Hon'ble Pratyush Kumar,J.
(Per Hon'ble Pratyush Kumar, J.) The instant jail appeal filed by accused-appellant is directed against judgment and order dated 4th December, 2007/ 7th December, 2007, whereby the appellant was convicted under Sections 302, 201 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/- and further rigorous imprisonment of three years and to pay a fine of Rs. 1000/- in default of payment of fine to further undergo two months' rigorous imprisonment on both the counts. Sentences were directed to run concurrently.
In the present appeal, facts of the prosecution version may be summarized as under :-
That on 27.4.2006 at 4.15 p.m. Bhagwandeen r/o Village- Pakadi Bhojpur, P.S. Tanda, District- Ambedkar Nagar and chaukidar of the Village- Ballia Jagdishpur gave a written report that on the north side of the village, there is a field of Jeet Bahadur Faujdar and on its west side, one dead body of a women was lying in the pond, enveloped in a sari. Large number of persons had collected there and the dead body was identified to be of Smt. Kesa Devi w/o Krishna Mohan @ Thelu r/o of Ballia Jagdishpur. Identification was made by Smt. Kewla w/o Sita Ram and Sita Ram s/o Nagai.
On this information, inquest proceedings were held and the dead body was sent for post-mortem examination. In the post-mortem examination, cause of death was found to be asphyxia due to ante-mortem strangulation. On 30th April, 2006 copy of the post-mortem report was received in the police station and case crime no. 141 of 2006 was registered and requisite entry was made in the report of the general diary. Investigation was entrusted to Sri Vinod Kumar Yadav, the then Station Officer of P.S. Tanda who on completion of investigation submitted the charge-sheet against the present appellant. He found during the investigation that the deceased was murdered by her husband.
The case was committed to the Court of Session where the present appellant was charged under Sections 302, 201 IPC which he denied and claimed to be tried.
In support of the charges on behalf of the prosecution besides other papers in documentary evidence, written report Ext. Ka-1, post-mortem report Ext. Ka-2, inquest report Ext. Ka-4, site plan Ext. Ka-10 and copies of reports of general diary Ext. Ka-3 and 9 were filed. In the oral evidence, 14 witnesses were examined. Thereafter statement of the appellant under Section 313 Cr.P.C. was recorded, in the defence he did not lead any evidence. After hearing the arguments, learned trial Judge believed the prosecution version trustworthy duly proved by the oral and documentary evidence. He found the charges against the appellant proved beyond reasonable doubt. By the impugned order, he convicted the present appellant and sentenced him as above.
From the jail, the appellant preferred the instant jail appeal. Sri Manish Bajpai, Advocate, Amicus Curiae on behalf of the appellant and Sri Umesh Verma, learned AGA for the State-respondent argued the appeal before this Court and we have perused the record.
On behalf of the appellant, Sri Manish Bajpai, learned Amicus Curiae has submitted that there is no eye witness account of the occurrence, the prosecution case is based on circumstantial evidence. According to him, all the links have not been established. According to him, motive could not be proved. Evidence of last seen is not reliable. Identification of dead body could not be made. According to him from the medical evidence, death of the deceased could have been result of accidental circumstantial fall and therefore, the appellant is innocent. The learned trial Judge convicted the appellant only on the basis of conjectures and surmises.
On behalf of the State-respondent, these arguments have been replied and submitted that motive for the occurrence has been duly proved, there is no doubt that the dead body was of the deceased. Last link in the chain of circumstances was completed by extra judicial confession coupled with abnormal conduct of the appellant.
Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:
"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."
In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [1995 CRI.L.J.2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
In order to evaluate the merit of argument advanced on behalf of the parties, it would be expedient that first we take into consideration the medical evidence, which consists of statement of Dr. A.K. Gupta (P.W.-3) and post mortem report Ext. Ka-2. Dr. A.K. Gupta has stated that on 28th April, 2006 he in the capacity of medical officer CHC Tanda (Ambedkar Nagar) at 12 noon performed autopsy on the dead body of Kesa Devi aged about 34 years. On the external examination he found most of the fleshy parts of the body were eaten by wild animals. The dead body was decomposed and maggots were present. Lower limb of the body had separated from the hip joint. According to him, thyroid, cartilage and hyoid bone were fractured. Trachea was congested. Genital organs were eaten by wild animals. He has proved the post-mortem report Ext. Ka-2 and opined that death of the deceased had occurred four days ago due to asphyxia as a result of strangulation. During cross examination he has stated that dead body was almost skeleton of bones only, on the upper part of the body flesh and skin were found. Her face was identifiable. He has admitted that in the column cause of death there is over writing which according to him was necessitated for correction of sentence.
