Allahabad High Court
Awadesh Kumar Awasthi vs State Of U.P. on 6 June, 2016
Bench: Surendra Vikram Singh Rathore, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 02.06.2016 Delivered on 06.06.2016 Case :- CRIMINAL APPEAL No. - 164 of 2010 Appellant :- Awadesh Kumar Awasthi Respondent :- State Of U.P. Counsel for Appellant :- Shishir Chauhan,D.P. Singh,Pawan Kumar Mishra,R.J. Trivedi,Rajeeva Kumar Singh,Rajeeva Kumar Sinha,Rajiv Mishra,Soniya Mishra,Vijay Kumar Counsel for Respondent :- Govt. Advocate,A.K. Gupta,Pramod Kumar Agnihotri Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Anil Kumar Srivastava-II,J.
(Per Surendra Vikram Singh Rathore, J.)
1. Heard Mr. Rajiv Mishra, learned counsel for the appellant, Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the material available on record.
2. Under challenge in this appeal is the judgment and order dated 17.12.2009 passed by learned Additional Sessions Judge, Court No. 7, Hardoi in Sessions Trial No. 417 of 2008, arising out of Case Crime No. 295 of 2008, Police Station Bilgram, District Hardoi whereby present appellant Avdhesh Kumar was convicted for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life and also with fine of Rs. 10,000/. He was further convicted for the offence under Section 176 I.P.C. and was sentenced with rigorous imprisonment for a period of one year.
Both the sentences were directed to run concurrently.
3. It is a case of murder of wife by the husband in his own house. The case of the prosecution was that complainant Smt. Nanhi Devi, who happens to be mother in law of appellant Avdhesh Kumar, informed the police that on 19.4.2008 at 2:00 p.m., her grand daughter came to her house and told her that her Papa (appellant) has told that Mammi is dead. So Nanhi Devi went to the place of occurrence and found her daughter lying dead on a Takhat in the house of appellant. There was no apparent reason for her death. However it was also mentioned in the F.I.R. that appellant frequently used to take liquor and used to beat her daughter. The marriage of the deceased with the appellant was solemnized about 16 years prior to the incident. On the basis of this information, inquest proceedings were conducted but the case was not registered. After receiving the postmortem report, the case was registered under Section 306 I.P.C. Subsequently during Investigation, the case was converted under Section 302 I.P.C. During the course of investigation, appellant Avdhesh Kumar was arrested by police on 1.5.2008 and on his pointing out, an old iron Fukani of about one balist six angul was recovered, which was used as weapon of offence and its recovery memo was prepared.
4. After completion of investigation, charge sheet was filed.
5. The appellant has stated his defence version in detail in his statement under Section 313 Cr.P.C. He has stated that he is a retired army personnel. During service Smt. Nanhi Devi frequently used to live with him at places of his posting. After his retirement, he along with his family started living with Nanhi Devi in the temple compound in her house and lived there for about 5 - 6 months. The plot of Kesupet was given to him in dowry at the time of his marriage. During his service period, he got his house constructed on the said plot. But the transfer deed of the said plot was not executed by Nanhi Devi in his favour. On the date of incident, on the first floor of this house, the appellant was raising construction of his house, Nanhi Devi also owns a plot in Mohalla Azadnagar District Hardoi for which Rs. 50,000/- was demanded by Nanhi Devi, which was paid by the appellant. With the said money, Nanhi Devi got the house constructed and on the plot of Kesupet, he got a house constructed investing Rs. 80,000/-. But after construction of the house, Nanhi Devi refused to execute the transfer of plot. The house, which was constructed with the money of the appellant, Nanhi Devi gave possession of the said house to her second daughter Renu due to which there was quarrel between the deceased and Nanhi Devi. Thereafter the appellant started living at the house of Kesupet where this incident has taken place. On the date of incident, the deceased and her mother Nanhi Devi had entered into quarrel and hurling of abuses also took place. Because of such dishonest conduct of her mother, she felt ashamed and feeling aggrieved by such conduct of her mother and her uncle Mataram she committed suicide by hanging.
6. The postmortem on the body of the deceased was conducted on 20.4.2008 at 3:30 p.m. The duration was about one day. The deceased was aged about 35 years and following ante-mortem injuries were found on her body:-
(i) Abraded contusion 12 cm x 2 cm on front and left side of neck, 1 cm below the chin horizontally place.
