Vivek Agarwal, J. - This appeal has been filed by the appellant, Ravipal Singh being aggrieved by judgment dated 23.12.2003 passed by 10th
Additional Sessions Judge (Fast Track Court), Gwalior in Sessions Trial No.330/2001 vide which the present appellant has been convicted under
sections 302,304B and 498A IPC and sentenced with life imprisonment for offence under section 302 IPC and ten years rigorous imprisonment
for offence under section 304B IPC. Beside the present appellant, accused Surendra Pal Singh Bhadoriya father and Pushplata mother of the
present appellant were acquitted under the provisions of sections 304B and 302 of IPC but were convicted under section 498A IPC with rigorous
imprisonment for two years and fine of Rs.2,000/-each. In default of payment of fine, further rigorous imprisonment of six months was imposed.
During the pendency of the present appeal, it is submitted that both the co-accused namely Surendra Pal Singh Bhadauriya and Pushplata have
died, therefore, appeals filed by them have abated. It is further submitted that Miscellaneous Criminal Case No. 1126/2004 seeking leave to
appeal filed by the State against acquittal of those two co-accused under section 302 and 304B has been rejected vide order dated 23.1.2012
and their acquittal under sections 302 and 304B was affirmed by this Court.
Factual Matrix:
2. The prosecution case in brief is that marriage of the deceased Smt. Aruna @ Rani was solemnized with the appellant on 10.3.1999. On
9.4.2001 wife of the appellant Smt. Aruna @ Rani was found dead. Post-mortem was conducted on her body on 10.4.2001 and it was found that
Aruna died on account of strangulation.
2.1. A case against the accused persons including the present appellant, Surendra Pal Singh father of the appellant and sisters of the appellant was
registered under sections 304B, 498A and 302 IPC for causing dowry death of Aruna @ Rani by torturing her for dowry and cruelty. The
accused Pushplata was charged under sections 498A and 302 IPC for demanding dowry and causing physical and mental torture and cruelly'' to
Aruna, wife of the present appellant and causing her murder.
2.2. The facts which are not in dispute are that Aruna @ Rani was married to present appellant Ravipal Singh on 10.3.1999. The accused
Surendra Pal Singh was father in law of the deceased whereas accused Pushplata was mother in law of the deceased whereas accused Deepa @
Dipika, Recta and Usha are sisters in law of the deceased. It is also not in dispute that death of Aruna @ Rani, wife of the present appellant had
taken place in the matrimonial home at Gwalior situated at Rachna Nagar, Near Yash Petrol Pump under Police Station Gola Ka Mandir on
9.4.2001 before 12 noon.
2.3. The case of the prosecution is that the parents of the deceased Aruna @ Rani had spent cash amount in addition to offering various gifts on
the occasion of various ceremonies performed for solemnizati on of marriage of the deceased with the present appellant. It is the case of the
prosecution that the accused persons also demanded a motorcycle, colour TV and Rs. 10,000/- in dowry and for such demands deceased Aruna
@ Rani was tortured and beaten. It was further alleged that Aruna @ Rani was not taken in vidai from her parental house even after three months
of marriage despite requests made by brother and other relatives of the deceased because the accused wanted to take Aruna to his home only on
fulfilment of their demand of dowry. At last Aruna was taken to her matrimonial home upon surety of her Phoopa, Chandra Pal Singh that if dowry
items as demanded are not handed over by the complainant''s family then he shall fulfil those demands at his level. It was further alleged that
accused persons used to treat Aruna with cruelty and used to beat her for fulfilment of demand of dowry. Though Colour IV and cash was given to
the appellant''s family but motorcycle could not be arranged as a result torture to Aruna at the hands of accused and his relatives continued. It is
further part of the prosecution story that even at the time of marriage, the appellant Ravipal had left the mandap for demand of dowry and his father
Surendra Pal Singh had persuaded him to complete marriage ceremonies. Again at the time of kaleva appellant had demanded motorcycle but
when complainant expressed his inability due to financial constraint, the appellant had refused to accept the meals. It was also averred that the
appellant never visited his in-laws house after marriage and had also not visited them for vidai of Aruna. In fact brother of deceased used to pick
and drop Aruna from her matrimonial home. Once accused Surendra Pal Singh had visited the complainant''s house for vidai of Aruna and at that
time also he had putforth demand for dowry items.
