JUDGMENT Palok Basu, J.
1. This appeal has been filed by Tihul and his wife Smt. Ramapati against the conviction and sentence under Section 302/34, I.P.C. passed by II Addl, Sessions Judge, Basti on 23-8-1979 in Sessions trial No. 117 of 1979.
2. The charge against the appellants was that both of them in furtherance of common intention, sometimes in the night between 18/19 November, 1978 inside their house, situated in village - Ratan Purwa, police station - Rudhauli committed the murder by intentionally causing the death of Smt. Ramraj, their sister-in-law (Bhabhi) punishable under Section 302/34, IPC.
3. Appellant Tihul and Ramasrey are brothers Tihul's wife is appellant Smt. Ramapati, while late Ramasrey's wife is Smt. Ramraji, deceased in this case. Both the brothers and their family were living in one and the same house. The cultivation was also joint. Ever since the death of Ramasrey about 11 months ago the deceased Smt. Ramraji was living with her two minor daughter's, Km. Phulwa and Km. Gulaba in the same house. Km. Phulwa was aged about 8 years and Km. Gulaba 6 years. In the revenue records the name of late Ramasrey was continuing for which Smt. Ramraji was making efforts to.get her name mutated against the name of late Ramasrey for which she had already contacted her brother Jasoo Kurmi, aged about 50 years, resident of neighbouring village Mushar, police-station, Rudhauli. It appears that Jasoo had already talked to Smt. Ramraji and had fixed to go on the next Wednesday on which day he would have taken the steps for mutation, etc. The prosecution case further is that in order to have the property grabbed Tihul and his wife were having quarrel with Smt. Ramraji so that she may be ousted and they could usurp the half-share in the property. Jasoo, therefore, thought of getting a partition suit filed through Smt. Ramraji.
4. Further case of the prosecution is that in the night between 18/19-8-1978 the deceased Ramraji and Km. Phulwa, P.W. 3 and appellant Smt. Rampati were sleeping in the room whereas the appellant Tihual was sleeping in the outer room. A Dhibri was burning inside the room of the deceased. Sometime in the late night Tihul came inside the room after Smt. Ramapati had unbolted the same from inside where she was also sleeping on the said night. Appellant Tihul placed a Danda (stick) on the neck of the deceased Smt. Ramraji and caused her death by strangulation as a result of pressing the same against the neck of the deceased causing asphyxia. The helpless daughter tried to raise hue and cry but she was slapped by Smt. Ramapati appellant and forced to keep quiet. Tihul threatened that Smt. Ramraji was unwell and she has to be taken to the physician for treatment in which he took the bullock-cart of Dharamraj on which he kept the body of Smt. Ramraji by covering it with cloth and left the house for going allegedly to the doctor. Finding an opportunity Km. Phulwa immediately rushed to her maternal uncle Jasoo in the neighbouring village and narrated the entire story to him. Jasoo in his turn accompanied the niece. Km. Phulwa and found that Tihul and his wife were taking the dead-body in the bullock-cart on the Rasta which passed through the grove of Dharamraj. On asking by Jasoo he was informed by Tihul appellant that Smt. Ramraji was being carried to the hospital for medical treatment. Similar was the statement of Smt. Rampati, the other appellant. On challenging that they have committed the murder of his sister and the offer to take her for treatment to the physician was a concoction, both the appellants ran away from the grove. In the meantime other villagers including one Dhanpat, nephew of Jasoo had arrived there and leaving the dead-body of Smt. Ramraji in the custody of Dhanpat, Jasoo rushed to the police station Rudhauli to lodge an F.I.R. An oral report was consequently registered at police station Rudhauli by Jasoo on 19-11-1978 at 2.45 p.m., the distance from the said grove being about five miles. This F.I.R. has been proved at Ext. Ka-1. It was registered under Section 302, IPC. vide general diary entry proved as Ext. Ka-2 P.W. 4 Muzaffar Hussain, Sub-Inspector was present at the police-station and he took up the investigation atonce. He rushed to the spot and found the dead-body in the grove of Dharamraj. Inquest report was prepared which was proved as Ext. Ka-3. Photo lash and challan lash and the letter for conducting post-mortem examination was prepared by P.W. 4, S. I. Muzaffar Hussain which have been proved as Ext. Ka-4, Ka-5 and Ka-6 respectively. Another letter has been, proved as Ext. Ka-7 by which it was requested that the materials and the clothes of the deceased be kept in sealed cover. He immediately thereafter recorded the statement of informant Jasoo and thereafter proceeded to the place of occurrence and prepared site plan Ext. Ka-8. On reaching there he recorded the statement of Km. Phulwa. He noted the presence of Dhibiri inside the room and its memo was proved as Ex. Ka-9. In the meantime P.W. 5, Yatindra Nath Singh, Station Officer, Police-Station-Rudhauli had come back from othe; duty he had gone to attend to and took over the investigation. He went to the spof on 20-11-78 interrogated other witnesses. He recorded the statement of P.W. Budhai on the same day, started search for the accused who were absconding and came to know later on that they had surrendered in the Court and sent to jail. He interrogated the appellant in jail and recorded their statements.
