# Munna Lal Patel v. State

- **Citation:** (2023) 2 ILRA 626
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-15
- **Case number:** Criminal Appeal No. 943 of 2009
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munna-lal-patel-v-state-49721
- **Pages:** 13

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 45- The direct evidence in
the case is that of the eye-witnesses who
had
seen
and
narrated
the
entire
occurrence. The evidence of a doctor or an
expert is merely an opinion which lends
corroboration to the direct evidence in the
case.
Where
there
is
a
glaring
inconsistency between direct evidence
and the medical evidence in respect of the
entire
prosecution
story,
that
is
undoubtedly a manifest, defect in the
prosecution
case.
There
is
no
inconsistency between the direct evidence
and the medical evidence. The postmortem report as well as statement of
P.W.-3 who conducted the autopsy, as per
which the cause of death of the deceased
is asphyxia due to strangulation and fully
corroborate the prosecution version i.e.
statements of witnesses of fact P.W.-1
and P.W.-2. In the present case motive is
also present.

Where the medical evidence corroborates the
direct evidence then the case of the prosecution
cannot be disbelieved unless there is a glaring
contradiction between the direct evidence and
medical evidence.

Indian Evidence Act, 1872- Section 3-
Merely because the witnesses examined
by the prosecution are relatives of the
victim/deceased by itself will not be
sufficient to discard and discredit the
evidence of the relative witnesses, if
otherwise they are found to be truthful
witnesses and rule of caution is that the
evidence of the relative witnesses has to
be reliable evidence which has to be
accepted
after
deep
and
thorough
scrutiny. It is no doubt true that in the
present case, the prosecution has not
2 All. Munna Lal Patel Vs. State
627
been able to produce any independent
witness but the prosecution case cannot
be doubted on the ground of nonexamination
of
independent
eye
witnesses.

Settled
law
that
non-examination
of
independent witnesses by the prosecution is not
fatal where the testimony of the related
witnesses is found to be truthful and credible
after due caution and scrutiny by the court.
(Para 36, 40)

Criminal Appeal rejected. (E-3)

## Text

_Characters 0–39,984 of 43,545. This is a partial read: ask again with offset=39984 for what follows._

626 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 357 Cr.P.C., I am of
the view that compensation should be
awarded to the victim's family.

27. Therefore, fine of Rs.10,000/-each
is enhanced to Rs.30,000/-each, which shall
be deposited before the trial court. Out of
Rs.90,000/-, Rs. 60,000/- shall be paid to
injured Kismatulnishan and Rs. 30,000/-
shall be deposited in State Exchequer. If the
appellants fail to pay aforesaid amount
then, they shall undergo imprisonment and
sentence as directed by they trial court.
Fifteen days time is granted to appellants to
deposit the fine as mentioned by this Court.
The appellants are on bail. They need not to
surrender.

28. Fifteen days is provided to the
appellants to deposit fine amount from the
date of production of a certified copy of
this order.

29. Thus, the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

30. Office is directed to communicate
this order to the trial court concerned. The
trial court record be sent back.
----------
(2023) 2 ILRA 626
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 943 of 2009

Munna Lal Patel ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Mrs. Alka Srivastava, Sri Amit
Rai, Sri C.L. Chaudhary (A.C.), Sri Mohd.
Akhtar, Ms. Sufiya Bano

Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 45- The direct evidence in
the case is that of the eye-witnesses who
had
seen
and
narrated
the
entire
occurrence. The evidence of a doctor or an
expert is merely an opinion which lends
corroboration to the direct evidence in the
case.
Where
there
is
a
glaring
inconsistency between direct evidence
and the medical evidence in respect of the
entire
prosecution
story,
that
is
undoubtedly a manifest, defect in the
prosecution
case.
There
is
no
inconsistency between the direct evidence
and the medical evidence. The postmortem report as well as statement of
P.W.-3 who conducted the autopsy, as per
which the cause of death of the deceased
is asphyxia due to strangulation and fully
corroborate the prosecution version i.e.
statements of witnesses of fact P.W.-1
and P.W.-2. In the present case motive is
also present.

Where the medical evidence corroborates the
direct evidence then the case of the prosecution
cannot be disbelieved unless there is a glaring
contradiction between the direct evidence and
medical evidence.

Indian Evidence Act, 1872- Section 3-
Merely because the witnesses examined
by the prosecution are relatives of the
victim/deceased by itself will not be
sufficient to discard and discredit the
evidence of the relative witnesses, if
otherwise they are found to be truthful
witnesses and rule of caution is that the
evidence of the relative witnesses has to
be reliable evidence which has to be
accepted
after
deep
and
thorough
scrutiny. It is no doubt true that in the
present case, the prosecution has not
2 All. Munna Lal Patel Vs. State
627
been able to produce any independent
witness but the prosecution case cannot
be doubted on the ground of nonexamination
of
independent
eye
witnesses.

