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Km. Babita And Others v. State Of U.P. - CRIMINAL APPEAL No. 2580 of 2005  RD-AH 8654 (8 May 2007)
Crl. Appeal No. 2580 of 2005
1.Kr. Babita D/o Kalyanji Jaiswal
2.Smt. Madhuri wife of Kalyanji Jaiswal
Both R/o C-K-65/265, Bari Piyari, P.S. Chowk,
State of U.P.
Crl. Appeal No. 3048 of 2005
1.Kalyan Ji Jaiswal
2.Sanjai Jaiswal son of Kalyan Ji Jaiswal
3.Sunil Jaiswal son of Kalyan Ji Jaiswal
Both R/o C-K-65/265, Bari Piyari, P.S. Chowk,
State of U.P.
Hon' S.S. Kulshrestha, J.
Hon'ble Barkat Ali Zaidi, J.
(By Hon'ble Barkat Ali Zaidi, J.)
1.Since both the aforenoted appeals arise from the same occurrence and the same judgment passed in S.T. No. 359 of 2004 in State Vs. Sunil Jaiswal and others by Additional Sessions Judge (Court No. 3) Varanasi on 03.06.2005, they have been heard together.
2.The appellants were charged under Sections 302, 498A I.P.C. and under Section 3/4 D.P. Act and holding them guilty, the Trial Sessions Judge sentenced them for imprisonment for life and to pay a fine of Rs.25,000/- each under Section 302 I.P.C. to undergo a term of three years rigorous imprisonment and to pay a fine of Rs.5,000/- each under Section 498A I.P.C., and to undergo a term of one year rigorous imprisonment and to pay a fine of Rs.2,000/- each under Section 3/4 D.P. Act and in default of payment of fine to further undergo a term of one year, six and two months imprisonment respectively and the sentences to run concurrently.
3.A lady Neetu Jaiswal aged 28 years with her two daughters Km. Palak aged about 7 years and Km. Charu aged about two years, married to the appellant Sunil Kumar Jaiswal were found dead in the house no. C-K-65/265 of the appellants accused within the area of P.S. Chowk, district Varanasi. The lady and her daughter Palak were strangulated as will appear from post mortem reports (Ex. Ka-16 & 17), which mention their cause of death as Asphyxia. Kr. Charu was smothered to death. Her post mortem report (Ex. Ka-18) mentions her cause of death also as 'Asphyxia'.
4.The FIR (Ex. Ka-8) of the incident was lodged by P.W. 1 Subhash Jaiswal, father of the deceased lady on 20.12. 2003 at 2.00 noon. It is mentioned in the FIR that the in laws of the deceased lady Kalyani Jaiswal and Smt. Madhuri, husband Sunil, husband's brother Sanjay and sister Km. Babita (accused) were not satisfied with what was given in marriage, and there was a specific demand of Rs.1,50,000/-. It was further mentioned that the lady was subjected to torture by the accused for fulfilling the demand of additional dowry. All the five accused are said to have killed the lady and her two daughters in order to show that they committed suicide, they hanged the dead bodies from a ceiling fan. The accused Sunil informed him on phone on 18.12. 2003 at 10.30 p.m. at Ramanuganj that Neetu with her two daughters committed suicide by hanging herself along with daughters from the ceiling fan. It was specifically stated in the FIR that the accused were the killers of the lady and her two daughters. On basis of this report P.W. 6 Head Constable Mangal Ram instituted a case crime vide chik, Ex. Ka-14, under sections 498-A, 302 and 201 I.P.C. read with section 3/4 D.P. Act, against the accused.
5.Prior to the lodging of this report accused Sunil Kumar Jaiswal also presented a written report Ex. Ka-1 on 18.12.2003 at 11.45 P.M. at P.S. Chowk Varanasi informing the Police about the death of his wife and two daughters by committing suicide, by hanging with the help of a Sari from a ceiling fan by putting a stool underneath. He mentioned in the report that on telephonic information given to him on his shop by his sister Babita at about 7.25 P.M. that his wife was inside the room of upper storey and the doors were closed from inside and she was not responding, he came to the house and through the neighboring roof, when he entered the room, he saw his wife Neetu and daughters Palak and Charu hanging from a ceiling fan. He took them to the doctor, who after their examination found them dead. He informed her in laws on phone and had come to the police station to lodge the report, PW-4 constable Moharrir Ram Keval Pandey made an entry Ex. Ka-13 in G.D. on 18.12.2003 at 11.45 p.m. and informed the Authorities regarding the incident.
