# Awadhesh Kumar Awasthi v. State Of U.P

- **Citation:** (2016) 6 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-06-06
- **Bench:** Surendra Vikram Singh Rathore, Anil Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-kumar-awasthi-v-state-of-u-p-43950
- **Pages:** 15

## Headnote

G.A., Shri A.K. Gupta, Shri Pramod Kumar Agnihotri

Held -
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

301
Para 1: The Court records the presence of the counsel for the appellant (Mr. Rajiv Mishra), the AGA for the
State, and notes that it has perused the case record.

Para 2: Details the appeal against the 2009 judgment from Hardoi Court, where the appellant was convicted
under Section 302 IPC (Life Imprisonment) and Section 176 IPC (1 year RI) for the murder of his wife.

Para 3: Outlines the prosecution's case: The mother-in-law (Nanhi Devi) found the deceased on a takhat after
being informed by her granddaughter. Initially, no FIR was registered, but following a post-mortem, the case
was registered under Section 306 IPC and later converted to Section 302 IPC. A Fukani (blowpipe) was
recovered as the weapon.

Para 4: Mentions the filing of the charge sheet after the investigation.

Para 5: Details the appellant's defense (Section 313 CrPC). He claimed to be a retired army man and alleged a
property dispute with his mother-in-law. He contended that his wife committed suicide by hanging due to
shame over her mother's conduct.

Para 6: Summarizes the post-mortem findings. Five injuries were noted, including an abraded contusion on
the neck. The doctors concluded the cause of death was asphyxia due to strangulation.

Para 7: Lists the eight prosecution witnesses (PW-1 to PW-8), including the mother-in-law, the daughter,
doctors, and police officers.

Para 8: Notes that the defense produced no oral evidence, only bank withdrawal documents.

Para 9: States that the Trial Court convicted the appellant after appreciating the evidence.

Para 10: Summarizes the appellant's arguments: The daughter's testimony was unreliable, there was no
motive, and the death was a suicide by hanging, making the post-mortem report "fabricated."

Para 11: Summarizes the State's (AGA) arguments: The death occurred inside the appellant's house where his
presence was natural; the doctor explicitly ruled out suicide.

Para 12-14: The Court discusses Motive. It agrees the prosecution didn't prove a specific motive but notes
that in cases of close relatives, motive is often hidden. Citing Supreme Court precedents, the Court clarifies
that absence of motive is not a ground to discard a case if other evidence is strong.

Para 15-16: The Court evaluates the daughter's (PW-2) testimony. It finds her "eyewitness" account
improbable due to her school timings and likely "tutored." However, the Court notes that even if direct
evidence fails, conviction can stand on circumstantial evidence.

Para 17: Recites the legal standard for conviction based on circumstantial evidence: the chain must be so
complete that it leaves no reasonable ground for innocence.

Para 18-19: Focuses on medical evidence. The doctor explicitly ruled out hanging. The Court includes a
comparative table from Modi's Medical Jurisprudence to show the distinct differences between Ha

## Text

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300 INDIAN LAW REPORTS ALLAHABAD SERIES

29.8 An employee on probation can be discharged from service or may be refused
employment on the ground of suppression of material information or making false statement
relating to his involvement in the criminal case, conviction or detention, even if ultimately he was
acquitted of the said case, inasmuch as such a situation would make a person undesirable or
unsuitable for the post.

29.9 An employee in the uniformed service pre-supposes a higher level of integrity
as such a person is expected to uphold the law and on the contrary such a service born in deceit
and subterfuge cannot be tolerated.

29.10 The authorities entrusted with the responsibility of appointing Constables, are
under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of
a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be
held to be suitable for appointment to the post of Constable."

18. In view of the above discussion, particularly in view of the fact that the writ petition
has been filed making false allegations and impleading a dead person and that manipulated paper
has been filed along with the writ petition, the writ petition is dismissed with cost of Rs.1,000/-
which shall be deposited by the petitioners with the Legal Cell Authority, High Court, Allahabad,
within a month from today.
-----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.06.2016

BEFORE

THE HON'BLE SURENDRA VIKRAM SINGH RATHORE, J.
THE HON'BLE ANIL KUMAR SRIVASTAVA, J.