Settled
law
that
non-examination
of
independent witnesses by the prosecution is not
fatal where the testimony of the related
witnesses is found to be truthful and credible
after due caution and scrutiny by the court.
(Para 36, 40)

Criminal Appeal rejected. (E-3)

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal is by the accusedappellant Munna Lal challenging the
judgment and order dated 28th January,
2009 passed by the Special Judge (E.C.
Act), Mirzapur, in Sessions Trial No. 229
of 2007 (State Vs. Munna Lal Patel) arising
out of Case Crime No. 433 of 2007, under
Sections
302
I.P.C.,
Police
StationKachhawan, District Mirzapur, whereby the
accused-appellant has been convicted and
sentenced to undergo life imprisonment for
the offence punishable under Section 302
I.P.C. with fine of Rs. 10,000/-, in default
thereof, to further undergo two years
additional imprisonment.

2.
 We
have heard
Mr.
C.L.
Chaudhary,
learned
Amicus
Curiae,
appearing for the accused-appellant and
Kumari Meena, learned A.G.A. for the
State.

3. The prosecution case proceeds
upon a written report dated 13th July, 2007
(Exhibit-Ka/1) of first informant, namely,
Badama Devi (P.W.-1) scribed by Daya
Sanker Singh, son of Lalman Patel resident
of Village Diyav Raghauna, Police Station
Kachhawan, District Mirzapur, on the basis
of which the first information report
(Exhibit-ka/11) got registered as case crime
no. 433 of 2007 under Section 302 I.P.C. on
the same day at 13:25 p.m. The report has
been proved by P.W.-1 in which it has been
alleged that the marriage of her daughter,
namely, Rekha Devi (since deceased) aged
about 24 years was solemnized with the
accused-appellant three years ago and her
daughter has a baby girl of about 8 to 9
months. Rekha came and was staying at her
house for the last 15 days and the accusedappellant was also staying at her house
since 2 to 3 days. The accused-appellant
used to crack indecent jokes with her
second daughter, namely, Sulekha (P.W.-2)
on which the deceased used to feel bad and
object due to which there was altercation
and quarrel between the husband and wife.
It is alleged that yesterday i.e. 12th July,
2007, also on the same issue an altercation
took place between them. Last night, when
the accused-appellant and the deceased
were sleeping in the same room, at around
3 to 4 o'clock in the night, the deceased
screamed on which she, her second
daughter Sulekha (P.W.-2) and Ajay woke
up and went there and saw that the
accused-appellant had killed the deceased
by pressing her mouth. When the accusedappellant was going to perform the last rites
of the deceased, she and villagers objected
and stopped the same. Since the accusedappellant has murdered the deceased by
strangulating her, her report be lodged and
appropriate action be taken. It is further
alleged that on raising her alarm, her
neighbour Ramjatan son of Bhukkhal and
Munnalal son of Basant came to the spot at
the time of incident.

4. After registration of the aforesaid
first information report, the investigation
proceeded in the matter and the SubInspector Suresh Rai (P.W.-7) after entering
628 INDIAN LAW REPORTS ALLAHABAD SERIES
the chick first information report and the
written report of the first informant/P.W.-1
in the Case Diary, has recorded the
statement of first informant/P.W.1, P.W.-2
and son of P.W.-1 Ajay (not produced)
under Section 161 Cr.P.C. at the police
station. After recording the same, P.W.-7
reached the place of occurrence along with
the first informant/P.W.-1 and on her
pointing out, P.W.-7 has prepared the site
plan (Exhibit-ka/13).

5. On the instruction of Naib
Tehsildar Manoj Kumar Tiwari (P.W.-4),
the inquest proceedings of the deceased
were conducted on the same day i.e. 13th
July, 2007, which commenced at 19:30
p.m. and concluded at 20:30 p.m. The
inquest report (Exhibit-ka/3) has been
prepared by P.W.-7 on dictation of P.W.-4.
The Inquest witnesses opined that since the
death of the deceased Rekha seems to be
dubious, therefore, for ascertaining the
exact cause of death, post-mortem be got
conducted. The dead body of the deceased
was then sealed and sent to Mortuary.

6. The autopsy of the dead body of
the deceased Rekha has been done on 14th
July, 2007 at 04:00 p.m. by the Autopsy
Surgeon, Dr. H.R. Maurya, Medical Officer
(P.W.-3) along with Dr. V.K. Tiwari. As per
the post-mortem report the cause of death is
asphyxia due to strangulation. P.W.-3 has
also found following ante-mortem injuries
on the deceased:

"Head and neck-Swollen &
skin peeled off.

Membrane
and
braincongested.

Left and right lungs-congested.

Larynx, trachea and bronchicongested, hyoid bone fractured. Heartleft side empty and right side filled.

Subcutaneous
tissue
between....congested,
pleura
gland
congested.