In this way on the time of death, cause of death his testimony remains unchallenged. The only challenge was made that at the time of post mortem, dead body was not identifiable which the witness denied. Testimony of this witness is corroborated by post-mortem report Ext. Ka-2. This witness is an impartial witness having no enmity with the accused or affinity with the first informant. We find him to be a reliable witness and hold that facts stated by him are established.
Now we will deal with the rests of the prosecution evidence. Before we do so we would give outline of their testimonies which is as under :-
Sl. No. Name Substance P.W.-1 Vijai Son of the deceased, aged about 8 years, stated that appellant used to take liquor and quarreling with his mother and beat his mother. On the fateful night when he was beating his mother he went to rescue her, he was also beaten. His father threw his mother in the pond after murdering her.
P.W.-2 Bhagwan Deen Chaukidar of the village on 27th April, 2006 informed the police station about the dead body of one women enveloped with a sari lying in the pond, proved the written report Ext. Ka-1.
P.W.-3 Dr. A.K. Gupta Conducted the post mortem examination on 28th April, 2006 on the dead body of the deceased.
P.W.-4 Clerk Constable Raj Kesh Proved the registration of Case Crime No. 141 of 2006 on 30th April, 2006. After copy of post mortem report was received at the police station, proved copy of relevant report of the G.D. Ext. Ka-3.
P.W.6 Clerk Constable Achhey Lal Yadav Stated that on 27th April, 2006 chaukidar Bhagwan Deen gave a written report about the death of a woman, which he entered into the report of the general diary and proved its copy Ext. Ka-9.
P.W.-7 Vinod Yadav, the then SHO Tanda He is an Investigating Officer, gave details of steps taken in the course of investigation and proved police papers inter-alia site plan Ext. Ka-10, charge-sheet Ext.Ka-11.
P.W.-8 Smt. Kewla Sister in-law of the deceased and the appellant, stated that the appellant used to take drink and beat his wife. She claimed that she had identified the dead body as of Smt. Kesa Devi, her sister in-law (Devarani) and further stated that on inquiry the appellant informed her that she had gone to her maika.
P.W.-9 Sita Ram Elder brother of the appellant, who identified the dead body of the deceased to be of Kesa Devi wife of his younger brother. He is witness of the inquest proceedings. According to him between his younger brother and the deceased there was marital discord, Krishna Mohan used to quarrel and beat her. According to him, once Krishna Mohan after beating his wife had paraded her in naked condition and once had broken her leg. According to him, the appellant spread the rumor that his wife had gone to her maika.
P.W.-10 Yogendra Singh Witness of inquest proceedings, also reiterated that relations between the deceased and the appellant were bad and cruel treatment was meted to her by the present appellant.
P.W.-11 Angad Singh Witness of discovery of the dead body and inquest proceedings.
P.W.-12 Rajendra Singh Witness of the discovery of the dead body and inquest proceedings.
P.W.-13 Pankaj Singh Witness of inquest proceeding and who claims that on 29th April, 2006 when he was sitting with Rajendra Singh, the appellant confessed that he had murdered his wife after strangulating her neck and threw the dead body in the pond among Jal Kumbhi. He requested that since the witness had good relations with the police he might be saved by him.
P.W.-14 Daya Ram Singh Witness of bad relations between the appellant and the deceased, daily quarrels between them, according to him he was informed by the appellant that his wife after quarreling had left the house in the night.
When the appellant was confronted with the facts emerging from the above evidence, he denied that the dead body was of his wife, he further denied the facts stated by the witnesses. According to him he was falsely implicated due to enmity. He claimed that Sita Ram and Ram Sudhar, his brothers had dispute with him about partition of the property and for this reason they had tutored his son Vijai to depose falsely against him.
Now the arguments advanced on behalf of the appellant are that there is no eye witness account of the occurrence, the case is based on circumstantial evidence and all links thereof have not been established.
We have considered the first ground of challenge i.e. whether there is an eye witness account of the occurrence we cannot accept this argument as on behalf of prosecution Vijai (P.W.-1) son of the deceased and the appellant has been examined as an eye witness. His presence at the relevant time is natural and probable. He had every opportunity to see his father beating his mother and while rescuing her he was also beaten. According to him thereafter his father threw the dead body of his mother in the pond.
He is a child witness and at the time when the incident had occurred he could not have been more than seven and a half years. We have perused the questions put by the learned trial Judge to ascertain his understanding and sanctity of oath and the answers given by the witness, we find ourselves in agreement with the learned trial Judge that this witness had sufficient understanding and maturity to understand the affairs of the work and sanctity of the oath, therefore he was rightly administered oath.