Criminal Appeal No.- 164 Of 2010

Awadhesh Kumar Awasthi ...Appellant
Versus
State Of U.P. ...Respondent

Counsels for the Appellant:
Shri Shishir Chauhan, Shri D.P. Singh, Shri Pawan Kumar Mishra, Shri R.J. Trivedi, Shri Rajeeva Kumar Sinha,
Shri Rajiv Mishra, Ms Sonia Mishra.

Counsel for the Respondent:
G.A., Shri A.K. Gupta, Shri Pramod Kumar Agnihotri

Held -
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

301
Para 1: The Court records the presence of the counsel for the appellant (Mr. Rajiv Mishra), the AGA for the
State, and notes that it has perused the case record.

Para 2: Details the appeal against the 2009 judgment from Hardoi Court, where the appellant was convicted
under Section 302 IPC (Life Imprisonment) and Section 176 IPC (1 year RI) for the murder of his wife.

Para 3: Outlines the prosecution's case: The mother-in-law (Nanhi Devi) found the deceased on a takhat after
being informed by her granddaughter. Initially, no FIR was registered, but following a post-mortem, the case
was registered under Section 306 IPC and later converted to Section 302 IPC. A Fukani (blowpipe) was
recovered as the weapon.

Para 4: Mentions the filing of the charge sheet after the investigation.

Para 5: Details the appellant's defense (Section 313 CrPC). He claimed to be a retired army man and alleged a
property dispute with his mother-in-law. He contended that his wife committed suicide by hanging due to
shame over her mother's conduct.

Para 6: Summarizes the post-mortem findings. Five injuries were noted, including an abraded contusion on
the neck. The doctors concluded the cause of death was asphyxia due to strangulation.

Para 7: Lists the eight prosecution witnesses (PW-1 to PW-8), including the mother-in-law, the daughter,
doctors, and police officers.

Para 8: Notes that the defense produced no oral evidence, only bank withdrawal documents.

Para 9: States that the Trial Court convicted the appellant after appreciating the evidence.

Para 10: Summarizes the appellant's arguments: The daughter's testimony was unreliable, there was no
motive, and the death was a suicide by hanging, making the post-mortem report "fabricated."

Para 11: Summarizes the State's (AGA) arguments: The death occurred inside the appellant's house where his
presence was natural; the doctor explicitly ruled out suicide.

Para 12-14: The Court discusses Motive. It agrees the prosecution didn't prove a specific motive but notes
that in cases of close relatives, motive is often hidden. Citing Supreme Court precedents, the Court clarifies
that absence of motive is not a ground to discard a case if other evidence is strong.

Para 15-16: The Court evaluates the daughter's (PW-2) testimony. It finds her "eyewitness" account
improbable due to her school timings and likely "tutored." However, the Court notes that even if direct
evidence fails, conviction can stand on circumstantial evidence.

Para 17: Recites the legal standard for conviction based on circumstantial evidence: the chain must be so
complete that it leaves no reasonable ground for innocence.

Para 18-19: Focuses on medical evidence. The doctor explicitly ruled out hanging. The Court includes a
comparative table from Modi's Medical Jurisprudence to show the distinct differences between Hanging and
Strangulation.
302 INDIAN LAW REPORTS ALLAHABAD SERIES

Para 20-21: The Court applies Section 106 of the Evidence Act. Since the murder happened in the privacy of
the home, the burden shifted to the husband to explain the death. The Court lists five established
circumstances, including the "absolutely false defense" of suicide.

Para 22: Cites Supreme Court rulings affirming that a false defense by an inmate of a house can be used as a
"missing link" to complete the chain of circumstances.

Para 23: Rejects the argument for a Section 306 IPC (Abetment of Suicide) conviction, noting that the police
initially registered it as such only due to a "misreading" of the medical report.

Para 24-27: Analyzes the conduct of the parties. It finds the appellant's failure to explain the death to his
mother-in-law at the scene as "unnatural." It notes the property dispute provided a plausible backdrop for the
crime.

Para 28-30: Conclusion: The Court finds the chain of circumstantial evidence complete. The appeal is
dismissed, and the life sentence is confirmed.

