# Aniraka Prasad Yadav v. State of U.P

- **Citation:** (2022) 8 ILRA 826
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Criminal Appeal No. 5369 of 2009
- **Bench:** Manoj Misra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aniraka-prasad-yadav-v-state-of-u-p-48944
- **Pages:** 13

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - The Code of Criminal
Procedure, 1973 - Section 313 - appeal
against conviction -murder - proof of
motive immaterial - when the facts are
clear and the absence of motive does not
break
the
links
in
the
chain
of
circumstances connecting the accused
with the crime - Proof of motive or ill will
is
unnecessary
to
sustain
conviction
where there is clear evidence. (Para - 25)
accused ( husband of deceased) - living under
same roof - present at his house on day of
incident - homicidal death - established from
medical evidence & inquest report- accused
tried to show his presence elsewhere - accused
gave false explanation that deceased committed
suicide - established - homicide of deceased
portrayed - suicide by hanging - rules out
possibility of involvement of an outsider in crime
- behavior of accused not good with deceased
- torture and beat - motive of crime. (Para -
23)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - last seen theory -
burden of proving fact especially within
knowledge - last seen theory comes into
play - where the time gap between the
point of time when the accused and the
deceased were last seen alive -when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible - accused-appellant to
explain the circumstances leading to the death
of the deceased - held - failed to discharge the
burden cast upon him by section 106 of
Evidence Act. (Para - 18,19)

(C) Evidence Law
- case based on
circumstantial evidence - circumstances
from which conclusion of the guilt is to be
drawn is fully established - consistent only
with the hypothesis of the guilt of the
accused
-
circumstances
are
of
a
conclusive nature and point towards the
guilt of the accused - exclude every other
possible hypothesis - chain of evidence is
so
complete
as
not
to
leave
any
reasonable ground for the conclusion
consistent with the innocence of the
accused - shows that in all human
probability the act must have been done
by the accused.(Para - 26)

HELD:-Prosecution case stands proved beyond
reasonable
doubt.
Trial
court
properly
appreciated evidence. Conclusion drawn by trial
court is just and proper. No illegality or
perversity in the findings of trial court. No
ground to interfere in the findings and
conclusion recorded by trial court. (Para -27 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,937 of 43,867. This is a partial read: ask again with offset=39937 for what follows._

826 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 8 ILRA 826
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 5369 of 2009

Aniraka Prasad Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ramesh Sinha, Sri Ravindra Balkrishna
Kanhere

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 302 - The Code of Criminal
Procedure, 1973 - Section 313 - appeal
against conviction -murder - proof of
motive immaterial - when the facts are
clear and the absence of motive does not
break
the
links
in
the
chain
of
circumstances connecting the accused
with the crime - Proof of motive or ill will
is
unnecessary
to
sustain
conviction
where there is clear evidence. (Para - 25)
accused ( husband of deceased) - living under
same roof - present at his house on day of
incident - homicidal death - established from
medical evidence & inquest report- accused
tried to show his presence elsewhere - accused
gave false explanation that deceased committed
suicide - established - homicide of deceased
portrayed - suicide by hanging - rules out
possibility of involvement of an outsider in crime
- behavior of accused not good with deceased
- torture and beat - motive of crime. (Para -
23)

(B) Evidence Law - Indian Evidence Act,
1872 - Section 106 - last seen theory -
burden of proving fact especially within
knowledge - last seen theory comes into
play - where the time gap between the
point of time when the accused and the
deceased were last seen alive -when the
deceased is found dead is so small that
possibility of any person other than the
accused being the author of the crime
becomes impossible - accused-appellant to
explain the circumstances leading to the death
of the deceased - held - failed to discharge the
burden cast upon him by section 106 of
Evidence Act. (Para - 18,19)

(C) Evidence Law
- case based on
circumstantial evidence - circumstances
from which conclusion of the guilt is to be
drawn is fully established - consistent only
with the hypothesis of the guilt of the
accused
-
circumstances
are
of
a
conclusive nature and point towards the
guilt of the accused - exclude every other
possible hypothesis - chain of evidence is
so
complete
as
not
to
leave
any
reasonable ground for the conclusion
consistent with the innocence of the
accused - shows that in all human
probability the act must have been done
by the accused.(Para - 26)

HELD:-Prosecution case stands proved beyond
reasonable
doubt.
Trial
court
properly
appreciated evidence. Conclusion drawn by trial
court is just and proper. No illegality or
perversity in the findings of trial court. No
ground to interfere in the findings and
conclusion recorded by trial court. (Para -27 )

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. S.K. Yusuf Vs St. of W.B., (2011) 11 SCC 754

