Rajeev Shukla vs State Of Madhya Pradesh

S.K. Gangele, J.

The appellant has filed this appeal against the judgment dated 23.12.2009 passed in Sessions Trial No.147/2007. He was prosecuted for commission

of offence punishable under Sections 450, 376, 511 and 306 of IPC.

The prosecution story in brief is that the appellant entered into the residential house of the complainant. He had committed rape with the sister

of the complainant. Due to the aforesaid act, she committed suicide. The appellant abetted the deceased to commit suicide. The Police conducted

investigation and filed charge sheet against the appellant. He abjured his guilt. During trial he pleaded ignorance. The trial court acquitted the appellant

from commission of offence punishable under Section 376 of IPC and held the appellant guilty for commission of offence punishable under Sections

450, 511 and 306 of IPC and awarded the sentence with fine stipulation as mentioned in the impugned judgment.

Learned counsel for the appellant has submitted that the trial court relied on the evidence of brother of the deceased which is contrary to medical

evidence. The appellant himself received grievous injuries which have not been explained by the prosecution. The deceased also received injuries on

her hands. This fact has not been explained by the prosecution. The evidence of Doctor to the effect that the deceased was beaten and thereafter she

was hanged and she did not commit suicide. The deceased and appellant both were beaten by the family members of the complainant. The appellant

is falsely implicated and he is liable to be acquitted from the charge. In support of his contentions learned counsel relied on the following judgments :-

(a) Jodhan Vs. State of Madhya Pradesh, reported in (2015) 11 SCC 52,

(b) Bhagwan Sahai and another Vs. State of Rajasthan, reported in (2016) 13 SCC 171,

Learned counsel for the State has submitted that the appellant entered into the residential house of the sister of the complainant. He tried to commit

rape with the deceased. There is evidence in this regard. Thereafter, deceased committed suicide by hanging. Hence, the trial court has rightly held

the appellant guilty for commission of offences and awarded proper sentence.

PW-4, Ashwani Kumar Tiwari is the brother of the deceased. He deposed that on 13.4.2007, I had gone to my village. Thereafter, my father had

left me at village -Deem. I went into the house. The gate was locked, hence, I entered the house from north side of the gate and I noticed that the

appellant was lying on my sister. He was taking her “Ijjatâ€. The clothes of my sister were torn. The appellant ran away from the place after

seeing me. I caught hold him and slapped him two to four times. He told me that he would defame my sister.

Thereafter, my uncle and another person came there. I had told him the incident. A Constable from Police Station, Majholi came to me and he told

me that the appellant had lodged a report against me. He called me at the Police Station alongwith my father. Thereafter, I went to call my

father. When I came back my Mousi's daughter, Sonam told me that my sister (deceased) was hanging in the Osari. My aunty was also there.

Thereafter, My Uncle, Triveni Prasad Tiwari went to the Police Station, Majholi and lodged the report. He verified the merg, (Ex. P-10) and

admitted his signature on the same. He further deposed that a cap, (Ex. P-11) was seized from the spot of appellant. He denied the fact that he

had informed the Police that the he had beaten the appellant by stick. He further denied the fact that he had seen the appellant committing sexual

intercourse with the deceased.

PW-5, Brijendra Tiwari, deposed that when I came out from the house, I noticed that the appellant was running away from the house. He was

abusing. He was threatening that he would defame the sister of Ashwani. At night I came to know that the sister of Ashwani had committed

suicide by hanging. He denied his signature on seizure, (Ex. P-11). He admitted his signature on Panchanama of the dead body.

PW-6, Ku. Sonam Tiwari is another important witness. She was present at the time of incident. She is child witness. She deposed that I

and daughter of my Mousi, deceased were present in the house. The appellant came to house and went inside. At that time, my brother, Ashwani

came there. He had slapped two - three times the appellant and thereafter appellant ran away from the spot. When the appellant came there, I was

in the house. I was guarding the onion which was planted in the house. My sister, deceased was also present in the room. In the night, the

deceased hanged herself with the help of a cord. In her cross examination, she admitted the fact that when the deceased used to remain in the

house, boys of the village used to come in the house and they used to enter in the room of the deceased and deceased used to send me outside of

the house. Mousi and Mosiya did not like the aforesaid act of the deceased. She further admitted that she did not hear any sound.