List of Citations

Ujjagar Singh Vs. State of Punjab, (2007) 13 SCC 90.
Vijay Shankar Vs. State of Haryana, (2015) 12 SCC 644.
S.K. Yusuf v. State of West Bengal, AIR 2011 SC 2283.
Gajanan Dashrath Kharate Vs. State of Maharashtra, MANU/SC/0227/2016.
Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681.
Nika Ram v. State of H.P., (1972) 2 SCC 80.
Ganeshlal v. State of Maharashtra, (1992) 3 SCC 106.
State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300.
State of T.N. v. Rajendran, (1999) 8 SCC 679.
State of Rajasthan v. Parthu, (2007) 12 SCC 754.
Chaman and another Vs. State of Uttarakhand, JT 2016 (4) SC 187.
Shambhu Nath Mehra vs. State of Ajmer, AIR 1956 SC 404.
Inder Singh and another vs. The State (Delhi Administration), (1978) 4 SCC 161.
Gurbachan Singh vs. Satpal Singh and others, (1990) 1 SCC 445.

(Delivered by Hon'ble Surendra Vikram Singh Rathore, J.)

1. Heard Mr. Rajiv Mishra, learned counsel for the appellant, Ms. Ruhi Siddiqui, learned
A.G.A. for the State and perused the material available on record.

2. Under challenge in this appeal is the judgment and order dated 17.12.2009 passed by
learned Additional Sessions Judge, Court No. 7, Hardoi in Sessions Trial No. 417 of 2008, arising
out of Case Crime No. 295 of 2008, Police Station Bilgram, District Hardoi whereby present
appellant Avdhesh Kumar was convicted for the offence under Section 302 I.P.C. and was
sentenced with imprisonment for life and also with fine of Rs. 10,000/. He was further convicted
for the offence under Section 176 I.P.C. and was sentenced with rigorous imprisonment for a period
of one year.
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

303

Both the sentences were directed to run concurrently.

3. It is a case of murder of wife by the husband in his own house. The case of the
prosecution was that complainant Smt. Nanhi Devi, who happens to be mother in law of appellant
Avdhesh Kumar, informed the police that on 19.4.2008 at 2:00 p.m., her grand daughter came to
her house and told her that her Papa (appellant) has told that Mammi is dead. So Nanhi Devi went
to the place of occurrence and found her daughter lying dead on a Takhat in the house of appellant.
There was no apparent reason for her death. However it was also mentioned in the F.I.R. that
appellant frequently used to take liquor and used to beat her daughter. The marriage of the deceased
with the appellant was solemnized about 16 years prior to the incident. On the basis of this
information, inquest proceedings were conducted but the case was not registered. After receiving
the postmortem report, the case was registered under Section 306 I.P.C. Subsequently during
Investigation, the case was converted under Section 302 I.P.C. During the course of investigation,
appellant Avdhesh Kumar was arrested by police on 1.5.2008 and on his pointing out, an old iron
Fukani of about one balist six angul was recovered, which was used as weapon of offence and its
recovery memo was prepared.

4. After completion of investigation, charge sheet was filed.

5. The appellant has stated his defence version in detail in his statement under Section 313
Cr.P.C. He has stated that he is a retired army personnel. During service Smt. Nanhi Devi
frequently used to live with him at places of his posting. After his retirement, he along with his
family started living with Nanhi Devi in the temple compound in her house and lived there for
about 5 - 6 months. The plot of Kesupet was given to him in dowry at the time of his marriage.
During his service period, he got his house constructed on the said plot. But the transfer deed of the
said plot was not executed by Nanhi Devi in his favour. On the date of incident, on the first floor of
this house, the appellant was raising construction of his house, Nanhi Devi also owns a plot in
Mohalla Azadnagar District Hardoi for which Rs. 50,000/- was demanded by Nanhi Devi, which
was paid by the appellant. With the said money, Nanhi Devi got the house constructed and on the
plot of Kesupet, he got a house constructed investing Rs. 80,000/-. But after construction of the
house, Nanhi Devi refused to execute the transfer of plot. The house, which was constructed with
the money of the appellant, Nanhi Devi gave possession of the said house to her second daughter
Renu due to which there was quarrel between the deceased and Nanhi Devi. Thereafter the
appellant started living at the house of Kesupet where this incident has taken place. On the date of
incident, the deceased and her mother Nanhi Devi had entered into quarrel and hurling of abuses
also took place. Because of such dishonest conduct of her mother, she felt ashamed and feeling
aggrieved by such conduct of her mother and her uncle Mataram she committed suicide by
hanging.