6.Sri Brij Bihar Pandey PW-8 City Magistrate, Varanasi with S.I. Samarjeet Singh incharge Pyari Chowki Bari Pyari on receiving massage on 14.12.2003 arrived at the spot at 11.15 a.m. and in presence of Panchas including the father of the deceased lady got prepared inquest of Neetu Ex. Ka-5, Kr. Palak Ex. Ka-6 and Kr. Charu Ex. Ka-7 and with requisite papers the Sub Inspector sent the dead bodies for post mortem.
7.Dr. Arun Kumar PW. 7, Medical Officer, Pt. Deen Dayal Hospital Varanasi on 14.12.2003 from 4.00 p.m. to 5.40 p.m. conducted the post mortem and opined the cause of death in all the three cases as Asphyxia.
8.PW-10 In charge Inspector, P.S. Chowk, Varanasi commenced the investigation on the FIR of Subhash Chandra Jaiswal. He went to the place of occurrence prepared site plan Ex. Ka-31, seized the two stools found at the place of occurrence vide seizure memo Ex. Ka-32 and took in his possession a Sari vide seizure memo Ex. Ka-33, recorded the statements of the witnesses and finally submitted the charge sheet against the accused.
9.The case of the accused is one of denial. Except Kr. Babita, who admitted to be at the house at the time of occurrence, the remaining four pleaded that they were outside the house. Accused Sunil pleaded that on a telephonic call of his younger sister Babita at around 7 O'clock in the evening he came to the house from his shop, he knocked the door of the upstairs, closed from inside and finding no response, he went to his room through the neighboring roof of Mevalal, DW-1, where he saw his wife and children hanging from a ceiling fan. He freed them with the help of Babita and on the advice of his neighbour Dr. Amitabh Kumar PW-9 took them to the hospital. He loved Neetu and his children. He further pleaded that after his marriage, his father-in-law started dealing in Saries and Mahua with him and had taken some loan and some Saries on credit. Despite Rs.1,00,000/- due on his father-in-law, the later was persisting to give him more loan and Saries on credit, which he and his father refused. When they demanded the money due to them from his father-in-law, he paid Rs.54,000/- through drafts, but his father-in-law started coercing Neetu for managing loan for him and for this reason and exhortation from her father, this incident took place. The accused filed some documents in their favour during the trial.
10.After considering the prosecution evidence and placing reliance on it, trial court rejected the defence version and found the accused guilty as noted above.
11.The prosecution evidence comprises of the evidence of the following witnesses;
12.PW-1 is the father of the deceased Neetu, who lodged the FIR Ex. Ka-8, after she and her daughters were cremated on the night of 19/20.12.2003. He has stated that the accused were not satisfied with what was given to Neetu in her marriage and started demanding Rs.1,50,000/- and harassing Neetu for fulfilling the demand. Neetu had informed him about it on phone and he and Neetu both explaining the financial position to the accused had expressed inability in fulfilling their demand. However, looking at the miserable condition of Neetu, he gave Rs.54,000/- to accused Sunil by sending two drafts dated 14.10.2003 drawn on S.B.I., Ramanuganj. He stated that notwithstanding the accused were not satisfied, and continued to coerce Neetu, for fulfilling their demand. On 18.12.2003, after receiving information at 10.30 p.m., he along with his wife and PW-2 Shanker Prasad arrived at the house of accused, the next morning around 9.30 a.m. and seeing the dead bodies, realized that Neetu and her daughters were killed and the accused had made it to appear as suicide. It has been pointed out by the counsel for the appellants that the information gone from Varanasi to Bombay in July 2003 and he has requested Sunil to get six berths reserved for Bombay. PW-1 also could not render any financial help to Sunil and his another son-in-law, who was there for treatment of cancer and it has also been pointed out that the receipt of Ex. Ka-30 to the draft, which was sent by the accused through courier shows that receipt mentions on credit basis. It has thus been argued by the counsel for the appellants that since PW-1 himself was in a bad financial strata, how the accused could have demanded Rs.15,000/- as alleged by him. It has been further pointed out by the counsel for the appellants that the two drafts, which were sent by PW-1 were towards satisfaction of the debt, taken from accused Sunil, which PW-1 mentioned in his letter Ex. 34 Kha addressed to accused Sunil and his daughter Neetu in which PW-1 had requested to get rid of him from the loan due on him of accused Kalyanji, because he was under financial crisis. This witness has denied to have taken any loan and also his signatures on paper no. 34 Kha though he admitted that the other three letters 31, 32, 33 Kha were in his hand writing. The hand writing expert CW-1 also found this disputed letter having no similarity with those in admitted writing of PW-1. In his cross examination, he was asked that why he did not mention it in the FIR and to the I.O. under Section 161 Cr.P.C. that the accused were not satisfied with the dowry and he had paid Rs.54,000/- to accused Sunil, when he came to know about her daughter's harassment for dowry, and that Mohallawalas were talking about hearing cries of a lady from the house of the accused at the time of occurrence, which he has narrated in the Court for the first time.