2. Sharad Birdhichand Sarda, AIR 1984 SC 1622

3. Haresh Mohandas Rajput Vs St. of Maha.,
2011 (12) SCC 56

4. Sadddik Vs St. of Guj., 2016 (10) SCC 663

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)
8 All. Aniraka Prasad Yadav Vs. State of U.P.
827

1. We have heard Sri Ravindra
Balkrishna Kanhere, for the appellant and
Sri H.M.B. Sinha, learned AGA for the
State.

2. This Criminal Appeal has been
filed against the judgment and order dated
31.07.2009 passed by Sessions Judge,
Sonbhadra in S.T. No. 32 of 2008 (State vs.
Aniraka Prasad Yadav and ors), arising out
of case crime no.263 of 2007, P.S.
Babhani, District Sonbhadra, convicting the
accused-appellant under Section 302 IPC
and
sentencing
him
to
undergo
imprisonment for life, and fine of Rs.1000/-
and in default of payment of fine, one
month rigorous imprisonment.

Narration of Facts

3. The factual matrix is as follows:

Aniraka Prasad Yadav (appellant)
gave an application at P.S. Babhani on
20.12.2007.
It
was
alleged
in
the
application that applicant Aniraka S/o
Bechu Yadav is resident of Village-
Chainpur,
P.S.
Babhani,
District
Sonbhadra. His marriage was solemnized
with Chun Kuwar, D/o Hira Lal, Village
Semaria,
P.S-Raghunathpur,
District
Sarguja Chattisgarh, 10-12 years before.
The age of his wife is 31 years. He has
three children namely Mahavir aged about
6 years, Raghuvir aged about 5 years and
Jagvir aged about 3 years. His wife was 7-8
months pregnant. She had a stomach-ache
from 19.12.2007. Today on 20.12.2007 at
about 9:00 am, he has gone to fetch
medicine from the village. When he
returned back he saw that his wife Chun
Kuwar has committed suicide by hanging
herself in the osara (veranda) of his house.
Her dead body is lying there in the same
position. He has given the information of
this incident to his in-laws through Ram
Dulare. He has informed through telephone
No.09977437032
and
STD
No.07772262138.
The
aforesaid
information was entered in the GD at serial
No.20 at 12:30 hrs. The inquest proceeding
of the dead body was conducted and it was
sent for postmortem examination.

On 21.12.2007, the father of
Chun Kuwar (deceased) namely Hira Lal
(complainant) P.W.-1 gave a written
information at P.S. Babhani alleging
therein that he has married his daughter
Chun Kuwar to Aniraka S/o Bechu in the
year 1995. His daughter was being tortured
by her husband and his elder brother and
they have beaten her several times. A
Panchayat was also held in the village
Chainpur. In February-2007 his daughter
had gone for labour work at Chainpur
Bawali. On issue of preparing meal,
Aniraka Prasad went to Brahaman Basti at
a distance of 1 km and in front of hundred
of labourers brutally assaulted Chun
Kuwar, causing her serious injuries and
bleeding started from her ears. Labourers
rescued her. On receiving this information
the complainant with his wife went to the
house of his daughter at village Chainpur.
Then his son-in-law, his elder brother-
Dwarika and Udai Narayan abused them
and became ready to assault them. He and
his wife went to the village Pradhan and
told him about the matter and returned to
their house with his daughter, Chun Kuwar.
His daughter lived there for 7 months but
his son-in-law did not come to take her
back. After 7 months his son-in-law came
then, after counseling his son-in-law and on
his assurance, he sent his daughter back
with him but he again beat her two times.
On receiving the information, he could not
go to the village Chainpur. On 18.12.2007,
Jwala Prasad Yadav of village Chainpur
828 INDIAN LAW REPORTS ALLAHABAD SERIES
told Aniraka and Dwarika Prasad that
Aniraka's wife was having illicit relation
with Udai Narayan. On this, his son-in-law
beat his daughter. On 19.12.2007 his
daughter went to the village Pradhan and
told him about this incident. At that time,
Vijay, Raghuvir, Kamta etc., were sitting
there. Pradhan said that he will counsel
Aniraka when he returns back but Aniraka
did not return till late night. In the night of
19.12.2007 in furtherance of criminal
conspiracy hatched by Jwala Prasad, Udai
Narayan and Dwarika Prasad and with their
aid, Aniraka committed the murder of his
daughter. His daughter was having 7
months
pregnancy.
After
committing
murder they are trying to portray it as
suicide by hanging. None of the villagers of
Chainpur who has seen this incident is
accepting it as suicide. His another
daughter is living in the village Chainpur
and she has narrated the entire incident.