6. The postmortem on the body of the deceased was conducted on 20.4.2008 at 3:30 p.m.
The duration was about one day. The deceased was aged about 35 years and following ante-mortem
injuries were found on her body:-
304 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Abraded contusion 12 cm x 2 cm on front and left side of neck, 1 cm below the
chin horizontally place.

(ii) Abrasion 1.5 cm x 1 cm on left side of fact, 1.5 cm below outer part of left eye.

(iii) Abrasion 1.5 cm x 1 cm on right side of face, 2.5 cm below the outer side of
right eye.

(iv) Abrasion 2 cm x 1.5 cm on right side of face, 4 cm away from right angle of
mouth.

(v) Abrasion 1.5 cm 1.5 cm on right side of neck just below the mandible.

 This postmortem was conducted by a team of two doctors and both agreed with the
findings noted in the postmortem report. In the opinion of the doctor, the cause of death was
asphyxia as a result of ante-mortem strangulation.

7. In order to prove its case, prosecution has examined PW-1 Smt. Nanhi Devi, PW-2 Km.
Priyanka, daughter of appellant and deceased. PW-3 Dr. D.S. Rathore, who has conducted
postmortem on the body of the deceased. PW-4 S.I. Ram Sahay, the second Investigating Officer of
this case. PW-5 Constable Dilip Gupta is a witness of recovery of Fukani. PW-6 S.I. Ramesh
Chandra Pal, initial Investigating Officer of this case. He has also converted the case under
Sections 302 and 176 I.P.C. PW-7 S.I. Raj Bahadur Singh Chauhan, who has made inquiry on the
basis of initial information and has also conducted inquest proceedings. PW-8 Constable Vijay Pal,
has registered the case on 27.4.2008 under Section 306 I.P.C. and also prepared the chik report and
G.D. and also G.D. of conversion of the case dated 29.4.2008 from Section 306 I.P.C. to Section
302 I.P.C.

8. No oral evidence in defence was adduced on behalf of the appellant. Only some
documents were filed regarding withdrawal of money from his account.

9. After appreciating the evidence on record, the trial court has convicted the appellant as
above, hence the instant criminal appeal.

10. Submission of learned counsel for the appellant was that the evidence of PW-2 Km.
Priyanka was not the least reliable. She has given an eyewitness account during trial. There was no
motive for the appellant to commit this offence. The deceased has lived at the places of his posting
with him and there was no occasion for him to cause the death of his own wife. It has also been
argued that the deceased has committed suicide by hanging and the postmortem report is a
fabricated document. It has also been argued that the opinion of the doctor cannot be given primacy
over the other reliable circumstance and the appellant has come with a definite defence that the
deceased has committed suicide by hanging. The prosecution has failed to complete the chain of
circumstances. Direct evidence of PW-2 Km. Priyanka was not the least reliable.
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

305
11. Learned A.G.A. has submitted that admittedly the deceased died in the house of
appellant. It is nowhere the case of the appellant that he was not present in the house. He was a
retired person. So his presence at the house was most natural. He has come with a definite defence
of suicide by deceased, which has been specifically denied by the doctor during trial. The absence
of specific motive, by itself, cannot be the sole ground to discard the entire case of the prosecution.
Thus the trial court has not committed any illegality in convicting the appellant.

