Rajasthan High Court - Jaipur
Banshi vs State Of Rajasthan on 22 September, 1989
Equivalent citations: 1989(2)WLN457
JUDGMENT S.S. Byas, J.
1. By his judgment dated January 30, 1988, the learned Addl. Sessions Judge (4), Jaipur City, Jaipur convicted the accused Banshi under Section 302, IPC on a charge of uxoricide and sentenced him to imprisonment for life with a fine of Rs. 100/-, in default of the payment of fine to further undergo one month's rigorous imprisonment. The accused has come up in appeal and challenges his conviction.
2. Briefly stated the prosecution case is that Smt. Vimla aged about 25 years at the time of her death was the daughter of PW 10 Jetha Ram she was married with the accused 12 or 13 years ago. The accused did not treat her kindly and used to beat her off and on. She gave birth to three female and one male children from the accused PW 2 Basanti is the eldest of the children. Due to the ill-treatment of the accused, Vimla left her husband's roof and came to live with her parents in Adarsh Nagar, Shanti Marg, Jaipur with her children. The accused approached Jetha Ram PW 10 and asked him to send Vimla with him and assured him that he would not ill-treat her any more in the future. He brought letter Ex. P 6 from his sister's husband in which Jetha Ram PW 10 was assured that the accused would no more ill-treat or beat Vimla and that he (brother-in-law) would stand a surety for that. Jetha Ram, how ever, did not fee assured and he asked the accused to give him in writing that he would keep Vimla affectionately and would not beat her. The accused thereupon executed agreement Ex. P 1 on 11-11-1985 and thus satisfied Jetha Ram to no more ill-treat Vimla Vimla thereafter came to live with the accused in Teela (locality) No. 7 Jawahar Nagar, Jaipur with her children including Basanti.
3. On 4-3-1986, the accused sold a costly Saree of Vimla for Rs. 300/-. This was resented by Vimla. When the accused went to his hut in Jawahar Nagar, Vimla raised the protest against his selling her Saree. This resulted in a quarrel between him and Vimla. The accused knocked down Vimla and beat her. Basauti PW 2 went to her mother's sister Gyanwati PW ; who was living only two huts away and brought her to the accused's hut. Gyanwati tried to intervene, Her husband Natwar PW 3 and some other persons meanwhile also come there. The accused left Vimla and addressed dirty abuses to Gyanwati. This took place at about 3.00 p.m. Gyanwati and others who had collected on the spot went away to their huts. The accused also left his hut and went out. He returned to his hut in the afternoon. Again a quarrel took place between the accused and Vimla The accused felled her down, set over the chest and started pressing her neck. Vimla was groaning. Basanti PW 2 was present in the hut at that time. The accused left Vimla gave one rupee to Basanti and asked her to out and bring biscuits. Basanti did not go out and the accused again asked her to go out and bring the biscuits. The accused took up a Saree lying on the cot. After some time, Bastanti returned and found the shutter of the hut closed from outside. She opened the hut and went inside She found to her horror that her mother was hanging by a Saree tied on a wooden beam of the roof. The accused was missing. Basanti immediately went to Gyanwati PW 1 and appraised her of what she has seen in the hut. Gyanwanti hurriedly came to the hut of the accused and found her sister Vimla hanging by a Saree with its cad tied on the beam of the roof. Some other persons including Natwar PW 3 father-in-law Babu PW 4 and Prakash PW 6 also reached there. They freed Vimla from the noose and placed her on the cot. She was unconscious and not breathing, Natwar PW 3 went to Jetha Ram and brought him on the spot. Jetha Ram and other took Vimla in an auto rickshaw to S.M.S. Hospital, Jaipur. The doctor on duty examined her and declared her dead. Jethu Ram went to Police Station, Jawahar Nagar and presented written report Ex. P 7 at 5.45 p.m. Though no case was registered at that time. The Station House Officer Ashok Kumar PW 13 went to the hospital and found the victim's dead body lying in the mortuary. He prepared the inquest report Ex. P 4 and requested the hospital authorities to conduct the post mortem examination of the victim's dead body. The post mortem was conducted next day on 5-3-86 at 1.45 p.m. by at Medical Board consisting of Medical Jurist Dr. Tripathi PW 16 and two other doctors. They found that the victim was well built and fairly nourished. They noticed She following over the dead body:
Legature present on front and both lateral side of neck. Length of legature mark is 20 cm and width 2 cm. on front one centimeter on both side of neck. It extends from 4 cm below the left ear lobule covering left lateral side of neck parallel to mendable and on front side above, Adom's apple and extending on right side and laterally along the margin on right side and laterally along the margin of mendable, reaching upto just near right mastoide process. The gap between the former end later and is 13 cm The legature mark is day, hard, groaned and parchment libe. On dessection under neath tissue is pale glistening of blood in the soft tissued. On further examination no fracture of hyoid bone no displacement of cricoid cartileged and fracbi found congested Ligature mark ante mortem in nature.
