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Judgment
Y.R. Tripathi, J.—The two Appellants aggrieved from their conviction and sentence recorded by Shri Suresh Kumar Saxena, the then Ist Additional Sessions Judge, Kanpur Dehat on 4.5.1996 in S.T. No. 293 of 1994 have preferred this appeal.
Appellant Vijay Singh resident of village Soharamau P. S. Soharamau, district Unnao has been convicted of the offences under Sections 302 I.P.C. and 201, I.P.C. and has been sentenced to undergo imprisonment for life u/s 302, I.P.C. and five years rigorous imprisonment with a fine of Rs. 2,000 u/s 201, I.P.C. In default of payment of fine, he has been directed to undergo a further sentence of six months simple imprisonment. The other Appellant Anil Kumar Singh having been convicted of the offence u/s 201, I.P.C. has been sentenced to five years rigorous imprisonment and to pay a fine of Rs. 2,000 and in default of payment of fine to undergo six months simple imprisonment. The learned trial court has also directed that the amount of fine realised shall be paid to the mother of the deceased and that the sentences awarded to Appellant Vijai Singh on two counts shall run concurrently.
Smt. Suman, the victim of this unfortunate incident, was the daughter of Sharda Bux Singh P.W. 2 a resident of village Semari P.S. Asoha district Unnao and was married to Vijai Singh about three and a quarter years prior to the incident. Vijai Singh was employed in a factory situate in village Rania of district Kanpur Dehat. He at the time of the incident was residing in village Rania along with the deceased in a rented room of the house owned by Jagarnath, P.W. 4.
The prosecution case giving rise to this appeal, in short, is that on 22.2.1994 when Smt. Sonpati P.W. 1 had gone to Rameshwaram Fair, she was informed by her son Ram Karan that Smt. Suman had contacted tetanus and was in village Sohara Mau at the house of her in-laws. Smt. Sonpati on receiving this information rushed to village Sohara Mau and found her daughter lying dead in the house of her in-laws. She noticed bleeding from the mouth and nostrils of the deceased and her eyes having been bulged out. She came to learn there that her son-in-law had dropped the dead body of her daughter there on the previous day. Suspecting foul play and involvement of her son-in-law Vijai Singh, she lodged an oral F.I.R. Ext. Ka-1 at P.S. Sohra Mau at 15.15 hours on 22.2.1994. The police of P.S. Sohara Mau swung into action and after holding inquest on the dead body and completing other necessary formalities, sent the dead body to mortuary at Kanpur Dehat for its post-mortem examination, which was conducted by the Medical Officer on duty in District Hospital Unnao on 23.2.1994 at 3.10 p.m. The post-mortem examination of the deceased revealed that the victim was aged about 20 years and was of average built. Rigor mortis had passed off from both upper and lower limbs. Her abdomen was found distended, face congested and cynosis present on lips and nails. Her left eye had bulged out with sub-conjunctive haemorrhage. Bleeding on left ear and nose was also found present with post-mortem stainings on dependent parts. The following ante-mortem injuries were also noticed on the dead body:
(i) Contusion 16 cm. - 10 cm. on left side of face extending from fore head left eye and to all over the left side of face.
(ii) Contusion 2 cm. - 1 cm. on tip of nose and left nostril.
(iii) Contusion 4 cm. - 2.5 cm. on left side of chin.
(iv) Contusion 24 cm. - 4 cm., on front of right and left side of neck 7 cm. below the chin and 10 cm. below (Rt) ear and 9 cm. below left ear, abrasion and ecchymosis present edges and cutaneous tissue on dissection is ecchymosed. Muscle of neck on (Rt) side and carolid artery (Rt) found ruptured with extravasation of blood.
According to the Medical Officer conducting post-mortem examination, the deceased had died two days before due to asphyxia as a result of her ante-mortem strangulation. The police of P.S. Sohramau, after investigation presented charge-sheet against the Appellants which resulted in their trial and conviction and punishment as aforesaid dissatisfied from which the Appellants have come up in this appeal.