(ii) Abrasion 1.5 cm x 1 cm on left side of fact, 1.5 cm below outer part of left eye.
(iii) Abrasion 1.5 cm x 1 cm on right side of face, 2.5 cm below the outer side of right eye.
(iv) Abrasion 2 cm x 1.5 cm on right side of face, 4 cm away from right angle of mouth.
(v) Abrasion 1.5 cm 1.5 cm on right side of neck just below the mandible.
This postmortem was conducted by a team of two doctors and both agreed with the findings noted in the postmortem report. In the opinion of the doctor, the cause of death was asphyxia as a result of ante-mortem strangulation.
7. In order to prove its case, prosecution has examined PW-1 Smt. Nanhi Devi, PW-2 Km. Priyanka, daughter of appellant and deceased. PW-3 Dr. D.S. Rathore, who has conducted postmortem on the body of the deceased. PW-4 S.I. Ram Sahay, the second Investigating Officer of this case. PW-5 Constable Dilip Gupta is a witness of recovery of Fukani. PW-6 S.I. Ramesh Chandra Pal, initial Investigating Officer of this case. He has also converted the case under Sections 302 and 176 I.P.C. PW-7 S.I. Raj Bahadur Singh Chauhan, who has made inquiry on the basis of initial information and has also conducted inquest proceedings. PW-8 Constable Vijay Pal, has registered the case on 27.4.2008 under Section 306 I.P.C. and also prepared the chik report and G.D. and also G.D. of conversion of the case dated 29.4.2008 from Section 306 I.P.C. to Section 302 I.P.C.
8. No oral evidence in defence was adduced on behalf of the appellant. Only some documents were filed regarding withdrawal of money from his account.
9. After appreciating the evidence on record, the trial court has convicted the appellant as above, hence the instant criminal appeal.
10. Submission of learned counsel for the appellant was that the evidence of PW-2 Km. Priyanka was not the least reliable. She has given an eyewitness account during trial. There was no motive for the appellant to commit this offence. The deceased has lived at the places of his posting with him and there was no occasion for him to cause the death of his own wife. It has also been argued that the deceased has committed suicide by hanging and the postmortem report is a fabricated document. It has also been argued that the opinion of the doctor cannot be given primacy over the other reliable circumstance and the appellant has come with a definite defence that the deceased has committed suicide by hanging. The prosecution has failed to complete the chain of circumstances. Direct evidence of PW-2 Km. Priyanka was not the least reliable.
11. Learned A.G.A. has submitted that admittedly the deceased died in the house of appellant. It is nowhere the case of the appellant that he was not present in the house. He was a retired person. So his presence at the house was most natural. He has come with a definite defence of suicide by deceased, which has been specifically denied by the doctor during trial. The absence of specific motive, by itself, cannot be the sole ground to discard the entire case of the prosecution. Thus the trial court has not committed any illegality in convicting the appellant.
12. The first point on which learned counsel for the appellant has laid great stress is the absence of motive. Submission of the learned counsel for the appellants was that the prosecution has come with a case that deceased used to take liquor and used to beat his wife as mentioned in the F.I.R. This by itself cannot be a motive to commit the offence. At best, it may be the conduct of the appellant. We agree with the submission of learned counsel for the appellant on this point. But on the contrary, when we examine the defence of the appellant then he himself has placed certain circumstance before the Court, which shows that inspite of his request Nanhi Devi had not executed the transfer deed of the plot on which the house was constructed by him. She gave the possession of the other house to her other daughter Renu for which he invested Rs. 50,000/-. Virtually it could have been a motive for the appellant to cause the death of his wife to take revenge from his mother in law. It is also a possibility, but as the prosecution has failed to come with a definite motive so we refrain ourselves to substitute it with our inference. Virtually motive is a thing that remains embedded in the heart of the accused. Unless and until there is very strong and direct enmity, it is very difficult for the prosecution to explain the motive with which the offence was committed. Particularly in the facts of the instant case, when the appellant, deceased and complainant and witnesses are close relatives then it becomes further difficult for the prosecution to satisfy as to what prevailed in the heart/mind of the accused appellant to commit this offence. If we exclude the direct testimony of PW-2 Km. Priyanka as argued then the case is based on circumstantial evidence only. Submission of learned counsel for the appellant was that in cases of circumstantial evidence it is must for the prosecution to prove the motive. It is true that in cases which are based on circumstantial evidence, motive assumes more importance. But its contrary is also true that absence of motive, by itself, cannot a ground to discard the entire case of the prosecution even in cases based on circumstantial evidence. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Ujjagar Singh Vs. State of Punjab reported in (2007) 13 SCC 90, wherein Hon'ble the Apex Court in paragraph no. 17 has observed as under:
"17. ................... It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy. ......................."