Skin
peeling
off
due
to
decomposition, therefore, any external
injury could elicited. "

7. On 14th July, 2007, the investigation
has been taken over by the Sub-Inspector
Gopal Singh (P.W.-5), who was then posted
as Station House Officer of Police Station
Kachhawan, District Mirzapur. P.W.-5 has
recorded the statements of Ramjatan and
Munnalal son of Basanta (whose names have
been mentioned in the FIR) under Section
161 Cr.P.C. On 17th July, 2007, P.W.-5 has
arrested
the
accused-appellant.
After
completion of statutory investigation under
Chapter XII Cr.P.C., charge-sheet (Exhibitka/10) came to be submitted by P.W.-5 on
25th July, 2007 against the accused-appellant.
Having taken cognizance on the charge-sheet
dated 25th July, 2007 the concerned
Magistrate committed the case to the Court of
Sessions where the following charge was
framed against the accused-appellant on 19th
November, 2007 under Sections 302 I.P.C.:

"मैं, बो० डी० वमाष, दवशेर् न्यायाधीश,
ई० सी० एक्ट्, दमर्ाषपुर आप अदभयुि मुन्ना लाल
को दनम्न आरोप से आरोदपि करिा हूँ ।

प्रथम-
यह
दक
दिनाांक
12/13.7.2007 को समय करीब 3,4 बजे, राि
बहि स्थान मौजा दियाांव थाना कछवाां जनपि
दमर्ाषपुर में आपने वादिनी मुकिमा बिामा
िेबी की लडकी रेखा िेबी को जान बुझकर
दनयि पूवषक मृत्यु काररि कर हत्या की। इस
प्रकार आपने जान बूझकर भा० िां० सां० की
धारा 302 का िण्डनीय अपराध दकया है जो
इस न्यायालय के प्रसांज्ञान में है ।

एिद्वारा मैं दनिेदशि करिा हूँ दक
उपरोि आरोप में आपका परीक्षण इसी
न्यायालय द्वारा दकया जायगा।"
2 All. Munna Lal Patel Vs. State
629

Charges were also read out to the
accused-appellant,
who
denied
the
accusation and demanded trial.

8. In order to establish its case, the
prosecution
has
adduced
following
documentary evidence:

"i). Written report (Exhibit-ka/1)
dated
13th
July,
2007
of
the
informant/P.W.-1 scribed by Daya Shanker
Singh, which has been marked as ExhibitKa/1

ii). The first information report
dated 13th July, 2007 has been marked as
Exhibit- Ka/11;

iii).
The
inquest
report
(Panchayatnama) dated 13th July, 2007
has been marked as Exhibit-ka/3;

iv). Site plan with index dated
13th July, 2007 has been marked as
Exhibit-ka/13

v). Post-mortem report dated 14th
July, 2007 has been marked as Exhibitka/2; and

vi). Charge-sheet dated 25th July,
2007 has been marked as Exhibit-ka/10."

9.

In
addition
to
the
above
documentary evidence, the prosecution has
also adduced two witnesses of fact, namely,
Badama Devi (P.W.-1/first informant) and
Sulekha (P.W.-2), who happen to be the
mother and younger sister of the deceased
respectively. Autopsy Surgeon Dr. H.R.
Maurya, who conducted the post-mortem
of the deceased, has been adduced as P.W.-
3. P.W.-4, namely, Manoj Kumar Tiwari,
then posted as Naib Tehsildar, Tehsil Sadar,
District Mirzapur, on whose instruction the
inquest proceedings of the deceased were
conducted. P.W.-5 Sub-Inspector Gopal
Singh, the then Station House Officer,
Police
Station-Kachhawan,
District
Mirzapur, the second investigating officer
has submitted the charge-sheet and also
proved the same during the course of trial.
Constable-138 Sudama Yadav, then posted
as Head Moharir, who has prepared the
chik FIR and proved the same during the
course of trial, has been adduced as P.W.-6.
P.W.-7 Sub-Inspector Suresh Rai, the first
investigating officer, who has prepared the
site plan and inquest report on the dictation
of P.W.-4 and he has also proved the same.

10.

On
the
basis
of
above
incriminating material placed on record
during the course of trial the statement of
the accused-appellant has been recorded
under Section 313 Cr.P.C. in which he has
denied the accusation. He has admitted that
he was married to the deceased Rekha Devi
three years prior to the incident and out of
their wedlock a girl child was born and at
the time of incident she was 8 to 9 months
old. About the incident, the accusedappellant has stated that at that time, he was
sleeping outside and hearing the noise, he
came inside the room. He has denied the
rest of the prosecution version. He has also
stated that the Investigating Officer by
doing wrong investigation, has submitted
charge-sheet against him. The prosecution
witnesses have given wrong statements
against him. No defence witness has been
adduced by the defence.