We have heard Sri Devendra Dhama, learned Counsel for Appellant Vijai Singh, Sri Apul Misra learned Counsel for Appellant Anil Kumar Singh and learned A.G.A. in extenso and have also perused the record of the case.
The learned Counsel for the Appellants has assailed the conviction and sentence passed against the Appellant mainly on the ground that the evidence led by the prosecution was too feeble to be relied upon and the learned trial court has thus committed an error in founding its conclusions about the guilt of the Appellants.
As regards the Appellant Anil Kumar Singh, it is said that he in the morning of 21.2.1994 in the company of other Appellant Vijai Singh having reason to believe that the offence punishable u/s 302, I.P.C. with life imprisonment or capital punishment has been committed, took Smt. Suman''s dead body on the jeep from village Rania to Sohramau with intention to screen the offender from legal punishment and thereby caused evidence of commission of offence of murder to disappear.
The prosecution has though examined four witnesses to prove one or other facts but out of them only two, Jagarnath Singh P.W. 4 and Smt. Chandra Lata P.W. 5 are witnesses who had deposed about Vijai Singh taking Smt. Suman his wife on the pretext of her illness from village Rania on a jeep, but none of these two witnesses has deposed having seen the Appellant Anil Kumar Singh driving the vehicle at that time. Jagarnath Singh has stated that it is correct that on 21.2.1994 at about 9-10 a.m., Vijai Singh had taken his wife to hospital. He has further stated that the jeep belonged to one Radhey whose son Anil Kumar Singh drives that jeep. He has nowhere stated that at the time when Vijai Singh took his wife to hospital on the jeep, that jeep was being driven by Anil Kumar Singh. Therefore, simply because Anil Kumar Singh Appellant used to drive the jeep belonging to his father does not in any way lead to a presumption that he also drove the jeep on the morning of 21.2.1994, when Vijai Singh took his wife on the jeep from village Rania. Smt. Chandra Lata P.W. 5 wife of Jagarnath Singh, though knew the Appellant Anil Kumar Singh from before and had also talked to Vijai Singh when he was taking his wife on the jeep but has not stated even a word having seen the Appellant Anil Kumar Singh driving that jeep. The two other witnesses Smt. Sonpati P.W. 1 and her husband Sharda Bux Singh P.W. 2 have also not deposed even a word about the Appellant Anil Kumar Singh having taken the dead body of their daughter from village Rania to Sohramau on his jeep. Thus, there is no iota of evidence connecting the Appellant Anil Kumar Singh with the offence u/s 201, I.P.C. with which he has been charged. We have also carefully gone through the judgment and find that the learned trial court without referring to any evidence appearing against Anil Kumar Singh has jumped to the conclusion that it was he who drove the jeep in which the dead body of Smt. Suman was allegedly taken from village Rania in Kanpur Dehat to village Soharamau in district Unnao. Thus, there being no evidence to prove the involvement of Appellant Anil Kumar Singh in the offence complained of, we find that the learned trial court has wrongly held him accountable for the offence u/s 201, I.P.C. The conviction and sentence, therefore, recorded by the learned trial court in respect of Appellant Anil Kumar Singh being unfounded is liable to be set aside.
Now coming to the other Appellant Vijai Singh, we find that the prosecution evidence against him consists of testimonies of Smt. Sonpati P.W. 1, her husband Sharda Bux Singh P.W. 2, Jagarnath Singh P.W. 4 and his wife Smt. Chandra Lata P.W. 5.