4. In the opinion of the doctors, the cause of death was asphyxa as a result of pressure on neck. The post mortem report prepared by them is Ex. P 12. On 8-3-1986, the police registered a case under Section 306, IPC & proceeded with the investigation. Before that, the Station House Officer inspected the site and prepared the site plan Ex. P 8. He seized an Saree banging by the beam. It was seized & scaled. The accused was arrested on 13-3-1986. On his medical examination, a linear healed scare of 0.5 cm. was noticed on his middle finger as per injury report Ex P 3 prepared by Medical Jurist Dr. Kochar PW 8. After when the investigation was over the police presented a. challan against the accused in the court of the Judicial Magistrate (12), Jaipur City, Jaipur, who in his turn committed the case for trial to the court of Sessions. The case came for trial before the learned Additional Sessions Judge (4), Jaipur City, Jaipur He framed charges under Sections 302, 306 and 498A, IPC against the accused to which he pleaded not guilty and faced the trial. He denounced the whole prosecution story as a false and fabricated piece of concoction and claimed absolute innocence. In suport of its case, the prosecution examined 16 witnesses and filled some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Additional Sessions Judge found no material to convicted under Sections 306 & 498A, IPC. He, how ever, that held the accused had caused the death of his wife Vimla by pressing her neck and thereafter hanged her body a Saree with the beam of the hut. The accused was consequently convicted and sentenced as mentioned at the very out-set.
5. We have heard Mr. K.C. Mehta, learned Amicus Curiae for the appellant and the learned Public Prosecutor Mr. O.P. Sharma assisted by Mr. R.K. Mathur, learned Counsel for the complainant. We have also gone through the case file carefully.
6. In impeaching the conviction, it was contended by the learned Amicus Curiae that it is not a case where Vimla was done to death by strangulation or pressing her neck. It is a case pure and simple of her committing sucide by hanging herself, The only witness examined by the prosecution about incident is Kumari Basanti (PW 2). She is a child witness and was made to speak against the accused by the victim's father Jetha Ram (PW 10). In her police statements recorded during investigation on 9-3-1986, Kumari Basanti stated that her mother committed suicide by hanging herself. During trial, she resiled from her earlier statement Ex. D-2 and introduced altogether a new story that her father that is the accused caused the death of her mother by pressing her neck. She did so under the influence of hermaternal grand father Jetha Ram (PW 10).
7. It was on the other hand contended by the learned Public Prosecutor and the learned Counsel for the complainant that it was not a case of suicide but of the accused's strangulating Vimla to death. Kumari Basanti PW 2 had given the statement Ex. D-2 during investigation when the accused was free and not arrested and she was under his influence. We have taken the respective submissions into consideration.
8. The first and foremost fact-in-issue arising for our decision and deliberation is whether it is a case of suicide as alleged by the accused or is it a case of the accused causing the death by strangulation and pressing the neck of the victim.