We have gone through his evidence very minutely because he is a child witness. Though it is true that testimony of child witness is not to be treated inferior than the testimony of an adult, but considering the fact that he is sole witness who had at least seen the part of the occurrence, we have given our anxious consideration on the point of evidential value by this witness. In the case of State of U.P. Vs. Krishna Master; AIR 2010 SC 3071 and Panchhi Vs. State of U.P.; 1998 (37) ACC 528, the Hon'ble Apex Court has observed that the evidence of child witness cannot be rejected outright it should be evaluated carefully with greater circumspection. The Court has to ascertain whether it is free from influence. If on a careful scrutiny, the testimony of a child witness is found truthful, there can be no hindrance in the way of accepting the same and recording the conviction of the accused on the basis of his testimony.
Our first task is to see whether the testimony of this witness is free from influence or not. According to the appellant, he was under influence of his uncle and deposed falsely. In the original script of the testimony of this witness we find at the foot of the last page an endorsement by the learned trial Judge that during the cross examination tears were coming out of the eyes of the witness. His deposition made during cross examination is very important. He was cross examined at length. Most part of that deposition is in question answer form. Since he was cross examined on very vulnerable subjects, weeping of the child is natural because what happened was unpleasant for the child and what was happening in the Court was more unpleasant for him. We find him to be a very straight forward witness. He admitted that he was living with his uncle Sita Ram. He came with him to give his testimony but according to him his uncle did not discuss the occurrence with him. He has also referred the pretense/ farce made by the appellant after disappearance of the deceased to search for her. He gave answers to the questions in a very straight forward manner. When he was suggested that he was giving evidence on the dictation of his uncle that his father had killed his mother, the witness replied that his father had murdered his mother. Thus, we are satisfied that the testimony of this child witness is free from influence. He is only deposing what he has seen and what to have seen.
After reading his whole statement we find that he is truthful witness of the facts that his father used to ill treat and abuse his mother. On the fateful day he had beaten her, when the child tried to save her he was also beaten. Thereafter child left the house and took shelter in the house of Bali Ram. Thereafter next day he had gone to the house of his uncle i.e. elder brother Sita Ram brother of the appellant and lived there, but we find that part of his statement that he had seen his father murdering his mother and throwing the dead body in the pond to be based either on hearsay or imagination.
We think evidence of Vijai (P.W.-1) is the direct evidence of the occurrence, therefore, we cannot accept that the present case is wholly based on circumstantial evidence. However, all the facts of the prosecution version could not be unfolded by this witness, therefore, the case is substantially based on circumstantial evidence.
The circumstantial evidence may be understood to be any indirect evidence of a fact that helps to establish the guilt or innocence of an accused through reasoning From this statement we mean that indirect evidence of a fact in itself would not be adequate to prove a fact and the issue: who committed the crime beyond doubt. Therefore, such kind of evidence has to be in the form of chain and that chain must have all the links to unmistakably indicate who is author of the crime.
Before we proceed to discuss the facts proposed to be established by the prosecution in the present case, we would like to refer off quoted observations made by the Hon'ble Apex Court in Hanumant Govind Nargundkar Vs. State of M.P.; AIR 1952 SC 343 "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused"
Now we have the guidelines how to proceed further:
(i) The prosecution proposed to prove that dead body whose autopsy was performed by Dr. A.K. Gupta (P.W.-3), was the dead body of Smt. Kesa Devi wife of appellant.
(ii) The deceased was last seen alive in the company of the appellant in his house.
(iii) The appellant had motive and opportunity to murder the deceased in the manner alleged by the prosecution.
(iv) His extra judicial confession dated 29.4.2006
(v) Subsequent abnormal conduct of the appellant.
The first link of the circumstantial evidence is the identification of the dead body taken out of the pond. In his statement recorded under Section 313 Cr.P.C. the appellant has specifically stated that dead body was not of his wife. In the inquest proceedings the appellant was not a witness. No one says about his presence near pond when dead body was taken out. When this fact is taken into consideration that the evidence of Sita Ram (P.W.-9), where he says that he had identified the dead body to be of his sister in-law Smt. Kesa Devi, we find that he has given reason for this identification. According to him after seeing clothes on the dead body he had identified the dead body. According to the evidence of Dr. A.K. Gupta (P.W.-3) most of the fleshy portion of the dead body was eaten away by the wild animals. However, her face was not eaten away and it could have been identified.
In the present case second link in chain of the circumstantial evidence is the evidence of last seen. The appellant and the deceased were last seen alive only by Vijai (P.W.-1). His testimony not only reveals bad relations between the husband and the wife and immediate motive for the appellant to commit the crime and also the last time when the deceased was seen in the company of the appellant alive, thereafter none saw her alive. Therefore we take evidence of Vijai (P.W.-1), on these points, into our consideration. He has been found to be a truthful witness and his testimony on the point of motive i.e. bad relations and drinking habits of the appellant is duly corroborated by the deposition of Smt. Kewla (P.W.-8) sister in-law of the appellant and Sita Ram (P.W.-9) elder brother of the appellant. Though the appellant has alleged that they have enmity with him on account of dispute regarding partition of the property however, from the perusal of their depositions we find that they rather favored the appellant in their statements then tried to implicate him in the crime. Their statements on this point are sufficient corroboration to the testimony of Vijai (P.W.-1). Therefore, we hold motive i.e. bad relations between spouses, drinking habits of the appellant, maar peet between the spouses on the fateful night to be duly established as also the fact that lastly the deceased was seen alive with the appellant.
