W.-3 has stated that she has gone to her maika alone 6-7 days before. Further, Bali Ram P.W.-2 has stated that they returned by bus. It is 3 hrs journey by bus. They boarded the bus at 3-pm while Sita Kuwar (P.W.-3) on this point has stated that they proceeded from maika village Gaina at 9-10 am. They came by bus which takes 4-5 hrs. So according to Bali Ram Yadav, he boarded the bus at 3 pm while Sita Kuwar (P.W.-3) has stated that they proceeded at 9-10 am. Further, according to Bali Ram P.W.-2 it is 3 hrs journey so according to his statement they would have reached village Chainpur at about 6 pm while according to Sita Kuwar P.W.-3 they boarded the bus at 9-10 am and it is 4-5 hrs journey so according to her statement, they would have reached village Chainpur at about 2-4 pm. In their examination-in-chief they have stated that when they were returning from village Gaina they reached in front of the house of Chun Kuwar at 11 pm. Neither from the statement of Bali Ram (P.W.-2) nor from the statement of Sita Kuwar (P.W.-3) the time of reaching village Chainpur, at 11 pm is established. Being relative, inimical, and chance witnesses, strict scrutiny and cautious approach is required in analysis of their oral testimony. The material contradictions mentioned above makes their testimony untrustworthy and no reliance can be placed on their oral statements. So this piece of prosecution evidence is neither trustworthy nor reliable.
23. But even if the aforesaid piece of evidence is excluded from consideration then too, from the evidence on record, following circumstances are established:-
(i) The accused Aniraka is the husband of the deceased, living under same roof and was present at his house on the day of the incident.
(ii) The death of the deceased is homicidal which is established from the medical evidence as well as from the position of the body mentioned in the inquest report.
(iii) The accused has tried to show his presence elsewhere at the time of the incident but it is not established rather it is established that the accused has given a false explanation that deceased has committed suicide.
(iv) The last seen theory will apply, as the time gap between the accused and deceased were together and when the deceased was found dead is so small that possibility of any other person being the author of the crime becomes impossible.
(v) The circumstances that homicide of the deceased was portrayed as suicide by hanging, further rules out the possibility of involvement of an outsider in the crime.
(vi) The behavior of the accused was not good with the deceased and he used to torture and beat her. This establishes the motive of the crime.
24. The law with regard to circumstantial evidence has been settled in the case of Sharad Birdhichand Sarda AIR 1984 SC 1622. The Supreme Court has laid down the following five golden principles to prove a case based on circumstantial evidence:-
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and unerringly point towards the guilt of the accused.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
In the case of Haresh Mohandas Rajput v. State of Maharashtra 2011 (12) SCC 56 following its earlier decisions, the Apex Court held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:-
"(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing toward the guilt of the accused.
(iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
25. In Sadddik vs. State of Gujarat (2016) 10 SCC 663, it has been held that proof of motive is immaterial when the facts are clear and the absence of motive does not break the links in the chain of circumstances connecting the accused with the crime. It has been stated that proof of motive or ill will is unnecessary to sustain conviction where there is clear evidence.
26. Applying the principle of law as noted above, on the present case, it is quite clear that the test as laid down by the Apex Court for the cases of circumstantial evidence, stands fulfilled. The circumstances from which the conclusion of the guilt is to be drawn is fully established and it is consistent only with the hypothesis of the guilt of the accused. The circumstances are of a conclusive nature and point towards the guilt of the accused. It exclude every other possible hypothesis. The chain of evidence is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it shows that in all human probability the act must have been done by the accused.
Conclusion
27. From the analysis of the evidence on record, it is clear that the prosecution case stands proved beyond reasonable doubt. The learned trial court has properly appreciated the evidence and conclusion drawn by the trial court is just and proper. There is no illegality or perversity in the findings of the learned trial court. There is no ground to interfere in the findings and conclusion recorded by the learned trial court. The sentence imposed is also appropriate and this criminal appeal is liable to be dismissed.
Accordingly, the appeal is hereby dismissed.
Order Date :- 03.08.2022 C. MANI