9. The medico legal autopsy was conducted by a Medical Board of three doctors including the Medical Jurist Dr. Tripathi PW 16. In his cross examination Dr Tripathi stated that the legature mark found around the neck of Vimla could be caused by a noose of Saree. He further stated in cross examination that the presence of legature mark, trickling of saliva from the angle of mouth, absence of evidence of poisoning, signs of struggle and injuries make out a case of suicidal hanging He further admitted that the police did not produce the Saree or beam before him. The opinion of the Medical Board is thus unsatisfactory Dr. Tripathi did not state that it was a case of homicide, On the contrary, he expressed an opinion that it could be a cases of suicidal hanging We may refer to some medical treatises in our attempt to find out whether it is a case of manual strangulation or a case of suicidal hanging.
10. Dealing with manual strangulation, Cox in his 'Medical Jurisprudence and Toxicology' (1987 Edition) observes on page 210 as under:
9. Manual Strangulation:...
The external appearances are vital In place of the ligature mark described earlier, the neck will almost invariably show abrasions and bruises caused by the fingers of the assailant and again sometimes of the victim, where attempts at removing the compression have been made;
When the throat is gripped by a hand, the typical type of skin lesion is a small discoshaped bruise and finger-nail scratches. The classical bruises are of the size of a small coin, but naturally can be of any size of shape, especially where several bruises He adjacent or overlie each other. They are most commonly seen in manual strangulation under the angles of the jaw on either side where the maximum pressure is exerted....
Finger-nail scratches may be present any where on the neck, but again commonly in the same site as the bruises. There may be vertical scratchs from the finger-nails of the victim, but it is usually impossible to identify which scratches have been made by which person....
The internal appearances are basically similar to strangulation with a ligature but due to the pincer-like effect to throttling fingers, the possibility of a fractured avoid is greater....
Internally, the hyoid is more likely to be fractured than with a ligature, as stated above.
11. Dealing with hanging, on page 214, it is observed:
12. Hanging--Hanging has certain features in common with strangulation by a ligature, but here are marked differences in the mechanism of death ....
The position of the ligature mark in hanging is usually different from that in strangulation the hanging mark being higher on the neck than when an assailant places a ligature around the victim. The banging mark normally passes above the larynx at She level of the base of the tongue passing then beneath the angles of the law, rising to a high point where the noose is joined to the fixed part of the rope or wire. In almost every case, there is a gap in the ligature mark around the neck where the two ends of the noose leaves the skin to reach he know. This is commonly either at the back of the head or near one or other ear, depending upon the position of the body. Occasionally, where a slip knot is used, the weight of the body pulls the ligature, tightly against the skin around the complete circumstance of the neck but there is usually a gap where the point of suspension is placed....
Hanging is rarely homicidal and in most cases in suicidal though accidental hanging sometimes occur:
12. On page 257 of Jhala's Medical Jurisprudence' (1988 Edition) dealing with hanging, it is observed:
Ordinarily, hanging is the mode of death from asphyxia when ligature is tied round neck and body allowed to hang. This is not possible through agency other than self. A person who commits suicide is in an unusually determined frame of mind. Further, two inches above the ground are enough to achieve asphyxia from hanging & that also for a short time. This could be achieved by bending of the legs. Hence in all established cases of death from hanging the presumption is suicide. Homicidal hanging is unknown.
13. On page 262, we find:
Apart from the position of ligature mark there is one other characteristic which not only indicates hanging but suggests its ante mortem nature Peculiar position of the ligature mark just slapping sub mandibular salivary glands (glands under lower jaw secreting saliva) leads to production of saliva. Slanting or inclined position of head leads to dribbling of the saliva from one angle of mouth.
14. Again on page 264, it is observed:
The importance of dribbling saliva has already been referred. This is accepted as a size of ante mortem hanging as this is a vital act. This is due to stimulation of salivary gland by compression of ligature. Injury to tongue is unusual.