11. Before coming to its conclusion,
the trial court has recorded its finding that
P.W.-3 the Autopsy Surgeon has been
cross-examined by the defence but nothing
has come up in it that could lead to his
statement being treated to be wrong. In his
cross-examination,
this
witness
has
clarified that strangulation leads to fracture
of the hyoid bone of neck. If any person is
killed by smothering with a pillow or
anything else, hyoid bone of his neck will
not be fractured. In the statements of both
630 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution witnesses of fact, it has
come in evidence that the deceased's neck
was strangulated by the accused-appellant.
Murder of the deceased by strangulating
her is sufficient evidence of his intention.
Fracture of the hyoid bone of the deceased
due to strangulation, as per her postmortem report indicates that the accusedappellant strangulated her with such force
that the hyoid bone of the deceased was
fractured, which shows his intention to kill
her. From the aforesaid, it cannot be said
that he strangulated the neck of the
deceased only to scare her as was suggested
by P.W.-2. Therefore, on the basis of the
above, the trial court opined that the
accused has killed the deceased by
strangling her neck. Hence, this case cannot
be treated to be culpable homicide not
amounting to murder.

12. The trial court after perusing the
entire oral as well as documentary evidence
available on record, has come to the
conclusion
that
the
accused-appellant
taking advantage of the financial condition
of the informant/P.W.-1, with the intention
of establishing illicit relationship with
Kumari Sulekha, has strangulated the
deceased. Hence the prosecution has
succeeded in establishing the guilt of the
accused-appellant
beyond
reasonable
doubt. The trial court has, therefore, held
the accused-appellant guilty of murder of
his wife i.e. the deceased Rekha Devi under
Section 302 I.P.C. and convicted him
accordingly and sentenced him to undergo
life imprisonment with fine of Rs. 10,000/-.

13. Aggrieved by the aforesaid
judgment and the order of conviction and
sentence, the present jail appeal has been
filed on the ground that conviction is
against the weight of evidence on record
and against the law and the sentence
awarded to the accused-appellants is too
severe.

14. Learned Amicus Curiae appearing
for the accused-appellants submits that as
per the prosecution case, the incident
occurred in the night of 13th July, 2007
between 03:00 a.m. to 04:00 a.m. There
was no source of light and it was dark, as
such in absence of any light it was
impossible for any person to see the
occurrence or to identify the person who
was committing such incident. Further
submission is that the accused-appellant
with intention to scare the deceased had
pressed her neck but accidentally, she died,
as such this case be treated to be culpable
homicide not amounting to murder, as is
evident from the statements of P.W.-2 in her
cross-examination
and
P.W.-5
in
his
examination-in-chief. Next submission is
that at the time of occurrence, the accusedappellant was sleeping on the well outside
the room and when he heard the noise he
came inside the room. Further submission
is that none of the prosecution witnesses
i.e. P.W.-1 and P.W.-2 have seen the
incident, when it was occurring with their
own eyes. Both the alleged eye-witnesses
P.W.-1 and P.W.-2 being mother and sister
of the deceased, are interested witnesses,
therefore, their testimonies are not reliable
and credible. It is also contended that the
accused-appellant
has
been
falsely
implicated in the present case by both the
prosecution witnesses of fact only due to
apprehension/suspicion. It is urged that the
accused-appellant has no motive to commit
the alleged offence. It is further urged that
the site plan (Exhibit-ka/13 prepared by the
Investigating Officer does not support the
statement of P.W.-1, in which she has
admitted that on the cot in the north side of
the room, accused-appellant and deceased
were sleeping together, whereas on the cot
2 All. Munna Lal Patel Vs. State
631
in the east side of the room, P.W.-2 Sulekha
was sleeping, which casts a doubt in the
prosecution case.

On the cumulative strength of the
aforesaid, learned Amicus Curiae appearing
for the accused-appellant submits that the
impugned
judgment
and
order
of
conviction cannot be legally sustained and
is liable to be quashed.

15. On the other-hand, Kumari
Meena, learned A.G.A. for the State, while
supporting the prosecution case submits
that there is direct evidence against the
accused-appellant in the form of the
statements of P.W.-1 Badama Devi and
P.W. 2-Sulekha, who happen to be the
mother
and
sister
of
the
deceased
respectively and are reliable and credible in
the facts and circumstances of the case.
Both the witnesses of fact are consistent
and intact and being eye-witnesses they
have
clearly
disclosed
about
the
commissioning of the offence of murder.
The medical evidence also fully supports
the aforesaid direct evidence. Therefore,
the trial court has not committed any error
in holding conviction of the accusedappellant under Section 302 I.P.C. On the
cumulative
strength
of
the
aforesaid
submissions, learned A.G.A. submits that
as this is a case of direct evidence, the
impugned
judgment
and
order
of
conviction does not suffer from any
illegality and infirmity so as to warrant any
interference by this Court. As such the
present appeal filed by the accusedappellant who committed heinous crime by
murdering deceased Rekha, is liable to be
dismissed.

16.

We
have
considered
the
submissions made by the learned counsels
for the parties and have gone through the
records of the present appeal especially, the
judgment and the order of conviction and
evidence adduced before the trial court.

