Har Prasad Dewangan v. Mukesh Dewangan

D.B. : Hon'ble Shri Yatindra Singh, C.J. & Hon'ble Shri Manindra Mohan Shrivastava, J. CriminaLApoeal No. 1084/2004 APPELLANT Har Prasad Dewangan RESPONDENT The State of Chhattisgarh Versus Crimiaal Appeal No.430/2007 APPELLANT Mukesh Dewangan RESPONDENT The State of Chhattisgarh Versus Present: -Shri Rataiesh Kumar Agrawal, counsel for the appellants. Shri Arvind Dubey, Panel Lawyer for the State. CRIMmAL APPEALS UNDER SECTION 374 121 OF THE CODE OF CRIMINAL PROCEDURE ORAL JUDGMENT (Passed on 23rd ofSeptember, 2013) By this common judgment, the aforesaid two appeals are being disposed off.

2. Cr.A.No. 1084/2004 was filed by Krishna Bai and Har Prasad, the mother-in-law and fafher-in-law respectively of the deceased- Kanti Bai. During the pendency of this appeal, Krishna Bai has died. Therefore, to that extent, the appeal has abated.

3. The other appeal i.e.Cr.A.No.430/2007 has been ffled by Mukesh Dewangan, husband of the deceased-Kanti Bai. V /

4. Kanti Bai died in the interyening night of 10/11-11-2003. The death of Kanti Bai having been found in suspicious circumstances, a criine under crime No.264/2003 was registered against the appellants Krishna Bai, mother-in-law, Har Prasad Dewangan, father-in-law and Mukesh Dewangan, husband. However, husband of the deceased i.e. Mukesh Dewangan absconded. Krishna Bai and Harprasad were tried for alleged commission of offence in Sessions Trial No.41/04 resulting in conviction under Section 498-A of IPC as also under Section 201/34IPC. Mukesh was later on arrested and he was also subjected to ta-ial, in which, Mukesh was convicted for comnussion of offence under Section 304-B ofIPC as also under Section 302 IPC read with Section 201 ofIPC.

5. We shaU first take up the appeal of Harprasad, which arises out of the judgment of conviction and order of sentence dated 17/12/2004 by which appellant-Harprasad has been held guilty of commission of offence under Section 498-A and 201 IPC read with Section 34 of IPC and sentenced to undergo R.I. for three years and fine of Rs.4,000/-, default of payment of fine, additional R.I. for 9 months under Section 498-A of fhe IPC and to undergo R.I. for three years and fine of Rs.3,000/-, in default of payment of fine, additional R.I. for 9 months under Section 201 read with Section 34 ofIPC.

6. The story of the prosecution in brief is that the deceased Kanti Bai was married to Mukesh, son of the appellant- Harprasad in the month of April, 2000. In the-intervening night of 10/11-11-03, the daughter-in-law the appellant namely Kanti Bai was reported dead. After information was given to the father of the deceased, a written report in Ex.P/5 was lodged by Narayan Prasad, P.W.4. On the basis of written report, the police of Police Station-Darri registered crime in Criine No.264/03, Ex.P-6. Thereafter, panchanama in Ex. P/l was prepared in the presence of the witnesses. The body of the deceased was sent for post mortein, which was conducted by two doctors-Dr (Mrs.)S. Shrivastava and Dr. M.S.Pal, P.W.2, who prepared the post mortem report (Exhibit P/3). In the report, the cause of death was recorded as Asphyria due to strangulation. After prepara.tion of spot m.ap (Ex.P/9) and recovery of clothes of the deceased contained in Ex.P-4, the police proceeded to arrest the accused. The husband of the deceased, Mukesh Dewangan was absconding. The police carried out investigation and after recording statement of witaiesses, collecting other incriminating material charge sheet in the Court of Judicial Magistrate First Class, Katghora, who in tum, committed the case to the Sessions Judge, Bilaspur. On the basis of material contained in the charge sheet, the leamed Trial Court framed charges against the appelIant-Harprasad and the deceased appellant-Krishna Bai alleging commission of offence under Section 304-B read wifh Section 34 as also in alternative, offence under Section 302 and also offence under Section 201 read with Section 34 of IPC. The appellant abjured guilt and demanded trial.