15. On page 266, dealing with strangulation, the opinion expressed:
Throttling as already referred above is a type of strangulation where the constricting force is the digital pressure. In this variety, local signs of pressure, nail marks and the internal damage of localised distribution are the main features. This is a common method of achieving infanticide by an act of commission. In such cases the tissues of the infant being soft and pink, the congestion (due to pressure) and the extravasation (due to crush injury) stand out vividly against the pinkish background. The crushing of the cervical muscles and vessels are of course evident. But over and above these, the fracture of the laryngeal cartilage or crushing of the trachea with haemorrhage around are common findings. The nail marks inflicted by the thumb is deeper and larger and so also the compression area is larger as compared to those caused by the fingers.
16. On page 268, we find the following:
A person being strangled fights madly. Even if the victim is feeble, nature supplies unsuspected additional strength in fight for life. The person may fail but marks of struggle will always and invariably remain.
17. On page 270, the opinion expressed reads as under:
The marks of violance are very important in a post-mortem of strangulation. It is impossible to strangulate a healthy adult in full senses, except in case of infirm, invalid or crippled individual intoxicated persons or young children. Presence of these marks even in from of nail marks are presumptive of homicide. Neither accident nor suicide can offer a satisfacation in such cases.
18. On page 171 on Glaister's Medical Jurisprudence and Toxicology (1973 Edition):
Hanging may be defined as that form of death which is caused by suspension of the body by a ligature which encricles the neck, the constricting force being the weight of the body. A frequent method is the use of running noose. The proximate cause of death is asphyxia or comato-asphyxia.... The amount of the constricting force depends upon whether or not the body is completely suspended. Complete suspension is not essential since the partial weight of the body is adequate for the purpose. Persons have succeeded in hanging themselves although their feet were in contact with the floor. Only a slight degree of constriction of the neck is required to cause eventual death
19. On page 172, it is observed:
The position of the tongue varies from normality to protrusion slightly beyond the line of the teeth. Tongue injury is unusual Saliva may be seen trickling from the corner of the mouth as the result of increased salivation prior to death, due to stimulation of the salivary glands produced by the ligature.
20. On page 173, we find:
In suicidal suspension, it usually follows the line of the lower jaw, then passes obliquely upwards behind the ears, where it is commonly lost. The situation of the mark will, how ever, be largely influenced by the method used in the application of the ligature, for example, whether in the form of a loop or a running noose. In the former method, the mark will be most prominent on the part of the neck to which the head has inclined and less marked over the region of the open angle of the loop. When a running noose has been employed the mark more or less encircles the surface of the neck, and is most prominent at the point underlying the knot The reason for the ligature line being close to the lower jaw in the bulk of cases, in which a running noose is used, is that as the body sinks in the act of suspension the ligature gradually slides up the neck until it is fixed by the line of the lower jaw.
21. An opinion is also expressed on page 175 that homicidal hanging is rate.
22. Dealing with annual strangulation, it is observed on page 182:
As a rule there is extensive bruising of the tissues, which is frequently accompanied by fracture of the laryangeal structures, and commonly, the hyoid bone. Further there may be bruising or laceration of the tongue as the result of it having been pressed against, or caught between the teeth.
23. On page 183, it is observed:
Fracture of the hyoid bone is a common occurrence, and when it is present indicates that considerable violence has been applied to the neck. It negatives suicide and provides strong indication of homicide.
24. On page 157 of "Medical Jurisprudence and Toxicology" Modi has given the differences between hanging and strangulation is tabulated form in respect of banging, he says that fracture of the larynx and trachea is very rare saliva runs out of the mouth down on the chin & abrasions round about the edges of the ligature mark are rare As regards strangulation his opinion is that abrasions wound about the edges of ligature mark are common Fractures of the larynx, trachea and hyoid bone are often found. Carotid, arteries and internal coats are ordinarily raptured. Saliva is not seen running out of the mouth.