13. Reliance may also be placed in the case of Vijay Shankar Vs. State of Haryana reported in (2015) 12 SCC 644, wherein Hon'ble the Apex Court in paragraph no. 12 has observed as under:-
"12. In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial court." (emphasis added by us)
14. That case was also based on circumstantial evidence.
15. Learned counsel for the appellant has argued that PW-2 Km. Priyanka, in her evidence during trial, has given an eyewitness account, which appears to be highly improbable and unreliable. She was a child witness. As per her own evidence, she had gone to her school. The school used to close at 2:00 p.m. She has also admitted that she takes about half an hour to come back to her house. So at the alleged time of occurrence, which was 2:00 p.m., her presence at the place of occurrence was highly doubtful. PW-1 Nanhi Devi has also stated that PW-2 Priyanka had not seen the incident. He has also argued that appellant himself has sent information of the death of deceased through his daughter to the complainant, who came to the place of occurrence. Apart from it, neither during investigation, nor at the time of inquest proceedings, the complainant or PW-2 Priyanka disclosed to the police officer that PW-2 Km. Priyanka has seen the incident. It was only after alleged recovery of Fukani that PW-2 Km. Priyanka, for the first time, has stated during trial that her mother was done to death by her father by strangulating her with the help of Fukani. During trial, PW-2 Km. Priyanka has stated that she has seen the incident and has seen her father killing her mother with Fukani. It does not inspire confidence. She was a child witness and this part of her statement appears to be a tutored version, which has been deliberately developed after the alleged recovery of Fukani on the pointing out of appellant.
16. Law is settled on the point that when the prosecution proposes to prove its case on the basis of direct evidence and fails to prove its case on the basis of such direct evidence but the evidence produced during trial establishes circumstances that unmistakably leads towards the only conclusion that the appellant was the author of the crime then the court would be justified in recording conviction on the basis of such circumstantial evidence.
17. Now we examine the prosecution evidence with this point of view. Law is settled that in cases of circumstantial evidence, the prosecution is obliged to prove every circumstance and every circumstance when taken together must form a chain so complete in itself that it must lead to the only conclusion that it was the accused, who has committed the offence and was not capable of any other conclusion. On this point, we may refer the pronouncement of Hon'ble the Apex Court in the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held as under:
"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."
18. Before proceeding further in the matter, we would like to dwell upon the medical evidence. According to the postmortem report, which was conducted by two doctors, the cause of death was strangulation. During cross-examination, in reply to specific question put to PW-3 Dr. D.S. Rathore, he has stated that the death of the deceased was not caused due to hanging. He has given an opinion that it might have been caused with the help of Fukani. Dr. D.S. Rathore was cross-examined also by the appellant himself wherein he has stated that death may be caused if the victim is in the lying condition then strangulation may be caused and injury no. (i) may also be caused in that position. He has specifically denied the question put by the appellant himself that injury no (i) can be caused by hanging. The doctor in his cross-examination has also stated that injury nos. (ii) (iii) (iv) and (v) were caused by friction by any hard and rough object. It cannot be caused by friction of soft cloth or by friction of Dhoti. It may be caused by the Dhoti only when the Dhoti is of very rough and coarse cloth. A question was also put to this witness that if without hanging, a dhoti is tied around the neck of the deceased and the deceased is dragged even then it may cause her death, which was replied by the doctor in affirmative. The doctor has seen the injury on the body of the deceased and also the position of dead body, so he was a witness of fact to this extent. The medical evidence in criminal cases cannot be brushed aside so lightly as has been argued by learned counsel for the appellant. He has argued that it must be rejected as the appellant has stated in his statement under Section 313 Cr.P.C. that deceased committed suicide by hanging. The postmortem on the body of deceased is conducted by a team of two doctors, who were public servants, in discharge of their official duties. So unless and until any specific ground is brought to the notice of the Court as to why they have not properly discharged their official duties and have tried to support the other party then their evidence has to be taken to be correct. Strangulation cannot be self inflicted. The evidence of the doctor clearly rules out the possibility of hanging as claimed by appellant. The other suggestion put to the doctor that by putting a dhoti around the neck if the deceased is dragged then such type of injury may be caused. But again the same question arises that such dragging cannot be self inflicted. After putting the dhoti, some other person had to drag the deceased. At the time of alleged incident no other person except the appellant was present in the house. During the course of argument, learned counsel for the appellant has argued that when the appellant saw his wife in hanging condition then he took down his wife and put her on the Takhat.