2.4. The prosecution charge is that on 9.4.2001 appellant had committed murder of Aruna due to non-fulfilment of demand of dowry items and the
appellant had not given any information to the immediate family members i.e. parents of the deceased but had merely informed one relative Neelu
Bhadoriya over telephone about the death of Aruna. Aruna''s father namely Member Singh had reached Gwalior to sec. Aruna in dead condition.
On 9.4.2001, on intimation the police had registered Crime No.8/2001 under section 174 of CrPC and had investigated the matter. Panchnama
Ex. P-6 was prepared in presence of the witnesses, and after preparation of the said panchnama body of the deceased was sent to Jay Rogya
Hospital along with inquest report where autopsy was conducted by Dr. Madhup Kumar and Dr. Y.S. Kushwah, report of which is Ex.P-3.
2.5. Ex.P-4 is the report made by Member Singh, father of the deceased to the Station House Officer, Police Station Gola Ka Mandir, Gwalior.
On the basis of Ex.P-4, after investigation said police station had registered a case against the accused on 12.4.2001.
2.6. During the investigation on 9.4.2001, the police had prepared spot map (Exhibit P-8) and had seized piece of red saree from the hook of the
fan fitted in the room which is the scene of the crime so also another piece from the floor of the said room beside a chalkani vide seizure memo
Ex.P-9. List of items handed over in dowry was supplied by the father of the deceased on 15.4.2002 vide Ex.P-10, marriage card seized is Ex.P-
11. A Panchnama Ex.P-12 was prepared in regard to two sealed bottles of viscera of Aruna and clothes of the deceased and a packet of salt.
They were sent for chemical analysis vide letter dated 8.5.2001 Exhibit P-16 to Superintendent of Police. On completion of investigation, challan
was filed in the Court of .JMFC from where the matter was committed to the Sessions Court.
2.7. The following charges were framed against the appellant :
;g fd fnukad 09-04-2001 dks 12 cts jpuk uxj Xokfy;j esa rqeus v:.kk] ftlds lkFk vfHk;qDr jfoiky flag tks fd rqEgkjk iq= gS] dk fookg fnukad
10-03-1999 dks gqvk Fkk] dh ''kkjhfjd {kfr ls QkWalh yxkus lsA lkekU; ifjfLFkfr;ksa ls fHkUuA vizkd`frd e`R;q gqbZ rFkk mldh e`R;q ds
iwoZ rqe tks fd v:.kk ds llqj gksrs gq,] ngst dh ekWax ds fy;s mlds lkFk dzwjrkiw.kZ O;ogkj dj izrkfM+r fd;k vkSj fnukad 09-04-2001 dks jpuk
uxj Xokfy;j esa d:.kk dh ngst e`R;q dkfjr dh vkSj blds }kjk rqeus ,slk dk;Z fd;k tks Hkk0n0fo0 dh /kkjk 304&ch ds v/khu naMuh; vijk/k gS ftlds
laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA fodYi ;g fd fnukad 09-04-2001 dks o mlds iwoZ jpuk uxj Xokfy;j esa rqeus v:.kk dks tks fd
rqEgkjs iq= vfHk;qDr jfoiky dh iRuh Fkh dks ngst dh ekWax dks ysdj izrkfM+r dj dzwjrkiw.kZ O;ogkj fd;k vkSj blds }kjk ,slk dk;Z fd;k tks
Hkk0n0fo0 dh /kkjk 498&, ds v/khu n.Muh; vijk/k gS ftlds laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA fodYi ;g fd fnukad 09-04-2001
dks jpuk uxj Xokfy;j esa rqeus v:.kk dh lk''k; ;k tkudkjh j[krs gq;s ''kkjhfjd {kfr }kjk e`R;q dkfjr djds gR;k dh vkSj blds }kjk rqeus ,slk dk;Z
fd;k tks Hkk0n0fo0 dh /kkjk 302 ds v/khu naMuh; vijk/k gS ftlds laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA
2.8. Based on the above charges, trial proceeded and learned Sessions Judge though acquitted accused Nos. 4, 5 and 6 as no evidence was
found against them but convicted accused Nos. 2 and 3 Surendra Pal Singh and Smt. Pushplata wife of Surendra Pal Singh under section 498A
IPC with rigorous imprisonment of two years and fine of Rs. 2000/- each. In default of payment of fine, they were sentenced for rigorous
imprisonment of six months each, whereas, the present appellant Ravipal Singh was convicted under sections 302, 304B and 498A IPC and
handed over punishment of life imprisonment for offence under section 302 IPC and ten years for offence under section 304B IPC. However, no
punishment was handed over separately for section 498A of IPC.