The factum of unnatural death of Smt. Suman and the situs of incident are not disputed. Despite oral evidence of Smt. Sonpati and her husband Sharda Bux Singh who had seen the dead body of Smt. Suman, there is post-mortem report Ext. Ka-11 the genuineness of which has been admitted by the defence, to prove the death of Smt. Suman. The post-mortem report shows that the victim had four ante-mortem injuries, and had died of asphyxia as a result of strangulation. The defence does not dispute the death of Smt. Suman having been caused as a result of the ante-mortem injuries found by the medical officer conducting the autopsy. Rather it has also made a futile suggestion to P.W. 1 Smt. Sonpati that some persons had attempted to commit rape on Smt. Suman on the night intervening 21/22.2.1994, while she was alone in her room and it were they who had caused injuries to her which resulted in her death. Thus, the factum of the death of Smt. Suman as a result of injuries caused to her is also admitted to the defence. The defence further admits that injuries to Smt. Suman were caused in village Rania in the rented room in which she was residing with the Appellant Vijai Singh. The only point thus that remains to be seen is whether or not the circumstances found proved in this case established the involvement of Appellant Vijai Singh.
It is further not disputed that the Appellant Vijai Singh was employed in a factory at Rania in district Kanpur Dehat and at the time of occurrence resided in village Rania in a rented room of the house belonging to Jagarnath Singh P.W. 4. In his statement u/s 313, Cr. P.C., he has admitted that his wife also used to live with him. There is also a suggestion thrown by defence that some persons had made an attempt of rape on the victim in that very room, when she was all alone. From all this, it is proved beyond doubt that the victim when the ante mortem injuries were inflicted to her, was in the room which had been rented by her husband Vijai Singh in village Rania. The post-mortem report as also the evidence of Jagarnath Singh P.W. 4 and his wife Smt. Chandra Lata P.W. 5 go to show that on the morning of 21.2.1994, Appellant Vijai Singh had taken the deceased in a jeep from his rented room and on enquiry had told Chandra Lata P.W. 5 that he was taking his ailing wife. Smt. Chandra Lata P.W. 5 has stated that it was around 8-9 a.m. when she had seen Appellant Vijai Singh on the jeep and had enquired from him as to where he was going. From these circumstances, it is crystal clear that the incident in which Smt. Suman received her ante-mortem injuries, had taken place prior to 8-9 a.m. on 21.2.1994. From suggestion made by the defence to Smt. Sonpati P.W. 1 though the date appears to have incorrectly been mentioned, an attempt of rape on Smt. Suman was made during the night hours. The oral evidence coupled with the medical evidence and the defence suggestion put to P.W. 1 Smt. Sonpati thus go to show that incident in which Smt. Suman received her injuries had taken place sometime in the intervening night of 20/21.2.1994. The evidence of Smt. Sonpati P.W. 1 also shows that when Smt. Sonpati on receiving the information of illness of her daughter visited the place of in-laws of her daughter in village Sohramau, she did not find Appellant Vijai Singh there. Her statement on this point has not been challenged by the defence. In view of the evidence discussed above, the following facts are thus found established:
(i) That the Appellant Vijai Singh was employed in a factory in village Rania and at the time of incident he along with his wife was residing in a rented room belonging to Jagarnath Singh P.W. 4.
(ii) That Smt. Suman died an unnatural death as a result of ante-mortem injuries caused to her during the intervening night of 20/21.2.1994.
(iii) That the ante-mortem injuries to the victim were caused in the rented room of the house of Jagarnath Singh in village Rania in which she along with her husband was residing at the time of occurrence.
(iv) That on 21.2.1994 Vijai Singh took Smt. Suman or her dead body from his rented room in village Rania on the pretext of her illness.
(v) That Smt. Sonpati P.W. 1 and her husband on their visit to the house of in-laws of their daughter on 22.2.1994 found the dead body of their daughter there in a condition suggesting her abnormal death.