19. It is really surprising that at no point of time appellant handed over said rope or any other means by which the deceased committed suicide by hanging. Thus the defence theory that the deceased died due to hanging is nothing but an absolutely false defence. There is vast difference between Hanging and Strangulation. In Modi's Text Book of Medical Jurisprudence and Toxicology (24th Edition reprint 2012), Modi has narrated the differences between hanging and strangulation as under:-
Hanging Strangulation
1.
Mostly suicidal
1. Mostly homicidal
2. Face-Usually pale and petechiae rare
2. Face-Congested, livid and marked with petechiae.
3. Saliva-Dribbling out of the mouth down on the chin and chest
3. Saliva-No such dribbling.
4. Neck-Stretched and elongated in fresh bodies
4. Neck-Not so.
5. External signs of asphyxia, usually not well marked
5. External signs of asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect).
6. Ligature mark-Oblique, non-continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like
6. Ligature mark-Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
7. Abrasions and ecchymoses round about the edges of the ligature mark, rare.
7. Abrasions and ecchymoses round about the edges of the ligature mark, common.
8. Subcutaneous tissues under the mark-While, hard and glistening.
8. Subcutaneous tissues under the mark-Ecchymosed.
9. Injury to the muscles of the neck-Rare.
9. Injury to the muscles of the neck-Common.
10. Carotid arteries, internal coats ruptured in violent cases of a long drop.
10. Carotid arteries, internal coats ordinarily ruptured.
11. Fracture of the larynx and trachea-Very rare and may be found that too in judicial hanging.
11. Fracture of the larynx trachea and hyoid bone.
12. Fracture-dislocation of the cervical vertebrae-Common in judicial hanging.
12. Fracture-dislocation of the cervical vertebrae-Rare.
13. Scratches, abrasions and bruises on the face, neck and other parts of the body-Usually not present.
13. Scratches, abrasions fingernail marks and bruises on the face, neck and other parts of the body-Usually present.
14. No evidence of sexual assault.
14. Sometimes evidence of sexual assault.
15. Emphysematous bullae on the surface of the lungs-Not present.
15. Emphysematous bullae on the surface of the lungs-May be present.
20. Thus apart from other distinctions, the distinction noted in paragraph no. 13 above was also present in this case. Presence of several other injuries on the face are enough to conclude that it was a homicidal death and not a suicide. So the first circumstance against the appellant is that he has come with an absolutely false defence. It is an admitted fact that the deceased was his wife. They were living in the same house and at the time of the incident, all the children had gone to the school and appellant was the only person present in the house. The appellant during trial has nowhere denied his presence in the house. He only send the information that his wife is dead and not that she has committed suicide. Thus a burden was cast upon by the appellant under Section 106 of the Indian Evidence Act to explain the circumstances under which his wife died inside his house.
21. Thus in the facts of this case even after discarding the evidence of PW-2 Km. Priyanka following circumstances remains established:-
(i) Appellant was the only person present in the house at the time of incident.
(ii) The deceased was wife of the appellant.
(iii) The deceased died due to strangulation inside the house.
(iv) The appellant was present at the house as he himself has admitted that he made no effort to abscond and remain present at the place of occurrence where-from he was arrested by the police and subsequent arrest was shown.
(v) Appellant has come with an absolutely false defence that his wife has committed suicide.
22. Even if we exclude the evidence of recovery of Fukani even then these circumstances by itself, in our considered opinion, were sufficient to lead to the only conclusion of the guilt of the accused. Admittedly the appellant has come with a false defence and where the accused comes with a false defence then such false defence completes the missing link. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Gajanan Dashrath Kharate Vs. State of Maharashtra reported in MANU/SC/0227/2016 has discussed the applicability of Section 106 of the Evidence Act and also the effect of false defence in paragraph nos. 12 and 13 as under:-
"12. As seen from the evidence, Appellant- Gajanan and his father-Dashrath and mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had gone to another village-Dahigaon. Prosecution has proved presence of the Appellant at his home on the night of 07.04.2002. Therefore, the Appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering 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 the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.