17. The only question which is
required to be addressed and determined in
this appeal is whether the conclusion of
guilt arrived at by the trial court and the
sentence awarded is legal and sustainable
under law and suffers from no infirmity and
perversity.

18. For coming to a fruitful
conclusion in the present appeal, it is
important for us to record brief statements
of the prosecution witnesses.

19. This Court may record that P.W.-1
has supported the prosecution case. She in
her examination-in-chief has stated that the
marriage of her daughter, namely, Rekha
(now deceased) was solemnized with the
accused-appellant, namely, Munnalal 3
years before the incident. She had a baby
girl of 8 to 9 months at that time. She came
to her place 15 days before the incident and
stayed with her. The accused-appellant was
also staying at her house for 2 to 3 days
from the incident. He used to crack
indecent jokes with her second daughter,
namely, Sulekha (P.W.-2) due to which the
deceased used to feel bad and scold him
and that is why both of them used to fight.
This witness has further stated that about
10 months ago, in the month of Asadh,
there was a quarrel between the deceased
and the accused-appellant and after that the
same night both of them (accused-appellant
and the deceased) slept on a cot and the
other daughter (P.W.-2) slept on another cot
in the same room, whereas she was
sleeping in the hutment of one Bhukkhal
son of Aliyar next to the same room with
her son Ajay and daughter of the deceased.
At 3 to 4 o'clock in the morning, the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased screamed on which she, her son
Ajay and P.W.-2 woke up and lit torch and
saw that the accused-appellant pressed the
mouth and throat of the deceased due to
which she fainted. P.W.-1, Mattu, Smt.
Chironji Devi, Munnalal son of Basanta
took the deceased to Dr. Shiv Shanker Patel
by a Tempo of Sukkhu Harijan for her
treatment where she was declared dead,
whereafter they took her dead body to her
house. After that when the accusedappellant was taking the body of the
deceased for last rites, she protested on
which some villagers came and the
accused-appellant was stopped by them in
front of the medicine shop of Dr. Madan
Mohan Singh. P.W.-1 has further stated that
the accused-appellant strangulated the
deceased to death as she used to protest and
scold him on his joking with P.W.-2. On
hearing the noise, Ramjatan and Munnalal
son of Basant also came to the spot at the
time of incident. In relation to the incident,
on her dictation, Dayashanker had written
an application, which has been given to the
police station. On the said written report,
her thumb impressions were also appended.
She has also proved the same as Exhibit
Ka-1.

20. In the cross-examination this
witness has stated that there are six members
in her family i.e. she, her two sons, two
daughters and grand-daughter (daughter of
deceased) and they used to sleep in same
room. She has further stated that it was
raining on the night of the incident. Around
the time of the incident, the rains stopped at 4
o'clock in the night. There was no electricity
in her hutment. The lamp was lit in the
hutment. She had kept two cots in the
hutment and on one cot she, her younger son
and her grand-daughter were sleeping
whereas on other cot, her elder son
Chandrashekhar was sleeping.

21. This witness has further stated
that she deliberately did not put P.W.-2 to
sleep in that room, but due to lack of space,
she made her sleep separately in the
accused's room. She did not put her granddaughter and son to sleep in that room. Cot
of P.W.-2 was at some distance from
deceased's cot in that room. The accusedappellant did not sleep with P.W.-2 but
slept with the deceased. The accusedappellant and the deceased were sleeping
on a cot on the north side of the room,
whereas P.W.-2 slept on a separate cot on
the eastern side of the room.

22. This witness has further stated that
P.W.-2 is her second daughter. The name of
her third daughter is Sangeeta, who slept
with her on the night of the incident. The
police came on the spot at 2 o'clock in the
afternoon. When the police came, accusedappellant
was
present
there.
After
questioning, the police took him away.
When she heard the noise, she along with
her sons Chandrashekhar and Ajay and
daughter Sageeta saw the incident by
lighting a torch in the room. She cannot tell
as to why the name of Sageeta was not
mentioned in her statement as having seen
the incident at the spot. P.W. 2 was sleeping
in the room of the deceased and when she
reached there, she woke up her and then she
got up. P.W.-2 slept after taking medicine for
headache. When she reached the room, her
daughter i.e. deceased fainted. When she lit
the torch light she saw her unconscious.
When she lit the light, the accused-appellant
was standing next to her and then said that
he had strangled her daughter (deceased) to
death. All the children were woken up by
lighting the torch. When she heard the
screams, everyone who was with her woke
up and went to the room. There is no
electricity in her house and she saw the
incident in the torch light.
2 All. Munna Lal Patel Vs. State
633

23. This witness has further stated
that accused-appellant used to joke with
P.W.-2 which the deceased did not like and
suspect that they had an illicit relationship.
On the evening of the incident, the
deceased asked the accused-appellant to
bring her a saree (Dhoti) which he could
not give due to which there was a fight
between them. That night both slept on the
same cot. When she reached the room at
the time of the incident, the accusedappellant said that he was scaring the
deceased.

