# Kali Prasad v. State of U.P

- **Citation:** (2022) 8 ILRA 658
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-16
- **Case number:** Criminal Appeal No.1024 of 2018
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-prasad-v-state-of-u-p-48930
- **Pages:** 11

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 302 & 306- Deceased sustaining
fatal ante-mortem injury and hanging
found to be post-mortem- The post
mortem examination report shows that
severe injury was found in the intestine of
the deceased. In the opinion of doctor
conducting the autopsy of the deceased,
when the deceased became unconscious
then she would have been hanged. In the
opinion of doctor the hanging was postmortem. The person cannot hang himself
or herself when he or she is unconscious,
hence, the version of the defence that the
deceased committed suicide herself by
hanging cannot be believed.

Where the post mortem report shows that death
of the deceased was due to ante mortem
injuries and she was hanged posthumously,
then the defence of the deceased committing
suicide held to be false.

Indian Evidence Act, 1872- Section 106-
The convict Kali Prasad had failed to give
any plausible and satisfactory explanation
about the death of his wife. The theory
put forward by the defence is not
supported by the post mortem report and
the evidence given by P.W.3, P.W.7 and
P.W.8.
In
the
trial
court
the
convict/appellant Kali Prasad has utterly
failed to explain the injuries found on the
body of the deceased.

Where the accused fails to discharge the burden
of proof about the homicidal death of his wife
and gives a false explanation, then an adverse
inference is liable to be drawn against him.

Indian Evidence Act, 1872- Section 106-
As far as the convicts/appellants Raj Patti
and Parsu Ram are concerned, according
to the evidence available on record, they
used to reside in the same house at a
distance of 15-20 feet from the place of
occurrence. It is quite possible that what
8 All. Kali Prasad Vs. State of U.P.
659
happened inside the room they were not
aware of that-Involvement of co-accused
Parsu Ram and Raj Patti in killing the
deceased is not proved beyond reasonable
doubt because only one injury in the
stomach was found in the small intestine
of the deceased, which according to the
doctor
proved
fatal.
If
these
two
convicts/appellants had also assaulted the
deceased, some more injuries would have
been found on the person of the deceased.

As the co-accused were residing at some
distance away from the place of the occurrence
and the deceased has sustained a solitary
injury, hence the participation of the c-accused
in the commission of the offence cannot be
established beyond reasonable doubt. (Para
18,19)

Criminal Appeal No.1024 of 2018 rejected
and Criminal Appeal No.525 of 2018
allowed. (E-3)

Judgements/ Case Law relied upon:-

## Text

658 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled and sureties are discharged from
their liabilities.

59. All appellants are directed to file a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned in compliance of Section 437-A
Cr.P.C. within six weeks from today.

60. Before we part with the case, we
express
our
appreciation
for
the
distinguished assistance rendered by Shri
Anurag Shukla, learned amicus curiae for
the appellant (in Criminal Appeal No.1202
of 2008). He shall be paid fee for amicus
curiae as per the Rules of the Court.

61. Let copies of this judgment be
placed on the records of Criminal Appeal
No.1078 of 2008 (Kundan Badhai vs. State
of U.P.) and Criminal Appeal No.1202 of
2008 (Kicchi @ Ram Surat vs. State of
U.P.)

62. Let a copy of this judgment be
also sent to learned trial court concerned
along with lower court record for its
information and necessary compliance
forthwith.
----------
(2022) 8 ILRA 658
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 16.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No.1024 of 2018

Kali Prasad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Rakesh Kumar Singh

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Penal Code, 1860-
Sections 302 & 306- Deceased sustaining
fatal ante-mortem injury and hanging
found to be post-mortem- The post
mortem examination report shows that
severe injury was found in the intestine of
the deceased. In the opinion of doctor
conducting the autopsy of the deceased,
when the deceased became unconscious
then she would have been hanged. In the
opinion of doctor the hanging was postmortem. The person cannot hang himself
or herself when he or she is unconscious,
hence, the version of the defence that the
deceased committed suicide herself by
hanging cannot be believed.