7. In order to prove its case, the prosecution examined as many as 8 witnesses i.e. Arun Kumar Sonkar, P.W.l, Dr. M. S. Paul, P.W.2, Mewan Das, P.W.3, Narayan Prasad Dewangan, P.W.4, Shyam Lal Dewangan, P.W.5, Nand Kumar Dewangan, P.W.6, K. P. Jaiswal, P.W.7 and Imil Lakda, P.W.8. After the prosecution examined its wita-iesses, appellant was examined under Section 313 Cr.P.C. in respect of incriminating evidence appearing against him. The appellant denied all the cu'cumstances and stated that he has been falsely implicated. In support of his defence, the appellant examined Krishna Bai, D.W.l (accused) and Kesari Bai, D.W.2. After examining the oral and documentary evidence on record, the leamed ta-ial Court, though 1-^'i acquitted the appellant of the charges of commission of offence under Section 304-B/34 IPC and Section 302/34 IPC, convicted the appellant for conunission of offence under Section 498-A and Section 201/34 of the IPC and ordered sentence, which has been described above.

8. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, leanued counsel for the appellant argued that in so far as the allegation of cruelty against the appellant is concemed, the prosecution has failed to prove beyond reasonable doubt. The submission of leamed counsel for the appellant is that in so far as cruelty which is alleged to have been inflicted on the deceased-Kanti Bai, testiinony of prosecution witaesses suffer from material omission. Leamed counsel for the appellant further argued that the father of the deceased, Narayan Prasad Dewangan (PW4), who has been cited by the prosecution as star witness, has not stated regarding specific instances of cruelty in his case diary statement recorded under Section 161 CrP.C. He further subraits that the appellant was father-in-law of the deceased and it has been fhe defence of the appellant that he and mother-in-law were residing separately, whereas his son-Mukesh and Kanti (deceased) were residing separately. He further argues that the allegations regarding cruelty having been coniraitted before death, not only suffers froin serious omission but also not supported on material aspects by other witnesses of the prosecution. Therefore, in these circumstances, conviction of the appellant under Section 498-A of the IPC is wholly unjustified.

9. In so far as conviction under Section 201 / 34 IPC is concerned, argument of leamed counsel for the appellant is that the essential ingredients of coramission of offence under Section 201 IPC is not at all made out. He submits that the circumstances in which death of the deceased had taken place, it was not possible for one to conie to a defuiite conclusion as to what exactly gone wrong with the deceased, as on the fateful day, Kanti Bai was residing with her husband. He further subniits that the evidence has come on record to this effect that the appellant instructed their son-Mukesh to inform the parents of the deceased. This conduct of the appellant goes against the story of the prosecution that fhe appellant attenipted to cause either disappearance of the evidence or give false information in order to screen their son Mukesh.

10. On the other hand, leamed State counsel supported the judgment of conviction and order of sentence and argued that the prosecution has led unimpeachable and reliable evidence to show that soon after the inamage, deceased-Kanti Bai was subjected to cruelty in various forms by the appellant-Har Prasad and deceased-appellant Krishna Bai and the son-Mukesh, who all resided together. Further submission of leamed State counsel is that father of the deceased, at the very first occasion lodged a written report (Ex.P/5) which clearly states regarding crueliy meted out to the deceased. The contents of the written report have been proved in the oral testimony of the father of the deceased. He further submits that minor contradictions and omissions in the testimony of the father of the deceased cannot be made basis to disbelieve his evidence, particularly in fhe light of the written report lodged by him.