On
the
aforesaid
written
information crime No.263 of 2007 under
section 302 was registered at 16:00 hrs against
Aniraka Prasad Yadav, Dwarika Prasad, Udai
Narayan and Jwala Prasad. The investigation
of the case was taken by S.O., Shubh Narayan.
On the same day, he recorded the statements
of Chick/ GD writer, complainant Hira Lal
and other witnesses. On the indication of
complainant, he inspected the place of
occurrence and prepared the site plan (Ex. Ka8). From the place of occurrence the
Investigating Officer seized one rope allegedly
used in the hanging and prepared its memo. In
subsequent dates, he recorded the statements
of other witnesses and after completion of the
investigation
submitted
the
charge-sheet
against the accused Aniraka Prasad Yadav and
Dwarika Prasad Yadav for offence under
Section 302 IPC exonerating the other named
accused of the FIR namely Udai Narayan and
Jwala Prasad.

4. The case was committed to the court of
session. The sessions Judge on 28.03.2008
framed charge under Section 302 IPC against
the accused Aniraka Prasad Yadav and
Dwarika Prasad Yadav. The accused pleaded
not guilty and claimed for trial. In oral evidence,
the prosecution examined eight witnesses while
in documentary evidence 13 documents
Ex.Ka.1 to Ex.Ka.13 were produced.

The statements of the accused were
recorded under Section 313 Cr.P.C. and
incriminating circumstances put to them. Both
the accused denied the prosecution evidence.
Accused Aniraka Prasad Yadav in his
additional statement said that he is living
separately from Dwarika before the incident.
He has informed the police about the incident.
Accused Dwarika Prasad in his Additional
statement has said that he is living separately
with his brother and does labour work. In
defence one witness Ram Keshwar Dubey
(D.W.-1) was examined.

The learned trial court after hearing
the arguments, by the impugned judgment and
order held Aniraka Prasad Yadav guilty for the
offence under Section 302 IPC and sentenced
him as above while acquitted Dwarika Prasad
Yadav.

Prosecution Evidence.

5. According to autopsy report,
postmortem was conducted on 21.12.2007 at 12
noon.

External Examination

The deceased was of average
built body. Rigor mortis was present over
upper limb, lower limb and back, paused in
the neck. There was no putrefaction. Eyes
were opened and mouth was closed.
Tongue was inside tooth margins. Vaginal
8 All. Aniraka Prasad Yadav Vs. State of U.P.
829
discharge was present. The following antemortem injuries were found on the body:

1. Depressed contused mark over
neck upper part, 25 cm x 1 cm. Directed
anterior ward upward, depressed on back
and lateral side of neck anteriorly, skin
thinned out, 6 cm below ear right side, 5
cm below ear left side. Depressed mark to
heel length was 133 cm.

2. Another mark left side neck, 4
cm x 1⁄2 cm beginning from previous mark
up left side thyroid cartilage, 6.5 cm below
left ear.

3. Abrasion 1.5 cm x 0.3 cm
transverse from right side mark, 6 cm
below mid chin point, depressed mark just
below chin 3x2 cm.

Internal Examination:

The skin became thin at place of
mark on the neck. Blood was found in
tissue. Carotids both side compressed,
veins
compressed
Membrane
was
congested. Brain was congested. Tongue
and hyoid bone were intact. Trachea was
congested. No bruising. Both lungs were
congested. Fine frothy secretion on cutting.
Left side of heart was empty. Right side of
heart was half filled with dark blood. Thick
liquid matters about 50 ml, was found in
stomach. Pregnancy of about 28 weeks was
in the womb.

According to opinion of the
doctor, cause of death was asphyxia due to
pressure
over
neck.
Viscera
was
preserved.

The autopsy surgeon Dr. U.P.
Pandey (P.W.-8) has proved autopsy
Report Ex.Ka-13.

6. Prosecution has produced 6 other
witnesses. Hira Lal (P.W.-1) is the
complainant. In his examination-in-chief he
has stated that deceased Chun Kuwar was
his daughter and was married to accused
Aniraka in the year 1995. 5-6 years before
the incident, his daughter was doing labor
work at a pond. His son-in-law brutally
assaulted her there. Bleeding started from
her ears. On information, he went to her
Sasural where his son in law and Dwarika
got ready to assault him. Jwala Prasad and
Udai exhorted them. Thereafter he went to
the house of Pradhan and told him the
entire incident who promised to settle the
things. His daughter was at his house for
about seven months and thereafter, she was
sent back to her husband's house. When he
got the information of the death of his
daughter on telephone at 12- O' Clock he
went to the house of Pradhan of village
Chainpur, the sasural of his daughter and
enquired. Then he got the tehrir scribed by
Pradhan. He submitted the Tehrir at police
station Babhani and lodged the report.