Argument of Appellant:
3. The argument of learned counsel for the appellant is that there is no eye witness in the present case and the appellant has been convicted solely
on the basis of autopsy report (Ex.P-3) and evidence of PW3, namely; Dr. Madhup Kumar. His submission is that under section 113B of
Evidence Act, 1872 presumption can be drawn that the deceased caused dowry death as defined under section 304B IPC and based on such
presumption the appellant could have been convicted only under section 304B IPC and not under section 302 IPC.
3.1. Learned counsel for the appellant has also drawn attention of this Court towards the deposition of autopsy doctor to show that injuries on the
person of deceased as mentioned in para 11 of his deposition could have been caused by at least two or more persons. It is further averred that
since accused No. 2 and 3, i.e., father and mother of the present appellant have been convicted under section 498A IPC, therefore, prosecution
story that the appellant had murdered the deceased is not supported by medical evidence. He has further relied on the statement of the defence
witness DW7, namely; Ramautar who has deposed that he has a tea shop and had visited the shop of the appellant to serve tea to the customers
when he saw appellant going inside his house situated at a distance of three to four metres. He further testifies that appellant had knocked the door,
but when the door was not opened by Rani, appellant had pushed the door with some force, as a result the tower bolt had broken down. In the
mean while, Ramautar (DW7) along with Ravi, Raju, Pandit and Nai had reached the scene of crime in which they saw that wife of Ravipal was
hanging from a fan tied to a saree around her neck. Thereafter, Ravipal fetched a pair of scissors and brought down his wife. Thereafter, Ravi Pal
had left to call Dr. Santosh Sharma who had examined the deceased and had opined that there was life in the body and the body was warm and
breathing. Thereafter, according to this witness. Dr. Sharma had asked to call another doctor whose name is not known to the deponent and both
the doctors alter examining the deceased had opined that deceased was 110 more. In 11 is support, the appellant examined as many as ten
witnesses. Mathura Singh Chouhan (DW1), Prakash Singh (DW2), Rameshpratap Singh (DW3) and R.K. Yadav (DW4) are the witnesses who
primarily deposed about accused No.2 Surendra Pal Singh to the effect that Surendra Pal Singh was at Shivpuri and was not present at Gwalior.
Thus, these defence witnesses are of no consequence to the case of the present appellant. Similarly, Ramdani Bhaskar (DW5) is the warden of
Central Jail, Gwalior who had deposed that one Dilip of Water Works Department had approached the Central Jail. Gwalior to meet the present
appellant on 10th June, 2000, therefore, this witness is also of no help to the present appellant. Except these defence witnesses, no other witness
has been examined in favour of the present appellant to establish his innocence. Dr. Santosh Sharma or other doctor who had certified death of
Aruna have not been examined.
3.2. Learned counsel for the appellant relied on the case of Jasvinder Saini and others v. State (Government of NCT of Delhi), as reported
in (2013)7 SCC 256, to bring home the issue that FIR was lodged under the provisions of sections 498A, 304B, 201/34 IPC under Crime
No.110/2001, therefore, there was no justification for charging the appellant vide charge-sheet dated 19.12.2001 with offence under section 302
IPC inasmuch as charge under section 3 04B is not a substitute for a charge of murder punishable under section 302 IPC. It is further submitted
that ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such
ingredients. It is further submitted that the trial court without adverting to the evidence in the case, simply on the basis of law laid down in the case
of Rajbir v. State of Haryana [(2010)15 SCC 116], framed charge under section 302 IPC which is not warranted from the evidence available
on record.
3.3 Learned counsel for the appellant relied on the case of Umakant and another v. State of Chhattisgarh, as reported in (2014)7 SCC 405,
for drawing attention of this Court especially to para 27 of the judgment that the burden of proof in criminal law should ne beyond all reasonable
doubts. The prosecution has to prove the guilt of the accused beyond all reasonable doubt and it is also the rule of criminal jurisprudence that if
two views are possible on the same set of evidence adduced in the case, one pointing to the guilt of the accused and the other towards his
innocence, the view which is favourable to the accused should be adopted.
