Court no. 47 Reserved On 26.07.2019 Delivered on: 22.08.2019
CRIMINAL APPEAL No. - 2100 of 2012
Appellant :- Kishori Lal And Others Respondent :- State Of U.P.
Counsel for Appellant :- K.K. Srivastava,G.P. Shukla,Pratap Kanchan Singh,Sushil Kumar Dwivedi Counsel for Respondent :- Govt. Advocate
Hon’ble R.S.R.(Maurya),J
Hon'ble Umesh Kumar,J.
(Delivered by Umesh Kumar, J)
1. This appeal has been filed against the judgment and order dated 20.04.2012 passed by Addl. Sessions Judge (Court no.02), Chitrakoot in S.T. No. 32 of 2009 ( State Vs. Kishori Lal & others) convicting the appellants under Sections 302 read with Section 34 IPC and sentencing them to undergo life imprisonment with a fine of Rs. 10000-/ each with default stipulation.
2. The prosecution case, in brief, is that P.W.1 Mata Badal gave a written report at Police Station, Rajapur district, Chitrakoot alleging that his daughter Geeta Devi was got married with Kishori Lal son of Jhullu @ Chaprasi resident of village Bardaha, P.S. Rajapur, Chitrakoot. After marriage, his daughter used to tell that character of her mother-in-law- Belni @ Bodri is not good, due to which, there remains rift in the family and when she opposed, then her husband, mother-in-law and father-in-law beat her, but he always tried to pacify his daughter; his daughter was doing job in Angan Bari for last 10 years, but her whole salary was snatched by her husband, mother-in-law and father-in-law; on 5.11.2008, son of the informant had gone to have whereabouts of his sister; his son told him that Geeta- his daughter has told that she had seen her mother-in-law with a man in objectionable position; she told her mother-in-law that now she will not keep mum and will tell the matter to her father-informant; Geeta also told that from that day, in laws are beating her daily and tell that now your remaining alive is not good and expressed desire to accompany with her brother; on 8.11.2008 when the informant was making preparation to go to the house of Geeta, at about 1.00 P.M., the village Pradhan telephonic- ally gave information to his son that his sister has died and come soon. On this information, the informant, his wife Rukmini, son Sunil and nephew Ram Sharan went to Sasural of Geeta and saw her dead body having marks of finger on her neck and blood has come out from nose and mouth, and bad smell was there; on inquiry, Jhallar told him that she had died on account of biting of some poisonous worm; disbelieving this story, he rushed to police station and lodged written report alleging that her daughter has been killed by throttling with pre planning by her husband Kishori Lal, father-in-law Jhullu @ Chaprasi and mother-in-law Belni @ Bodri. On this written information( Ex.Ka-1) chick FIR (Ex.Ka-10), was registered at 9.15 P.M. as Case Crime No. 902/08 against the appellants under Section 302 IPC and its entry was made in G.D. No.25 on 12.11.2008. Investigation of the case was entrusted to SHO-Brij Bhushan Dubey, who visited the place of occurrence, conducted inquest (Ex Ka-3), , and prepared relevant police papers viz. Site plan, inquest report, letter to R.I. and CMO, Chitrakoot, photo naash and sent the dead body for post mortem. The post mortem of the dead body was conducted on 9.11.2008 by P.W.3 Dr. Vishnu Gupta, who found following injuries on the body of deceased- Geeta;
1. contusion of size 11 cm x 2 cm on the side of shoulder. Colour blue.
2. Three finger marks present over left side of neck.
3. One finger mark present over right side of neck. Fracture of hyoid bone present. In his opinion, the death was caused due to throttling.
The doctor has found, heart full of dark colour blood, from nose, mouth, comes out, focal matter comes out, brain, plura, lungs, pericardium, gall bladder and spleen are found congested.
3. During investigation, the I.O. recorded statements of witnesses and after completion, submitted charge sheet ( Ex.Ka-4) against the appellants.
4. Accused were charged under Section 302/34 IPC to which, they pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined as many as 9 witnesses. P.W.1 Mata Badal - informant, P.W.2 -Sunil, P.W.3 Dr. Vishnu Gupta who conducted post mortem, P.W.4 I.O., P.W.5 Shobha Devi, P.W.6 Kallu Raikwar, P.W.7 Kamta, P.W.8 Chunvad and P.W.9 SI Rajendra Prasad Dwivedi.
6. From the defence side, D.W.1 Dinesh Chandra and D.W.2 Vijai Bahadur were examined.
7. Statements of accused were recorded under Section 313 Cr.P.C. Accused denied prosecution version and claim trial.
8. We have heard Sri Sushil Kumar Dwivedi, learned Counsel for the appellants and Sri Om Prakash, learned AGA for State and have perused the record.