The aforesaid proved facts in absence of any explanation as to how the deceased received her injuries clearly go to suggest the involvement of Appellant Vijai Singh in inflicting ante-mortem injuries found on the person of Smt. Suman at the time of post-mortem. It would be seen that the victim at the time of alleged incident was living with the Appellant Vijai Singh, her husband in the rented room and there was none else except the Appellant Vijay Singh who could have seen as to what had happened with her. The injuries found on the person of the victim suggest that she had been strangulated. Naturally, if an assault had been made on the victim all of a sudden, she could not have raised an alarm. There is thus nothing improbable if the offence was committed secretly without any one noticing as to what was happening in their room, that too in the dead of winter night, when the persons residing in the vicinity must have been under sound sleep. Then as it appears from the suggestion put to Smt. Sonpati P.W. 1, the Appellant Vijai Singh knew as to how the victim had sustained her injuries. On the morning of 21.2.1994, Appellant Vijai Singh on an enquiry from him by his landlady had informed her that he was taking his ailing wife on the jeep. In the wake of these facts, the defence version that some persons had attempted to commit rape on Smt. Suman and it were they who had inflicted her ante-mortem injuries assumes significance. First this suggestion per se appears incredible on the ground that the attempt of rape on Smt. Suman is said to have been made during the night intervening 21/22.2.1994, whereas the post-mortem report suggests that Smt. Suman had died before. Secondly, this fact being specially in the knowledge of Appellant Vijai Singh, who took his wife on a jeep in the morning of 21.2.1994, on the pretext of her illness, could have been proved by him as to which hospital or Doctor he took his wife for her treatment. Appellant Vijai Singh cannot be supposed to be naive enough to be ignorant of his obligations and duties under such a situation. He being a grown up man and the son of a Police Sub-Inspector, it was but natural for him to have rushed to the police station and lodged an F.I.R. of the occurrence if at all any such incident had taken place in which his wife sustained injuries. In the light of the aforesaid facts, the conduct of the Appellant Vijai Singh not only appears dubious, but against the human nature and psychology leading to only inference that none else, but the Appellant Vijai Singh in all probabilities, is the author of this ghastly crime.
Learned Counsel for the Appellant placing reliance on the law laid down by the Apex Court in State of West Bengal Vs. Mir Mohammad Omar and Others etc., ; Sucha Singh Vs. State of Punjab, and Balu Sonba Shinde Vs. State of Maharashtra, , urged that it is the duty of the prosecution to establish the guilt of the accused beyond ray of doubt and the prosecution in no case can be absolved of its this primary duty. We are cautious of the duty of the prosecution in a criminal case, but the facts of the present case are peculiar in the sense that the prosecution is found to have established facts which irresistibly suggest an inference about the involvement of the Appellant in the execution of the crime. Now it was for the Appellant Vijai Singh to dispel the inference of his involvement by proving the facts which were exclusively within his knowledge. Section 106 of the Evidence Act which forms an exception to the general rule of evidence also casts the burden of proof of a fact especially within the knowledge of any person on such person. Not only that, as discussed above, the conduct of the Appellant besides being unnatural has been highly blameworthy.
In the case of State of West Bengal v. Mir Mohammad Omar (supra), the Apex Court interpreting the scope of Section 106 of the Indian Evidence Act has observed that:
The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference.
(Emphasis supplied)
In the case of Sucha Singh v. State of Punjab (supra), also it has been held that the principle embodied in Section 106 of the Indian Evidence Act can be utilised in certain circumstances.
Having thus given a careful consideration to the facts and circumstances of the case, we are of the opinion that the facts and circumstances found proved in this case run counter to all reasonable hypothesis of innocence of Appellant Vijai Singh and it can safely be held that it was he, who had authored the crime and after causing the death of his wife, had shifted her dead body from village Rania to Sohramau to cause an important piece of evidence of the commission of the offence of murder to disappear.
In view of above discussions, we find that the learned trial court has rightly held the Appellant Vijai Singh guilty of the offence under Sections 302 and 201, I.P.C. and convicted and sentenced him of the same.
In the result, the appeal succeeds in part.
So far as the appeal in respect of Appellant Anil Kumar Singh is concerned, it is hereby allowed and his conviction u/s 201, I.P.C. and sentence awarded therefore are hereby set aside. He is on bail. He need not surrender to it. His personal and sureties bonds are cancelled and discharged.
The appeal in respect of Appellant Vijai Singh has no merits and is dismissed.
The C.J.M., Kanpur Dehat, shall cause the Appellant Vijai Singh arrested and sent to jail to serve out the sentences awarded to him. He shall also submit compliance report within two months.