Allahabad High Court
Surya Prasad vs State Of U.P. on 16 August, 2013
Author: Ravindra Singh
Bench: Ravindra Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Criminal Appeal No. 2666 of 2004 Surya Prasad Vs. The State of U.P. & Criminal Appeal No.2684 of 2004 Ashok Kumar Vs. The State of U.P. ***** Hon'ble Ravindra Singh,J.
Hon'ble Arvind Kumar Tripathi (II),J.
(Delivered by Hon'ble Arvind Kumar Tripathi (II),J.
These appeals have arisen out of the same judgment, hence with the consent of the parties, these appeals are being decided together.
Both the appeals have been filed against the judgment and order dated 27.11.2004 passed by Additional Sessions Judge, Court No. 4, Sitapur in S.T.No.746 of 1998, Case Crime No. 81 of 1998 under sections 302/306 I.P.C., Police Talgaon, District Sitapur by which the both the appellants have been convicted under section 302 read with 34 I.P.C. and have been directed to undergo imprisonment for life and a fine of Rs. 5000/-, in default of the payment of fine, the appellants have been directed to undergo additional imprisonment for one year.
Prosecution story, in brief, is that the first information was lodged at Police Station Talgaon, District Sitapur on 21.5.1998 at about 2.40 P.M. by Sri Jai Chandra alleging that he is resident of Village Rewasiva hemlet of Kuturi Kalan, Police Station Baddupur, District Barabanki. His daughter Kiran Devi, aged about 30 years, was married to Ashok Kumar son of Surya Prasad, resident of Village Pakhaniyapur, P.S. Talgaon, District Sitapur in the year 1989. The relations between husband and wife remained sweet for some time but after that some dispute arose. When he came to know , he and both of brother-in-laws came and pacified the matter. From that date, Ashok Kumar and Surya Prasad were not on talking term with his brother-in-laws. Three daughters were born out of their wedlock, one day his daughter Kiran was not feeling well and she asked her husband to bring some medicines, then he abused her and asked her to leave for his parental house. On this Kiran along with her youngest daughter went to her parental house. After 8 days, Ashok Kumar came to his house and asked to call Pradhan of the village and four- five persons also, so that the matter may be finished because he wants to re-marry. After saying this he went away. Four days after that he sent his remaining two daughters and from the bus stop he asked the daughters to bring the keys. His son went along with keys and asked Ashok Kumar to come to their home, but he did not pay heed and went back. After this Rakesh Kumar brother-in-law of Ashok Kumar came to his house to take Kiran to her matrimonial house then he refused to send and stated that either Ashok Kumar or his father may come, only then Bidai will take place. On his repeated request Kiran Devi was sent along with two daughters. One daughter remained there at his house. On 20.5.1998 his son Santosh Kumar went to village Pakhniyapur at about 7.15 p.m. alongwith Kiran's daughter, then he was informed that your sister has committed suicide. After seeing the dead body he informed him by telephone from Biswan. He reached there in the morning of 21.5.1998 and after seeing the dead body, came to conclusion that his daughter has committed suicide being fed up with harassment of Ashok Kumar and his father. On this first information report a case under section 302/306 IPC was registered. After investigation, charge sheet under section 302/201 I.P.C. was submitted. After committal of the case charge under section 302 read with 34 IPC and an alternative charge under section 306 IPC was framed. Accused persons denied their involvement and claimed to be tried.
The prosecution has examined P.W. 1, Jai Chand, P.W.2 Santosh, P.W. 3 Dr. R.K. Srivastava, P.W. 4 Constable 442 Mangla Prasad Singh and P.W. 5 Sub Inspector Harendra Pratap Singh.
The accused persons presented D.W. 1 Dr. S.K. Jaiswal, medical Practitioner in order to show that he has examined Smt. Kiran Devi on 20.10.1997 while she had complaint of headache and fits. He has further stated that he prescribed some medicines. This witness has proved the prescription which is Exhibit Kha 1. He has further stated that he is not personally acquainted with Kiran Devi, in his cross examination he admitted that he could not say that she was the same Kiran Devi who is the deceased in this case.
The trial court after going through the evidence on record and after hearing the parties convicted both the accused persons under section 302 read with 34 IPC and were directed to undergo the above sentences. Both the accused persons were acquitted of the charge under section 306 IPC.
We have heard Sri Sajid Raza Rizvi learned counsel for the appellant and the learned A.G.A. for the State of U.P. From the very outset it is made clear that P.W. 1 and P.W. 2 are not eye witnesses.