On behalf of the appellant it has been argued that in the inquest report Ext. Ka-4, it has been clearly mentioned that dead body was mere skeleton. Learned counsel for the appellant has sought support to this from the evidence of HCP Virendra Nath Singh (P.W.-5) who clearly stated that the dead body was not in a identifiable state. Though we prefer to believe the statement of Dr. A.K. Gupta (P.W.-3) however, we are of the considered opinion that the dead body identified with the help of the clothes worn such identification may be safely relied on, vide Jarnail Singh Vs. State of Punjab; 2009 (67) ACC 668 (SC). In this way on this point the evidence of Sita Ram (P.W.-9) is reliable and on the basis of his testimony we hold that the dead body taken out from the pond on the information of Bhagwan Deen (P.W.-2) on 27th April, 2006 was of Smt. Kesa Devi wife of the appellant.
Third link in chain of the circumstantial evidence is in the form of testimony of Pankaj Singh (P.W.-13), who has stated that on 29th April, 2006 when he was sitting with Rajendra Singh, the appellant approached them and apologised for his mistake and requested them to save him as police of P.S. Tanda were in their contact. When they asked the appellant what happened he admitted that 7-8 days before he had murdered his wife by strangulating her and threw her dead body in the pond. During cross examination he was suggested that the appellant never met him and confessed his guilt before him and he was falsely deposing against him on the behest of his brother Sita Ram. During cross examination his testimony remained unshaken. He was witness of the inquest proceedings, resident of the same village, therefore, it is not surprising that after recovery of dead body the appellant tried to use his good offices and for that purpose confessed his guilt voluntarily. Though it is true that extra judicial confession is a weak piece of evidence (S. Arul Raja Vs. State of Tamil Nadu; 2010 (8) SCC 233). Before help can be taken from such kind of evidence, the Hon'ble Apex Court in the case of Podyami Sukada Vs. State of M.P.; AIR 2010 SC 2977 has observed that such evidence is itself trustworthiness, it has to be ensured by the Court. In this regard the first requirement is that it should be voluntary and further the reason why the accused reposes confidence in the witness (Jaspal Singh Vs. State of Punjab; 1197 SCC (Cri.) 358). In the present case as discussed above there was reason for the appellant to have faith in the witness. The learned trial Judge in para 32 of the impugned judgment without assigning any reason disbelieved this evidence, with which we do not agree for the reasons indicated above.
In view of the legal proposition discussed above and testimony of Pankaj Singh (P.W.-13) we hold that on 29th April, 2006 the appellant confessed his guilt before Pankaj Singh (P.W.-13) and this piece of evidence has not been explained by the appellant in his statement under Section 313 Cr.P.C.
Lastly, we would refer the abnormal conduct of the appellant subsequent to his wife went missing. Vijai (P.W.-1) has stated that after that the appellant pretended to seek help of miracle man (ojha) by resorting to ojhai. Pankaj Singh (P.W.-13) and Daya Ram Singh (P.W.-14) and other independent witness have also stated that to misguide the villagers the appellant pretended to search for his wife by saying that she had gone to her maika. Making false pretense is also indicative of the guilt of the appellant. Had the deceased been living in her maika the appellant would have no difficulty in finding her or getting her summoned to be examined as a defence witness during the trial.
Clearly the news spread by the appellant was incorrect and adverse inference about his conduct has to be drawn in the instant case. We also find that in his statement recorded under Section 313 Cr.P.C. the appellant had failed to explain that he and the deceased parted company on the fateful night. The appellant was the husband of the deceased and she was lastly seen alive in her matrimonial house with the appellant. Since her unnatural death by strangulation stood established, it was the duty of the appellant to explain how she met her end and his failure also persuades us to arrive at the conclusion that the prosecution has successfully proved charges against the present appellant on both counts that he murdered his wife and in order to cause disappearance of the evidence he threw her dead body in the pond among Jal Kumbhi.
In view of above, all the arguments except one submitted by learned Amicus- curiae stand repelled. Now we will deal with his argument that from the medical evidence, death of the deceased could have been result of accidental fall, fracture of thyroid and hyoid bone negates this possibility. Hence we also reject this argument.
In view of above, we find that prosecution has successfully proved charges under Sections 302, 201 IPC against the present appellant beyond reasonable doubt. The appeal preferred by him is without substance and arguments in support thereof lack merit.
Accordingly, the appeal is dismissed.
Office is directed to certify this order to the court concerned forthwith and send back the lower court record.