11. In order to prove its case, the prosecution has examined the father of the deceased- namely Narayan Prasad Dewangan (PW4). Narayan Prasad (PW4) has stated in para- 2 of his testimony that upon coming to know regarding the death of his daughter, he subinitted a proinpt written report (Ex. P/5) in police station - Darri. He has proved his signature on the said report. On this report, the FIR (Ex. P/6) was also registered. 'o' .8-.

12. A perusal of the written report (Ex.-P/5) shows that the father of fhe deceased at the very first occasion available to him stated regarding more than one instances of cruelty. It has been stated in fhe report that 3-4 months after the marriage was solemnized, his daughter-Kanti Bai was harassed in connection with deinand of T.V. The allegation of harassment includes the present appellant - Harprasad also. In addition to this, there are oftier instances of cruelty. He has stated that when the daughter had came to her parental house at Jamnipali, she has stated that she was being harassed by her husband, father-in-law and mother- in-law, wherein, she was not only abused but also assaiilted. She was not even allowed to go to her parental house.

13. In his testiinony, the father of the deceased, Narayan Prasad Dewangan (PW4) has stated in para 4 of his testiinony fhat Kanti Bai told that her husband, father-in-law and raother-in-law are indulged in marpeet (assault) by saying that she did not bring dowry. She also told her mother that she was scolded by saying that she did not bring T.V. In para 5 of his testiinony, he has further stated that after two months of marriage, when he had gone to bring her daughter, Kanti Bai told him fhat her husband, mother-in-law and father-in-law, all are harassing her. He has also stated that when he and his brother used to go to fhe mato-imonial house of Kanti Bai, she was not allowed to meet them. He further stated that the appellant - Harprasad and his son - Mukesh both demanded inotorcycle and cash of Rs.,50,000/ with further threat that if those demands are not made out, father should not step in to their house.

14. In so far as subinission of leamed cpunsel for the appellant with regard to incident of deceased - Kanti juinping into the well on account of cruelty is concerned, we fmd that though it has been alleged that due j SL^. /^ } v to cruelty, she took that step, in cross examination, it has been clearly stated that with regard to this incident, neither any report has been lodged nor any meeting of the community was called. To that extent, the story of the prosecution cannot be believed. Where the deceased went to extent ofjumping into the well, taking no steps to either lodge any report or bringing the matter to the notice of the coinraunity, raises doubt with regard to veracity of the story of the prosecution in that regard. However, in so far as other aUegations of cruelty are concemed, even in the cross examination, the father of the deceased stood firm. True it is that m respect of som.e of the allegations, specific details have not been stated in the case diary statements under Section 161 CrPC, however, in the present case, we find that in the written report (Ex. P/5), the father had clearly stated regarding the cruelty, therefore, merely because each and every detail has not been stated in the case diary stateinent under Section 161 CrPC, the stoiy of the prosecution with regard to cruelty cannot be disbelieved.

15. In so far as conviction of the appellant under Section 201/34 IPC is concemed, the prosecution has come out with the circumstance that though deceased- Kanti Bai was throttled to death by her husband - Mukesh, this fact was not reported by the appellant, father of the deceased and thereby an attempt was made to screen the offender i.e. his son-Mukesh. In the present case, the finding of screening the offender has been arrived at by the leamed trial Court, mainly on the ground that the appeUant had not reported the fact of death of the deceased to their parents immediately. ^' ..-'

16. In para 3 of her testimony, Krishna Bai (DW1) has stated that an impression was created that Kanti Bai had become unconscious, upon which, son was asked as to how it happened. The incident is said to have happened in the night. She further states that one Compounder residing nearby was also called, who gave an opinion that the deceased had died. Thereafter, they all kept sitting there in the whole night and next moming, her son-Mukesh was asked to inforra the parents of the deceased. This part of the evidence of DW1 has not been conta-overted in her testiinony. The father of the deceased - Narayan Prasad Dewangan (PW4) has stated in para 1 of his testimony that in the moming at 6:30 AM on 11/11/03, Mukesh informed him that his daughter is serious, whereafter, he rushed to her niatriraonial house. These circumstarices proved from. the evidence led by the prosecution as well as by the defence, shows that the appellant did not raake any attempt to screen the offender i.e. their son, but since the incident had taken place in the night, they waited till inonning and earlly in the moming, inforrnadon was sent to the fafher of the deceased.