9. Learned Counsel for the appellants argued that learned Trial Judge has not appreciated the evidence properly, motive for commission of offence has not been established, the evidence of the witnesses are contradictory and there is inconsistencies in the testimonies of the witnesses, which creates doubt regarding their credibility and the learned Trial Judge has not considered material facts available on record.
10. Learned AGA vehemently opposed the arguments advanced by learned Counsel for the appellant stating that deceased was done to death by throttling, dead body was found in the house of her in-laws and the injuries found on the body of deceased is fully corroborated with the statement of witnesses, conviction is based on material evidence available on record and the same need not to be interfered.
11. P.W.1 Mata Badal-informant has stated that he got his daughter Geeta married to Kishori Lal son of Jhullu @ chaprasi resident of village Bardaha, P.S. Rajapur in the year 1990; after marriage, his daughter used to come to her parental house and tell to her mother, brother, himself and other neighbours about the bad character of her mother-in-law (Belni @ Bodri), on account of which, there remains always tense atmosphere in the family; when she opposed, her husband Kishori, mother-in-law Belni @ Bodri and father-in-law Jhullu @ chaprasi used to beat her; he stated that he tried to pacify his daughter and said that every thing will become right and he also went to the in-laws house of his daughter in order to discuss the things and not to torture his daughter; prior to her death, his daughter was doing job as Aangan Bari and her husband was doing nothing; her whole salary was taken by her husband, mother-in-law and father-in-law forcibly and did not give a single penne to her; for the last two years, Geeta did not come to her parental house as despite their efforts, her in-laws were not permitting her to come to his residence; on 5.11.2008, his son Sunil went to her sister’s in-laws house to know the whereabouts of her sister and from there he came back on 6.11.2008 and told him that 2 days earlier, Geeta had seen her mother-in-law in objectionable state with a man and his daughter then told to her mother-in-law that now she will not be silent spectator and she along with her children will go to her parental home; since that day, her father-in- law, mother-in-law and husband started beating her daily and they also threatened that now it is not better to remain her alive ; this witness stated that his son came back from the house of Geeta and told that Geeta was saying to bring her otherwise, they will kill; his son came saying that he will tell all things to his father and will do according to his advice; on 8.11.2008, when his son Sunil was making preparation to go to the house of Geeta, at about 1.00 P.M., village Pradhan of Bardara informed on telephone to come soon as his sister had died; on this information, this witness, his wife Rukmini, son Sunil and nephew Ram Sharan went to the sasural of Geeta and saw her dead body having finger marks on left side of her neck, blood comes from nose and mouth and faccal matter has come out; when he enquired from Jhullu @ chaprasi about the cause of death of his daughter, he replied that his daughter has expired due to biting of some poisonous reptile/worm, but feeling this story to be false, he rushed to the police station and gave written report, but his report could not be lodged and the police used to call three days daily and get them seated whole day at the police station and thereafter, he met with the Supdt. of Police, Karvi on 11.11.2008 and explained about the matter, who instructed to the concerned Circle Officer of Police, only then his report could be lodged on 12.11.2008 at about 9.21 hours. This witness has proved his written report (Ex.Ka-1). In cross examination, he stated that his daughter was doing job in Aangan Bari, but he did not know how much salary was being paid to her; his son-in-law Kishori Lal was High School fail; in the in-laws house of his daughter, two buffaloes, two cow and their calf were there; he stated that in village Bardara, he did not know any person except his relatives; he did not inquire any thing from other persons of the locality; when they reached there, dead body of his daughter was lying on a cot in front of house of accused where there was a mob of 15-50 villagers; later said that none was near the dead body; inquest was not conducted before him; after seeing the dead body, he came back to Karvi; his son and nephew also came back to Karvi, but they did not stay there; he only asked his samdhi (Jhullu) about the death of his daughter who informed him that some poisonous reptile/worm has bite her. At the time of post mortem, he was at the hospital and was watching the dead body; his son-in-law also met him, but he did not ask anything about the death of her daughter from him; his report was registered on 12.8.2008; when he saw the dead body, he knew that his daughter was tortured by the accused persons and they have killed her. He denied the suggestion that he demanded money from the accused and when he failed, he lodged the first information report. From a careful scrutiny of the testimony of this witness, we found no inconsistency, rather he is truthful and reliable witness and no material has come to discard his testimony.