PW-7, Bablu deposed that brother of the deceased told me that the appellant was with my sister and I had seen the appellant running away.

PW-9, Sukhnidhan Tiwari is the father of the deceased. He deposed that my son, Ashwani told me that the appellant was with the deceased and I

had slapped the appellant. The appellant was telling me that he would defame the deceased. Thereafter, deceased committed suicide by hanging

herself by using her Duptta. I had signed the Panchanama of dead body and spot map, (Ex. P-14) prepared by the Police. The Police also seized a

letter from the deceased, (Ex. P-16). In his cross examination, he admitted that before the incident the deceased was married. He denied that a

dispute arose between the appellant and his family members. He denied the fact that I had beaten the appellant and the deceased. He denied the

fact that his son had compelled the deceased to write a letter, (Ex. P-15).

PW-10, Ahilyabai deposed that Uncle of the deceased came to my house and he had called my husband. My husband told me that the deceased

committed suicide by hanging. Thereafter, I handed over a letter, Ex. P-15 to the Police.

PW-11, Ram Singh, is the Head Constable.

PW-4, Ashwani Kumar Tiwari and PW-6, Ku. Sonam Tiwari are the eye witnesses. PW-4 is the brother of the deceased and PW-6 is the

sister of the deceased. The deceased was daughter of Mousi of PW-6. They are relatives and interested witnesses.

Hon'ble Supreme Court in Jodhan Vs. State of Madhya Pradesh, reported in (2015) 11 SCC 52, has held in regard to credibility of re lated

witnesses as under :-

First, we shall deal with the credibility of related witnesses. In Dalip Singh v. State of Punjab AIR 1953 SC 364 , it has been observed thus:- (AIR

p. 366, para 25)

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the

foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we

know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common

to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar v. State of Rajasthan, AIR 1952 SC54.

In the said case, it has also been further observed:- (AIR p.366, para 26)

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means

unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close [relative] would be the last to

screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a

tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and

the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675 , the Court has ruled that evidence of interested witnesses per se cannot be said to be

unreliable evidence. Partisanship by itself is not a valid ground for discrediting or discarding sole testimony. We may fruitfully reproduced a passage

from the said authority:- (SCC pp.683-84, para 13)

….......an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material

particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and

accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be

sufficient, in the circumstances of the particular case, to base a conviction thereon.

The principles that have been stated in number of decisions are to the effect that evidence of an interested witness can be relied upon if it is found

to be trustworthy and credible. Needless to say, a testimony, if after careful scrutiny is found as unreliable and improbable or suspicious it ought to be

rejected. That apart, when a witness has a motive or makes false implication, the Court before relying upon his testimony should seek corroboration in

regard to material particulars. In the instant case, the witnesses who have deposed against the accused persons are close relatives and had suffered

injuries in the occurrence. Their presence at the scene of occurrence cannot be doubted, their version is consistent and nothing has been elicited in the

cross-examination to shake their testimony. There are some minor or trivial discrepancies, but they really do not create a dent in their evidence

warranting to treat the same as improbable or untrustworthy.

In this context, it is requisite to quote the observations made by the Court in State of Punjab v. Jagir Singh, (SCC pp. 285-86, para 23).

A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as

to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court

has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have

to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

Before appreciating the evidence of aforesaid eye witnesses, I would like to consider other evidence on record, i.e. medical evidence and the

evidence that the appellant and deceased both received injuries.

PW-2, Dr. R.G. Kotiya performed the postmortem of the deceased. He deposed that he noticed the following injuries on the body of the deceased

:-

(a) Contusion and swelling on the left forearm near wrist,

(b) Ligature mark rounded on neck,

( c) Contusion and Swelling on face to left ear size 6â€​xâ€​6,

(d) Left hand Radious Bone Fracture and broken near wrist,

(e) Cervical Vartibra Bone 2nd, 3rd and 4th were dislocated,

(f) Injury No. 1 and 3 caused by hard and blunt object,

(g) Injury No. 2 Ligature mark on neck caused by Duptta,

(h) Fracture of radious bone of left hand caused by blow of hard and blunt object.