24. This witness has denied that on
the night of incident, the accused slept near
the well. She has also denied the version
that when he reached the room along with
her, the deceased was unconscious.

25. Similarly, P.W.-2 has supported
the prosecution case. This witness has
stated
that
the
accused-appellant
strangulated the deceased to death as she
used to object and scold him on an
apprehension of his having illicit relations
with her sister i.e. P.W.-2 and for making
fun with her. Apart from the above, in her
examination-in-chief
this
witness
has
adopted the same version as stated by P.W.-
1, therefore, we need not reiterate the same
once again except her statement in crossexamination.

26. In the cross-examination, this
witness has stated that on the date of
incident, she was sleeping when her sister
shouted. P.W.-1 came and woke her up. She
was awake when the accused-appellant was
fighting with her sister (deceased) in the
room at night. When the fight was over, she
fell asleep. The deceased and the accusedappellant had also fallen asleep. When she
woke up, the deceased was unconscious.
She was in the room, P.W.-1, her brother,
the accused-appellant, Ramjatan, Munnalal
son of Basanta and Chiroji Devi came
before she awoke. They took the deceased
to the doctor, where she was declared dead.
When the police came on the spot, they
caught hold of the accused-appellant and
took him to the police station. All the
family members of the accused-appellant
ran away. This witness has further stated
that deceased was her elder sister, whereas
Sangeeta is her younger sister. Sangeeta
slept with P.W.-1, who was sleeping in the
hutment adjacent to her room. The
deceased was killed by strangulation. This
witness has denied that the accusedappellant did not sleep in the room on the
date of the incident or that he slept on the
well. She has denied that she was giving
false testimony.

27. P.W.-3 Dr. H.R. Maurya, Autopsy
Surgeon in his examination-in-chief has
stated that the texture of body was normal.
The stiffness was over. Rotting had started
in the body. The skin was peeling off at
various places. The eyes were turned
outward. The tongue was out. The upper
part of the torso was lying blue. He has
further stated that due to putrefaction, the
skin had been removed from various
places. No external injury marks were
found on the body as the skin was removed.
There was swelling on the neck and the
skin was removed. Membrane and brain
were congested. The tissue under the skin
between both the breasts was congested
(due
to
bleeding).
The
pleura
was
congested. The vocal cords and trachea
were also congested. Hyoid bone was
found to be fractured. The right and left
lung was congested. The left chamber of
the heart was empty and the right chamber
was full. The teeth were 16/16 and the
tongue was turned outward. Undigested
food and gas were found in the small
634 INDIAN LAW REPORTS ALLAHABAD SERIES
intestine and digested food and gas in the
large intestine. This witness has further
stated that in his opinion the death of the
deceased
is
due
to
suffocation
by
strangulation. He also proved the postmortem report. This witness has also stated
that the death of the deceased seems to
have been caused by forceful strangulation
on her chest.

28. In the cross-examination, this
witness has stated that squeezing the throat
causes a fracture in the hyoid bone in the
throat. If some one is killed by smothering
with a pillow or anything else, there will be
no fracture in the hyoid bone. This witness
has denied that he was making a false
statement.

29. It would be worthwhile to
reproduce the relevant portion of the
statement of this

"मेरी राय मे मृतका मृत्यु गला दबा
कर दम घुटन के वजह से उसकी मृत्यु हई
है। PM ररपोटष मैने अपने लेख हस्ताक्षर मे िैयार
दकया था वह इस समय मेरे सामने है। इस पर
मेरा व डाक्ट्र बी० के० दिवारी के हस्ताक्षर है
इस पर प्रिशष क 2 डाला गया। मृिका की मृत्यु
दिनाांक 12/13-7-07 के 3-4 बजे भोर की हो
सकिी है। पांचायिनामा के समय जो पुदलस
पेपर दजसमे दचक की काबषन कापी जी०डी०
पचायि नामा, प्रपत्र 13 नक्शा नाश सी0एम0
ओ0को दलखा गया पत्र, प्रदिसार दनरीक्षक को
दलखा गया पत्र व नमूना मोहर जो क्रमशः
कागज सांख्या 3 अ/14, 3अ/15, 3 अ/12, 3
अ/13, व 3 अ/16 लगायि 3 अ/20 है। गवाह को
दिखाया गया िो उसपर अपने लघु हस्ताक्षर
बनाये जाने का दशनाख्त दकया।

मृतका का मृत्यु सीने पर चढ़कर
हमचकर गला दबा कर ककया जाना प्रतीत
होता है।"

30. P.W.-4 Naib Tehsildar, TehsilSadar, District-Mirzapur, Manoj Kumar
Tiwari has instructed P.W.-7 to prepare
inquest report and ensure that the dead
body of the deceased is sealed and sent to
Mortuary for post-mortem.