17. In our considered opinion, the evidence, which has come out during the trial, does not prove the essential ingredients of commission of offence under Section 201 IPC against the appellant. Therefore, only on the basis of the fact that information was given to the father of the deceased early in the moming and not before that, the finding that the appellants gave false information to screen the offender, cannot be sustained, particularly when the incident is said to have been happened in the night and cause of death is shown to be asphyxia due to throttling, and except Ugature mark available on the neck without there being any apparent kijury on any part of the body of the deceased. •^ %, ^'

18. Therefore, in so far as conviction of Harprasad under Section 498- A is concemed, the saxne does not warrant any interference and we are satisfied that there is reliable and creditworthy evidence on record to prove guilt resulting in proof of commission of offence under Section 498- A IPC. However, in so far as conviction of the appellant-Harprasad under Section 201 IPC is conceraed, the same cannot be sustained and to that extent, the impugned judgment of conviction and sentence awarded to appellant-Harprasad is liable to be interfered with and Harprasad is acquitted of the charges under Section 201 IPC.

19. Taking into consideration the totality of circumstances, nature of cruelty alleged to be meted out by the appellant on deceased-Kanti Bai, looking to the age of the appellant and further taking into consideration that the appellant has ah-eady undergone unprisonment of 7 inonths and 26 days, in our considered opinion, though conviction is sustained, the sentence part of conviction under Section 498-A of the IPC is liable to be reduced to the period already undergone by the appellant-Harprasad. The appeal of Harprasad is accordingly partly allowed to the extent and in the manner stated above. Bail bonds shall stand discharged. CRIMINAL APPEAL N0.430 OF 2007

20. We shaU now proceed to decide the appeal of Mukesh, husband of the deceased. We do not consider it necessary to give details of the stoiy of the prosecution, which has ah-eady been described above while dealing with appeal of other accused Har Prasad, we need to mention other details with regard to stoiy of the prosecution relevant ui the present case for deciding the appeal of Mukesh.

21. FIR in Ex.P-6 was registered at the instance of Narayan Prasad, P.W.l, who had given written report Ex.P-5, ah-eady noted by us hereinabove. FIR Ex. P-6 contains aUegation that after marriage of the 10 ~~^ fe0/ deceased-Kanti Bai with appellant-Mukesh in the month of April, 2000, she was harassed by the appellant in connecdon with demand of dowry and as she died in suspicious circuinstances in the intervening night of 10tfa & 11th November, 2003, report has been lodged. In the FIR, allegations of cruelty in connection with deinand of dowiy were made and it is further stated that after receiving information, they coine to the matrimonial house and found that their daughter is dead. The police having registered FIR on the written report, prepared panchnama Ex.P-1. Merg intimadon in Ex. P-7 was also recorded. Thereafter, the dead body of Kranti Bai was sent for postmortem, After conducting autopsy, the report in Ex.P-3 was prepared by Dr. M.S.Paul and Smt. S. Shrivastava.

22. On the basis of the examination, the Doctor opined that cause of death was asphyxia caused by strangulation. Thereafter, the police carried out usual investigation recordmg statement of prosecution wita-iesses under Section 161 Cr.P.C. and filed charge sheet in the Court of Judicial Magisfa'ate First Class, Katghora, who in turn, coran-iitted the case to the Sessions Judge, Korba in Sessions Trial No.41/2004.