Where the post mortem report shows that death
of the deceased was due to ante mortem
injuries and she was hanged posthumously,
then the defence of the deceased committing
suicide held to be false.

Indian Evidence Act, 1872- Section 106-
The convict Kali Prasad had failed to give
any plausible and satisfactory explanation
about the death of his wife. The theory
put forward by the defence is not
supported by the post mortem report and
the evidence given by P.W.3, P.W.7 and
P.W.8.
In
the
trial
court
the
convict/appellant Kali Prasad has utterly
failed to explain the injuries found on the
body of the deceased.

Where the accused fails to discharge the burden
of proof about the homicidal death of his wife
and gives a false explanation, then an adverse
inference is liable to be drawn against him.

Indian Evidence Act, 1872- Section 106-
As far as the convicts/appellants Raj Patti
and Parsu Ram are concerned, according
to the evidence available on record, they
used to reside in the same house at a
distance of 15-20 feet from the place of
occurrence. It is quite possible that what
8 All. Kali Prasad Vs. State of U.P.
659
happened inside the room they were not
aware of that-Involvement of co-accused
Parsu Ram and Raj Patti in killing the
deceased is not proved beyond reasonable
doubt because only one injury in the
stomach was found in the small intestine
of the deceased, which according to the
doctor
proved
fatal.
If
these
two
convicts/appellants had also assaulted the
deceased, some more injuries would have
been found on the person of the deceased.

As the co-accused were residing at some
distance away from the place of the occurrence
and the deceased has sustained a solitary
injury, hence the participation of the c-accused
in the commission of the offence cannot be
established beyond reasonable doubt. (Para
18,19)

Criminal Appeal No.1024 of 2018 rejected
and Criminal Appeal No.525 of 2018
allowed. (E-3)

Judgements/ Case Law relied upon:-

1. Ranjit Kumar Haldar Vs St. of Sik. (2019) 7
SCC 684.
(Delivered by Hon'ble Mrs. Saroj Yadav, J)

1. The Criminal Appeal No.1024 of
2018 (Kali Prasad vs. State of U.P.) has been
filed by the convict/appellant Kali Prasad and
Criminal Appeal No.525 of 2018 (Parsu Ram
And Another vs. State of U.P.) has been filed
by the convicts/appellants Parsu Ram and
Smt. Raj Patti against the judgment and order
dated 08.03.2018 passed by Additional
Sessions Judge, Fast Track Court, (1st),
Ambedkar Nagar in Sessions Trial No.189 of
2010 (State vs. Kali Prasad and Others),
arising out of Crime No.727 of 2010, under
Sections 302/34 and 201/34 of Indian Penal
Code, 1860 (in short I.P.C.), Police Station
Ahirauli, District Ambedkar Nagar.

2. The facts necessary for disposal of
these appeals in short are as under:-

A First Information Report (in
short F.I.R.) was registered at Case Crime
No.727/2010 at Police Station Ahirauli,
District Ambedkar Nagar on the basis of
written report presented by the complainant
Jitendra Kumar. It was stated in the report
that the marriage of his sister Neelam was
solemnized ten years back with Kali
Prasad. After so many years his sister had
no child, for that reason Kali Prasad, Raj
Patti @ Nankau (mother of Kali Prasad)
and Parsu Ram (father of Kali Prasad) used
to torture and harass his sister. Just three
months ahead, his sister conceived and
these people doubted that the conception
was illegitimate so they started beating and
harassing his sister and on 06.08.2010 they
ousted his sister from home. His sister
reached at the house of complainant on the
same day. On 07.08.2010, Kali Prasad
came to the house of the complainant and
requested to send his sister with him (Kali
Prasad), on that the complainant and family
members sent his sister with Kali Prasad.
Since the evening of 10.08.2010 Kali
Prasad and his parents again started beating
and abusing his sister which was seen and
heard
by
the
neighbours
and
they
intervened also. On that Raj Patti told these
neighbours that it was her private matter
and it would not be good if they intervene.
Thereafter they all took her sister inside a
room in the house and killed her and in
order to hide the crime hanged her corpse.
Information of the same was given on the
same day by him (complainant) in the
police station and the inquest and the post
mortem examination of the dead body was
conducted on the same day.