(underlined by us)
13. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was held as under:
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. In Nika Ram v. State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the Appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the Appellant is under an obligation to give a plausible explanation for the cause of her death in his statement Under Section 313 Code of Criminal Procedure. The mere 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 is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal (1992) 3 SCC 300 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him Under Section 302 Indian Penal Code. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
(Underlined by us) Same view was reiterated by this Court in State of Rajasthan v. Parthu (2007) 12 SCC 754."
On this point, reference may also be made in another recent pronouncement of Hon'ble the Apex Court in the case of Chaman and another Vs. State of Uttarakhand reported in JT 2016 (4) SC 187 wherein Hon'ble the Apex Court in paragraphs no. 29, 30 and 31 has observed as under:-
"29. Referring to Section 106 of the Evidence Act, it was propounded that the said section was not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but would apply to cases where prosecution had succeeded in proving facts from which a reasonable inference could be drawn regarding the existence of certain other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to offer any explanation, to drive the court to draw a different inference.
30. The following observations by this Court in the context of above legal provision in Shambhu Nath Mehra vs. State of Ajmer AIR 1956 SC 404 was adverted to with approval.
"This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ''especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ''especially' stresses that it means facts that are pre-eminently or exceptionally within his knowledge.
31. Proof beyond reasonable doubt, as has been held in a plethora of decisions of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away with impunity only because truth may suffer some infirmity when projected through human processes as has been observed in Inder Singh and another vs. The State (Delhi Administration) (1978) 4 SCC 161. A caveat against exaggerated devotion to the rule of benefit of doubt to nurture fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this Court in Gurbachan Singh vs. Satpal Singh and others (1990) 1 SCC 445. It has been propounded that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be commensurate to the nature of the offence to be investigated."
23. In the facts of the case in hand what happened inside the house of the appellant due to which deceased died was only within the knowledge of the appellant and it is a proved fact that he has come with an absolutely false defence. Learned counsel for the appellant has also argued that initially the case, after postmortem, was registered under Section 306 I.P.C. but subsequently the same was converted under Section 302 I.P.C. When the appellant has come with a definite defence that it is a case of suicide, therefore, the trial court has committed illegality in convicting the appellant under Section 302 I.P.C. while the offence would not travel beyond the purview of Section 306 I.P.C. We are not the least impressed with this submission. There is absolutely no evidence that the deceased has committed suicide. Except bald statement/suggestion of the appellant, there was absolutely no circumstances to hold that the team of two doctors, who have performed the postmortem have given a wrong report. Virtually the registration of the case under Section 306 I.P.C. was the result of misreading of the postmortem report by the police official concerned because he might not be aware of the fact that strangulation cannot be self-inflicted. After recording the statement of the doctor the Investigating Officer has himself corrected the mistake and converted the case under Section 302 I.P.C.
24. Learned counsel for the appellant has also argued that according to the prosecution evidence, after the incident, PW-1 Nanhi Devi alnog with PW-2 Km. Priyanka came to his house but none of them enquired him as to how the deceased died. How a person would react in a given circumstances would differ from person to person. No hard and fast rule can be laid down as to how every person must react in under given circumstances. Perusal of the F.I.R. itself shows that the complainant has not made any effort to make the appellant an accused in this case. She has virtually narrated the facts and has also specifically stated that she does not know as to how the deceased died but has only mentioned the earlier conduct of the appellant that he used to taken liquor and used to beat her daughter. The presence of other several injuries on the face of the deceased also supports the conclusion that she was done to death by the appellant. The defence theory also failed altogether to explain such injuries. and such injuries cannot be caused by hanging. PW-1 complainant Nanhi Devi has also stated that PW-2 Priyanka has not seen the incident.
25. In this case, only two witnesses have been examined on facts. PW-1 Nanhi Devi is not an eye-witness. According to the version of F.I.R., PW-2 Km. Priyanka has also not seen the incident. She only told her maternal grand daughter that Papa has told her that mother is dead. The story of causing strangulation with the help of Fukani was not disclosed by this witness during investigation. PW-1 complainant Nanhi Devi has admitted that PW-2 Km. Priyanka has not seen the incident. Apart from it, both the witnesses i.e. PW-1 and PW-2 have admitted in their evidence that the appellant was taken away by the police on the date of incident and thereafter they have not seen him. The appellant has come with a definite defence that he was detained at the police station and only on 1.5.2008 his false arrest and recovery on his pointing out has been shown. So in this background, recovery of Fukani on the pointing out of appellant also becomes doubtful.