7. Bali Ram Yadav (P.W.-2) is
brother-in-law (Sister's husband) of the
deceased. The witness has stated that the
marriage of his sister-in-law (sali) Chun
Kuwar was solemnized with Aniraka of his
village. Out of the wedlock, three issues
were born. One year before the incident, on
occasion of Holi, his father-in-law Hira Lal
came to the house of Aniraka for vidai of
Chun Kuwar. But Aniraka started to abuse
and assault Hira Lal. Then Hira Lal went to
the house of Pradhan. Pradhan said that
matter will be settled. After some days Hira
Lal took away Chun Kuwar to his house.
She
remained
there
for
7
months.
Thereafter she was sent to her in-laws
house where she was being ill-treated by
her husband. Jwala Prasad and Udai
Narayan
counselled
Aniraka
but
he
830 INDIAN LAW REPORTS ALLAHABAD SERIES
continued to beat Chun Kuwar. The witness
stated that in the night before the incident
he was returning from his sasural to his
village Chainpur. When he reached in front
of the house of Aniraka he heard cries and
saw the maar-peet. He remained there for
10 minutes witnessing the maar-peet and
abusing. One day before it, his sister-in-law
Chun Kuwar had made a complaint to the
Pradhan that Jwala, Udai Narayan, Dwarika
and Aniraka will kill her. The Pradhan told
that he will counsel them tomorrow but in
the night, the incident happened. In the
morning, he came to know that Chun
Kuwar hanged herself and died. On this
information, he went to the house of
Aniraka with other villagers. He saw that
rope was tied in the neck of Chun Kuwar,
her left hand was resting on the cot. Her
both knees were on the ground. This
scenario indicated that she did not hang
herself. Rather, she was killed and
thereafter hanged with a rope. He gave the
information of the incident to his father-inlaw.

8. Smt. Sita Kunwar (P.W.-3) is the
sister of the deceased. In her examinationin-chief, she has stated that Chun Kuwar
was her younger sister. She was married
with Aniraka who resided in her village. In
the previous night of the day of the incident
at 11:00 pm she along her husband were
returning from her maternal home (Maika).
When they reached in front of the house of
Aniraka they heard cries and shrieks of
Chun Kunwar. They stopped there for 5 to
10 minutes. Thereafter shrieks stopped.
Then they proceeded to their house. On the
next day, in the morning, her husband had
gone to in-laws house. She had gone to
graze her cattle at bandhi. There her jeth-
Suraj Prakash came and asked her to go
home. She asked what is the matter then
she was told that her sister Chun Kuwar
had hanged herself. Then she came at the
house of Chun Kuwar. The door of the
house was closed. It was opened in front of
her. She saw from the entrance that Chun
Kuwar was hanging. Her knees were
resting on the ground and one hand was on
the cot. It appeared from looking at her
dead body that she had not hanged herself,
rather she has been murdered and then
hanged.

9. Lal Babu Sharma (P.W.-4) is the
formal witness of Panchayatnama. In his
examination in chief, the witness has stated
that Aniraka lives in his village. His wife
Chun Kuwar died, one and a half-two years
earlier. The inquest proceeding of the dead
body was conducted by police in his
presence and the body was sealed. The
witness has identified his signatures on the
inquest report. The witness has further
stated
that
at
the
time
of
inquest
proceeding, the police also took into
possession the rope which was tied on the
neck of the deceased and prepared its
memo. The witness has also identified his
signature on the memo.

10. S.I. Raj Kumar (P.W.-5) has
conducted the inquest proceedings. The
witness has stated that on 20.12.2009. He
was posted as SI in police station Babhani,
District Sonbhadra. On written information
about death given by Aniraka Yadav, he
along with SI Triveni Prasad reached
village Chainpur. On the spot they saw that
Chun Kuwar W/o Aniraka Yadav was
hanging dead in her osara (veranda). Her
both feet were resting on the ground and
toes of her feet were touching the ground,
her left hand was resting on the cot, three
feet rope was tied on the neck of the
deceased. There was a black spot of rope.
He conducted the inquest proceeding and
prepared related papers and sent the body
8 All. Aniraka Prasad Yadav Vs. State of U.P.
831
for postmortem examination. The witness
has proved the inquest report Ex. Ka-2 and
related papers Ex.Ka-3 to Ka-6. The
witness has also stated that the rope tied on
the neck of the deceased was taken into
custody and a memo was prepared. The
witness has proved this memo as Ex.Ka-7.

11. S.I. Shubh Narayan (P.W.-6) is
the
Investigating
Officer.
In
his
examination-in-chief the witness has stated
that on 19.12.2007, he was posted as SO
Babhani, District Sonbhadra. On written
application of Hira Lal S/o Munna alias
Prem case crime no.263/2007, under
section 302 IPC was registered in his
presence and he took up the investigation.
He
recorded
the
statement
of
the
complainant Hira Lal and other witnesses,
visited the place of occurrence and on the
indication of the complainant, prepared the
site plan. The witness has proved it as
Ex.Ka-8. The witness has further stated that
on different dates, he recorded the
statements of other witnesses and after
collecting sufficient evidence, submitted
the charge-sheet on 29.12.2007 . The
witness has proved it as Ex.Ka-9.

