Lalman vs State Of Madhya Pradesh

,,

Appellant has filed this appeal against the judgment dated 4.8.1995 passed by 2nd Additional Sessions Judge, Seoni in S. T. No.155/1993.",,

Appellant was prosecuted for commission of offence punishable under Section 302 of IPC. Trial Court held appellant guilty for commission of,,

offence and awarded sentence of life with fine of Rs.1,000/-. Trial Court further ordered that if the appellant did not deposit fine amount he shall",,

further undergo six months imprisonment.,,

Prosecution story in brief is that the deceased was the wife of the appellant. The marriage was solemnized on 25.4.1993 at Kagaj Nagar (A.P.).,,

Appellant made demand of Rs.30,000/from the deceased. On the date of the incident mother of the appellant called a nurse which was posted at",,

Community Health Center Barghat and told her that the deceased was unconscious. Nurse came at the residence of the appellant. She did not opine,,

that whether the deceased was dead or unconscious, she advised the appellant to take the deceased to a hospital. Appellant had taken the deceased",,

to Community Health Center Barghat where she was declared dead. Dr. P. K. Sarvaiya In-charge of the Community Health Center had given the,,

information of incident to the police. On. 9.9.1993 Dr. P. K. Sarvaiya and Smt. V. Jatar conducted postmortem of the deceased and found that the,,

deceased was died due to strangulation. The police filed the charge sheet against the appellant. Appellant abjured his guilt and pleaded innocence.,,

Trial Court has held that there is no evidence that appellant had made demand of dowry from the deceased and practiced cruelty with her. Trial,,

Court further held that the deceased was died due to strangulation and at the time of incident appellant was at the house. Hence, the trial Court held",,

appellant guilty for commission of offence of murder because the deceased was the wife of the appellant.,,

Learned Senior counsel has submitted that the trial Court has committed an error in holding the appellant guilty for commission of offence of murde.,,

The case is based on circumstantial evidence. There is no evidence to hold appellant guilty for commission of offence of murder. The deceased,,

committed suicide by hanging. The evidence of Doctor is not reliable to the effect that the deceased was died due to strangulation. There was no,,

motive of the appellant to commit murder of the deceased. The conduct of the appellant shows that he himself had taken the deceased to the,,

hospital. There is prosecution evidence which proves innocence of the appellant. The trial Court has wrongly disbelieved on the aforesaid evidence.,,

Learned Senior counsel has placed his reliance on the following judgments :,,

(1) Kapil Deo Mandal Vs. State of Bihar (AIR 2008 SC 533).,,

(2) Javed Masood Vs. State of Rajasthan (AIR 2010 SC 979).,,

(3) Ramesh Chandra Agrawal Vs. Regency Hospital Ltd (AIR 2010 SC 806).,,

(4) Prem Sagar Manocha Vs. State (NCT of Delhi) (AIR 2016 SC 290).,,

(5) Mahavir Singh Vs. State of M, P. (2016) 10 SCC 220).",,

(6) Ramdass Vs. State of Maharashtra (AIR 1977 SC 1164).,,

On the contrary learned Government Advocate appearing on behalf of the respondent/ State has submitted that the deceased was died by,,

strangulation, this fact has been proved from the medical evidence. Appellant was at the house at the time of incident. Hence, the trial Court has",,

rightly convicted the appellant and awarded proper sentence.,,

Prosecution examined twelve witnesses to prove the case against the appellant. Appellant also examined two witnesses in his defence.,,

Nagesh Kumar Gupta P. W. 1 is Nurse, who was posted at Primary Health Center Barghat. She deposed that at around 6.30 O’clock in the",,

evening I was at my house, mother of the appellant came to me and told me that my daughter-in-law the deceased is unconscious, please examine",,

her. I went to the house of the appellant, wife of the deceased was lying on the earth. I examined her. I could not understand whether she was alive",,

or dead. I advised the appellant to take her to the hospital. At that time appellant and one infant child who was son of the sister of the appellant was,,

at home.,,

Abdul Hamid Khan (P. W.2) is neighbour of the appellant. He deposed that I am residing near about 100-150 meters away from the house of the,,

appellant. I went to the hospital to see the wife of the deceased. Her dead body was kept in the courtyard. There was no injury on her body. Town,,