26. PW-1 complainant Nanhi Devi has admitted that she had gone to the house of Avdhesh, the other three children were present in the house. She did not ask Avdhesh anything. The police came to the place of occurrence and arrested Avdhesh. Learned counsel for the appellant has emphasized that it was very unnatural conduct of PW-1 Nanhi Devi that she did not enquire anything from the appellant at that point of time. We are not the least impressed with this argument because there was nothing to prevent the appellant himself to disclose to Nanhi Devi as to how the deceased died. Virtually the conduct of appellant himself in not disclosing the circumstance under which his wife died to the mother of the deceased was an unnatural conduct on the part of the appellant himself, which shows that by that time he was not sure as to what defence has to be taken and defence of suicide was an after thought. PW-1 in her cross-examination has admitted that the appellant used to threaten to kill her daughter.
27. Perusal of the evidence of PW-1 complainant Nanhi Devi and the statement of appellant himself given by him under Section 313 Cr.P.C. shows that the house in which at the time of incident, the appellant was living was a constructed house of PW-1 Nanhi Devi and the appellant was raising construction on the first floor of the said house. On the other plot situated in Azad Nagar, the house was constructed and PW-1 Nanhi Devi has specifically denied that the said house was constructed with the money given by the appellant. She has stated that appellant Avdhesh wanted to grab her property and she never wanted to part with her property. She has admitted that this dispute was regarding the property of Azad Nagar. As discussed earlier, virtually it may be a reason or motive for the appellant to commit the offence because he had invested the money and the plot was not being transferred in his favour. So the entire house was in the name of Nanhi Devi. The appellant has come with a definite case that prior to the incident, some hurling of abuses and quarrel had taken place in between deceased and her mother. PW-1 Nanhi, has specifically denied this fact. Appellant, on this point, could not produce any person of the vicinity in his defence, who has witnessed such a quarrel or hurling of abuses between the deceased and her mother even his own daughter has not said so. Whatever happened inside the house of the appellant was within his own knowledge and no outsider or any other person can be presumed to have any knowledge of the same. The prosecution is not expected to prove impossible. What is required for the prosecution is to prove the circumstance, which leads to the conclusion of the guilt of the accused. The suggestion given to PW-1 Nanhi Devi shows that the appellant was not certain about his own defence. A question was put to PW-1 that whether she has seen any bag containing vegetable or she has seen any Dhoti, which was cut with sickle. She has also denied the version of the appellant that any quarrel had taken place between the deceased and her mother Nanhi Devi. PW-2 Km. Priyanka has stated that her father used to drink throughout the day and used to demand money from her mother and used to beat her. She has also stated that her father also used to beat her, thereafter a suggestion was given to this witness that because of such behaviour of her father, she is giving false evidence against her father. But it is pertinent to mention here that no suggestion was given to PW-2 Km. Priyanka that she was tutored to give evidence by any other persons. PW-6 is the first Investigating Officer, who has taken up investigation from 27.4.2008 and after recording the evidence of Dr. D.S. Rathore has converted the case under Section 302 I.P.C. The Investigating Officer has also admitted that there is no mention of Fukani in the statement of PW-2 Km. Priyanka.
28. Now keeping in view the facts of the instant case and the circumstances that are proved by the evidence of the witnesses and are admitted to the accused appellant coupled with absolutely false defence taken by the appellant, we are of the considered view that the prosecution has been successful in proving its case. All the circumstances taken together forms a chain complete in itself, unerringly pointing out towards the guilt of the appellant. Hence, we do not find any substance in this appeal. Submission of the learned counsel for the appellant that he ought to have been convicted under Section 306 I.P.C. is a misconceived argument.
29. In view of the discussion made above, we are of the considered view that the trial court was absolutely right in holding that the appellant has committed this offence and conviction of the appellant deserves to be confirmed. Therefore, the appeal preferred by the appellant deserves to be dismissed and is hereby dismissed. The judgment and order dated 17.12.2009 passed by learned Additional Sessions Judge, Court No. 7, Hardoi in Sessions Trial No. 417 of 2008 is hereby confirmed. The appellant is in jail. He shall serve out the sentence awarded by the trial court.
30. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.
Order Date :- 6.6.2016 (Anil Kumar Srivastava-II, J.) (S.V.S. Rathore, J.) Virendra