3.4 Learned counsel for the appellant relied on the decision in the case of Sharad Birdhichand Sarda v. State of Maharashtra, as reported in
AIR 1984 SC 1622, for drawing attention of his Court especially to paras 150 and 152 of the judgment to submit that then, is insufficient evidence
to uphold the conviction of the appellant on the basis of circumstantial evidence as required by section 3 of Evidence Act. It is averred that the
prosecution story should stand on its own legs, it cannot derive any strength from the weakness of the defence. It is further submitted 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 the first instance be
fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. It is further argued that the
following conditions must be fulfil led before a case against an accused can be said to be fully established .
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty;
(3) they should exclude every possible hypothesis of innocence; and
(4) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done by the accused.
3.5. Learned counsel for the appellant relied on the law laid down by the Supreme Court in the case of State of Haryana v. Ram Singh, as
reported in AIR 2002 SC 620, especially para 19 of the said judgment which is to the effect that defence witness is also entitled to equal
treatment as extended to the prosecution witness. The issue of credibility and trustworthiness is also to be attributed to the defence witness at par
with that of prosecution witness and thus evidence of PW7 cannot be brushed aside.
3.6. Learned counsel for the appellant relied on the case of Muthu Kutty and another v. State by Inspector of Police, T.N., as reported in
2005 SCC (Cri) 1202, especially para 20 of the said judgment wherein it has been held that a reading of section 304B IPC aid section 113B of
Evidence Act together makes it clear that law authorises a presumption that the husband or any other relative of the husband has caused the death
of a woman if she happens to die in circumstances not normal and that there was evidence to show that she was treated with cruelty or harassed
before her death in connection with any demand for dowry, it is further held that it, therefore, follows that the husband or the relative, as the case
may be, need not be the actual or direct participant in the commission of the offence of death. But in view of this fact that there is no evidence to
explain the circumstances of injuries on the person of the deceased, the offence will directly fall in the domain of section 302 of IPC.
3.7. Learned counsel has also drawn our attention to the law laid down in the case of Tarsem Singh v. State of Punjab, as reported in AIR
2009 SC 1454, in para 22 of the judgment wherein it has been mentioned that injuries reported on the person of the deceased by the autopsy
surgeon could have been caused by others as the appellant was not the only accused. FIR was lodged against others also.
3.8. Lastly, learned counsel for the appellant has relied on the decision rendered in the case of Vijay Pal Singh and others v. State of
Uttarakhand, as reported in (2014) 15 SCC 163, wherein in para 32 it is mentioned that in the light of the presumption under section 113B of
Evidence Act, if the ingredients of section 304B IPC were established, the punishment should have been handed over only under section 304B
IPC and not under section 302 IPC.
Argument of the State :
4. Learned Panel Lawyer has drawn attention to the evidence of PW2, PW4 and PW8, namely; Mukut Singh (PW2), Member Singh (PW4) and
Prabha Devi (PW8) who have deposed in unequivocal terms that there was demand of dowry, cruelty and torture of the deceased. It is also
submitted that injuries No. 1 to 9 as have been detailed out in the post-mortem report (Ex.P-3) are ante mortem in nature and there is no
explanation for such injuries. It is further mentioned that injuries No. 1 to 9 were caused within six hours of the death. In note it has been
specifically mentioned that injuries No. 3 and 4 appear to have been caused by pressing of the neck of the deceased by using right hand of a
human being. Further injuries No. 3 and 4 were sufficient to cause death of a person. In note No. 7, PW3 doctor has categorically mentioned that
injuries No. 10 and 11 appear to have been caused by a material like ligature or rough material like rope. Attention of this Court has been drawn
to the opinion of the doctor that death of the deceased was caused by a person by manual strangulation by hand, i.e., throttling. There were signs
of pressing of the mouth of the deceased along with other signs of injuries on the right forearm, right wrist, right aim and internal injuries. It was also
found that lips of the deceased were bluish. Learned Panel Lawyer has also drawn attention to para 17 of the cross-examination of PW3 in which
he has rebutted the suggestion that injuries No. 3 and 4 could have been caused if a person uses a rope for hanging. In fact, the doctor has
categorically mentioned that injuries No. 3 and 4 were caused using a rope. Thus, the learned Panel Lawyer has pointed out that injuries No. 3 and
4 could not have been caused by a saree as has been mentioned in the defence story and therefore it is clear case of murder falling within the
ingredients of section 302 IPC.