3. After investigation, charge sheet
was submitted against Kali Prasad, Parsu
Ram and Raj Patti, under Sections 302/34
and 201/34 of I.P.C. The concerned
Magistrate
after
taking
cognizance
660 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the case to the court of Sessions
for trial. The court of Sessions framed the
charges under Sections 302/34 and 201/34
of I.P.C. against convicts/appellants. They
all denied the charges and claimed to be
tried.

4. In order to prove its case, the
prosecution
examined
following
witnesses:-

(i) P.W.1- Ramcharitra;

(ii) P.W.2- Chhati Ram;

(iii) P.W.3- Jitendra Kumar, the
complainant;

(iv)
P.W.4-
Ramprasad,
the
witness of inquest;

(v) P.W.5- Omprakash Verma;

(vi)
P.W.6-
Head
Constable
Bantesh Bahadur Singh;

(vii) P.W.7- Inspector Baijnath
Dubey, the Investigating Officer;

(viii)
P.W.8-
Dr.
Omkarnath
Verma, who conducted the postmortem
examination;

Apart from the oral evidence,
relevant documents have also been proved
by the prosecution and the exhibits are as
under:-

(i) Exhibit Ka-1- Written report;

(ii)
Exhibit
Ka-2-
Primary
information given by the complainant;

(iii)
Exhibit
Ka-2A-
Inquest
report;

(iv) Exhibit Ka-3- Chick F.I.R.;

(v) Exhibit Ka-4- Carbon copy of
the concerned General Diary;

(vi) Exhibit Ka-5- Letter to
C.M.O.;

(vii) Exhibit Ka-6- Specimen
seal;

(viii) Exhibit Ka-7- Letter to
C.M.O. for handing over the clothes of the
deceased;

(ix) Exhibit Ka-8- Police Form
No.379;

(x) Exhibit Ka-9- Police Form
No.13;

(xi) Exhibit Ka-10- Police Form
No.33;

(xii) Exhibit Ka-11- Site plan of
the place of occurrence;

(xiii) Exhibit Ka-12- Charge
sheet;

(xiv) Exhibit Ka-13- Post mortem
examination report.

5. After close of the prosecution
evidence,
the
statements
of
convicts/appellants under Section 313 of
the Code of Criminal Procedure, 1973 (in
short Cr.P.C.) were recorded. All the three
convicts/ appellants denied the incident and
stated that there is no eye witness of the
incident. Kali Prasad himself informed the
complainant Jitendra Kumar about the
incident by reaching at his place. The
complainant came to the place of incident
8 All. Kali Prasad Vs. State of U.P.
661
and brought down the dead body of the
deceased and informed the police station.
Thereafter, police reached at the spot. They
all have stated that the complainant on
11.08.2010 informed the real incident at the
police station which is available on record
as Exhibit Ka-2. Thereafter on 17.08.2010
he lodged a false F.I.R. with ulterior motive
on the basis of false allegations. It has also
been stated that the deceased used to think
that she was not having child and some
days ahead of the incident deceased was
considering herself pregnant. On the date of
incident i.e. on 10.08.2010 in the evening
she accidentally fell down on the cot and
got injured and started bleeding. For this
reason she felt depressed and after taking
meal
and
medicines
she
slept
and
committed suicide in the night at some
time. Kali Prasad came to know about this
fact in the morning.