12. Constable Jai Nath Tiwari (P.W.-
7) is also a formal witness who has registered
the FIR and made its GD entry. The witness
has stated that on 21.12.2007 he was posted
at P.S. Babhani, Sonbhadra as constable
Moharrir. On that date on the written
application of Hira Lal, he registered case
crime no.263 of 2007 under Section 302 IPC
on chik No.63 of 2007. The witness has
proved the chik FIR as Ex.Ka-10. The
witness has further stated that he entered the
description of the case in GD No.24 at 16:00
hrs on the same date. The witness has proved
the carbon copy of the GD as Ex.Ka-11.

Defence Evidence.

13. One witness Ram Keshwar
Dubey (D.W.-1) has been examined in
defence. The witness in his examination-inchief has stated that he knows Aniraka and
Dwarika who lives in his village. Both the
accused are living separately before the
incident.
They
are
labours
and
in
connection with their work they used to
visit different places like Dala, Shaktinagar,
Renukoot etc. When they go for work they
stay out for a week or 10 days. The witness
further stated that incident occurred one
and a half year ago. 3 to 4 days before the
incident, the accused- Aniraka had gone to
Dala for labour work. The wife of Aniraka
was pregnant and sick. This information
was given to Aniraka, who arrived at his
house in the morning at 4-5 am. In the
morning, Aniraka visited Dr. Ram Prasad
in the village where he and 8 - 10 persons
were present. Aniraka told the doctor about
the illness of his wife and after taking
medicine, Aniraka along with him came to
the house of Aniraka. There he saw that in
the osara (veranda) of the house of
Aniraka, his wife was hanging with a rope
tied on her neck and she was dead. The
witness further stated that his house is in
the neighbourhood of Aniraka. In the night
of 19.12.2007, Aniraka was not present at
his house. Aniraka visited Dr. Ram Prasad
at about 6-7 am.

Submissions on behalf of appellant:-

14. The learned counsel for the
appellant contended that there is no eye
witness account of the incident. The
prosecution case is based on circumstantial
evidence. The marriage of the deceased
was solemnized with the accused in the
year 1995 and they have three male issues.
Deceased was also pregnant at the time of
incident. No cogent averments have been
made regarding motive of the incident.
832 INDIAN LAW REPORTS ALLAHABAD SERIES
Whatever has been alleged in the FIR is not
proved because the public witnesses
examined by the prosecution have stated
that the deceased was living with the
accused happily and peacefully. There was
no dispute between them. It is further
contended that as the case is based on
circumstantial
evidence,
motive
is
important and prosecution has failed to
prove it. Learned counsel also contended
that the information of the incident was
given by the accused himself to the police
on the same day which has been entered in
the GD. On the basis of information given
by the accused, the inquest proceeding was
conducted and the body was sent for
postmortem examination. The accused has
also informed the family members of the
deceased regarding the incident. This fact
has been admitted by the complainant Hira
Lal (P.W.-1). The appellant remained
present and did not try to escape, which
shows his innocence. It is further contended
that on the information given by the
appellant, the family members of the
deceased came and in their presence the
last rites were performed. Till then neither
any
complaint
was
made
nor
any
allegations were levelled. After two days of
the incident on 21.12.2007 at the behest of
someone, the complainant lodged the FIR
which establishes that FIR has been lodged
after consultation. It is next contended that
in the postmortem report except the injuries
on the neck no other mark of injuries has
been found on the body. Trachea and hyoid
bone are found intact. At the time of
inquest the dead body was hanging with a
rope which has been seized by the
Investigating Officer and its memo has
been prepared. One of the contusion found
on the body is measuring 25 c.m. x 1 c.m.
There is no sign of strangulation or
throttling, it may be a case of partial
hanging due to which ligature mark was not
found on the body. It is established from
the evidence that deceased was pregnant.
The accused has produced the evidence in
defence that at the time of the incident he
has gone to fetch medicine from doctor as
the deceased was having stomach-ache. So
the circumstances suggest that as the
deceased could not tolerate the stomachache, she committed suicide by hanging
with a rope. It is further contended that
P.W.-3 Smt. Sita Kunwar is the sister of
deceased and Bali Ram P.W.-2 is the
husband of Sita Kuwar and they have
inimical terms with the accused. They have
admitted it in their statements. There are
major
contradictions
between
the
statements of the witnesses on material
points. Hence, their testimony is not
reliable. As the marriage is beyond 7 years,
no presumption will apply. The chain of the
circumstances is not complete and there is
no sufficient evidence on record to prove
that the accused has committed the murder
of his wife. The learned trial court has
failed to appreciate the evidence. The
finding of the learned trial court that it is a
case of homicide is against the evidence on
record. It is not proved from the evidence
that the accused has committed murder by
strangulation or throttling rather it is
established
that
the
deceased
has
committed suicide but the court below has
given a perverse finding upon this point.
The finding of conviction recorded by the
learned trial court is perverse and illegal.