31. P.W.-5 Sub-Inspector, Gopal
Singh, the then Station House Officer,
Police
Station
Kachhawan,
DistrictMirzapur, has investigated the case from
the second day of incident i.e. 14th July,
2007 and has submitted the charge-sheet
and proved it. He has stated in his
examination-in-chief
that
after
investigation, he found that the accusedappellant used to make fun and joke with
P.W.-2 i.e. the younger sister of the
deceased, which she felt bad and they used
to altercate and quarrel with each other
about it. On the date of the incident i.e.
12.07.2007 also, there was altercation and
quarrel between them and only to scare his
wife i.e. deceased, the accused-appellant
pressed her throat and mouth in the night
due to which she fainted and fell down and
ultimately died.

32. P.W.-6, Constable-138 Sudama
Yadav, the then Head Moharir at Police
Station-Kachhawan has prepared the chik
FIR and proved it. P.W.-7 Sub-Inspector
Suresh Rai has investigated the matter on
the first day of incident and prepared the
inquest report on the instruction of P.W.-4
and also prepared the site plan and proved
them.

33. The statement of the accusedappellant was recorded under Section 313
Cr.P.C. in which he has accepted that he
was married to the deceased Rekha Devi 3
years before the incident and a girl was
born from their wedlock, who at that time
was 8 to 9 months old. The accused-
2 All. Munna Lal Patel Vs. State
635
appellant has stated that at the time of
incident he was sleeping outside and went
inside the room on hearing the noise. The
Investigating
Officer
has
deliberately
recorded false statements of the prosecution
witnesses
and
conducted
biased
investigation in order to submit chargesheet against the accused-appellant.

34. On bare perusal of the oral
evidence (statements of all the prosecution
witnesses including the witnesses of fact,
namely, P.W.-1 and P.W.-2) as well as
documentary
evidence
led
by
the
prosecution during the course of trial, we
find substance in the contentions raised by
the learned A.G.A. for the State.

35. The testimony of witnesses of fact
i.e. P.W.-1 and P.W.-2, who have been
cross-examined at full length has been
perused by us and no benefit can be derived
by the accused as both the witnesses of fact
have established their presence at the place
of occurrence, when it occurred.

36. It is well settled that the direct
evidence in the case is that of the eyewitnesses who had seen and narrated the
entire occurrence. The evidence of a doctor
or an expert is merely an opinion which
lends corroboration to the direct evidence
in the case. Where there is a glaring
inconsistency between direct evidence and
the medical evidence in respect of the
entire prosecution story, that is undoubtedly
a manifest, defect in the prosecution case.
This however is not the position here.
There is no inconsistency between the
direct evidence and the medical evidence.
The post-mortem report as well
as
statement of P.W.-3 who conducted the
autopsy, as per which the cause of death of
the
deceased
is
asphyxia
due
to
strangulation and fully corroborate the
prosecution version i.e. statements of
witnesses of fact P.W.-1 and P.W.-2. In the
present case motive is also present.

37. Now we may come to the
contentions advanced by the learned
Amicus Curiae appearing for the accusedappellant. The first contention is that there
was no source of light and it was dark
between 03:00 a.m. to 04:00 a.m. on the
date of incident i.e. 13th July, 2007 is only
stated to be rejected on the ground that in
their statements, both the witnesses of
fact/eye-witnesses i.e.P.W.-1 and P.W.-2, on
hearing the shouting of the deceased, P.W.-
1, her son Ajay and Ramjatan reached the
room and lit the torch in which they saw
along with P.W.-2 that the accusedappellant was pressing the mouth and
throat of the deceased due to which she
fainted.

38. The third and fourth contentions
advanced by the learned Amicus Curiae are
distinct contentions, as the first contention
is that only in order to scare her, the
accused-appellant pressed the face and
throat of the deceased and accidentally she
died, whereas the second contention is that
at the time of incident, he was sleeping
outside the room i.e. near the well and after
hearing the noise, he went inside the room.
Both
the
stands
cannot
be
pressed
concurrently. Either he pressed the face and
throat of the deceased with an intent to
scare her and accidentally she died or else
he has not committed the offence as he was
outside the room when it occurred. Even if
it is accepted that the deceased was
accidentally done to death by the accusedappellant, as he pressed her mouth and face
only to scare her also cannot be accepted
by us. P.W.-3 in his statement has stated
that the death of the deceased seems to
have been caused by forceful strangulation
636 INDIAN LAW REPORTS ALLAHABAD SERIES
on her chest. In the cross-examination, this
witness has stated that squeezing the throat
by force causes a fracture in the hyoid bone
in the throat. Only to scare no one is
strangulate with such force or pressure that
it breaks the bone of the throat so that
he/she becomes unconscious. The fourth
contention advanced on behalf of the
accused-appellant that at time and date of
incident he was sleeping outside the room
and hearing the noise he went inside is also
liable to be rejected on the ground that
P.W.-1 has clearly stated in her statement
that it was raining on the night of the
incident and the rains stopped at 4 o'clock
in the night.