5. P.W. 6 is Dr. O. P. Mishra, Medical Officer, Sadar Hospital, Basti. He stated that on 20-11-1978 he was Medical Officer Civil Hospital, Basti that he conducted postmortem examination on the dead-body of Ramraji which was identified by the village Chaukidar and constable Ram Sagar Mishra. In post-mortem examination he found as follows:-
Probable age of the deceased was about 30 years. Time since death was one day. The body was of average built. Rigor mortis was present in all the four limbs. He found following ante-mortem injuries on the dead-body of Ramraji:-
(1) Abraded contusion 5" x 3/4" on the front sides of upper part of the neck.
(2) Abraded contusion on right side face, 2"x l1/2"size.
(3) Contused swelling 3" x 21/2" on the left side cheek.
(4) Abrasion 3/4" x 1/2" on back of right shoulder.
(5) Abrasion 2" x 1" on front of upper part of left side chest.
(6) Abrasion 3/4" x 1/2" on the back of right elbow.
(7) Abrasion 1 / 2" x 1 / 2" on the back of left knee.
(8) Abrasion 3/4" x 3/4" on the left knee.
6. In internal examination the doctor found that Hyoid bone was fractured. He found congested blood underneath injury No. 1. He found that brain was congested. There was fracture of Hyoid bone. Larynx was congested. Trachea was congested. Right lung and left lung both were congested; food i.e. Rice, Dal and green vegetables in the stomach. According to the doctor death was caused due to asphyxia, caused by strangulation of neck (injury No. 1).
7. After completing the investigation a charge-sheet was submitted by P.W. 5, Yatindra Nath Singh, S.O. which has been proved as Ext. Ka-10.
8. After due committal proceedings the matter was committed to the Court of Session where the prosecution examined three witnesses of fact, P.W. 1 Budhai, P.W. 2, Jasoo and P.W. 3, Km. Phulwa. Reference about other three formal witnesses has already been made above. Placing implicit reliance on the testimony of three witnesses of fact duly corroborated by the testimony of other formal witnesses, the learned trial Judge came to the conclusion that the prosecution case has been proved to the hilt and then convicted and sentenced the appellants as noted above.
9. It may be stated here that both the appellants denied the prosecution case while they have admitted that both of them were living in the same house along with deceased and her daughters. The statement of appellant Tihul further is that he came to know of the death of the deceased Smt. Ramraji later on and when he had gone to notice the dead-body in the grove of Dharamraj, police arrived and in the fear of being interrogated and beaten he and his wife left the place. Neither any evidence has been produced by the defence nor any witness has been examined on their behalf.
10. Sri 1. N. Mulla, learned counsel for the appellants and Km. N. A. Moonis, learned, A. G. A. for the State have been heard extensively and the entire record has been thoroughly scrutinised.
11. Three principal arguments have been advanced by Sri Mulla which may be stated and taken up then and there. First Argument: First argument is that medical evidence does not corroborate the testimony of P.W. 3, Km. Phulwa or for that matter the attempted corroborative testimony of P.W. 1, Budhai inasmuch as post mortem report indicates that the deceased might have taken the food only about 11/2 hours prior to her death. In this connection it was argued that the statement of Km. Phulwa is consistent that she had taken food along with her mother at about 6.30 in the night. On this assumption it was argued that the incident had not taken place in the mid-night.