Inspector seized cord and scissor and other articles. Ex. P.1, Ex.P.2 and Ex.P.3 were prepared and I signed the same. He further deposed that I",,

signed the map Ex.P.4, however, it was not prepared before me.",,

Sakra Bi (P.W.3) deposed that at around 5.00 O’clock in the evening I had seen the deceased in the court yard, she was going to bathroom",,

from latrine, she washed her face there and thereafter she had gone in side of the house. After some time Nurse came to my house and told me that",,

deceased was unconscious at that time appellant came out from his house along with the deceased and called me and told me to give support to the,,

deceased, at that time deceased had taken deep breath and told “vjs ckj jsâ€. Thereafter, we had taken the deceased to the hospital and thereafter",,

I return back to my house.,,

Vineeta Bedi (P.W.5) is the Staff Nurse. She deposed that I was posted as Staff Nurse in the year 1993. I had taken out ear rings of sliver from,,

the body of the deceased and handed over to the police.,,

Ganga Prasad (P.W.6) deposed that at the relevant time my son was admitted in the hospital. I was with my son in the hospital. I signed,,

Panchnama. He also admitted his signature on Ex.P.7.,,

Vasudeo Tiwari, (P. W. 7) deposed that relatives of the deceased had given some post-card to the police, those were seized Ex.P.5 and I signed",,

the same.,,

Shyamlal (P.W.8) is the witness of seizure. Ex.P.8 is seizure memo. I signed Ex.P.8.,,

Kushal Kumar (P.W.9) deposed that at around 6.30 P. M. to 7.00 P. M. I was repairing television at the residence of Jalil Mistri, when I came",,

out from the house of Jalil Mistri I had seen that present appellant was going in his house. I had heard sound “ekbZ ;s D;k gks x;kâ€. After some,,

time Nurse came there and told me that wife of the appellant the deceased was unconscious, thereafter appellant had taken the deceased to the",,

hospital. I had taken photographs of the deceased on the instruction of the police.,,

Umrao Prasad Patle (P.W.10) is the Patwari. He deposed that I had prepared spot map Ex.P.10 and signed the same.,,

S. R. Thakur (P.W.12) Investigation Officer deposed that on 8.9.1993 I was posted as Station House Officer In-charge at Police Station Barghat.,,

At around 7.20 O’clock in the evening Dr. Sarvaiya had sent a written information from Community Health Center, Barghat, which is Ex.P.14.",,

On the basis of aforesaid information I recorded the fact of unnatural death vide Ex.P.15. Thereafter, I went to the house of the appellant. That was",,

dark night, hence, I sealed the house of the appellant. On 9.9.1993 I examined dead body of the deceased. There was sign of cord on the neck of the",,

deceased. Saliva (>kx) was coming out from mouth of the deceased. I prepared Naksa Panchayatnama Ex.P.1. Thereafter, I sent dead body of the",,

deceased for postmortem. Thereafter, I went to the house of the appellant. Appellant had given nylon cord near about 44 inches in length. The cord",,

was in two pieces, one was of near about 28 inches and another was of near about 16 inches. He had also given me a scissor. I seized both the",,

articles vide seizure memo Ex.P.2. Appellant told me that deceased was taking treatment because she was ill. He had also handed over prescriptions,,

of doctor, which were seized vide Ex.P.3. Thereafter, I prepared spot map, which is Ex.P.4. I also seized the ornaments of the deceased and",,

recorded statements of Vinod, Rakesh Jain, Sakra Bi and G. Bagh. On 12.9.1993 I had recorded statement of Prakash brother of the deceased. He",,

had denied the fact that he had instructed photographer to take photograph of the place of incident.,,

Dr. P. K. Sarvaiya (P.W.11) performed postmortem of the deceased. He deposed that on 9.9.1993 I performed postmortem of the deceased with,,

lady Dr.V. Jatar. I noticed ligature mark on the neck, in the upper part, just above the thyroid cartilage. Ligature Mark was well defined, depressed,",,

dry, darken parchment like with ecchymosed margins. Ligature mark encircled the neck horizontally & deficient posteriorly in mid line (length of",,

deficient part of ligature is three c.m.) from mid line bilaterally on the posterior aspect. The ligature mark is of ½ c. m. wide. Face was slightly,,

swollen and cyanosed, conjunctiva are congested and pupils are dralated, lips were blue, nails were blue. Fine blood mixed froth present in both",,

nostrils. Other injuries- Reddish blue discoloration was present on both upper arm in the lower 1/3 area on the upper outer (lateral) surface. There,,

was no injury on the head, vertebra and spinal cord. Brain membrane and brain congested. There was no injury on the chest. Fuffus was congested.",,

