Gautam Kumar Choudhary, J
1. Appellants are before this Court in appeal against the judgment of conviction and sentence under Sections 302, 201/34 of the IPC.
2. Informant is the brother of deceased. As per the FIR, his sister aged about 22 years had love affair with Brajesh Yadav (appellant no.2) since last
one year. In February, 2001, Brajesh Yadav approached him and proposed to marry his sister (deceased). On the wishes of the appellant-Brajesh
Yadav and the deceased, he did not raise any objection and the appellant married the deceased and took her to his house and started living together.
On 02.05.2001, he performed second marriage, and from 05.05.2001, sister of the informant had gone missing. He along with his family members and
relatives went to the house of Mahendra Yadav (father of Brajesh Yadav) and enquired about his sister. On this, it was informed by Mahendra Yadav
that the deceased had left home and was since then traceless. On 06.05.2001, a dead body was found in the well which was tied by stone with her
Sari to her neck. Informant apprehended that his sister had been done to death by Brajesh Yadav and his father Mahendera Yadav.
3. On the basis of the fardbeyan, Khunti (Torpa) P.S. case No.16/2001 was registered under Sections 302, 201 and 34 of the IPC against these
appellants. Police on investigation, found the case true and submitted charge sheet and both the accused persons were put on trial for the offence
under Sections 302/34 and 201 of the IPC.
4. Altogether 14 witnesses have been examined on behalf of the prosecution and one witness on behalf of defence has also been examined. Apart
from the prosecution evidence, relevant documents including post-mortem examination report, inquest report and fardbeyan have been proved and
marked as exhibits.
5. After prosecution evidence, statement of the accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence and false
implication.
6. It is argued by the learned counsel on behalf of appellants that there is no direct eye witness to the incidence and chain of circumstances has not
been proved to unerringly point towards the guilt of the appellants. The circumstances relied upon by the prosecution to return the judgment of
conviction and sentence, was not put to the appellants to give them the opportunity to explain incriminating evidence. As far as the appellant-
Mahendra Yadav is concerned, he is father of the principal accused-Brajesh Yadav and there could be no motive on his part to kill the young girl.
There is no evidence of last seen.
7. Learned A.P.P. defended the judgment of conviction and sentence.
FINDING
8. The young woman died a homicidal died is proved by Autopsy Surgeon (P.W. 1) who found the following injuries: -
i. External appearance- face become and cyanosed, eye ball widely prominent. Pupil dilated. Tongue protruded, livid beaten by teeth, In body- chest
and abdomen many place bullae and abraded skin. Neck was tied with sari and in same Sari’s aanchal, one stone about 4 to 5 kg (about 12†in
length and 6†in width) was found. 2†broad, blue mark on neck and abraded skin present. Ligature mark 2†on neck is broad below the line of
mandible, beneath the ligature mark, skin of neck was abraded, in occipital region, line of hair looks like shaved hair.
ii. Internal appearance- On exploration the marks on neck, injury to underlying tissues, ecchymosis subcutaneous muscle of the neck, laceration of the
sheath and internal carotid artery, larynx trachea bronchial tube are congested. Fracture of hyoid bone abdomen no water, lungs deeply congested,
heart filled with dark blood, uterus normal.
9. The above injuries include fracture of hyoid bone which is usually feature in case of death by throttling. There is consistent evidence of witnesses,
which has remained un-demolished in the cross-examination that the dead body was taken out from the well in the presence of police personnel. The
dead body was tied with a piece of stone to the neck by a Sari. This evidence dispels any doubt regarding the homicidal death of the deceased, and the
dead body having been thrown in the well by tying it with her Sari so as to cause it to submerge in the water and for disappearance of the evidence.
10. Appellant- Brajesh Yadav has not disputed this part of the prosecution case in his statement under Section 313 of the Cr.P.C. To the Question
No.3, he has admitted that he had committed the murder of the deceased and thrown it into the well with his father- Mahendra Yadav.
11. Law is settled that admission or confession of an offence can be a proof of guilt. It is well established in law that admission or confession of the
accused in the statement under Section 313 Cr.P.C. recorded in the course of trial can be acted upon and the court can rely on these confessions to
proceed and convict him. (See Dharnidhar v. State of U.P., (2010) 7 SCC 759)
12. On the basis of the prosecution evidence, the following incriminating circumstances are proved: -
I. Appellant- Brajesh Yadav married the deceased about six months before the occurrence and after the marriage, he brought her to his home and
started living with her.
II. On 02.05.2000, he performed the second marriage and soon thereafter, deceased went missing.
III. Appellants neither lodged any missing report in the police station nor even informed the family members of the deceased.
IV. When the informant and his family members came and enquired from them about the missing woman, they expressed their ignorance and only
stated that she had left home.
V. Dead body was found floating in a well and when it was taken out, it was found that a piece of stone was tied to it to get it submerged in the water
of the well.
VI. Appellant- Brajesh Yadav has admitted in his statement under Section 313 of the Cr.P.C. that he with his father- Mahendra Yadav had killed the
deceased and disposed the dead body into the well.
13. As far as appellant- Brajesh Yadv is concerned, in view of incriminating circumstances and his statement under Section 313 of the Cr.P.C., there
is not an iota of doubt that he killed his first wife and disposed her dead body, to start his life with his newly wedded second wife. On the basis of
circumstantial evidence and his statement under Section 313 of the Cr.P.C, prosecution has succeeded to prove the charge against him. Judgment of
conviction and sentence passed against him is affirmed.
14. As far as the appellant- Mahendra Yadav is concerned, his complicity in the offence has come in the statement of his son given under Section 313
of the Cr.P.C. Statement made under Section 313 of the Cr.P.C is not an evidence and therefore, it cannot be used as evidence of accomplice against
this appellant. Under Section 313 of the Cr.P.C., statement can be an admission or confession against the maker of it, but it cannot be used against an
accomplice. Thus, what has been stated by his son cannot be used against him.
15. Leaving aside the statement of his son the main incriminating circumstance that remains against him is that he is the father of the principal
accused, and was living with him and the deceased in the same household. Beyond this, there is no other evidence which can connect him to the
crime. It is not established that the incidence took place in the house, so burden of proof to disclose facts within his special knowledge resulting in the
homicidal death of his daughter-in-law, cannot be shifted on him in terms of Section 106 of the Evidence Act. Neither there is direct nor circumstantial
evidence to prove the charge against this appellant. Judgment of conviction and sentence is accordingly set aside against this appellant.
In the result, Criminal Appeal preferred on behalf of Mahendra Yadav is allowed and that on behalf of Brajesh Yadav stands dismissed.
Appellant- Mahendra Yadav is on bail. His sureties are discharged from the liabilities of their bail bonds.
Appellant- Brajesh Yadav is on bail. His bail stand cancelled. He is directed to surrender before the learned trial Court to serve the remaining part of
sentence.
This Criminal Appeal accordingly, stands disposed of.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