Submissions of behalf of respondent-
State

15.

Per-contra
learned
AGA
contended that from the prosecution
evidence, it is established that the conduct
of the accused was not good. The deceased
was ill-treated by the accused. On one
occasion the accused had assaulted her
8 All. Aniraka Prasad Yadav Vs. State of U.P.
833
severely in front of other labourers
causing bleeding from her ears. These
facts and circumstances establishes the
motive of the incident. It is further
contended that Bali Ram Yadav (P.W.-2)
and Smt. Sita Kuwar (P.W.-3) are
residents of same village. So they are
natural witnesses. They have stated that in
the previous night of the incident at 11:00
pm when they were returning from maika
of Sita Kuwar, they heard the cries and
shrieks of Chun Kuwar. They remain there
for 5-10 minutes and when shrieks
stopped, they went to their house. In the
next morning, Smt. Sita Kuwar got the
information that her sister Chun Kuwar
has died. It is next submitted that no
ligature mark was found on the neck of the
deceased and in postmortem, the cause of
death is mentioned as asphyxia due to
pressure on neck. Dr. U.P. Pandey P.W.-8
in his cross-examination has categorically
ruled out the possibility of death by
hanging. So from the medical evidence on
record, it is fully established that it is a
case of homicide and not of suicide. The
accused to save himself has tried to create
a scenario to indicate that it is a case of
suicide. This
fact
itself shows
the
culpability of the accused. It is also
contended that from the statement of
defence witness and the information given
by the accused at police station, his
presence in the house is established, so
burden shifts on him to explain that in
what circumstances the deceased has died.
The explanation given by the accused is
improbable and false. The provision of
Section 106 of Evidence Act will apply.
From the prosecution evidence, a complete
chain of circumstances is established
which clearly points toward the guilt of
accused.
The
finding
of
conviction
recorded by the trial court is just and
proper. It is neither perverse nor illegal.

Analysis

16 . The first point for consideration is
whether the death is homicidal or suicidal.
According to inquest report Ex.Ka-2 the
dead body was found hanging from a rope
in osara (verandah) in front of the door.
Both the knees of the victim were resting
on the ground with both legs bent from the
knees and toes touching the ground with
ankle up. Left hand was resting on the cot
while the right hand was by the side. S.I.
Raj Kumar (P.W.-5) who has conducted the
inquest proceeding has confirmed the
aforesaid body position in his statement. In
such a position of the body, it is not
possible that the weight of the body will
exert any pressure on the neck. So hanging
seems improbable from the position in
which the body was noticed. In autopsy
report Ex.Ka-13, three ante mortem injuries
were found on the neck. The first one is
depressed contused mark over upper part of
the neck 25 cm x 1 cm, 6 cm below ear on
right side and 5 cm below ear on left side.
Autopsy Surgeon Dr. U.P. Pandey has
stated that this mark was more depressed in
the back and side of the neck while in front
of the neck, it was less depressed. The skin
was thinned off. The second injury is
another mark on left side of neck 4 cm X
0.5 cm beginning from first mark up left
side of thyroid cartilage and 6.5 cm below
left ear. Third one is abrasion 1.5 cm X 0.3
cm, transverse from right side mark, 6 cm
below mid chin point. In Autopsy report,
no ligature mark was found on the neck. In
case of hanging the ligature mark is a
prominent sign which is lacking in this
case. In internal examination, carotids of
both side were compressed, membranes
were congested. The cause of death is
mentioned as asphyxia due to pressure on
the neck. Dr. U.P. Pandey (P.W.-8) in his
cross examination has categorically ruled
834 INDIAN LAW REPORTS ALLAHABAD SERIES
out death as a result of hanging and has
stated that in the case of hanging, such
marks are absent. It is true that in autopsy
report trachea and hyoid bone have been
found intact. The doctor has admitted this
and stated that no fracture was found in the
neck of the deceased. But this cannot be
conclusive to establish that it is a case of
hanging because fracture of hyoid bone and
trachea is not necessary in all cases of
strangulation. It depends upon the pressure
applied. So the position of the dead body as
described in the inquest report, the internal
& external examination as mentioned in the
autopsy report and the opinion of autopsy
Surgeon (P.W.-8) establishes that it is a
case of homicide and not of suicide by
hanging. So from the medical evidence on
record it stand proved that it is not a case of
suicide but it is a case of homicide.