It was argued from the side of the appellants that there is no eye witness in the case. The total case hinges of circumstantial evidence. It was also submitted that prosecution has not been able to prove that both the accused persons were at their residence when this incident occurred. It was also submitted that in order to attract the provisions of section 106 Evidence Act, prosecution has to establish that at the time of incident both the accused persons were present in their house. According to the learned counsel for the appellants prosecution has miserably failed to establish that. It was also submitted that the injuries shown in post mortem report as ante mortem injuries are six in numbers while in the inquest report only one injury is shown. This also creates doubts about the prosecution story.
A perusal of the post mortem examination report reveals that six ante mortem injuries were found on the body of the deceased, which are as follows.
1. Contusion 8.5 cm x 2.5 c.m. on front of neck 4.5 c.m. below chin, on dissection subcutaneous tissues around the mark of ecymosis was found.
2. Contusion 2.5 c.m. x 1.5 c.m. on front of left leg 10 c.m. below left knee joint.
3. Contusion 1.5 cm x 1.00 c.m. on inner area of left leg.
4. Contusion 6.5 c.m. x 2.00 c.m. on the back of right knee joint.
5. Contusion 3.5 c.m. X 2.5 c.m. on the right leg middle and outer part.
6. Contusion 3.5 c.m. x 2.5 c.m. on left side abdomen.
This post mortem was conducted on 22.5.1998 at about 3.00 p.m., the duration of death, according to this post mortem report and according to P.W. 3 is about 2 days and cause of death was asphyxia as a result of strangulation. This witness has proved the post mortem report which he has prepared in his own hand writing, which is Exhibit Ka-2. According to this witness death could have occurred at about 3.00 p.m. on 20.5.1998 and margin of six hours either way can be given. This witness has specifically stated that injury nos. 2,3,4,5 and 6 could have been caused by kicks and fists and injury no. 1 could have been caused by strangulation. This doctor has categorically ruled out the possibility of strangulation by herself. In his cross examination he has further stated that location of injury no. 1 is above Hoide bone. He has further stated that fracture of Hoide bone points towards definite strangulation but absence of fracture also shows strangulation.
The statement of this witness clearly rules out the possibility of suicide.
P.W. 2 is the person who has first seen the dead body of his sister Kiran. He has stated in his examination-in-chief that when he reached the matrimonial house of his sister alongwith her daughter, he was informed by Ashok Kumar and his father Surya Prasad that Kiran has committed suicide. He went on the roof and found that dead body of his sister Kiran was lying on a Thakhat in a room of the roof. He has not been cross examined on this aspect by the defence. So this statement is unrebutted and clearly establishes the presence of accused persons Ashok Kumar and Surya Prasad on or about 7.15 p.m. on 20.5.1998. According to the doctor time of death is about 3 p.m. on 20.5.1998 with a margin of six hours on the either side. This clearly establishes the presence of Ashok Kumar and Surya Prasad in their house at the time of death.
In their statement under section 313 Cr.P.C. accused persons had not given any explanation of death of Kiran Devi in their house. Surya Prasad has stated that his daughter-in-law was suffering from mental disorder and for that she was being treated. Ashok Kumar has stated in his statement under section 313 Cr.P.C. that death has occurred due to suicide and at the time of occurrence he was at Lucknow and had come on the information of death of his wife.
P.W. 1 Jai Chand has narrated the statement which has been written in the first information report and stated that his daughter was married with Ashok Kumar in the year 1989. The relationships between them were cordial for sometime but after that relationships were strained then he and his brother-in-law went there and pacified them, once his daughter was not feeling well then she asked her husband to bring medicine, who in turn asked her to go to her parental house. On this she came to his house along with her youngest daughter. He has further stated that after two days Ashok had come to his village upto bus station alongwith remaining two daughters and sent them for bringing the keys but he did not come to the house. He further stated that his son Santosh Kumar went with the keys and he invited Ashok Kumar to come to his house but he did not come and went away with the keys. After sometime Rakesh Kumar, brother-in-law of Ashok Kumar came for Bidai and after much persuasion he sent his daughter along with him on his assurance that his daughter will not be killed. He has further stated that after 10 days Santosh Kumar went to Ashok kumar's house along with her daughter Monty, when he reached there at about 7.15 p.m. he was informed that his sister is dead then he went to the house of Ashok Kumar and saw the dead body and then he informed him.
