Satendra Kumar vs State of U.P.

Shyam Shankar Tiwari, J.—Heard Sri. Ram Singh learned Counsel for the Appellant and learned A.G.A. for the State.

This criminal appeal has been filed on behalf of Appellant Satendra Kumar against the judgment and order passed by learned Addl. Sessions Judge/Special Judge [S.C./S.T. (P.A.) Act] in Session Trial No. 1262 of 2007 in which Appellant has been convicted under Sections 302 and 201, I.P.C. and sentenced to under go rigorous imprisonment for life u/s 302, I.P.C. in addition to fine of Rs. 1,000 and in case of default of payment of fine further to under go three months imprisonment. He has further been sentenced u/s 201, I.P.C. with imprisonment of one year and a fine of Rs. 1,000 and in default of payment of fine further to under go three months imprisonment.

Prayer for bail has been made by the Appellant in the above criminal appeal.

The prosecution case in brief is that the deceased Deorani was married with the Appellant Satendra Kumar about three years prior to this incident. The Appellant alongwith his other family members being not satisfied with the dowry given in the marriage used to torture her. Ultimately the death of Deorani was caused by the Appellant and his family members and her body was set on fire. An F.I.R. was lodged regarding the above incident at P. S. Chhatari, district Bulandshahr under Sections 304B and 498A, I.P.C. and u/s 3/4 of D. P. Act, against the Appellant and other accused. The case was investigated by the Investigating Officer and charge-sheet was submitted against the Appellant and others under the aforesaid sections.

After committal of the case, charges under Sections 498A and 304B, I.P.C. and Section 3/4 of Dowry Prohibition Act, were framed against the accused. The learned trial court framed charges u/s 302/201, I.P.C. also against the Appellant and others in the alternative. Relying upon the evidence adduced on record the learned trial court recorded the finding of conviction against Appellant Satendra Kumar as stated above and other co-accused persons were acquitted.

It is contended by learned Counsel for the Appellant that F.I.R. of this case is a tainted document as it was not registered on the information or dictation of the informant rather it was prepared by some other person with the connivance of the police of the police station concerned. It is also contended that the deceased committed suicide. There is no evidence against the Appellant as all the witnesses of fact produced by the prosecution have turned hostile and have not supported the prosecution story. It is also contended that the trial court itself did not believe the prosecution story against the accused-Appellant and other accused persons regarding allegations of dowry demand and torture and consequential death of the deceased. It has also been contended that the Appellant is a disabled person. He was not present at his residence at the time of alleged incident as he runs a Cheap Ration Shop allotted to him for selling kerosene and ration.

Learned A.G.A. has rebutted the above argument and submitted that the evidence of P.W. 1, the informant is on record who has supported the prosecution case in his examination-in-chief but subsequently after a deferred cross-examination he turned hostile. His entire evidence cannot be brushed aside. It can be believed to the extent it supports the prosecution case. It is also contended that an unnatural death of the deceased took place inside the house of the Appellant. He was present at his residence at the time of the incident. The death of the deceased was caused first and then her body was set on fire only to give it a colour of suicide. The post-mortem report fully supports the prosecution case. No carbon particles were found in the trachea of the deceased. There was no redness in the skin of the deceased. The story put forward by Appellant and supported by D.W. 1 explaining the fracture injury in the hyoid bone of the deceased is false and an afterthought. The Appellant has given a false explanation by giving an incorrect information to the villagers regarding the death of the deceased since he has not disclosed the true facts regarding her death, a presumption should be shown against his innocence. There is no evidence on record that due to his alleged disability he is unable to do any kind of work.

The Apex Court has time and again laid down certain principles in the form of guidelines to be followed by Courts while evaluating the circumstantial evidence. But no universal yardstick can be laid down in this regard as the facts and circumstances differ from case to case. In the case of Ujjagar Singh v. State of Punjab (2009) 1 SCC 272 : 2008 (1) ACR 709, it has been observed by Apex Court as follows:

It must more the less be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should even be attempted.