12. The first point on which learned counsel for the appellant has laid great stress is the
absence of motive. Submission of the learned counsel for the appellants was that the prosecution
has come with a case that deceased used to take liquor and used to beat his wife as mentioned in the
F.I.R. This by itself cannot be a motive to commit the offence. At best, it may be the conduct of the
appellant. We agree with the submission of learned counsel for the appellant on this point. But on
the contrary, when we examine the defence of the appellant then he himself has placed certain
circumstance before the Court, which shows that inspite of his request Nanhi Devi had not
executed the transfer deed of the plot on which the house was constructed by him. She gave the
possession of the other house to her other daughter Renu for which he invested Rs. 50,000/-.
Virtually it could have been a motive for the appellant to cause the death of his wife to take revenge
from his mother in law. It is also a possibility, but as the prosecution has failed to come with a
definite motive so we refrain ourselves to substitute it with our inference. Virtually motive is a
thing that remains embedded in the heart of the accused. Unless and until there is very strong and
direct enmity, it is very difficult for the prosecution to explain the motive with which the offence
was committed. Particularly in the facts of the instant case, when the appellant, deceased and
complainant and witnesses are close relatives then it becomes further difficult for the prosecution to
satisfy as to what prevailed in the heart/mind of the accused appellant to commit this offence. If we
exclude the direct testimony of PW-2 Km. Priyanka as argued then the case is based on
circumstantial evidence only. Submission of learned counsel for the appellant was that in cases of
circumstantial evidence it is must for the prosecution to prove the motive. It is true that in cases
which are based on circumstantial evidence, motive assumes more importance. But its contrary is
also true that absence of motive, by itself, cannot a ground to discard the entire case of the
prosecution even in cases based on circumstantial evidence. On this point, reference may be made
to the pronouncement of Hon'ble the Apex Court in the case of Ujjagar Singh Vs. State of Punjab
reported in (2007) 13 SCC 90, wherein Hon'ble the Apex Court in paragraph no. 17 has observed
as under:

"17. ................... It is true that in a case relating to circumstantial evidence motive
does assume great importance but to say that the absence of motive would dislodge the entire
prosecution story is perhaps giving this one factor an importance which is not due and (to use the
cliche) the motive is in the mind of the accused and can seldom be fathomed with any degree of
accuracy. ......................."

13. Reliance may also be placed in the case of Vijay Shankar Vs. State of Haryana
reported in (2015) 12 SCC 644, wherein Hon'ble the Apex Court in paragraph no. 12 has observed
as under:-
306 INDIAN LAW REPORTS ALLAHABAD SERIES

 "12. In each and every case, it is not incumbent on the prosecution to prove the
motive for the crime. Often, motive is indicated to heighten the probability of the offence that the
accused was impelled by that motive to commit the offence. Proof of motive only adds to the
weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its
case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not
been able to prove its case on motive that will not be a ground to throw the prosecution case nor
does it corrode the credibility of prosecution case. Absence of proof of motive only demands
careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing
evidence as to motive makes the court to be circumspect in the matter of assessment of evidence
and this aspect was not kept in view by the High Court and the trial court." (emphasis added by us)

14. That case was also based on circumstantial evidence.

15. Learned counsel for the appellant has argued that PW-2 Km. Priyanka, in her evidence
during trial, has given an eyewitness account, which appears to be highly improbable and
unreliable. She was a child witness. As per her own evidence, she had gone to her school. The
school used to close at 2:00 p.m. She has also admitted that she takes about half an hour to come
back to her house. So at the alleged time of occurrence, which was 2:00 p.m., her presence at the
place of occurrence was highly doubtful. PW-1 Nanhi Devi has also stated that PW-2 Priyanka had
not seen the incident. He has also argued that appellant himself has sent information of the death of
deceased through his daughter to the complainant, who came to the place of occurrence. Apart from
it, neither during investigation, nor at the time of inquest proceedings, the complainant or PW-2
Priyanka disclosed to the police officer that PW-2 Km. Priyanka has seen the incident. It was only
after alleged recovery of Fukani that PW-2 Km. Priyanka, for the first time, has stated during trial
that her mother was done to death by her father by strangulating her with the help of Fukani.
During trial, PW-2 Km. Priyanka has stated that she has seen the incident and has seen her father
killing her mother with Fukani. It does not inspire confidence. She was a child witness and this part
of her statement appears to be a tutored version, which has been deliberately developed after the
alleged recovery of Fukani on the pointing out of appellant.

16. Law is settled on the point that when the prosecution proposes to prove its case on the
basis of direct evidence and fails to prove its case on the basis of such direct evidence but the
evidence produced during trial establishes circumstances that unmistakably leads towards the only
conclusion that the appellant was the author of the crime then the court would be justified in
recording conviction on the basis of such circumstantial evidence.