4.1. Learned Panel Lawyer has also drawn attention to the evidence of Munni Devi (PW6) to support the prosecution story that it is not the case
of suicide but that of murder. Learned Panel Lawyer has also pointed out that none of the doctors mentioned in the deposition of DW7 were
examined by the defence namely Dr. Santosh Sharma and another doctor who allegedly visited the place of incident and declared the deceased as
dead. In fact other witness who had reached the place of incident namely one Ravi, Raju. Pandit and Nai have also not been examined by the
defence to support the story of DW7. It is further mentioned that though the appellant had given his statement under section 313 CrPC but he has
not chosen himself to be examined, therefore, adverse inference is to be drawn against the appellant inasmuch as there is no explanation for the
injuries on the body of the deceased which as per the medical report could not have been self inflicted, therefore, learned Panel Lawyer has prayed
for maintaining the conviction of the appellant under section 302 read with section 304B IPC.
5. In rebuttal, learned counsel for the appellant has also relied on the law laid down in the case of Nesar Ahmed and another v. State of Bihar,
as reported in 2002 SCC (Cri) 1100, in which it has again been reiterated that when conviction is based on circumstantial evidence, then it is the
duty of the prosecution to show that appellant was present in the house where the deceased died as a result of burn injuries at the crucial time.
According to the learned counsel for the appellant, the chain of event is not complete.
Finding:
6. We have perused the record and after carefully going through the same as well as arguments advanced by tire learned counsel for the appellant
as well as learned Panel Lawyer, we are of the considered opinion that though it is true that there is no direct eye witness to the incident but
evidence of PW3 autopsy doctor clearly points out that there were mud marks on the clothing of the deceased but no signs of saliva. The thumbs
of the deceased were not turned inside and her lips, nails and tongue were bluish. There was no hyper planter flexion on the legs and there were
two signs of abrasion on the neck of the deceased. Hypostasis was present on back of chest, abdomen and thighs. Rigor mortis was in the
declining stage. The marks of abrasion were on the lower side of the thyroid and not interconnected with front of neck. It is further averred that
two tracheal rings below the thyroid were broken and blood was deposited in the muscles. It is also mentioned that it was not possible to have
ligature mark on the neck of the deceased. The directions of blood deposition was horizontal and vertical. In the note No. 3 doctor has
categorically opined that injury No. 3 and 4 were caused by applying force of the right hand of human being on the neck of the deceased. It is
further mentioned that injury No. 5 was caused due to attempt of smothering. Injury'' No. 6 was caused due to swallowing some chemical poison
which was not sufficient to cause death. Injury No. 10 and 11 were caused by friction of rope like ligature material or rope like straight and rough
article.
6.1 In the cross examination, PW3 has categorically mentioned that injury'' No. 1 to 9 were caused prior to injury No. 10 and 11. He has further
mentioned that injury No. 2 was not sufficient to cause death but was of serious nature therefore it can be kept under the category of life
threatening injury. In para 17 of the cross-examination, this witness has rebutted the suggestion that injury No. 3 and 4 could have been caused if a
person hangs oneself using a rope, thus, this witness has remained undeterred in his findings that injury No. 3 and 4 where caused by strangulation
by using rope for tying neck of the person. This witness has also rebutted the suggestion that if a person hangs using a medium other than rope,
then injuries No. 3 and 4 could be caused.
6.2 Thus, the question is whether the death was homicidal or not. We have noticed the evidence of the doctor. The doctor''s evidence is so explicit
that he has left no manner of doubt in the matter of determination of the cause of death.
6.3 In the case of Sunil Singha v. State of West Bengal, as reported in 2007 CrLJ 516, it is clearly laid down that when the housewife was in
the matrimonial home under the custody of tie husband it is the duty of tire husband to clarify or to offer an explanation as to how the victim died
with the injuries including the indication of strangulation over neck in her matrimonial home. Relying therein on the decision of the Supreme Court in
the case of Ganesh Lal v. State of Maharashtra, as reported in 1992 CrLJ 1545, it has been held that it is settled law that conduct of the
accused in an offence previous and subsequent to the incident are relevant facts and when death occurs in the custody of the accused the accused
was under an obligation, in section 313 CrPC statement, at least, to give a plausible explanation for the cause of her death but no such attempt was
made.