Throat and respiratory tract was conducted. There was fracture at hyoid bone. Both the lungs were congested. From cut surface of lung blood,,

mixed froth come out. Both chambers right and left full of dark cloured blood.,,

We opined that the deceased was died due to strangulation. In his cross-examination he admitted that he did not mention ligature mark in,,

Ex.P.14. He further admitted that I did not prepared diagram of ligature mark. He further deposed that I did not notice any mark of knot on ligature,,

mark, however, ligature mark was not around the neck. I did not mention about subcutaneous tissues in my report. However, mention of",,

subcutaneous tissues is necessary to distinguish between hanging and strangulation. I also did not notice that there was any injury in the muscles of,,

the neck. He further admitted that there was no fracture of lorynx and trrachea. I did not notice any sign of resistance on the face and the neck of the,,

deceased. He further deposed that I did not notice any sign of blood oozing from mouth, noise and ear of the deceased.",,

Independent witnesses examined by the prosecution did not support the case of prosecution that appellant had killed the deceased or death of the,,

deceased was caused due to strangulation. Contrary to this P. W. 3 who is neighbour of the appellant deposed that appellant had taken out the,,

deceased from his house and he told her to give support to the deceased at that time the deceased had taken deep breath and said “vjs ckj jsâ€,",,

prosecution did not cross-examine the aforesaid witness on this point.,,

Trial court relied on the evidence of Doctor P. K. Sarvaiya P. W.11, who performed autopsy of the deceased and opined that the deceased was",,

died due to strangulation.,,

We would like to examine the evidence of Dr. P. K. Sarvaiya P. W.11 and postmortem report for the purpose that whether on the basis of,,

aforesaid evidence it could be held beyond reasonable doubt that the deceased was died due to strangulation.,,

Apex Court in the matter of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd & others reported in AIR 2010 SC 806, has held as under in",,

regard to expert evidence:,,

14) It is not the province of the expert to act as Judge orJury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to,,

put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may",,

form its own judgment by its own observation of those materials.,,

15) An expert is not a witness of fact and his evidence isreally of an advisory character. The duty of an expert witness is to furnish the Judge with the,,

necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application,,

of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor",,

and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated,,

in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr.,,

Sukumar Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].",,

16) In the case of State of Maharashtra v. Damu s/o Gopinath Shinde and others., [AIR 2000 SC 1691 at page 1700], it has been laid down that",,

without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. In this regard, it has been observed in The State",,

(Delhi Administration) v. Pali Ram, [AIR 1979 SC 14] that ""no expert would claim today that he could be absolutely sure that his opinion was correct,",,

expert depends to a great extent upon the materials put before him and the nature of question put to him.""",,

17) In the Article ""Relevancy of Expert's Opinion"" it hasbeen opined that the value of expert opinion rest on the facts on which it is based and his",,

competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the,,

validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided,,

on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the",,

emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: ""Mere assertion without mentioning",,

the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even",,

though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.""",,

Apex Court further in the matter of Prem Sagar Manocha Vs. State (NCT of Delhi), reported in AIR 2016 SC 291 has further held as under in",,

regard to expert opinion :,,

This Court in State (Delhi) v. Pali Ram[4] held that:,,

“51. ….the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the",,

conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials. Ordinarily, it is not proper",,

for the court to ask the expert to give his finding upon any of the issues, whether of law or fact, because, strictly speaking, such issues are for the",,

court or jury to determineâ€​.,,

In Ramesh Chandra Aggrawala v. Regency Hospitals[5], this Court has dealt with the difference between an ‘expert’ and ‘a witness of",,

fact’.,,

“20. An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge,,

with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the,,

application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested",,

becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on,,

the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.â€​,,

Principle of law is that an expert is not a witness of fact and his evidence is of an advisory character and the credibility of such a witness depends,,

on the reasons stated in support of his conclusion.,,

S.

No",Hanging,Strangulation

1.,Mostly suicidal.,Mostly homicidal.

2.,"Face- Usually pale and

petechiae rare.","Face â€" congested, livid and marked

with petechiae.

3.,"Saliva- Dribbling out of the mouth

down on the chin and chest.",Saliva- No such dribbling.

4.,"Neck- Stretched and elongated in

fresh bodies.",Neck- No so.

5.,"External signs of asphyxia, usually

not well marked.","External signs of asphyxia, very well

marked (minimal if death due to

vasovagal and carotid sinus effect).