12. P.W.2-Sunil has stated that on 5.11.2008, he visited the house of his sister-Geeta(deceased); she conveyed entire story about the bad character of her mother-in-law that she had seen with a man in objectionable position and when she complained to her mother-in-law, she was badly assaulted by her mother-in-law, father-in-law and husband and she was afraid of her life; although, she did job in Aangan Bari, but her whole salary is taken by her in- law forcibly; on 6.11.2008, he came back from Bardwara to his village and has narrated entire facts to his father and family members; on 8.11.2008, when he was making preparation to go to Bardwara to bring his sister, at 1.00 p.m., village Pradhan of Bardwara informed him on telephone to come soon as his sister- Geeta had died; thereafter, he along with his mother, father and cousin Ram Sharan went to Bardwara, where they saw dead body of his sister having marks of fingers on her neck, blood had come out from her nose and mouth and faccal matter has also come out; when he asked from accused persons, they replied that some poisonous reptile/worm bites her, but there was no such marks of bite on the body of deceased-Geeta nor was there any symptom of poison present. In cross examination, he specifically denied the fact that her (phupha) was Compounder in Karvi Hospital. He met with the father-in-law, mother-in-law and husband of Geeta at Bardwara. He also explained the reason for delay in lodging the FIR; though the police personal were present at the spot, but he cannot tell on whose information, they had come there. He stated that the mother-in-law of his sister lives in the same house and they took meal jointly. He has denied the suggestion advanced by learned Counsel for defence. We have gone through the testimony of this witness and found that there is no inconsistency or contradiction in the same. He is trustworthy and reliable witness.
13. P.W.5-Shobha Devi has stated that Kishori Lal resides in her village, his house is after 7-8 houses’ on 7/8.11.2008, she never visited the house of Kishori Lal to watch television; name of wife of Kishori Lal is Geeta; she did not see any quarrel between the family members of Kishori Lal and his wife; she does not know about any quarrel between Kishori Lal and father and mother; how Geeta died and who killed her, she has no knowledge. She denied her statement recorded under Section 161 Cr.P.C. In this reference the statement of P.W.6 Kallu Raikwar is also relevant who was of 12 years at the time of incident, and he has stated that he does not know the name of wife of Kishori Lal, how she died, he does not know; on 7/8.11.2008, in the night he along his sister Shobha and Kushal never visited the house of Kishori Lal to watch television and did not see any quarrel between Kishori Lal and his wife, her mother-in-law and father-in-law as well. He also denied his statement recorded by the Investigating Officer during investigation under Section 161 Cr.P.C.
14. P.W.7 Kamta has stated that that Kishori Lal belongs to his village and name of his wife is Geeta; the inquest of the dead body was conducted by the Investigating Officer and he, Kishori Lal Raikwar, Chunvad, Chunnu Patel and Ram Karan Yadav remained present during inquest proceedings and he also put his thumb impression on inquest report; in their opinion, post mortem was necessary as death of Geeta caused in suspicious circumstances. This witness has proved inquest report (Ex.Ka.5). Though, this witness has exhibited inquest report (Ex.Ka.5), but has narrated in the cross examination that when Geeta was returning keeping cow dung( kanda) on her head after doing feeding works of her buffaloes, she fell down all of sudden near chabutra of Chunvad, where several people of locality assembled; he heard that some one was telling that snake has bite her and some were saying that she was fainted; he stated that those people took her to Rajapur for treatment where doctor told that she is in serious condition and advised to carry her to Allahabad; Chunvad was also present there. The mother-in-law, father-in-law and husband Kishori Lal reside in separate house for the last 10-12 years. He also stated that he informed the I.O. that she fell down and fainted, perhaps some poisonous reptile/worm has bitten her.
15. P.W.8 Chunvad has also exhibited inquest report(Ex.Ka.5), but in cross examination, he has stated that in the morning at about 8.00-8.30 a.m. when she(deceased) was coming back after doing the work of gobar/kanda, near his chabutra she fell down and fainted. At that time, he and Kamta were sitting at his door; when Geeta fell down, her breathing was stopped; doctors and jhar- phunk wale were pressing her chest for survival, but her teeth were closed and it was suspected that some poisonous reptile/worm might have bitten her; she was taken away to Rajapur Hospital where doctor advised her to carry to Allahabad and in the way to Allahabad, she expired. The dead body was taken to the police station where inquest was prepared.
16. P.W.9 Rajendra Prasad Dwivedi, is the I.O. He has proved police papers/documents exhibited in the case.
17. P.W.7 and P.W.8 have stated in their statement that deceased-Geeta fell down near Chabutra of Chunvad(P.W.8).
P.W.8 has further stated that she was not breathing at that time. P.W.6,7 and 8 have stated that some poisonous reptile/worm might have bitten her, but they also stated the fact that her death was caused under suspicious circumstances and therefore, after inquest was conducted, they were of definite opinion that post mortem in the case must be done. Though, P.W.8 has stated that inquest was conducted at the police station, but that is neither supported by Ex.Ka.5 nor by the statement of P.W.9 Rajendra Prasad Dwivedi (I.O.). In the medical evidence, post mortem report available on record, the statements of P.W.7 and 8 in their cross examination, is neither supported by any other reliable evidence, nor they are reliable. Hence, their testimony in this respect, is not accepted except the fact of execution of inquest report.