17. Now we examine the prosecution evidence with this point of view. Law is settled that
in cases of circumstantial evidence, the prosecution is obliged to prove every circumstance and
every circumstance when taken together must form a chain so complete in itself that it must lead to
the only conclusion that it was the accused, who has committed the offence and was not capable of
any other conclusion. On this point, we may refer the pronouncement of Hon'ble the Apex Court in
the case of S.K. Yusuf v. State of West Bengal reported in AIR 2011 SC 2283 in para 26 has held
as under:
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

307
 "Undoubtedly, conviction can be based solely on circumstantial evidence.
However, the court must bear in mind while deciding the case involving the commission of serious
offence based on circumstantial evidence that the prosecution case must stand or fall on its own
legs and cannot derive any strength from the weakness of the defence case. The circumstances from
which the conclusion of guilt is to be drawn should be fully established. The facts so established
should be consistent only with the hypothesis of the guilt of the accused and they should not be
explainable on any other hypothesis except that the accused is guilty. The circumstances should be
of a conclusive nature and tendency. 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."

18. Before proceeding further in the matter, we would like to dwell upon the medical
evidence. According to the postmortem report, which was conducted by two doctors, the cause of
death was strangulation. During cross-examination, in reply to specific question put to PW-3 Dr.
D.S. Rathore, he has stated that the death of the deceased was not caused due to hanging. He has
given an opinion that it might have been caused with the help of Fukani. Dr. D.S. Rathore was
cross-examined also by the appellant himself wherein he has stated that death may be caused if the
victim is in the lying condition then strangulation may be caused and injury no. (i) may also be
caused in that position. He has specifically denied the question put by the appellant himself that
injury no (i) can be caused by hanging. The doctor in his cross-examination has also stated that
injury nos. (ii) (iii) (iv) and (v) were caused by friction by any hard and rough object. It cannot be
caused by friction of soft cloth or by friction of Dhoti. It may be caused by the Dhoti only when the
Dhoti is of very rough and coarse cloth. A question was also put to this witness that if without
hanging, a dhoti is tied around the neck of the deceased and the deceased is dragged even then it
may cause her death, which was replied by the doctor in affirmative. The doctor has seen the injury
on the body of the deceased and also the position of dead body, so he was a witness of fact to this
extent. The medical evidence in criminal cases cannot be brushed aside so lightly as has been
argued by learned counsel for the appellant. He has argued that it must be rejected as the appellant
has stated in his statement under Section 313 Cr.P.C. that deceased committed suicide by hanging.
The postmortem on the body of deceased is conducted by a team of two doctors, who were public
servants, in discharge of their official duties. So unless and until any specific ground is brought to
the notice of the Court as to why they have not properly discharged their official duties and have
tried to support the other party then their evidence has to be taken to be correct. Strangulation
cannot be self inflicted. The evidence of the doctor clearly rules out the possibility of hanging as
claimed by appellant. The other suggestion put to the doctor that by putting a dhoti around the neck
if the deceased is dragged then such type of injury may be caused. But again the same question
arises that such dragging cannot be self inflicted. After putting the dhoti, some other person had to
drag the deceased. At the time of alleged incident no other person except the appellant was present
in the house. During the course of argument, learned counsel for the appellant has argued that when
the appellant saw his wife in hanging condition then he took down his wife and put her on the
Takhat.
308 INDIAN LAW REPORTS ALLAHABAD SERIES

19. It is really surprising that at no point of time appellant handed over said rope or any
other means by which the deceased committed suicide by hanging. Thus the defence theory that the
deceased died due to hanging is nothing but an absolutely false defence. There is vast difference
between Hanging and Strangulation. In Modi's Text Book of Medical Jurisprudence and
Toxicology (24th Edition reprint 2012), Modi has narrated the differences between hanging and
strangulation as under:-

Hanging
Strangulation
1
Mostly suicidal
Mostly homicidal

2
Face-Usually pale and petechiae rare
Face-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-Not 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, 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
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 ecchymoses round about
the edges of the ligature mark, rare
Abrasions and ecchymoses round about the
edges of the ligature mark, common
8
Subcutaneous tissues under the markWhile, hard and glistening
Subcutaneous tissues under the markEcchymosed
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 bodyUsually 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.
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309
20. Thus apart from other distinctions, the distinction noted in paragraph no. 13 above was
also present in this case. Presence of several other injuries on the face are enough to conclude that it
was a homicidal death and not a suicide. So the first circumstance against the appellant is that he
has come with an absolutely false defence. It is an admitted fact that the deceased was his wife.
They were living in the same house and at the time of the incident, all the children had gone to the
school and appellant was the only person present in the house. The appellant during trial has
nowhere denied his presence in the house. He only send the information that his wife is dead and
not that she has committed suicide. Thus a burden was cast upon by the appellant under Section
106 of the Indian Evidence Act to explain the circumstances under which his wife died inside his
house.