23. In order to prove its case, the prosecution examined as many as 12 witnesses nainely Narayan Prasad Dewangan, P.W.l, Bhagwantin Bai, P.W.2, Shyam lal Dewangan, P.W.3, Nand Kumar Dewangan, P.W.4, Dr. M. S. Paul, P.W.5, Prem Lal Dewangan, P.W.6, Mangal Chand Dewangan, P.W.7, Bhewan Das, P.W.8, Amn Kumar Sonkar, P.W.9, K. P. Jaiswal, P.W.10, , Hanuman Prasad, P.W.ll and Imil Lakda, P.W.12. After filing of the charge sheet, the leamed trial Court framed charges against the appellant under Section 304-B and in the altemative 302 IPC. The appellant abjured the guilt and demanded to-ial.

24. The appellant was also examined under Section 313 Cr.P.C. in respect of incriminadng evidence appearing against him and the 11 /• appellant while denying incruninating evidence led by the prosecution stated that Kanti Bai was not keeping well and she died because of sickness. He also stated that false report has been lodged by father-in- law and he has not cominitted any offence. The appellant did not exaniine any defence witness.

25. Leamed trial Court relying upon the oral as well as documentaiy evidence led by the prosecution held that the appellant is guilty of conunission of offence under Section 304-B, 302 and 201 IPC. Accordingly, the leamed trial Court convicted the appellant and sentenced to undergo life imprisonment and fine of Rs.1,000/- under Section 302 and 304-B of the IPC and also to undergo R.I. for three months and fine of Rs.500/- under Section 201 of the IPC. In default of payment of fine against all aforesaid sections, the appellant has to undergo additional R.I. for one year/sfa!: months.

26. Leamed counsel for the appellant argued extensively before us and submitted that conviction of the appellant under Section 304-B IPC is not niade out frora fhe evidence of the prosecution. It is contended that in order to convict the appellant under Section 304-B IPC, prosecution was obliged under the law to prove by leading clinching and trustworthy evidence that soon before death, deceased-Kanti Bai was subjected to cruelty in connection with demand of dowry. Submission of leamed counsel the appellant is that the evidence led by the prosecution in this regard is highly shaky. He submits that the father of the deceased has inade bald aUegations, which are not specific, as also suffer from material oniission frora the case diary statement under Section 161 Cr.P.C. According to hira, allegadons even ifaccepted related to remote past, conviction of the appellant under Section 304-B IPC is 12 not sustainable merely because, wife of the appellant died in suspicious circiimstances.

27. In so far as conviction under Section 302 IPC is concerned, submission of leamed counsel for the appellant is that there is no direct evidence led by the prosecution to prove that the appellant murdered his wife by strangulation. According to learned counsel for the appellant, case of the prosecution rests only on the circumstance that the wife of the appellant was found dead in the matrimonial house. Leamed counsel for the appellant submits that the leamed trial Court has committed gross illegality in convicting the appellant on the strength of postmortem report and fhe testimony of Dr. M. S. Paul, P.W.5. He submits that fhe testimony of Dr. M.S. Paul, P.W.5 does not establish beyond all pale of doubt that the deceased died homicidal death. Death of the deceased on account of asphyxia would not necessarily lead to conclusion that this was caused due to stranguladon by the appellant. He further submits that the ligature marks stated to have been found on the neck of the deceased may be caused in a case where a person suffering from Asthma makes an attempt to gafher breath. Further submission is that in a case, where the prosecution comes out with a case based on circi.unstantial evidence, it is required to be established beyond reasonable doubt that all the circumstances point towards the guilt of the accused and there is a complete chain without fhere being any other circumstance, consistent with the innocence of the accused but m the present case, the prosecution has failed to prove the circumstantial evidence to conclusively point towards the guilt of the appeUant.