(i) deceased was died due to Asphaxia due to hanging, In his cross-examination, he admitted that ligature mark on neck of the deceased was

superficial. There was no blood clotting beneath it. He further admitted that if the deceased committed suicide by hanging, there must be blood

clotting below ligature mark. I did not notice any sign of knot on the neck of the deceased. There may be possibility that after murder the deceased

was hanged. He admitted that by scuffle injuries, which I noticed on the body of the deceased could not be caused. Trachea may be broken due to

injuries caused by outside object.

He further admitted the fact that I also examined the appellant on 13.4.2007. The appellant was complaining pain on the chest. I advised x-

ray of chest. There was swelling on his left ankle. I advised for x-ray. There were many bluish signs on his left thigh, each size 2x1â€. There was

bluish sign on his left forearm, size 2x1â€. Injury no. 6 :- There was bluish sign behind his right shoulder. I advised x-ray. Injury No. 6 :- There

was bluish sign behind his stomach, size 3x2â€. Injury No. 7 :- There was bluish sign on the elbow of left hand, size 2x1â€. I advised x-ray.

According to my opinion all the injuries were caused by hard and blunt object. On 14.4.2007 on examination of x-ray plate, I noticed fracture of

first rib of the appellant. There was dislocation of calcaneal bone of ankle of left leg. Both the injuries were serious in nature.

The appellant had also lodged a report that he was beaten by the brother of the deceased. This fact has been admitted by the I.O. (PW-14) in his

evidence. The I.O. deposed that I prepared Panchanama of the deceased. The deceased died due to hanging by dupatta. A letter was seized from the

clothes of the deceased, which is Ex. P-15. Dupatta was seized. In his cross examination, he admitted the fact that the appellant lodged a report at the

Police Station on 13.4.2007 and mentioned the fact in the report at that Sukhnidan Tiwari, Rajendra and Sonu had beaten him by lathi and tangi. He

admitted that there was fracture in the radious bone of left hand of the deceased and the aforesaid injury was caused by hard and blunt object. He

further admitted that I did not enquire from any witness that how the deceased received the aforesaid injury.

From the aforesaid evidence, this fact is true that the appellant himself received serious injuries. There were number of injuries on his person.

There was fracture of rib and left ankle of bone. He received many other injuries. Brother of the deceased deposed that he had slapped two to four

times to the appellant. This evidence is contrary to the medical evidence. There is no explanation that how the appellant received aforesaid

injuries.

Hon’ble Apex Court in Bhagwan Sahai and another Vs. State of Rajasthan reported in (2016) 13 SCC 171 has held in regard to non

explanation of injuries by the prosecution suffered by an accused as under :-

The High Court has also noted that both the sides had taken a plea that the land in question where the occurrence had taken place is in their

possession. One of the injured Malli Devi-PW-6 also deposed, as noted by the High Court, that the parties were having dispute with the accused over

land. The High Court has also noted the Judgment of this Court in the case of Lakshmi Singh and others v. State of Bihar[1] which was relied upon by

the counsel for the accused persons in support of private defence and for acquittal on the ground of non-explanation of death and injuries on the side

of the accused. The High Court drew correct inferences from the aforesaid judgment but proceeded to convict the appellants on the misconceived

ground that since both the parties had withheld the origin and genesis of the occurrence and since it cannot be determined as to which party was the

aggressor, the case had to be decided against the accused persons treating it as a case of free fight between the parties.

The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis

and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only

possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once

they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the

given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such

adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such

a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the defence party. This is not the

factual situation in the present case.

The principle of law laid down by Hon’ble Apex court is that non explanation by the prosecution in regard to injuries suffered by an accused

is much less a plausible one and adverse inference must be drawn against the prosecution. The prosecution and witnesses did not explain the injuries

suffered by the deceased, who is alleged to have committed suicide by hanging herself. The brother of the deceased did not explain how the

deceased suffered injuries. The Doctor, who performed postmortem of the deceased deposed that the injuries caused to the deceased were caused by

hard and blunt object.