This witness has further stated that Investigating Officer has recorded his statement about the incident and has prepared the inquest report and also prepared site plan on his pointing out. He has further stated that when for the first time he saw his daughter's dead body, it was lying in the courtyard of Ashok Kumar.
A suggestion was given to him by the defence that at the time of death he himself was present in the house to which he denied. A suggestion was also given that he has seen his daughter in hanging condition to which he also had denied. No suggestion was ever made to this witness that at the time of the incident neither Ashok Kumar nor Surya Prasad were at their house.
From the above discussion the presence of Ashok Kumar and Surya Prasad is established in their house on 20.5.1998 at about 7.15 P.M. This necessarily follows the presumption that they were also present in their house about the time of death of Kiran Devi.
Section 106 of Indian Evidence Act lays down that where subject matter of allegation is peculiarly within the knowledge of one of the parties, that party should himself prove it, whether it may be affirmative or negative character. True object to be achieved by court of justice can only be furthered with the propriety by the testimony of the party, who personally knows the whole circumstances of the case,can dispel the suspension attached to it.
It is no doubt that in criminal jurisprudence the accused is presumed to be innocent unless and until he is found guilty of the charged offence. Burden to prove guilt of accused is on the prosecution to prove facts beyond reasonable doubt. But this rule is provided with exception in section 106 of Evidence Act which is placed below.
106 of Indian Evidence Act is reproduced below-
106.Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket.The burden of proving that he had a ticket is on him.
The burden of proof is on the accused to prove the facts which are within his knowledge.
In the instant case accused persons have according to P.W. 2 informed him that his sister has committed suicide then this fact was within the knowledge of the accused persons and burden to prove this fact lies on the accused persons.
From the perusal of the record, they have miserably failed to establish the burden. The statement of doctor P.W. 3 clearly establishes the fact of strangulation. Doctor has ruled out the possibility of self strangulation. The presence of the accused persons in their house at the time of the incident is established. Hence as per section 106 of Evidence Act it will be presumed that accused persons have killed her by strangulation and the burden to prove negative is on the accused persons.
It was vehemently argued that at the time of preparation of inquest report only one injury on the neck was found while at the time of post mortem examination report five injuries more have been found. This fact will not help the accused persons because the deceased is a woman and at the time of preparation of inquest report she was fully clothed. Definitely being woman and in absence of any lady police constable it was not possible for the police personal to minutely examine the body of the deceased, hence this anomaly is of no help to the accused persons.
P.W. 4 is a constable who has prepared chik report and proved the G.D. His evidence is of not much importance and no stress was laid by the appellant's counsel on his evidence. P.W. 5 is the I.O. who has prepared the inquest report and sent the dead body for post mortem, prepared site plan, prepared fard of rope which was found on the spot and after considering the post mortem examination report converted the case from 306 to 302/201 IPC. This witness has also proved the G.D. and after finding the clinching evidence against Ashok Kumar and Surya Prasad filed the charge sheet under sections 302/201 IPC in the court. This witness has also proved all the papers and fard, case details has been given in the trial court's judgement so wherein discussed it. A very short cross examination has been done by the defence. The only thing which has come out of the cross examination of this witness that none of the witness either P.W. 1 or P.W. 2 has informed him that Ashok Kumar was having illicit relation with another girl. Considering the entire circumstances of the case and considering the provision of section 106 of Evidence Act this fact is not of much importance. The harassment, the cruelty or other factors are not important because cause of death is established to be by strangulation. When the death is established by strangulation then if motive is not proved it is not of much importance. In this case, in the FIR itself P.W. 1 has stated that when Ashok Kumar came to his house he informed that he has decided to break the relation because he wants to remarry. This fact has also been supported by P.W. 1 in his evidence. Thus, there is a motive for murder.
Considering the facts, circumstances of the case, evidence and also considering the provisions of section 106 Evidence Act, we are of the opinion that the trial court has rightly convicted the appellants and there is no need to interfere in the verdict of conviction and sentence.
Accordingly these appeals are liable to fail and are hereby dismissed.
Appellants Surya Prasad is on bail and appellant Ashok Kumar is in jail. The bail bonds of Surya Prasad is hereby cancelled and sureties are discharged. Surya Prasad is directed to appear before the court of C.J.M. Sitapur within 15 days to be sent to jail to serve out the sentence, failing which learned C.J.M. Sitapur shall take every necessary action to procure the attendance of Surya Prasad and send him to jail to serve out the sentence.
Dt: 16.08.2013 SU/RPD