28. On the other hand, leamed State counsel supported the judgment of conviction and order of sentence and submitted that the evidence led 13 .^ by the prosecution proves that the deceased-Kanti Bai, after her mamage, was constantly subjected to cruelty by the appellant. Leamed State counsel submits that in the written report, FIR, the diary statement as also in the statement before the Court, more than one instance of demand of dowry and cruelty in connection with such demand has been convincingly proved by the prosecution. Leamed State counsel further submits that the evidence of Narayan Prasad Dewangan, P.W.l, Bhagwantin Bai, P.W.2, Shyam lal Dewangan, P.W.3, Nand Kumar Dewangan, P.W.4 proves that the deceased was subjected to cruelty on number of occasions. He further submits that marriage was solemnized only three years before the date of death and the nuraber of instances of cruelty and deraand of dowry have been proved by the prosecution. Evidence of aforementioned prosecution witnesses would show that right from the date of inarriage with the appellant-Mukesh, deceased was being subjected to cruelty in connection with demand of dowry. Therefore, the legal requireinent of proof of cruelty in connecdon with demand of dowry soon before death is fulfilled. Death of the deceased has been clearly proved to be in suspicious circumstances. The posfanortem report Ex.P-3 is proved by Dr. M. S. Paul, P.W.5, who opined that the deceased died due to asphyxia caused by strangulation. Incident happened in the intervening night of 10th and lltil November, 2003 and the body of the deceased was found in the house of the appellant. Thus, the deceased died in very very suspicious circumstances. Learned State counsel further submits that the deceased died within fhree years of the marriage and the evidence in that regard not only by the prosecution but also admitted by the appellant in his examination under Section 313 CR.P.C. that the raarriage was solemnized in the month of April, 2000. Therefore, essential ingredients for commission of offence under Section 14 ^'L^. 304-B of the IPC was made out and the leamed trial Court was justified in holding the appellantunder Section 304-B ofthe IPC.

29. In so far as conviction of the appellant under Section 201 IPC is concemed, learned State counsel submits that the appellant was altematively charged for comnaission of offence under Section 302 IPC also. The prosecution has succeeded in proving and it is not disputed by the appellant also that the appellant and his wife resided together. Wife of the appellant namely Kanti Bai was found dead in the room of the mabrimonial house, where appellant and the deceased both resided. The postanortem report Ex.P-3 and the testimony of Dr. M. S. Paul, P.W.5 proves beyond reasonable doubt that the deceased died homicidal death. The doctor has clearly stated in his testimony proving the cause of deafh fhat has been stated in the postmortem report that the deceased died due to asphyxia caused by strangulation. He further submits that the statement of doctor, who is expert in the field, based on the nature of injury found on the body of the deceased. Therefore, present is a clear case of throttling by the appellant who was present in the house. He also submits that in a case like the present one, where homicidal death takes place in the matrimonial house, where the appellant and his wife both resided, the appellant ought to have explained as to how the deceased died as required under Section 106 of the Evidence Act. However, the appellant has come out with wholly unbelievable explanation that the deceased was sick and died of sickness without there being any explanation with regard to death due to throttling. This failure of the appellant to explain the circumstance, in which, the deceased died, is an important link of circumstantial evidence against the appellant. Therefore, conviction of the appellant under Section 302 of the IPC does not warrant any interference. 15

30. On the aspect of coinmission of offence under Section 201 of the IPC, leamed State counsel submits that the appellant himself was the accused and he had murdered his wife but this fact was suppressed by him and a false information was given to the parents of the deceased that the deceased is ill where she already died. Therefore, it is a clear case of commission of offence under Section 201 of the IPC is concemed.