21. Thus in the facts of this case even after discarding the evidence of PW-2 Km. Priyanka
following circumstances remains established:-

(i) Appellant was the only person present in the house at the time of incident.

(ii) The deceased was wife of the appellant.

(iii) The deceased died due to strangulation inside the house.

(iv) The appellant was present at the house as he himself has admitted that he made
no effort to abscond and remain present at the place of occurrence where-from he was arrested by
the police and subsequent arrest was shown.

(v) Appellant has come with an absolutely false defence that his wife has
committed suicide.

22. Even if we exclude the evidence of recovery of Fukani even then these circumstances
by itself, in our considered opinion, were sufficient to lead to the only conclusion of the guilt of the
accused. Admittedly the appellant has come with a false defence and where the accused comes with
a false defence then such false defence completes the missing link. On this point, reference may be
made to the pronouncement of Hon'ble the Apex Court in the case of Gajanan Dashrath Kharate
Vs. State of Maharashtra reported in MANU/SC/0227/2016 has discussed the applicability of
Section 106 of the Evidence Act and also the effect of false defence in paragraph nos. 12 and 13 as
under:-

"12. As seen from the evidence, Appellant- Gajanan and his father-Dashrath and
mother-Mankarnabai were living together. On 07.04.2002, mother of the Appellant-accused had
gone to another village-Dahigaon. Prosecution has proved presence of the Appellant at his home on
the night of 07.04.2002. Therefore, the Appellant is duty bound to explain as to how the death of
his father was caused. When an offence like murder is committed in secrecy inside a house, the
initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section
106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give
310 INDIAN LAW REPORTS ALLAHABAD SERIES

cogent explanation as to how the crime was committed. The inmates of the house cannot get away
by simply keeping quiet and offering no explanation on the supposed premise that the burden to
establish its case lies entirely upon the prosecution and there is no duty at all on the accused to
offer. On the date of occurrence, when accused and his father Dashrath were in the house and when
the father of the accused was found dead, it was for the accused to offer an explanation as to how
his father sustained injuries. When the accused could not offer any explanation as to the homicidal
death of his father, it is a strong circumstance against the accused that he is responsible for the
commission of the crime.

(underlined by us)

 13. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681, it was
held as under:

22. Where an accused is alleged to have committed the murder of his wife and the
prosecution succeeds in leading evidence to show that shortly before the commission of crime they
were seen together or the offence takes place in the dwelling home where the husband also
normally resided, it has been consistently held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation which is found to be false, it is a strong
circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v.
State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife
in the house when she was murdered there with "khukhri" and the fact that the relations of the
accused with her were strained would, in the absence of any cogent explanation by him, point to his
guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the Appellant was prosecuted for the
murder of his wife which took place inside his house. It was observed that when the death had
occurred in his custody, the Appellant is under an obligation to give a plausible explanation for the
cause of her death in his statement Under Section 313 Code of Criminal Procedure. The mere
denial of the prosecution case coupled with absence of any explanation was held to be inconsistent
with the innocence of the accused, but consistent with the hypothesis that the Appellant is a prime
accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal
(1992) 3 SCC 300 the medical evidence disclosed that the wife died of strangulation during late
night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of
the husband was that the wife had committed suicide by burning herself and that he was not at
home at that time. The letters written by the wife to her relatives showed that the husband illtreated her and their relations were strained and further the evidence showed that both of them were
in one room in the night. It was held that the chain of circumstances was complete and it was the
husband who committed the murder of his wife by strangulation and accordingly this Court
reversed the judgment of the High Court acquitting the accused and convicted him Under Section
302 Indian Penal Code. In State of T.N. v. Rajendran (1999) 8 SCC 679 the wife was found dead in
a hut which had caught fire. The evidence showed that the accused and his wife were seen together
in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the
hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the
death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia
as a result of strangulation and not on account of burn injuries. It was held that there cannot be any
6 All. Awadhesh Kumar Awasthi Vs State Of U.P.

311
hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of
the crime.
(Underlined by us)

Same view was reiterated by this Court in State of Rajasthan v. Parthu (2007)
12 SCC 754."