13. All these suggestions, omissions and variations pointed out above by the counsel for the appellants are peripheral in character and do not impeach on the core of the testimony of this witness. Such omissions and variations can be easily found in the statements of witnesses and they do not indicate the unveracity of the testimony given by the witness. Visualised as a whole the testimony given by this witness seems by and large truthful. If there are any variations with regard to any commercial transactions with regard to Saries between him and accused Sunil, Kalyanji that will also not have any bearing on the question of murder of the lady, and the two children.
14. It has also been argued by the counsel for the appellants that there is a delayed FIR and PW-1 could have given a complaint to the City Magistrate PW-5 on the spot stating all these facts of demand of dowry and about the role of the appellants in the murder. In the first place, it has to be stated that it would not be correct to say that there was any apparent delay in the lodging of the FIR because the cremation of the deceased and her two children could be completed about 1.30 O'clock in the night and the FIR about the occurrence was lodged the next day at 2 p.m. As regards the criticism that PW-1 did not tell the Magistrate PW-8 that the accused committed the murder, it has to be noted, that PW-1 must have overwhelmed at that time by grief, and the Magistrate was not there to register his complaint, because he had ultimately to file a written FIR thereafter. The inquest of Neetu prepared in presence of the Magistrate PW-8 mentions that it may a case of homicide or suicide, which has to be subsequently discovered. The inquest report does not, therefore, eliminate the element of homicide. There is thus nothing, which may make the evidence of PW-1 improbable or unacceptable with regard to the fundamental question in the case.
15. PW-2 is the friend of PW-1 Subhash, who came along with the informant from Ramanuganj to Varanasi. He stated that he had scribed the FIR at the instructions of PW-1.
16. PW-3 Ram Balak Yadav lives three houses away from the house of the accused and stated that he and Uma Shanker Gupta (DW-2) had heard cries of the lady on the date of incident around 6.30 O'clock in the evening. Thereafter he went to the shop of Navneet alias Munna PW-7, nearby and had revealed that he heard cries of a lady coming from the house of accused.
17. PW-4 Constable Ram Kewal Pandey was the Head Moharrir at P.S. Chowk, Varanasi to whom on the date of incident at around 11.45 p.m., accused Sunil had handed over the written information, which he entered into G.D. Ex. Ka-16.
18. PW-5 Navneet Gupta alias Munna runs a shop in vicinity of the house of the accused, who turned hostile.
19. PW-6, Shiv Mangal Ram was a Head Moharrir on 20.12.2003 at P.S. Chowk, Varanasi. He proved the Chik FIR Ex. Ka-14 and it's entry made by him in G.D. Ex. Ka-15 on basis of the report of PW-1.
20. PW-7 Dr. Arun Kumar has stated that on 19.12.2003, he was the Medical Officer and looking after the post mortem duty at B.H.U. He conducted the post mortem on the dead bodies of Smt. Neetu, Kr. Palak and Kr. Charu and has proved their post mortem reports, prepared by him.