6. The convicts/appellants also got
examined two witnesses in defence, these
are D.W.1- Ramsagun and D.W.2- Chanda.

7. After completion of evidence,
learned trial court heard the arguments of
both sides. After going through the
evidences available on record, the trial
court relied upon the evidence of P.W.3, the
complainant corroborated by the medical
evidence and also the fact that the deceased
died in the house of the convicts/appellants
and they failed to explain the reason of the
death of the deceased, and came to the
conclusion that the convicts/appellants
killed the deceased and in order to show
that the deceased committed suicide hanged
her dead body in the room. The learned
trial court came to the conclusion that the
prosecution has successfully proved the
charges
framed
against
the
convicts/appellants under Sections 302/34
and 201/34 of I.P.C. The learned trial court
held the convicts/appellants guilty under
Sections 302/34 and 201/34 of I.P.C. and
punished them with imprisonment for life
under Sections 302/34 I.P.C. coupled with a
fine of Rs.25,000/- each and in default of
payment of fine further imprisonment of
six months for each. Under Sections 201/34
I.P.C.,
the
convicts/appellants
were
punished with sentence of three years of
Rigorous Imprisonment coupled with a fine
of Rs.5,000/- each and in default of
payment of fine further imprisonment of
two months for each. All the sentences
were directed to run concurrently and the
period of incarceration during the trial be
adjusted in the present imprisonment.
Being aggrieved of this conviction and
sentence,
these
appeals
have
been
preferred.

8. Heard Shri Rakesh Kumar Singh,
learned counsel for the appellants in both
the appeals and Ms. Ruhi Siddiqui, learned
A.G.A. for the State-respondent.

9.

Learned
counsel
for
the
convicts/appellants has submitted that the
impugned judgment and order is bad in the
eye of law because the conviction of
appellants is based on conjectures and
surmises. The learned trial court has not
applied its legal mind while convicting the
appellants. The prosecution has failed to
prove its case beyond reasonable doubt.
The learned trial court has ignored the
statements of defence witnesses and
without any conclusive evidence has
convicted the appellants. The learned trial
court has not considered the fact that there
was no motive to commit the murder of the
deceased as the reason of committing
murder mentioned by the informant in the
F.I.R. is not proved by the prosecution. The
learned trial court has overlooked the fact
that Kali Prasad himself informed about the
662 INDIAN LAW REPORTS ALLAHABAD SERIES
incident to the informant. Kali Prasad went
to the house of complainant and informed
him that his sister has closed the room from
inside and asked the complainant to come
to the place of occurrence. The learned trial
court has convicted the appellants on the
basis of post mortem report only wherein
the doctor has given opinion on injury in
the intestine but at the same time stated that
no external injury was found on the corpse.
The learned trial court did not consider the
fact that when the brother of the deceased
i.e. the informant came to the place of
incident, he found the door closed and the
complainant himself was one of the
witnesses of inquest. It was further argued
by the counsel for convicts/appellants Parsu
Ram and Raj Patti that they were not
present at the spot on the day of incident as
they had gone for treatment to Ahmedabad
where their daughter was residing. Hence,
the impugned judgment and order should
be set aside and the convicts/appellants
should be acquitted.

10. Contrary to the submissions of
learned counsel for the convicts/appellants,
learned A.G.A. argued that there is
allegation of harassment and torture of the
deceased in the first information report and
that has been proved by the complainant,
the
brother
of
the
deceased.
The
complainant has also proved that his sister
came to his house as the convicts/
appellants ousted her from her in-laws'
home but Kali Prasad came and took her
back. As far as the information given by the
complainant i.e. Exhibit Ka-2 is concerned,
it is quite natural that, initially he was not
thinking aware of the fact that his sister
was killed so he just informed the police
station about the death of his sister on
which the inquest was conducted and the
body was sent for post mortem. In the post
mortem examination, it was revealed that
there were ante-mortem injuries on the
body of the deceased and hanging was
'Post-Mortem'. He doubted that his sister
was killed by Kali Prasad and his parents as
they used to beat and harass his sister for
the reason that his sister had no child and
when she conceived just 3-4 months ahead
from the date of incident, then they doubted
that
the
pregnancy
was
illegitimate.
Learned A.G.A. further submitted that it is
the admitted fact that the deceased was
found dead in the room where Kali Prasad
and the deceased used to reside. In the post
mortem report, the hanging was found postmortem and ante-mortem injuries were also
found. In the post mortem report severe
injuries were also found on the body of the
deceased and these injuries were sufficient
to cause the death of deceased. Learned
A.G.A.
further
argued
that
the
convicts/appellants have failed to explain
the fact how deceased sustained these
injuries and how the deceased could hang
herself after her death. Learned A.G.A.
further argued that the plea of alibi by the
convicts/ appellants Raj Patti and Parsu
Ram is also not reliable because in their
statements recorded under Section 313
Cr.P.C. they have not stated that they were
not present in the house on the day of
incident as they were in Ahmedabad but
subsequently just to create evidence they
examined their daughter Chanda as D.W.2,
to prove that they were in Ahmedabad for
their treatment. Hence, there is no error in
the judgment and order passed by the trial
court and both the appeals should be
dismissed.