A perusal of the statement of P.W. 1 Kalyan Singh on record reveals that in his examination-in-chief he has fully supported the prosecution case. He has also proved the written report submitted by him at the police station as Ext. Ka-1 but his cross-examination was got deferred on that date and after about 40 days he was again produced in the Court for further cross-examination and then he turned hostile and did not support the prosecution case. On the strength of these facts it is averred by the prosecution that deliberately P.W. 1 has turned hostile later on as he has been won over by the Appellant but evidence adduced by him in the beginning of his statement in the Court cannot be brushed aside.

The Apex Court reiterated its observation on the evidentiary value of hostile witness in the case of Bhagwan Singh Vs. The State of Haryana, and again observed in the case of Gura Singh v. State of Rajasthan (2001) 2 SCC 205 : 2001 (1) ACR 26 , that it is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. The evidence remains admissible in the trial and there is no legal bar to base the conviction upon the testimony of such witness. The same view has been taken by the Apex Court in the case of Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., wherein it has been observed that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution chooses to treat him as hostile and cross-examines him. It can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.

In the present case, P.W. 1 has supported the prosecution case in his examination-in-chief. His cross-examination was deferred on the request of accused and after about 40 days when he again appeared in the witness box he turned hostile by disowning his earlier stand. Apparently it shows that either the witness has been terrorized or he has been won over by the accused under some temptation. In the light of the observations of the Apex Court the entire evidence of P.W. 1 cannot be rejected. Rather it has to be scrutinized and accepted to the extent it supports the prosecution case and the medical report also supports it.

Admittedly, the deceased deorani died inside the house of her husband. As per the defence case she committed suicide but the medical report does not support the defence theory inasmuch as the post-mortem report reveals that there was a ligature mark on the front of side of the neck in the middle part in the size of 10 cm. x 3 cm. and echymosis was present under neath and hyoid bone was also found fractured. It further reveal that post-mortem burn injuries were found all over the body except the neck, back, chest and abdomen. No line of redness was found present nor carbon particles were found in her trachea and in the opinion of the doctor death was due to asphyxia as a result of ante-mortem injuries of strangulation. Thus, the medical report belies the theory of suicide by the deceased put forward by the defence. The evidence of D.W. 1 that the deceased while in a burning condition crying for help ran out of her house and collided with a rope tied with the wall meant for drying clothes is only an afterthought because only by colliding with a rope such an ante-mortem injury and a fracture of the hyoid bone is not possible. Moreover, after strangulation her dead body was set on fire as the dead body had post-mortem burn which also shows that it was not a case of suicide.

It is true that there is no direct eye account of the death of the deceased and only the circumstances put forward by the prosecution have to be scrutinized to reach any conclusion. From the circumstances of the case and the evidence (oral and documentary) on record it appears that the cause of death of the deceased is especially within the knowledge of the Appellant and as per the provisions contained u/s 106 of the Indian Evidence Act the burden of proving that fact is on the Appellant.

The Apex Court in the case of State of Tamil Nadu Vs. Rajendran, has observed that in cases of circumstantial evidence where the accused omits to offer an explanation or offers a false explanation in response to a question regarding an incriminating circumstance, is an additional link in the chain of circumstances to make them complete and the conduct of accused in such circumstances becomes relevant.

In Trimukh Maroti Kirkan Vs. State of Maharashtra, The Apex Court has held:

The demand for dowry or money from the parents of the bride has shown a phenomenal increase in the last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family, even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in Court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents of other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpable the real accused except regarding the demand of money or dowry and harassment caused to the bride. But, it does not mean that a crime committed in secrecy or inside the house should go unpublished.

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties (See Stirland v. Director of Public Prosecutions-quoted with approval by Arijit Pasayat, J. in State of Punjab Vs. Karnail Singh, The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

In view of the above discussions considering the evidence of informant on record coupled with the F.I.R., post-mortem report and false explanation put forward by the Appellant and the provision contained u/s 106 of the Indian Evidence Act, we are of the considered view that death of the deceased has been caused by the Appellant by strangulation and thereafter her body was set on fire. Considering the gravity of the offence and nature of evidence and attending circumstances and the finding of guilt of the Appellant recorded by the trial court, the Appellant does not deserve bail and accordingly his prayer for bail is hereby rejected.

Office is directed to prepare paper book within three months and hearing of the appeal is expedited and it be listed thereafter.