25. Turning to the instant case, the post mortem report shows that there was no fracture of hyoid bone larynx and trachea, Carotid arteries and internal coats were not found reptured. Abrasions and nail scratches were not found on the neck and round about the edges of the ligature mark.
26. PW 2 Kumari Basanti in her cross examination admitted that saliva was dribbling from the mouth of her mother (victim) and it was wiped of by those persons who collected there in the cottage.
27. All these factors when taken into consideration as a whole, it does not appear to be a case where the victim was done to death by putting pressure on her neck. All these symptoms noticed by the Medical Board make out a case of suicidal hanging. The expert medical opinion quoted above shows that suicidal hanging can be committed by the victim by bending the knees. The prosecution has miserably failed to make out a case of death by strangulation i.e. to say by pressure on the neck. The ocular witness in the case is the victim's daughter Kumari Basanti (PW 2). Her age has not been recorded by the Additional Sessions Judge Her police statement shows that she was nearly 8 years old when the incident took place. She, therefore, belongs to the category of child witness. A child is generally taken as artless and non-crafty. How ever, there is always a danger in putting absolute reliance on the evidence of a child witness. The reason is that a child can be easily coached, tutored and influenced. If that is done, a child, on account of his tender age often takes dreams for reality, A child is capable of cramming things easily and reproducing them as tutored. A child then reports a thing heard as if he has seen it. In the instant case. PW 2 Basanti is the daughter of the victim and the accused. In her statement recorded during trial she stated that her father failed her mother down, sat on her chest and pressed her neck. Her mother was groaning. Unfortunately, her statement Ex D-2 recorded Under Section 161 Cr PC during investigation, she has given altogether version of the incident. In Ex D-2 with which she was controverted, she stated that her mother committed suicide by hanging herself with her Saree tied on a wooden beam of the hat. This statement 8x. D-2 was put to bar in cross examination and she admitted to have given 'bat but came out with the examination that she gave the statement Ex.D-2 as taught and tutored to her by her father viz. the accused. It is quite possible that statement Ex.D-2 could be given by her under the influence of the accused.
28. But the pertinent question is that the statement given during trial by her is not corroborated by the medical evidence. As we have discussed above, the symptoms are that it is not a case of committing the death by strangulation or by putting pressure on the neck. The testimony of Basanti (PW 2) thus stands contradicted by the medical evidence. The discordance between her testimony and the medical evidence is so persisting that it is not capable of any reconciliation. But her statement Ex. D-2 given by her during investigation completely stands corroborated by the medical evidence. We have expressed the opinion that it appears to be a case of suicidal hanging and that is exactly what has been stated by Basanti (PW 2) in her statement Ex. D-2. It appears that after the death of her mother, the registration of the case against the accused and on account of his arrest, Basanti (PW 2) came under the influence of her maternal grant-father Jetha Ram (PW 10) Any way we have got two contradictory statements of PW 2 Basanti one given during investigation and the other given during trial. No reconciliation is possible between these two statements If the statement Ex. D-2 was given by her before police on account of the influence of her father (accused), where lies the guarantee that the statement given by her during trial was not given under the influence of her maternal-grand father Jetha Ram (PW 10). We are, therefore, unable to put reliance on the testimony of this child witness Basanti (PW 2). If her testimony is excluded from consideration, there is no other evidence to connect the accused with the death of Vimla.
29. It appears that the relation between the deceased Vimla and her husband viz. the accused were not cordial. They used to pick up quarrels off and on. On the lay of incident, some quarrel took place between them. Feeling frustrated and distressed, it appears that she committed suicidal banging.
30. For the reasons stated above, we are unable to maintain the conviction of the accused. He deserves acquittal.
31. In the result, the appeal is allowed. The conviction of accused Banshi Under Section 302 IPC and the sentence awarded to him thereunder are set aside. He is acquitted of the said offence. He is undergoing the sentence and shall be forthwith set at liberty if not wanted in any other case.