11. Considered the rival submissions
and perused the original record of the trial
court as well as the record of these appeals.

12. Admittedly the deceased died at
her matrimonial home i.e. in the house
8 All. Kali Prasad Vs. State of U.P.
663
of convicts/appellants. The place of
occurrence where the dead body of the
deceased was found, was the room of
convict/ appellant Kali Prasad. It is also
admitted that the convict/appellant Kali
Prasad went to inform the complainant
about the incident at his (complainant's)
house. After getting the information, the
complainant informed the police station
submitting Exhibit Ka-2 wherein he
stated that in the morning of 11.08.2010
Kali Prasad informed him that his sister
had closed the room from inside. When
he went there and got the door opened,
he found that his sister was dead. On this
information police reached at the spot
and conducted the inquest i.e. Exhibit
Ka-2A and sent the dead body for
postmortem examination. In the inquest
report it was mentioned that the door
was closed from inside, and was opened
with the help of the people gathered
there. The dead body of the deceased
was found hanging and brought down
and sent for post mortem. The post
mortem of the deceased was conducted
on 11.08.2010 at 03:30 P.M. The post
mortem report is Exhibit Ka-13. The
following facts were found by the doctor
who
conducted
the
post
mortem
examination of the deceased:-

(i) No decomposition was found
and Rigor Mortis was present. Ligature
marking 1 cm wide just above thyroid
extended up to right ear obliquely on right
side and horizontally on left side up to
middle on lateral side of neck;

(ii) Teeth clenched with tip of
tongue bitten between teeth;

(iii) No Salivation;

(iv) Tongue not protruded;

(v) Eyes congested on the left
side with face- PM;

(vi) P/V discharge blood tinged
present;

(vii) Fingers and nails cyanosed
of both hands;

(viii) Rope of jute 1 cm wide
found around neck, loose circle. Pleural
was found congested, Larynx pale and
intact. No fracture of thyroid bone. S/C
Blood clot present above thyroid on
anterior surface. Lungs on both sides highly
congested
with
blackening
patches.
Intestines full of gases with congestion in
front loops with blackened intestines in size
wound 6 cm x 3 cm area. Uterus was found
Nulliparous.

The cause of death of deceased
has been mentioned as "hard and blunt
injury to abdomen leading to intestinal
contusion and resulting shock and followed
by Post-Mortem hanging by jute rope."
Duration has been mentioned as one day.

13. The doctor who conducted the
post mortem has been examined as P.W.8.
This witness has proved the post mortem
examination report as Exhibit Ka-13 and
stated that death of the deceased occurred
after becoming unconscious of injuries
caused by blunt and hard object and
thereafter tightening of rope around her
neck. The noose of rope was present on her
neck. In the cross-examination this witness
has stated that there was no physical injury
on the external parts of the body but in the
internal examination, injury was found on
the small intestine. The injury was blackish
and bluish in colour. No blood was oozing
out of that injury. It has also been stated in
the cross-examination that due to the injury
664 INDIAN LAW REPORTS ALLAHABAD SERIES
found on the intestine, the deceased might
have become unconscious. This witness has
denied the suggestion that the injury found
on the body of the deceased could come by
falling on something.