6.,"Ligature mark- Oblique,

noncontinuous placed high up in the

neck between the chin and the

larynx, the base of the groove or

furrow being hard, yellow and

parchment-like.","Ligature mark- Horizontal or

transverse continuous, round the

neck, low down in the neck below the

thyroid, the base of the groove or

furrow being soft and reddish.

7.,"Abrasions and ecchymnoses round

about the edges of the ligature mark

rare.","Abrasions and ecchymnoses round

about the edges of the ligture mark

common.

8.,"Subcutaneous tissues under the

mark-

White, hard and

glistening.","Subcutaneous tissues under the mark-

Ecchymosed.

9.,"Injury to the muscles of the neck-

Rare.","Injury to the muscles of the neck

Common.

10,"Carotid arteries, internal coats

ruptured in violent cases of a long

drop.","Carotid arteries, internal coats

ordinarily ruptured.

11,"Fracture of the larynx and trachea-

Very rare and may be found that too

in judicial hanging.","Fracture of the larynx trachea and

hyoid bone.

12,"Fracture-dislocation of the cervical

vertebrae- Common in judicial

hanging.","Fracture-dislocation of the cervical

vertebrae-Rare.

13,"Scratches, abrasions and bruises on

the face, neck and other parts of the

body-Usually not present.","Scratches, abrasions fingernail marks

and bruises on the face, neck and

other parts of the body- Usually

present.

14,No evidence of sexual assault,"Sometimes evidence of sexual

assault.

15,"Emphysematous bullae on the

surface of the lungs-Not present.","Emphysematous bullae on the surface

of the lungs- May be present.

appellant is that he had cut the cord by scissor. In the spot map prepared by Patwari P. W.10 at s. no. 1 place is mentioned from which it is said that,,

deceased had committed suicide by hanging. P. W.3 specifically deposed that she had seen the appellant taking out the deceased from his house and,,

at that time he was conscious and she uttered the word “vjs ckj jsâ€. Aforesaid witness has not been declared hostile by the prosecution on this,,

point.,,

Apex Court in the matter of Maved Masood and another Vs. State of Rajasthan reported in AIR 2010 SC 979 has held as under in regard to the,,

effect of not declaring prosecution witness hostile :,,

“The testimony of Mohammad Ayub (P.W.6) cannot easily be surmounted by by the prosecution. He has testified in clear terms that P. Ws 5, 13",,

and 14 were not present at the scene of occurrence. It is not known as to why the public prosecutor in the trial court failed to seek permission of the,,

court to declare him “hostileâ€. His evidence is binding on the prosecution as sit is. No reason, much less valid reason has been stated by the",,

Division Bench as to how evidence of P. W. 6 can be ignored.â€​,,

As per aforesaid judgment the evidence of witness is binding on the prosecution, if he has not been declared hostile.",,

There is no evidence on record that the appellant had committed murder of the deceased. Trial court has held that there is no evidence to prove,,

demand of dowry or cruelty against the appellant. Hence, there is no motive of the appellant to kill the deceased.",,

The Apex Court in the matter of Satish Nirankari Vs. State of Rajasthan reported in (2017) 8 SCC 497 has held as under in regard to,,

circumstantial evidence :,,

“24) Which of the two hypothesis prevails in the present case, is the question? We have to keep in mind that this Court is dealing with a criminal",,

matter where appellant is charged with committing murder of Pooja. Criminal cases cannot be decided on the basis of hypothesis. Another aspect,,

which is to be kept in mind is that it is for the prosecution to prove the guilt of the accused charged for such an offence and that too, beyond",,

reasonable doubt. In a case where there is no eyewitness and, which rests on circumstantial evidence, the prosecution is obligated to prove all those",,

circumstances which leave no manner of doubts to establish the guilt of the accused person, i.e., chain of circumstances must be complete and must",,

clearly point to the guilt of the accused. Chain of continuous circumstances means that all the circumstances are linked up with one another and the,,

chain does not get broken in between. It is now well established, by catena of judgements of this Court, that circumstantial evidence of the following",,

character needs to be fully established:,,

(i) Circumstances should be fully proved.,,

(ii) Circumstances should be conclusive in nature. Crl.A.No. 1074 of 2007.,,

(iii) All the facts established should be consistent onlywith the hypothesis of guilt.,,

(iv) The circumstances should, to a moral certainty,exclude the possibility of guilt of any person other than the accused (see State vs. Dr. Ravindra;",,