31. We have heard learned counsel for the parties and also perused the records.

32. In order to prove that the deceased died homicidal death, prosecution has come out with postmortem report Ex.P-3 proved by Dr. Paul, P.W.5. In the postmortem report, Ex.P-3, the Doctor after examining the injuries recorded as following' "Postmortem findings of Extemal 8s Intemal organs are in favour Asphyria caused by sfa-angulation. However, viscera has been preserved for favour of sero-chemical analysis 85 final diagnosis" The aforesaid opinion was based on following findings recorded in the postmortem report- (Lt.) towards "The dead body of Smt. Kanti Bai being flatten the ground. Both Eyes partedly open congested face upper teeth exposed; Tongue inside the closed lip. (Bluish discolored), both upper limbs lying by the side of body. Nails bed bluish in colour. Ligature mark seen extending from (Rt.) angle of mandible forward l^ng over fhyroid cartilage, placed horizontal, ligature marks seen deep at bofh ends and faint slightly over front part of neck (Length 28 c.m. x 3 c.m., Abdomen in infra umbilical area, found distended and scanty public hair, sanitary pad over the extemal genUatia tagged abdominal string. Sole and palm skin pale. Rigor marks present in upper and lower limbs. Two Aree abrasion marks seen over (Lt.) upper parts of ligature mark (size '/2- 1 c.m. x '/2 x l/a c.m.), on cutting dte ligature subcutaneous tissue foimd ecchymosed. Postmortem lividifry on Limbo-sacral injuries in nature'."°. °ther marks of of mandible ^T?^^,^^ntemortem . mjunes seen over any part of body." area, '< 16 f?

33. The aforesaid posttnortem has been proved by the prosecution by examining the Dr. Paul, P.W. In para 3 of his testimony, the Doctor has clearly stated regarding fhe nature of ligature marks found on the neck of the deceased by stating that the ligature mark was found on the neck starting from right lower jaw crossing through fhyroid cartilage and reaching up to right angle of mandible horizontal. The doctor has also stated that the ligature mark was 28 c.m to 3 c.m. and in throttle part of the neck, there was a mark. In para 5 of his testimony, he has further deposed that he and Dr. Smt. S. Shrivastava conducted the postmortem and the cause of death on the basis of examination was found to be asphyxia caused by strangulation.

34. Based on the findings recorded at the time of postmortem with included the nature, extent and impact of scratehes found around ligature mark and all the injuries were found ante mortem in nature, it has been stated that the cause of death is asphyxia due to strangulation. The aforesaid tesdmony of Dr. M.S. Paul, PW 5 proves that Kanti Bai died homicidal death. In his cross examination, Dr. M.S. Paul, PW 5 has clearly stated that fracture of the bone would depend upon the pressure appUed and it is not necessary in all cases of throttling, there would be fracta.ire of the neck bone, cartilage of throat or in the Hyoid bone. He also clearly denied suggestion that the ligature could be caused in a case where a cloth is fastened at the time of attack of Asthama on asthmatic patient. Thus nothing could be illicited from the cross examination of Dr. M.S. Paul, PW 5 so as to doubt the honiicidal nature of death of Kanti Bai. It has, therefore, to be held that Kanti Bai died homicidal death. It is relevant to mention here that it is not even a case of the accused appellaht that the deceased conunitted suicide. The case of the appellant is that the deceased died due to Asthma as she is suffering from asthmatic disease. 17

35. The fact that Kanti Bai was married to Mukesh and resided with him, has also been proved from the testimony of Narayan Prasad Dewangan, PW 1, father of the deceased. He has stated in para 1 of his deposition that when he reached to the house of the appellant on his call that his daughter is serious, he found fhat his daughter is lying dead in the house of the appellant. The dead body of Kanti Bai was found in the house of the appellant as deposed by Narayan Prasad Dewangan, PW 1, has not been controverted in his cross examination.

36. Bhagwantin Bai, PW 2, raother of the deceased has also stated in para 2 of her deposition that when she reached to the house of the appellant, fhe dead body was lying in the room inside the house, which has not been controverted. Nand Kumar Dewangan, PW 4, has also deposed that upon receiving mformation, he had gone to the appellant's house alongwith with his elder brother Narayan Prasad Dewangan and there he found Kanti Bai dead.

37. Imil Lakda, PW 12, who prepared Panchnama of the body of the deceased-Kanti Bai, has clearly deposed that dead body of the deceased was lying in the house and at the spot he gave summons and prepared panchnam.a in Ex. P 1 and signed. He also deposed that spot map (Nazri Naksha) vide Ex. P 9 was also prepared, which was signed by him. In the spot map, Ex.P-9, the body of the deceased was shown inside the house. This statement of Imil Lakda, PW 12 and the place where the dead body was found have not been controverted.