14. P.W.3, the complainant has stated
before the trial court that his sister Neelam
was married to Kali Prasad but she could
not have child even after passing of 10
years of marriage and for that reason, her
husband, mother-in-law and father-in-law
used to beat her. Three months before the
incident, his sister conceived and her
mother-in-law
said
to
her
that
the
conception was illegitimate and started
beating her. On 06.08.2010, these persons
ousted his sister after beating her. His sister
came to his (P.W.3) house and told her
mother about the incident and also told that
they used to beat her and said that the child
was illegitimate. Thereafter Kali Prasad
came to his (P.W.3) house and requested to
send his sister with him and he sent his
sister with Kali Prasad. On 11.08.2010, his
brother-in-law (Kali Prasad) came to his
house in the morning at 5 O'Clock and told
that his sister (wife of Kali Prasad) had
closed the room from inside and requested
him to come and get the door opened.
Thereafter he (P.W.3) and 4-6 more persons
started to the house of the convicts/
appellants, on the way he (complainant)
thought that first he should go to the police
station. This witness went to the police
station and gave information. The police
came at the spot and entered the room
where the deceased was residing, the door
of which was opened by kicks and he saw
that the dead body of his sister was
hanging, the police got the dead body down
and conducted the Panchnama (inquest)
and thereafter sent the dead body for
postmortem examination. He has further
stated that after post mortem examination,
he received the dead body and did the
cremation. He has further stated that the
husband, mother-in-law and father-in-law
of the deceased had absconded from the
spot. This witness has proved the written
report as Exhibit Ka-2.

15. P.W.4 is Ram Prasad who has
proved the inquest report as Exhibit Ka-2A
and has stated that in his presence, the
inquest was conducted and the dead body
was sent for post mortem examination and
he also signed at the inquest report as a
'Panch'. In the cross-examination this
witness has stated that the dead body was
found in the room of Kali Prasad and also
denied the suggestion that the deceased
committed suicide. P.W.6 has proved the
Chick F.I.R. as he registered the F.I.R. and
made the entry in the concerned General
Diary. He has proved Chick F.I.R. as
Exhibit Ka-3 and the carbon copy of
General Diary as Exhibit Ka-4. P.W.7 is the
Investigating Officer and he has stated
before the trial court that on 10.08.2011 he
reached at the spot after getting the
information of death of the deceased. He
reached at the spot along with SubInspector P.K. Katiyar, Constable Jagdamba
Singh and Head Constable Rangnath
Mishra. He got conducted the inquest by
Sub-Inspector P.K. Katiyar and the relevant
papers were prepared by Sub-Inspector P.K.
Katiyar and sent the dead body for
postmortem. This witness has proved the
inquest report and relevant papers in the
handwriting of Sub-Inspector P.K. Katiyar
as he has seen the handwriting in the
ordinary course and identified his writing
and signature. This witness has further
stated that he has inspected the place of
occurrence on the pointing out of the
complainant and prepared the site plan.
This site plan has been proved as Exhibit
Ka-11. He has further stated that after
8 All. Kali Prasad Vs. State of U.P.
665
recording the statements of witnesses he
submitted the charge sheet against the
convicts/ appellants and proved the same as
Exhibit Ka-12. In the cross-examination,
this witness has stated that he received the
information of the incident from Jitendra
Kumar. In the written information about the
death of his sister, Jitendra Kumar did not
tell him about the murder. He reached on
the spot and opened the door with the help
of the persons present there and found the
body of the deceased hanging. He has also
stated that the room of Raj Patti @ Nankav
and Parsu Ram was at a distance of 15-20
feet from the place of incident. The rope
was present around the neck of the
deceased. In the cross-examination, this
witness has further stated that since
findings in post mortem report and the
injury sustained were contradictory so the
same was placed for legal opinion. In
between, on 17.08.2010, the complainant
gave written report on the basis of which
the case was registered. He has also stated
that there was no physical injury on the
stomach of the deceased. He has further
stated that before getting the post mortem
examination report, he was not aware of the
fact that the case was of a murder. This
witness has denied the suggestion that the
deceased had committed suicide and he
with the connivance of the complainant
made it a case of murder.

16.

Learned
counsel
for
the
convicts/appellants argued that the room
where the incident occurred was found
closed from inside. The deceased herself
closed the door and committed suicide as
she was depressed about not having a child.
The
learned
counsel
for
the
convicts/appellants drew the attention of
the court towards the facts mentioned in the
inquest report as well as the statement of
P.W.7 wherein he has stated that room was
found closed and he got it opened and
submitted that this evidence shows that the
room was closed from inside so the
convicts/appellants
did
not hang
the
deceased and she hanged herself inside the
room.