17 . It is undisputed that accused is the
husband of the deceased and both were
living in the same house. From the defence
evidence, it is also established that on the
date of the incident accused was present at
his house. Ram Keshwar Dubey (D.W.-1)
in his examination-in-chief has stated that
on getting information about the illness of
his wife, the accused Aniraka had reached
his house in the morning at about 4-5 am
on the day of the incident. The written
information of the death of the deceased
was given by the accused himself at police
station. In this information, it is alleged that
the wife of the accused was 7-8 months
pregnant, she had stomach-ache from
19.12.2007. On 20.12.2007 at about 9 am,
he had gone to fetch medicine from the
village. So from this information also it is
established that on the day of incident,
accused was present at his house and the
deceased was last alive in his company.

18. The accused has denied his
presence at the time of incident in the
house. The defence version is that the
accused at the relevant point of time was
away from home as he had gone to fetch
medicine for the deceased who was
suffering from stomach-ache. There is
material contradiction in the defence
evidence, on the point of time, when the
accused had gone to fetch medicine. In the
written information about the death of his
wife, the accused has alleged that on
20.12.2007 at about 9 am he had gone to
fetch medicine in the village, while Ram
Keshwar Dubey (D.W.-1) has stated that
Aniraka visited the doctor at about 6-7 am.
So there is a difference of about 2-3 hrs in
the timing between the oral statement of
Ram Keshwar Dubey (D.W.-1) and the
written information given by the accused.
According to postmortem report Ex.Ka-13
the
postmortem
was
conducted
on
21.12.2007 at 12 noon. The estimated time
of death is about 28 hrs before the autopsy.
So, according to medical evidence, the
death may have occurred in the morning of
20.12.2007. It is also established from the
evidence that the incident occurred in the
morning of 20.12.2007. Thus, the aforesaid
contradiction in defence evidence is very
material. It is also established from the
evidence that the accused has not gone
outside the village. Rather, according to
defence evidence, he was in the village and
had gone to fetch medicine which, in
ordinary course should not consume much
time. So there is not much gap between the
point of time when the deceased was in the
company of accused and when she was
found dead. In the case of S.K. Yusuf vs.
State of West Bengal (2011) 11 SCC 754,
the Hon'ble Apex Court has made the
following observations:
8 All. Aniraka Prasad Yadav Vs. State of U.P.
835

The last seen theory comes into
play where the time gap between the point
of time when the accused and the deceased
were last seen alive and when the deceased
is found dead is so small that possibility of
any person other than the accused being
the
author
of
the
crime
becomes
impossible.

19. The aforesaid analysis clearly
establishes that the last seen theory will
come into play and Section 106 of
Evidence Act will apply. The accused had
to explain the circumstances leading to the
death of the deceased. The defence case in
this respect is that the deceased has
committed suicide which is ruled out from
the evidence on record as analyzed above.
The explanation offered by the appellantaccused regarding the circumstance under
which the deceased has died is improbable,
unsatisfactory and not sustainable. The
accused-appellant has failed to discharge
the burden cast upon him by section 106 of
Evidence Act.

20.

The
most
incriminating
circumstance is that a scenario has been
created to indicate that the deceased has
committed suicide. It clearly rules out the
possibility of involvement of any outsider.
If the murder has been committed by an
outsider, there was no occasion and
necessity to portray it as a suicide. This
circumstance
clearly
rules
out
the
possibility of involvement of any outsider
in the offence.

21. In the FIR, it is alleged that
marriage of Chun Kuwar the daughter of
the informant was solemnized with accused
Aniraka in the year 1995. He used to
torture and harass her and on several
occasions beat her. In the FIR while
specific incident of February, 2007 has also
been narrated and it is alleged that in
February, 2007 her daughter was engaged
in labor work and on the issue of
preparation of meal Aniraka assaulted his
wife (the deceased) in front of hundreds of
labourers. The assault was so brutal that
she started bleeding from her ears. The
labours had to intervene.