38. The afcresaid uncontroverted testimony fully established beyond all doubt Kanti Bai died homicidal death and her dead body was found inside the room of the house of the appellant.

39. The deceased - Kanti Bai was married to appellant-Mukesh in the month of April, 2000, has been fully established from fhe unconb-overted testimony of Narayan Prasad Dewangan, PW 1. The appellant in his 18 ^. examination under Section 313 Cr.P.C. has also admitted that his marriage with the deceased-Kanti Bai was soleninized in the year 2000.

40. The evidence, which have been led by the prosecution, proves beyond all reasonable doubt that the appellant was married to Kanti Bai and both of them resided togefher. It has also been proved that Kand Bai died homicidal death in her inatrimonial house. The appellant, however, has failed to explain the circumstances, in which, his wife Kanti Bai died. Information regarding the death of the deceased was given by the appellant-Mukesh, as stated by Narayan Prasad Dewangan, PW 1. The appellant has also admitted in his reply to question No.43 that he had given infonnation regarding death. In reply to question No.86 the appellant also stated that the deceased died at 12:00 a.m. in the night. Thus, it was fi-llly within the notice and kaowledge of the appellant that his wife died in the night. The explanation, which is put forth by the appellant that the deceased-Kanti Bai was not keeping well and due to this illness, she died. This explanation is, however, wholly unacceptable and inconsistent with the postmortem report and cause of death as stated by Dr. M.8. Paul, PW 5. The postmortem report showing cause of death was duly proved by Dr. M.S. Paul, PW 5, which has been held to be homicidal in natjre. We have also recorded a finding after examining evidence on record and after perusing postmortem report as also the evidence of Dr. M.S. Paul, PW 5 that the deceased died homicidal death on account of asphyxia due to sta-angulation. Therefore, the explanation of the appellant is not only unacceptable but also false. This constitutes additional link pointing towards the guilt of the appellant.

41. Section 106 of the Evidence Act, 1872, provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Present is a case of homicidal death of married women and her body was found in the matrimonial house and the 19 ~^ appellant had full notice and kaowledge not only about fhe death but also tiine of death. This fact was within the knowledge of the appellant accused. Absence of plausible explanation of cause of death and the circumstances in which Kanti Bai died is a very strong circuinstantial evidence towards the guilt of the appellant. (Please see Babw S/o Reweendrcm. vs. Babu S/o Bahuleyan and another1, Trinw.kh Maroti Kirkan vs. State of SIaharashtra2, State of Raj'cisthan vs. Keishi JRam3 and Dnyaneshwar vs. State of Maharcishtra4.

42. The fact that the appellant-Mukesh was married to deceased-Kanti Bai, who was being subjected to cruelty in the matrimonial house, has also been established by the prosecution by leading cogent and reliable evidence in this regard.

43. Father of the deceased-Narayan Prasad Dewangan, P.W.l has proved written report Ex.P-5 submitted by him in the Police Station. This is fhe Erst version given by the father of the deceased. In this report, it has been stated that 3-4 inonths after the niarriage, demand was raised for Television and the deceased was scolded by her mother-in-law by saying that she did not bring anything in the dowry. Father-in-law, Har Prasad and the appellant Mukesh all started harassing Kanti Bai. Father of the deceased further stated that when he and his wife Bhagwantin Bai, P.W.2 went to matrimonial house at Jainnipali, the deceased stated that the husband along with in-laws was indulged in abuse and assault. It is further stated that thereafter, Black 85 While Television was given. After about one year, demand of motorcycle was raised and it was said that if motorcycle was not given, Kanti Bai may be taken back. It has also been stated that Kanti Bai was not aUowed to come to her parental house and in three years after fhe marriage, she was allowed to come to ' 2 3 4