1992 (3) SCC 300); Chandrakant vs. State of Gujarat; (1992) 1 SCC 473. It also needs to be emphasised that what is required is not the quantitative,",,

but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot",,

take place of legal proof. In the case of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and,,

circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.,,

25) Following tests laid down in Padala Veera Reddy vs. State of A.P.1 also need to be kept in mind:,,

“10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;",,

(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused;,,

(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape from the conclusion that within all human",,

probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete,,

and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only e consistent with the guilt,,

of the accused but should be inconsistent with his innocence.â€​,,

26) Sir Alfred Wills in his book Wills’ Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of,,

circumstantial evidence:,,

“(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum,,

probandum;,,

(2) the burden of proof is always on the party whoasserts the existence of any fact, which infers legal accountability;",,

(3) in all cases, whether of direct or circumstantialevidence, the best evidence must be adduced with the nature of the case admits;",,

(4) in order to justify the inference of guilt, theinculpatory facts must be incompatible with the innocence of the accused and incapable of explanation,",,

upon any other reasonable hypothesis than that of his guilt; and (5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right",,

to be acquitted.â€​,,

In the aforesaid judgment the Apex Court has further observed about conduct of the accused as under :,,

31) That apart, conduct of the appellant on the day ofincident, when examined in the aforesaid background, creates a dent in the Crl.A. No. 1074 of",,

2007 prosecution case. In this behalf, the learned counsel for the appellant drew our attention to the following acts of the appellant on that day.",,

32) The deceased and appellant had gone to the place ofincident together. It is not even the case of the prosecution that appellant abducted deceased,,

and forcibly took her to the place of incident. This can also be seen in light of prior affair of the parties.,,

33) Since the parties are in love with each other andfamilies are against it, they decided to get married. It is established that deceased was wearing",,

bindi, make-up, sindoor (vermillion) and 12 red bangles. From the place of incident from the place of incident following articles were removed â€"",,

Bindi, Vermillion, bangles, rose garland, make up material, metal glass, one tumbler containing copper sulphate water, fruit juice (8-9/AD).",,

34) Both appellant and deceased thereafter consumedpoison however, the appellant stopped short while drinking poison and wanted to be alive. The",,

appellant made effort to save deceased and came out of the house, raised alarm, and called for help from PW-4 â€" Vinod Gupta (neighbour) and told",,

him to call his brother â€" Ashok. PW-4 in addition to Ashok, also called PW-1 (owner of the house where incident took place). The said facts are",,

Crl.A. No. 1074 of 2007 corroborated by PW-4 and PW-1.,,

35) The appellant made sure that deceased was taken tohospital for save her. The said fact is corroborated by the statement of Pw-13 â€" Karni,,

Singh â€" who stated that he took appellant and deceased to the hospital. PW-13 also stated that Ashok told him appellant and deceased had affair.,,

36) If appellant’s intention was to commit murder of thedeceased and escape, he could have just left the deceased at the spot and deceased would",,

have died of poisoning. It was pointless and futile for appellants to additionally hang deceased. Moreover, if such was the intention of the appellant, he",,

would not have called for help or raised alarm with neighbours. The appellant also would not have committed t he murder in the place where he,,

worked and operated from.,,

37) If appellant’s intention was to commit murder, hecould have run away from the spot of incident as admittedly, there is no eyewitness of the",,

whole incident.,,

38) If appellant’s intention was to commit murder, hewould not have directed his brother â€" Ashok to call for deceased’s parents, which he",,

admittedly did.,,

39) Admittedly appellant also consumed poison and wasin hospital for 50 days. Appellant is also convicted for Section 309 IPC for attempting to,,

commit suicide.,,

In the present case, mother of the appellant went to the Nurse, when the deceased was unconscious, thereafter appellant had taken the deceased",,

to the hospital. Appellant had handed over cord and scissor to the Investigation Officer. He also informed the neighbours. In view of aforesaid,,

conduct of the appellant, in our opinion, it would not be safe to convict the appellant on the basis of suspicion that he had committed murder of the",,

deceased. It is well settled principle of law that suspicion whatever grave cannot take place prove beyond reasonable doubt. Appellant could not be,,

convicted for commission of offence punishable under Section 304-B of IPC because trial Court has held that there was no demand of dowry and,,

appellant did not practice any cruelty with the deceased. Hence, appeal filed by the appellant is hereby allowed. The impugned judgment/conviction",,

and sentence awarded by the trial court is hereby set aside. Appellant is on bail, his bail bonds are hereby discharged.",,