39. The fifth contention advanced on
behalf of the accused-appellant that none of
the prosecution witnesses has seen the
incident from his/her own eyes is incorrect.
Being the mother and sister of the
deceased, P.W.-1 and P.W.-2 are natural
witnesses and their testimony cannot be
said to be unreliable or untrustworthy as
they are interested witnesses. From the
prosecution evidence it is apparently
established that P.W..-1 and P.W.-2 are
witnesses of fact/eye-witnesses, who have
been cross-examined in detail by the
defence during the course of trial but in
their cross-examination, both of them have
fully supported the prosecution case.

40. It is well settled that merely
because the witnesses examined by the
prosecution
are
relatives
of
the
victim/deceased by itself will not be
sufficient to discard and discredit the
evidence of the relative witnesses, if
otherwise they are found to be truthful
witnesses and rule of caution is that the
evidence of the relative witnesses has to be
reliable evidence which has to be accepted
after deep and thorough scrutiny. It is no
doubt true that in the present case, the
prosecution has not been able to produce
any
independent
witness
but
the
prosecution case cannot be doubted on the
ground of non-examination of independent
eye witnesses. In these days, common
people are generally insensitive and do not
come forward to give any statement in
respect of any criminal offence. Unless it is
inevitable, people normally keep away
from the court as they find it distressing
and stressful. Though this kind of human
behaviour is indeed unfortunate, but it is a
normal phenomena. We cannot derail the
entire case on the mere ground of absence
of independent witness as long as the
evidence
of
the
eyewitness,
though
interested, is trustworthy.

41. So far as the sixth contention
advanced on behalf of the accusedappellant that only on apprehension or
suspicion, the accused-appellant has been
falsely implicated in the present case is
concerned, we may record that from deeper
scrutiny of the statements of the witnesses
of fact i.e. P.W.-1 and P.W.-2, it is apparent
that in the torch light they have seen that
the accused-appellant pressed the face and
throat of the deceased due to which she
fainted and ultimately died, there was
quarrel between them in the evening of
12th July, 2007 as the accused-appellant
made fun with P.W.-2 which the deceased
protested
and
scolded
the
accusedappellant. Therefore there is no possibility
of any suspicion or apprehension to falsely
implicate the accused-appellant by the
prosecution. To the seventh contention
advanced on behalf of the accusedappellant that the accused-appellant has no
motive or intention to commit the alleged
offence, it may be worth noticing that the
accused-appellant
has
strong
motive/intention to commit the alleged
2 All. Munna Lal Patel Vs. State
637
offence on the ground that the accusedappellant cracked indecent jokes with his
sister-in-law (P.W-2 herein) and wanted to
have a relationship with her, because of
which his wife (deceased herein) scolded
and quarreled with him as well as she was
an obstacle between him and his sister-inlaw, therefore the accused-appellant has
killed her wife (deceased) by strangulation
removing his obstacle.

42. Qua the last submission made on
behalf of the accused-appellant that the site
plan does not support the prosecution story
with regard to places of cots on which
deceased and accused-appellant as well as
P.W.2 were sleeping separately on the night
of the incident, we may record that as per
the site plan prepared by P.W.-7 (Exhibitka/13) on the cot kept on the west side of
the room, P.W.-2 was sleeping, whereas on
the cot kept on the east side, the accusedappellant and the deceased were sleeping
when as a matter of fact, as per the
statement of P.W.-1, the accused-appellant
and the deceased were sleeping together on
the cot of north side of room whereas P.W.-
2 was sleeping alone on the cot of east side
of room, meaning thereby that there is a
difference between the site plan and the
statement
of
P.W.-1
only
in
the
location/direction of the cot on which the
deceased and the accused-appellant were
sleeping together, which can be called a
minor error. Therefore, this submission has
also no substance.

43. From the aforesaid facts, which
have been noted herein above, we find
substance in the submissions made by the
learned A.G.A. that this is a case of direct and
clinching evidence of two eye witnesses of
the incident, namely, P.W.-1 and P.W.-2. The
medical
evidence
fully
supports
the
prosecution evidence. The incident occurred
between 03:00 a.m. to 04:00 a.m. on 12/13th
July, 2007 and the first information report
was lodged by the informant at 01:35 p.m.
Though there is delay of nine hours in
lodging
the
FIR
but
the
same
has
satisfactorily
been
explained
by
the
prosecution. The accused-appellant had also
motive to commit such offence. The incident
and the place of incident were not disputed
by the defence side.

44. As already discussed above, we find
that the testimony of both the eye-witnesses
i.e. P.W.-1 and P.W.2 is credible and
trustworthy as they were subjected to lengthy
cross-examination but nothing could be
elicited to discredit their testimony. The
police
documents
and
statements
of
Investigating
officer
and
the Autopsy
Surgeon as well as medical evidence fully
support the prosecution version.

45. Taking cumulative effect of the
evidence, we are of the view that the trial
court was fully justified in convicting the
appellant.