6.4. In this regard, it will be necessary to refer to the judgment of the Supreme Court in the case of Mafabhai Nagarhhai Raval v. State of
Gujarat, as reported in AIR 1992 SC 2186, wherein it was observed that the doctor who has examined the deceased and conducted the post-
mortem is the only competent witness to speak about the nature of injuries and the cause of death and unless there is something inherently defective
the Court cannot substitute its opinion to that of the doctor.
6.5. It will be necessary to point out here that reliance of the appellant''s counsel on the law laid down in the case of Tarsem Singh (supra), is not of
much significance inasmuch as the distinguishing feature is that in the case of Tarsem Singh (supra), all other co-accused were acquitted but in the
present case co-accused Surendra Pal Singh and Pushplata mother of the appellant have been convicted under section 498A IPC and further
more the appellant has not discharged his burden to show what was the possible cause of injuries on the person of the deceased which could not
be said to be self inflicted.
6.6. Appellant''s counsel has relied on 11re decision of Muthu Kutty (supra), which is also not of much consequence inasmuch as the Supreme
Court in the case of Muthu Kutty (supra), has held that the purpose of provisions contained in section 304B IPC is not to extricate husband or
their relatives from the clutches of section 302 IPC if they directly caused death and this conceptual difference has to be kept in view by the courts.
There is overwhelming evidence in the form of medical evidence that the death was caused by strangulation and throttling and not by hanging.
6.7 The law laid down in the case of Jasvinder Saini (supra), is also of no help to the appellant inasmuch as it only lays down that though the courts
are unrestrained to add or alter a charge under section 216 CrPC but such addition or alternation should be made before pronouncement of
judgment. In the present case, charge under section 302 IPC was framed on 19.12.2001 at the commencement of the trial itself and there fore this
case law will not be of any help to the appellant. Similarly, the law laid down in the case of Ram Singh (supra), is also not of any help to the
appellant inasmuch as that the said case was based on contradiction in the evidence of doctor conducting the postmortem arid that of eye witness,
which is not the case herein.
6.8 In the case of Sharad Birdhichand Sarda (supra), the ratio of the decision is that the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The facts so established should be consistent with the hypothesis of the guilt of the accused, the circumstances
should be of conclusive nature and tendency, they should exclude every possible hypothesis except the one to be proved, and there must be a
chain of evidence so complete as to not leave any reasonable ground for the conclusion. All these factors as discussed above are available in the
present case to complete the chain of evidence.
6.9. The appellant has relied on the decision in the case of Nesar Ahmed (supra), but facts of the said case are also distinguishable because it was
a case of bride burning based on circumstantial evidence where the vital link of presence of the appellant in the house at the crucial time was not
established by the prosecution. In the present case, as the appellant has not examined himself and led any evidence to show that he was not
present in the house at the time when ante-mortem injuries were inflicted upon the deceased, the ratio of the said decision will be of no avail to the
appellant.
6.10 The appellant has also relied on the decision of Supreme Court in the case of Umakant (supra), wherein it is laid down that if two views are
possible on evidence adduced, one pointing towards the guilt and the other towards innocence, the view favourable to the accused should be
adopted. In the present case, there is overwhelming evidence pointing towards the guilt of the appellant, and therefore, there is no question of
adopting a lenient view, especially when the presumption under section 113B of the Evidence Act remains unrebutted.
6.11 Similarly appellant has relied on the decision in the case of Vijay Pal Singh (supra), wherein the Supreme Court has deprecated the failure of
the prosecution to explain injuries and connect murder to its author, but in the present case, ratio of the said decision will be inapplicable to the
appellant whose main ground is that he can be convicted only under section 304B IPC and not under section 302 IPC on the basis of
circumstantial evidence.
6.12 In the statement of appellant recorded under section 313 CrPC in reply to question No.2 that when witnesses Keshav Singh, Mukut Singh,
Member Singh etc received information on 9.4.2001 from Gwalior then they had reached the house of the appellant and found Aruna to be dead,
the witness says that he is not aware. Similarly, in reply to question No. 11 when he was asked that when this witness saw the dead body, there
were marks of injuries on the body, what does he want to say, he says that he does not know anything. Same is the reply to questions No. 15 and
22. Question No.22 was that cremation of Aruna had taken place at Bhind to which the appellant said that he is not aware. If it was a suicidal
death and appellant was not demanding dowry or guilty, then what was the reason for not participating in the cremation has not been explained by
him.