12. At the first place it has to be pointed out that there is some assumption in the aforesaid argument advanced by Sri Mulla and the assumption is about fixing of the time of dinner about 6.30 P.M. It is not so. The statement of P.W. 3. Km. Phulwa may be reproduced for ready reference :
(Translation by Court) Question-Look, on that day dinner was taken after an hour of sun set?
Answer-In the night after night had been an hour old inmates of the family including my mother had the dinner.
(RRAT MEIN EK GHANTA RAAT BEET JANE KE BAAD SAB GHARWALON NE VA MERI MAA NE KHANA KHA LIYATHA).
She Statement of this girl is therefore,.specific that night had already commenced and after commencing of the night one hour had elapsed when the dinner was taken by her mother and other family members. This should take the dinner time to about 8 or 9 P.M. It may be remembered that the date of the incident fell in mid November, 1978 when the sun set around 5.30 P.M.
13. The aforesaid argument was advanced because of the statement of P.W. 6 Dr O.P. Mishra which was to the following effect (Translation by Court):
The death of the deceased must have taken place soon after or at the most one or two hours after the dinner was taken by the deceased".
(KHANA KHANE KE BAD PHORAN YA ADHIK SE ADHIK EK YA DO GHANTA BAD KI MRATYU HO SAKTI HAI)
14. It may be stated here that even if the statement of the doctor is read as it is, the incident can easily travel up to 10 or 11 P.M. with the result that there would not be any difficulty in seeking corroboration from the aforesaid statement of the eye-witnesses again furnished by Km. Phulwa.
15. It may be relevant to point out here that the opinion of the doctor based upon the contents of the stomach of the deceased which he had noticed rice, Dal and green vegetables can be interpreted as two hours or three hours after the meal or dinner and, therefore, there will be absolutely no contradiction between the eye-witness account and the medical testimony.
16. It was rightly argued on behalf of the State that the time noted by the doctor about digestion is only by approximation depending on the digestive system of an individual and the time he might take by and large. Therefore, the aforesaid statement of the doctor that about two hours may have been elapsed since the consonance with the established dates (sic) as of digestive system in human beings.
17. Another very pertinent argument was raised in reply by the State Counsel. It was emphasised that the description given by P.W. 3, Km. Phulwa and corroborated - vide P.W. 1 Budhai it is- 'AADHI RAAT KA SAMAY THA'- (Translation by Court It was about mid-night RAAT KA WAKT THA'- (Translation by Court)- It was night time' vide P.W. 3 Km. Phulwa.
In the cross-examination, enough probing on the question of time was made from P.W. 3 Km. Phulwa and the exact question-answer must be reproduced here for ready reference :-
Question- At the time when the incident had happened you were sleeping or awarke?
Answer- From Before the incident and at the time of the incident I was well awake.
Question- As soon as you had teken the dinner and had laid down, the incident happened?
Answer- No Sir, after we had taken the dinner in the night, the Said incident had happened;
Question- Was it not so that it was at midnight that your mother was strangulated and she may have groaned?
Answer- It was before mid-night that my mother's neck was foreibly pressed and she had groaned.
Therefore, it is apparent that the description of "about mid-night" must not be fixed around 11 or 12 in the mid night. It might very well be an hour or so before that. The description of timings given by the villagers and that too by a child of about 9 years has to be accepted having all the surrounding facts and circumstances in mind and the fact that they are not educated citizens of cities and have their own notion of expression with regard to timings.
18. This compels a closer look at the statement of P.W. 1, Budhai. He is the immediate next door neighbour of the appellants. He has absolutely no enmity with the appellants. There is no suggestion that there might be any motive for falsely deposing against the appellants. Searching cross-examination has been advanced towards this witness also but nothing whatsoever has been elicited in the cross-examination to discredit the testimony of this witness either. He has emphatically said that about mid-night he had got up to urinate and at that time he has heard some groaning sound, but since he was under drowsiness he went back to home and slept further. In the morning he came to know that Smt: Ramraji has been killed and then he could connect that perhaps it was that time when he had got up that Smt. Ramraji may have been done away with.
19. In cross-examination this witness has admitted that about two hours from dawn he had gone to the grove of Dharamraj and had noticed the dead-body lying on the ground. He had found informant P.W. 2, Jasoo Kurmi present there and had also noticed that both the appellants Tihul and Smt. Rampati were there, who according to the prosecution case, had run away from that place later on. Further statement of this witness is that he had also noticed the bullock-cart of Dharamraj at that place and had seen that Tihul had de-tached his bullocks from the said bullockcart and tied-to his cattle trough by a rope.