17. We considered the above
argument, In our opinion this argument of
defence counsel does not have force
because in the cross-examination P.W.7, the
Investigating Officer has stated that the
room was closed and he got it opened with
the help of people present there. He was
further asked by the defence counsel
whether the door was broken, then he
stated that the door was not broken but got
opened. This witness has not stated that the
door was closed from inside, he has stated
only that the door was closed. P.W.3, the
complainant has also stated before the trial
court that the Investigating Officer came on
the spot and made two kicks on the door
and the door was opened. He has clearly
stated that the door was not closed from the
inside and further cleared that if the door
might have been closed from the inside
then that would not have been opened by
merely two kicks of the Investigating
Officer. It shows that the door was closed,
but it was not closed from the inside. The
post mortem examination report shows that
severe injury was found in the intestine of
the deceased. In the opinion of doctor
conducting the autopsy of the deceased,
when the deceased became unconscious
then she would have been hanged. In the
opinion of doctor the hanging was postmortem. The person cannot hang himself or
herself when he or she is unconscious,
hence, the version of the defence that the
deceased committed suicide herself by
hanging cannot be believed. D.W.1 Ram
Sagun has stated that the door was closed
from inside and that was opened after
666 INDIAN LAW REPORTS ALLAHABAD SERIES
breaking but the Investigating Officer and
P.W.3 both have stated that the door was
not broken but it was opened with the help
of people. D.W.1 has further stated that
when room was opened after breaking the
door it was found that dead body was
hanging and it was brought down and some
water was sprinkled on the dead body and
it was found that Neelam was dead then
again she was hanged with a noose of rope
and door was closed and the police came
thereafter. This defence witness has stated
that the door was closed again, and in such
circumstances the argument that the door
was closed from inside is not trustworthy.
All this shows that the door was not closed
from inside but it was closed. As the dead
body was found hanging inside the room
where Kali Prasad and the deceased used to
reside,
a
heavy
burden
lies
on
convict/appellant Kali Prasad to explain the
injuries found on the body of the deceased.
Section 106 of the Indian Evidence Act
provides as under:-

"106. Burden of providing fact
especially within knowledge.- When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him."

The Hon'ble Apex Court in the
case of Ranjit Kumar Haldar vs. State of
Sikkim (2019) 7 SCC 684 observed as
under:-

"15. In another judgment Trimukh
Maroti Kirkan v. State of Maharashtra
[Trimukh Maroti Kirkan v. State of
Maharashtra, (2006) 10 SCC 681 : (2007)
1 SCC (Cri) 80] , the Court considered a
situation wherein the accused is alleged to
have committed the murder of his wife. The
prosecution succeeded in leading evidence
to show that shortly before the commission
of the crime, they were seen together or the
offence takes place in the dwelling house
where the appellant normally resided. The
Court held as under : (SCC pp. 694-95,
para 22)

"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. [Nika Ram v. State of H.P.,
(1972) 2 SCC 80 : 1972 SCC (Cri) 635] 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
[Ganeshlal
v.
State
of
Maharashtra, (1992) 3 SCC 106 : 1993
SCC
(Cri)
435]
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 CrPC. 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
8 All. Kali Prasad Vs. State of U.P.
667
of U.P. v. Ravindra Prakash Mittal [State of
U.P. v. Ravindra Prakash Mittal, (1992) 3
SCC 300 : 1992 SCC (Cri) 642] 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 IPC. In State of T.N.
v. Rajendran [State of T.N. v. Rajendran,
(1999) 8 SCC 679 : 2000 SCC (Cri) 40] 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 hesitation to come
to the conclusion that it was the accused
(husband) who was the perpetrator of the
crime.""