Hira Lal (P.W.-1) the father of
the deceased, from his statement has
corroborated that on one occasion his
daughter was brutally assaulted in front of
other labourers by the accused when she
had gone to work as a labour. Her ears
started bleeding. On getting information, he
went to sasural of his daughter where
Aniraka and Dwarika became ready to
assault him. He made a complaint to the
Pradhan where a Panchayat was held and
he came back with his daughter who
remained at his house for 7 months and no
one from her-in-law's side came for her
vidai. The aforesaid statement establishes
that behavior of accused was not good with
the deceased and he used to torture her and
beat her. Bali Ram Yadav (P.W.-2) has also
deposed about the bad behavior of the
accused with his wife. This witness has
also stated that the accused used to beat her
and he continued it despite counseling. In
his cross-examination, the witness has
admitted that his relations with the accused
was not normal and they were not on
talking and visiting terms. So it can be said
that the oral evidence of the witness may be
hearsay and no reliance can be placed on it.
However, even if the testimony of P.W.-2
on this point is disbelieved, from the
statement of Hira Lal (P.W.-1), it is
established that behavior of accused was
not good with the deceased and he used to
torture and beat her. This is other
circumstance which establishes the motive
of the incident against the accused.
836 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Prosecution has also relied on the
testimony of Bali Ram Yadav (P.W.-2) and
Sita Kuwar (P.W.-3) who have deposed
that in the previous night of the incident at
11 p.m. they were returning from maika of
Sita Kuwar and when they reached in front
of the house of accused Aniraka, they heard
the cries and shrieks of Chun Kuwar, they
stopped there for 5 to 10 minutes. When the
cries and shrieks of Chun Kuwar stopped
they went to their house. On the next day,
the incident happened. It is established
from the evidence that both these witnesses
reside in the same village. They have
admitted in their statement that their
relations with accused Aniraka was sour
and they were not on visiting and talking
terms. So these witnesses are related as
well as chance witnesses and also inimical.
Hence cautious approach is required while
evaluating their oral testimony. There are
material contradictions in their statements.
Bali Ram Yadav (P.W.-2) in his crossexamination has stated that he had gone to
his sasural with his wife 4-5 days before,
reached there in the day time and stayed in
the night. Thereafter returned back. While
Sita Kuwar P.W.-3 has stated that she has
gone to her maika alone 6-7 days before.
Further, Bali Ram P.W.-2 has stated that
they returned by bus. It is 3 hrs journey by
bus. They boarded the bus at 3-pm while
Sita Kuwar (P.W.-3) on this point has
stated that they proceeded from maika
village Gaina at 9-10 am. They came by
bus which takes 4-5 hrs. So according to
Bali Ram Yadav, he boarded the bus at 3
pm while Sita Kuwar (P.W.-3) has stated
that they proceeded at 9-10 am. Further,
according to Bali Ram P.W.-2 it is 3 hrs
journey so according to his statement they
would have reached village Chainpur at
about 6 pm while according to Sita Kuwar
P.W.-3 they boarded the bus at 9-10 am
and it is 4-5 hrs journey so according to her
statement, they would have reached village
Chainpur at about 2-4 pm. In their
examination-in-chief they have stated that
when they were returning from village
Gaina they reached in front of the house of
Chun Kuwar at 11 pm. Neither from the
statement of Bali Ram (P.W.-2) nor from
the statement of Sita Kuwar (P.W.-3) the
time of reaching village Chainpur, at 11 pm
is established. Being relative, inimical, and
chance witnesses, strict scrutiny and
cautious approach is required in analysis of
their
oral
testimony.
The
material
contradictions mentioned above makes
their testimony untrustworthy and no
reliance can be placed on their oral
statements. So this piece of prosecution
evidence is neither trustworthy nor reliable.

23. But even if the aforesaid piece of
evidence is excluded from consideration
then too, from the evidence on record,
following circumstances are established:-

(i) The accused Aniraka is the
husband of the deceased, living under same
roof and was present at his house on the
day of the incident.

(ii) The death of the deceased is
homicidal which is established from the
medical evidence as well as from the
position of the body mentioned in the
inquest report.

(iii) The accused has tried to
show his presence elsewhere at the time of
the incident but it is not established rather
it is established that the accused has given
a false explanation that deceased has
committed suicide.

(iv) The last seen theory will
apply, as the time gap between the accused
and deceased were together and when the
8 All. Aniraka Prasad Yadav Vs. State of U.P.
837
deceased was found dead is so small that
possibility of any other person being the
author of the crime becomes impossible.

(v)
The
circumstances
that
homicide of the deceased was portrayed as
suicide by hanging, further rules out the
possibility of involvement of an outsider in
the crime.

(vi) The behavior of the accused
was not good with the deceased and he
used to torture and beat her. This
establishes the motive of the crime.

24.
 The
law
with
regard
to
circumstantial evidence has been settled in
the case of Sharad Birdhichand Sarda
AIR 1984 SC 1622. The Supreme Court
has laid down the following five golden
principles to prove a case based on
circumstantial evidence:-

"(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) The circumstances should be
of a conclusive nature and unerringly point
towards the guilt of the accused.

(4) They should exclude every
possible hypothesis except the one to be
proved, and

(5) 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."

In the case of Haresh Mohandas
Rajput v. State of Maharashtra 2011 (12)
SCC 56 following its earlier decisions, the
Apex Court held that when a case rests
upon
circumstantial
evidence,
such
evidence must satisfy the following tests:-

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

(ii) those circumstances should be
of a definite tendency unerringly pointing
toward the guilt of the accused.