20. In view of the aforesaid statement of P.W. 1, Budhai more than sufficient corroboration has been extended to the testimony of P.W. 3, Km. Phulwa and it has to be said that the entire manner of the incident and the taking of the dead-body by the appellants and then intimating maternal uncle by Km. Phulwa, her returning along with Jasoo Kurmi to the village of incident, then along with Km. Phulwa, noticing the appellants in the grove of Dharamraj, presence of bullock-cart of Dharamraj and presence of the appellants at the place and thereafter their fleeing from the place as stated by P.W. 2 Jasoo point out nothing else but the fact that eye-witness account furnished by P.W. 3 Km. Phulwa is wholly believable.
21. Second Argument: The second argument advanced by Sri Mulla was that the presence of Jasoo was wholly improbable and in any case the First Information Report was lodged by him at 2.40 P.M. on 19-11-1978 which is highly belated so as to be available for corroborating the testimony of prosecution witnesses. The said argument must be discarded as this argument is also presumptive. It has come in the statement of P.W. 2 Jasoo that he had got information about incident in the night through Phulwa. About murder having been committed by the two appellants this witness got the account furnished to him by Km. Phulwa, while accompanying Km. Phulwa he had come to the grove of dharamraj and the facts and circumstances noted above were seen by him. He asked the appellants that they had killed his sister on the pretext of taking her to the doctor for treatment and to hide the said murder. At this both the appellants ran away, leaving the dead-body in the care of his nephew Dhanpat; the informant went to the police-station walking all the way which was at the distance of five miles. He has said in the cross-examination that it was at about 11 or 11.30 P.M. that he may have left the place. Under the circumstances lodging of the F.I.R. at 2.40 P.M. at the police-station-Rudhauli is quite in time and not delayed at all. This argument, therefore, has to be rejected.
22. Third argument: The third argument advanced by Sri Mulla was that a child witness testimony advanced through P.W. 3, K. Phulwa is wholly artificial, improbable and must be rejected. He was also emphatic in his argument that she appears to have been tutored. In view of the discussion that we have already made above about intrinsic quality of evidence furnished by Km. Phulwa there is absolutely no doubt that she is a truthful and reliable witness having been present inside the house where the appellants were also living. Consequently the presence was natural, her statement was natural. In spite of searching cross-examination of several pages nothing could be elicited from the cross-examination which should discredit the testimony of P.W. 3, Km. Phulwa.
23. In this connection it was stated that PW 1, Budhai should also not be believed because he must have acted with more promptness if he had really heard groaning sound in the night. This argument is fallacious because the groaning sound could be traceable to groaning sound of strangulation only when in the morning Budhai came to know that Smt. Ramraji was done to death. No witness could produce in court the exact type of sound which was heard and that has to be brought on record by whatever expression the witness expresses it and the court has to be satisfied about what he must have heard. Under the circumstances the statement of P W 1, Budhai who is immediate neighbour of the appellants who is of absolute independent character, has to be wholly relied upon.
24. No other argument was advanced on behalf of the appellants. However, before concluding it must be noted that it was very rightly pointed out by the learned A.G.A. that if the appellants' version was at all true, it was he alone who should have gone to the police-station for lodging the F.I.R. It has been admitted by the-appellants that they were living in the same house. Under the circumstances, there is force in the argument that the conduct of appellants in having run away after seeing Jasoo coming to the village is indicative of his guilty mind.
25. It was rightly pointed out that there is strong motive for the appellants to commit the crime. At the time of incident unmarried daughter would not have succeeded to the property of their deceased father. Consequently if the widow who was the only heir then under the law done away with the property would certainly have vested right on the brother under the law then the subsequent amendment came in the year 1985 by which unmarried daughter also got share in the property of their deceased father. Consequently, the statement of PW 2, Jasoo that he had already thought of getting a suit instituted on behalf of his sister Smt. Ramraji was enough for these two appellants to pounce upon the frail and fragile lady to extinguish her life so as to enjoy the property of her husband.
26. In view of the aforesaid discussion there is no force in this appeal which is accordingly dismissed. The conviction and sentences as recorded by the trial court are upheld. Both the appellants are on bail. They will surrender to their bail bonds to serve out their sentences.