18. In the present matter the convict
Kali Prasad had failed to give any plausible
and satisfactory explanation about the death
of his wife. The theory put forward by the
defence is not supported by the post
mortem report and the evidence given by
P.W.3, P.W.7 and P.W.8. In the trial court
the convict/appellant Kali Prasad has
utterly failed to explain the injuries found
on the body of the deceased. Though he
tried to say that the deceased fell down on
the cot and received injuries in her stomach
and started bleeding and she went into
depression and committed suicide but that
is not being supported by the evidence
available on record. The medical witness
P.W.8 has clearly denied the suggestion
made by the defence counsel that such an
injury would have occurred due to falling
on something, hence it is proved that the
deceased was killed by Kali Prasad (the
husband of the deceased).

19. As far as the convicts/appellants
Raj Patti and Parsu Ram are concerned,
according to the evidence available on
record, they used to reside in the same
house at a distance of 15-20 feet from the
place of occurrence. It is quite possible that
what happened inside the room they were
not aware of that. D.W.2, Chanda daughter
of Parsu Ram and Raj Patti has stated that
they both were present at her house in
Ahmedabad on the date of incident for their
treatment. Though no prescription of
treatment was produced by D.W.1 and even
in their statements recorded under Section
313 Cr.P.C., Parsu Ram and Raj Patti have
not stated that they were not present in the
house at the time of incident, hence, this
plea of 'alibi' is not acceptable, but their
involvement in killing the deceased is not
proved beyond reasonable doubt because
only one injury in the stomach was found
in the small intestine of the deceased,
which according to the doctor proved fatal.
If these two convicts/appellants had also
assaulted the deceased, some more injuries
would have been found on the person of the
668 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased. Hence from the above analysis, it
is clear that the prosecution has proved that
the deceased was killed by Kali Prasad by
assaulting her in her stomach which was
supported by the post mortem examination
wherein severe injury in her small intestine
was
found
and
when
she
became
unconscious she was hanged, (as the doctor
has clearly written in the post mortem
examination report that, it was a 'PostMortem'
hanging).
As
far
as
the
involvement of Raj Patti and Parsu Ram are
concerned their involvement in the killing
of the deceased could not be proved beyond
reasonable doubt for the reason that only
one severe injury in the intestine of the
deceased was found. Hence they deserve to
be given the benefit of doubt.

20. Hence to sum up the conviction
and sentence awarded to Parsu Ram and
Raj Patti is hereby set aside. In the result,
the Criminal Appeal No.1024 of 2018 is
dismissed and Criminal Appeal No.525 of
2018 is hereby allowed.

21. The appellant Kali Prasad is
already in jail. He shall serve out the
sentence awarded by the trial court. The
convicts/appellants Parsu Ram and Raj
Patti are already on bail by the order of this
Court. Their bail bonds are cancelled and
sureties are discharged.

22. The convicts/appellants Parsu
Ram and Raj Patti are directed to file
personal bonds and two sureties each in the
like amount to the satisfaction of the court
concerned in compliance with Section 437A of Cr.P.C.

23. Office is directed to send a copy
of this order along with lower court record
to the trial court concerned for necessary
information and compliance forthwith.
----------
(2022) 8 ILRA 668
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No.1100 of 2010

Zaheer ....Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Mohammad
Naseerullah,
Sri
Ajai
Sharma, Sri Vimal Kumar Pandey

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Penal Code,1860-
Sections 376 & 354 - The medical
examination of the victim ''x' (Ext. Ka. 2)
shows redness and mild swelling present
at 6 O'clock position of the hymen; small
tear at 6 O'clock position; and vagina
admits tip of finger with extreme pain. At
the same time, it also transpires from the
medical report that victim ''x' was having
difficulty in walking, which also finds
corroboration with the evidence of victim
''x' (P.W.2) as well as P.W.1 as they had
stated in clear terms that after committing
rape against the victim ''x', she went to
home
limping.
Further,
P.W.3-Reeta
Raman
had
stated
in
her
crossexamination that hymen of the victim ''x'
was torn and hymen would also be torn in
the case of rape. It is apparent from the
testimonies of P.W.2-victim ''x' that the
victim ''x' has fully supported the case of
the prosecution. She has been consistent
right from the very beginning. Nothing has
been specifically pointed out why her
testimony should not be believed. Even
after thorough cross-examination, she has
stood by what she has stated and has fully