On this point, reference may also be made in another recent pronouncement of
Hon'ble the Apex Court in the case of Chaman and another Vs. State of Uttarakhand reported
in JT 2016 (4) SC 187 wherein Hon'ble the Apex Court in paragraphs no. 29, 30 and 31 has
observed as under:-

"29. Referring to Section 106 of the Evidence Act, it was propounded that the
said section was not intended to relieve the prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but would apply to cases where prosecution had succeeded in
proving facts from which a reasonable inference could be drawn regarding the existence of certain
other facts, unless the accused, by virtue of his special knowledge regarding such facts, succeed to
offer any explanation, to drive the court to draw a different inference.

30. The following observations by this Court in the context of above legal
provision in Shambhu Nath Mehra vs. State of Ajmer AIR 1956 SC 404 was adverted to with
approval.

"This lays down the general rule that in a criminal case the burden of proof is
on the prosecution and Section 106 is certainly not intended to relive it of that duty. On the
contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any
rate disproportionately difficult for the prosecution to establish facts which are ''especially' within
the knowledge of the accused and which he could prove without difficulty or inconvenience. The
word ''especially' stresses that it means facts that are pre-eminently or exceptionally within his
knowledge.

31. Proof beyond reasonable doubt, as has been held in a plethora of decisions
of this Court, is only a guideline and not a fetish and that someone, who is guilty, cannot get away
with impunity only because truth may suffer some infirmity when projected through human
processes as has been observed in Inder Singh and another vs. The State (Delhi Administration)
(1978) 4 SCC 161. A caveat against exaggerated devotion to the rule of benefit of doubt to nurture
fanciful doubts or lingering suspicion so as to destroy social defence has been sounded by this
Court in Gurbachan Singh vs. Satpal Singh and others (1990) 1 SCC 445. It has been propounded
that reasonable doubt is simply that degree of doubt which would permit a reasonable and a just
man to come to a conclusion. It has been underlined therein that reasonableness of doubt must be
commensurate to the nature of the offence to be investigated."
312 INDIAN LAW REPORTS ALLAHABAD SERIES

23. In the facts of the case in hand what happened inside the house of the appellant due to
which deceased died was only within the knowledge of the appellant and it is a proved fact that he
has come with an absolutely false defence. Learned counsel for the appellant has also argued that
initially the case, after postmortem, was registered under Section 306 I.P.C. but subsequently the
same was converted under Section 302 I.P.C. When the appellant has come with a definite defence
that it is a case of suicide, therefore, the trial court has committed illegality in convicting the
appellant under Section 302 I.P.C. while the offence would not travel beyond the purview of
Section 306 I.P.C. We are not the least impressed with this submission. There is absolutely no
evidence that the deceased has committed suicide. Except bald statement/suggestion of the
appellant, there was absolutely no circumstances to hold that the team of two doctors, who have
performed the postmortem have given a wrong report. Virtually the registration of the case under
Section 306 I.P.C. was the result of misreading of the postmortem report by the police official
concerned because he might not be aware of the fact that strangulation cannot be self-inflicted.
After recording the statement of the doctor the Investigating Officer has himself corrected the
mistake and converted the case under Section 302 I.P.C.

24. Learned counsel for the appellant has also argued that according to the prosecution
evidence, after the incident, PW-1 Nanhi Devi alnog with PW-2 Km. Priyanka came to his house
but none of them enquired him as to how the deceased died. How a person would react in a given
circumstances would differ from person to person. No hard and fast rule can be laid down as to
how every person must react in under given circumstances. Perusal of the F.I.R. itself shows that
the complainant has not made any effort to make the appellant an accused in this case. She has
virtually narrated the facts and has also specifically stated that she does not know as to how the
deceased died but has only mentioned the earlier conduct of the appellant that he used to taken
liquor and used to beat her daughter. The presence of other several injuries on the face of the
deceased also supports the conclusion that she was done to death by the appellant. The defence
theory also failed altogether to explain such injuries. And such injuries cannot be caused by
hanging. PW-1 complainant Nanhi Devi has also stated that PW-2 Priyanka has not seen the
incident.

25. In this case, only two witnesses have been examined on facts. PW-1 Nanhi Devi is not
an eye-witness. According to the version of F.I.R., PW-2 Km.