18. So far as testimonies of D.W.1 Dinesh Chandra and D.W.2 Vijai Bahadur are concerned, learned Trial Judge has discussed in detail and disbelieved their evidence pointing out contradictions and this Court has no reason whatsoever to interfere with the findings recorded by learned Trial Judge.
19. Learned Counsel for the appellants has given much stress on his arguments in respect to injuries found by the doctor in the post mortem examination by stating that the doctor in his statement has not mentioned about fracture of hyoid bone and about the delay in lodging of FIR. Suffice to note that the prosecution has explained the delay and that is fully explained in the statements of P.W.1 and P.W.2, which inspire confidence.
20. In this reference, it may be important to note that fracture of Hyoid Bone is being look upon by the Forensic Pathologists as a very important finding in cases of violent asphyxia deaths by compression of neck. The fractures are indicative of compression of neck by external force. The presence of Hyoid Bone fracture has been documented more in the case of manual strangulation than in cases of hanging or ligature strangulation.
21. The Apex Court in Ravirala Laxmaiah Vs. State of A.P. (Criminal Appeal No. 2038) of 2011 decided on 28.5.2013 has observed that so far as medical evidence is concerned, the issue involved herein is no more res integra. The Apex Court while dealing the issue in Ponnusamy Vs. State of Tamil Nadu, AIR 2008 SC 2110 has observed that it is true that the autopsy surgeon did not find any fracture on the hyoid bone. Existence of such a fracture leads to a conclusive proof of strangulation, but absence thereof does not prove contra. In Taylor’s Principles and Practice of Medical Jurisprudence, 13th Edn. pp. 307-08, it is stated as under;
“ The hyoid bone is ‘U’ shaped and composed of five parts, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn which, can be felt more easily, lies behind the front part of the strip muscles(stemomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and hone for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle like they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body.
They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed. Our own findings suggest that although he hardening of the bone is related to the age there can be considerable variation and elderly people sometimes show only slight ossification. From the above consideration of the anatomy, it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns. Sometimes, it would appear that the local pressure from the thumb causes a fracture on one side only.
While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone in tact. This view is confirmed by Green. He gives interesting figure: in 34 cases of manual strangulation the hyoid was fractured in 12(35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fracture was.
22. In Neel Kumar @ Anil Kumar Vs. State of Haryana(2012)5 SCC 766, the Apex Court held that it is duty of accused to explain the incriminating circumstances proved against him while making a statement under Section 313 Cr.P.C. Keeping silence and not furnishing any explanation for such circumstances is an additional like in the chain of circumstances to sustain the charges against him.
23. In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC 681, the Apex Court has held that 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 crime.( See also Prithpal Singh & others Vs. State of Punjab & Anr(2012)1 SCC 10.
24. So far as case in hand is concerned, in the statements of P.W.1 and P.W.2, it has specifically come that as the deceased- Geeta had seen her mother-in-law in objectionable position with a man and as she (deceased) strongly objected the same, therefore, the appellants have strong motive to eliminate the deceased. This version also finds support from the testimonies of P.W.1 and P.W.2. In spite of the fact that the appellants were living in the same house, they failed to offer any explanation to the effect that under what circumstances, deceased- Geeta was found dead, especially in view of the reason that learned Trial Judge has disbelieved the theory of biting the deceased by some poisonous reptile/worm which is fully established from the medical evidence (Post mortem report-(Ex.Ka-1) and the viscera report( Ex.Ka.2). In the post mortem report, the doctor has found 3 finger marks present on the left side and one finger mark present over right side of neck with fracture of hyoid bone. In his opinion, the death was caused due to throttling and thus theory of biting the deceased-Geeta by some poisonous reptile/worm stands nullified, rather the homicidal death of deceased-Geeta is proved by the evidence adduced by the prosecution, fully supported by the medical evidence available on record.
25. In view of the above discussion, we find no infirmity or illegality in the impugned judgment and order of conviction passed by learned Trial Judge. The prosecution has established its case against the accused-appellants and thus, learned Trial Judge was justified in convicting the appellants.
26. The appeal lacks merit, and is accordingly dismissed.
27. The appellant No.1 Kishori Lal is in jail. The appellants no.2 Jhullu @ Chaprasi and appellant no.3 Smt. Belni @ Bodari are on bail. Their bail bonds stand cancelled. They be taken into custody forthwith to serve out remaining sentence.
28. The Registry is directed to transmit the Trial Court’s record to the Court concerned for compliance. The compliance report be submitted to this Court within a month.
( Umesh Kumar, J) [Ram Surat Ram (Maurya,J)] Order Date:- 22.08.2019 Shahid