6.13 Though, the appellant has said that he has not committed any offence and he has been falsely implicated but he has not explained the ante-
mortem injuries on the person of the deceased. Whether those injuries could have been self inflicted and before coming to the shop, whether the
appellant had left his home to come to shop or was coming from a third place. It is also seen that defence has not examined Dr. Santosh Sharma
and Dr. Arvind Mittal. In fact, there is contradiction in the statement of DW7 and that of the appellant inasmuch as DW7 has deposed that when
Dr. Santosh Sharma had come he said that there is life in the body and the body was warm but it no where appears from the statement of the
appellant that any efforts were made to resurrect Aruna or to rush her to hospital for treatment etc.
6.14 In the above attending circumstances it is also seen that two possible hypothesis emerge namely (i) Aruna was under tension because she was
not having any kids and she was undergoing treatment; (ii) she was not happy with her brother Mukut Singh who used to seek money from Aruna.
The cross-examination of Mukut Singh PW2 does not reveal that any suggestion was made to him that Aruna was under tension because Mukut
Singh used to ask for money or jewellery from Aruna. There is no suggestion to any of the prosecution witness that Aruna was under depression
due to not having a child and she was undergoing treatment. In fact none of the suggestions given by the appellant in his statement under section
313 CrPC can be inferred from the examination of witnesses, therefore this defence of Aruna under depression lacks credence and cannot be
accepted.
6.15 In the case of Trimukh Maroti Kirkan v. State of Maharashtra, as reported in 2007 CrLJ 20, the Supreme Court has held that when
circumstantial evidence of witnesses fully establishes that wife was ill-treated, often beaten on account of non-fulfilment of demand of money and
where medical evidence shows that death was due to strangulation and injuries were found on her body but no explanation has been given by the
accused as to how she received such injuries, the circumstances unequivocally point towards the guilt of the accused, file Supreme Court has
upheld the conviction under the facts and circumstances under section 302 of IPC and inter alia held in paras 16 and 17 as under :
16. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law'' which must be kept in
mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an
explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has
been taken in a catena of decisions of this Court. {See: State of Tamil Nadu v. Rajendran [(1999) 8 SCC 679 (para 6)]; State of U.P. v. Dr.
Ravindra Prakash Mittal [AIR 1992 SC 2045 (para 40)]; State of Maharashtra v. Suresh [(2000)1 SCC 471 (para 27)]; Ganesh Lal v.
State of Rajasthan [(2002)1 SCC 731 (para 15)]; and Gulab Chand v. State of M.P. [(1995)3 SCC 574 (para 4)]}.
17. 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 placed 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 the crime. In Naika Ram v. State of Himachal
Pradesh [AIR 1972 SC 2077], it was observed that the fact that the accused alone was with his wife in the house when she was murdered there
with ''khokhri'' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to
his guilt. In Ganeshlal v. State of Maharashtra [(1992)3 SCC 106], the appellant was prosecuted for the murder of his wife which took place
inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible
explanation for the cause of her death in his statement under section 313 CrPC. The mere denial of the prosecution case coupled with absence of
any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime
accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal [AIR 1992 SC 2045], the medical evidence
disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. Hie
defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the
wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them
were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his
wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under section
302 IPC. In State of Tamil Nadu v. Rajendran [(1999)8 SCC 679], the wife was found dead in a hut which had caught fire. The evidence
showed that the accused and his wife were seen together in the hut at about 9:00 p.m. and the accused came out in the morning through the roof
when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The
medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of bum injuries. It was held that there
cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
6.16 In tire present case, the chain of circumstances is complete. Admittedly, the deceased was wife of the accused and they had strained
relations. The deceased was harassed for demand of dowry. The deceased was in the company of the accused-appellant and the appellant has
failed to explain various injuries reported in the post-mortem over the body of the deceased. The death of the deceased was homicidal caused by
asphyxia due to strangulation. Thus, on examination of the entire evidence in its entirety, the only inference that can be drawn is guilt of the accused.
6.17 For the foregoing reasons, the appeal filed by the appellant being without substance deserves to be and is hereby dismissed. The judgment of
the Court below convicting the appellant for offence punishable under sections 302, 304B and 498A of the IPC is upheld and affirmed. The
appellant who is in jail shall serve out the remaining part of his sentence.