PW-10, Ahilyabai, who got recorded merg on the information supplied by the brother of the deceased, PW-4. In the merge, recorded by PW-10, it

is mentioned that both were naked and appellant tried to run away from the place and thereafter complainant inflicted injuries by danda on the

appellant. From the injuries suffered by the appellant and Ex. P- 10, this fact is proved, that PW-4 had inflicted injuries on the appellant by beating

him with a danda. There is a possibility that he had beaten the deceased because he had seen the appellant and deceased in a room and he may

have got annoyed with the aforesaid act. If the appellant had entered into the room of the deceased forcefully or he had applied force with the

deceased, then certainly the deceased must have raised voice and hue and cry. PW-6, sister of the deceased, who was present in the house

specifically deposed that after entering into the room by the appellant in which deceased was present, she did not listen any sound and I was

outside of the room. If the object of the appellant was to outrage the modesty of the deceased against her wishes, then the deceased must have

resisted and she must have raised her voice and hue and cry. I have also perused the photographs of the deceased, which were produced by the

prosecution, (Ex. P- 21, P-22, P-23 and P-24). As per aforesaid photographs, the deceased is not hanging. Her both legs are bent and they are on

the floor. The Doctor deposed that I did not find any sign of knot on the neck and ligature mark on the neck was superficial. There was no blood

clotting on the ligature mark.

Modi has described the injuries which may be suffered if a person dies after hanging :-

Hanging :-

Mostly suicidal

Face--Usually pale and petechiae rare.

Saliva--Dribbling out of the mouth down on the chin and chest

Neck--Stretched and elongated in fresh bodies.

External signs of asphyxia, usually not well marked.

Ligature markâ€"Oblique, non continuous 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.

Abrasions and ecchymoses round about the edges of the ligature mark, rare.

Subcutaneous tissues under the mark--White, hard and glistening.

Injury to the muscles of the neck- Rare.

Carotid arteries, internal coats ruptured in violent cases of a long drop.

Fracture of the larynx and larynx and trachea--Very rare and may be found that too in judicial hanging.

Fracture-dislocation of the cervical vertebrae- common in judicial hearing.

Scratches, abrasions and bruises on the face, neck and other parts of the body- Usually not present.

No evidence of sexual assault.

Emphysematous bullae on the surface of the lungs â€" not present.

Modi further describes that when the structures under the ligature mark is exposed, there is extravasation of blood into the sub â€" cutaneous

tissues as well as in the adjacent muscles of the neck. He described as under :-

(1) Ligature Mark :- Ligature mark is a well defined and slightly depressed mark corresponding roughly to the breadth of the ligature, usually situated

low down in the neck below the thyroid cartilage and encircling the neck horigontally and completely. The marks are multiple if the ligature is

twisted several times round the neck, also more than one firm knot of the ligature is certain and homicide. The mark may be oblique as in hanging, if

the victim has been dragged by a cord after he has been strangled in a recumbent posture, or if the victim was sitting and assailant applied a

ligature on the neck while standing behind him, thus using the force backward and upward. The base of the mark, which is known as groove or

furrow, is usually pale with reddish and ecchymosed margin. It becomes dry, hard and parchment â€" like, several hours after death, if the skin has

been excoriated . The pattern of the ligature may also be seen. Very often, there are abrasions and ecchymoses in the skin adjacent to the marks.

In some cases, the mark in the neck may not be present at all, or may be very slight, if the ligature used is soft and yielding like a stocking of scarf,

and if it is removed soon after death. A careful search of the neck may reveal minute fibres and any other material from the ligature.â€​

Admittedly, the Doctor who performed the postmortem of the deceased did not notice aforesaid symptoms on the neck of the deceased, hence,

there is a doubt that the deceased was died due to handing.

From the analysis of evidence that the appellant was inside of the room alongwith the deceased with her consent and thereafter the brother of the

deceased had beaten the appellant. He may have had beaten the deceased also. In such circumstances, in my opinion the trial court has committed

error in holding the appellant guilty for commission of offences, as aforesaid. Consequently, the appeal filed by the appellant is hereby allowed. He is

acquitted from the charges as mentioned above. His bail bonds are hereby discharged. The impugned judgment of the trial court is hereby set

aside.