21. PW-8 Brij Bihari Pandey who was the City Magistrate at Varanasi stated that along with Sub Inspector Samarjeet, he had gone to the place of occurrence on 19.12.2003 at 11.45 a.m. and got the inquests on dead bodies of Neetu, Palak and Charu prepared. The said S.I. had dispatched the dead bodies for their post mortem examination.
22. PW-9 Dr. Amitab Kumar lives nearby the house of the accused. He stated that around 8 O'clock in the night, accused Sanjai Jaiswal met him on whose request, he had been to the upper storey of the house of the accused where he examining Sunil's wife and his daughter Payal he had told Sunil that they were dead, and still he may take them to the Hospital. He did not see Charu there.
23. PW-10 S.I. Ram Bharose Sharma stated that he investigated the case and after the investigation, had filed the charge sheet against the accused.
24. In their defence evidence, the accused examined DW-1 Mewalal, DW-2 Uma Shanker Gupta, DW-3 Shanta Jaiswal and DW-4 Vimal Kumar Jain in the court. The Court examined Sri Kanta Kumar as CW-1 a Scientist from Forensic Laboratory, Lucknow. The evidence of these witnesses, we will consider hereinafter.
25. Since the death of the deceased lady and the two children was caused inside the home of the accused, it is for the accused to explain in this case how and in what circumstances their death occurred. The onus is upon them to explain under Sections 106 and 114 of the Indian Evidence Act.
26. What we have, therefore, to see is whether the accused have been able to discharge the onus placed upon them by law in this regard. It may further be mentioned that onus is not as that heavy as that on prosecution, and matter need not be proved, to the hilt. Even preponderance of probabilities can suffice.
27. Let us in this light examine the defence evidence to see whether onus stands discharged or not?
28. Emphasis was laid by the counsel for the appellants at the out set, on the circumstance that the statement of P.W. 3 Ram Balak Yadav to the effect that he heard shrieks from the house of the accused and he went to the shop of Navneet Gupta nearby and told him the same, has not been supported by the statement of Navneet Gupta, who was examined as P.W. 5 and refused to support this theory that P.W. 3 Ram Balak Yadav had said anything to him. Similarly, it was pointed out in the statement of P.W. 3 Ram Balak Yadav that Uma Shanker Gupta also heard the shrieks alongwith him is incorrect, because Uma Shanker Gupta was examined as D.W. 2 and has denied having heard any shrieks. Even if we assume that the statement of P.W. 3 in this regard, is not correct, it will make no difference to the case because this is not a matter which effects the core question in this case.
29. D.W. 1 Mewa Lal whose house is adjacent to the house of the accused has stated that around 8 P.M. on the date of incident, his neighbour Sunil Jaiswal came to his house and went into his room through the roof of this witness because he had found the doors of his room closed from inside. Even assume this statement to be true, the possibility that Sunil went to his room through his roof, only to prepare the defence, cannot be last sight off because this witness has not stated that he had seen the doors of Sunil's upper storey closed from inside.
30. Now turning to examine, the explanation offered from the side of the accused as to why lady committed suicide is that her father P.W. 1 was putting pressure on the lady deceased to condone the amount of loan which her father owed to her husband and to make her husband give more loan to her father. It is said that under this stress and pressure she committed suicide and in this context is the evidence of DW-3 and DW-4.
31. To give support to this plea, the accused filed a letter Ex. 34-Kha, dated 12.12.2003 allegedly written and sent by P.W. 1 to Neetu and her husband accused Sunil telling them that he was in great financial stringency and he had already sent Rs. 54000/- towards the payment of loan to Sunil, and that they should persuade Kalyanji to wave the remaining amount of loan due on him and also for arranging some more loan to him. They also filed a cash memo No. 48 dated 26.03.2003 of an amount of Rs.41052/- issued in the name of PW-1, to lend strength to their contention that PW-1 had business transactions with accused Kalyanji and Sunil, and the aforesaid two drafts amounting to Rs.54000/- were sent by PW-1 towards adjustment of dues towards him and were not sent to meet their dowry demand as alleged. PW-1 when confronted with this letter and memo, he denied to be the author of the letter 34 Kha and his signatures on cash memo no. 48. Dr. Kanti Kumar, CW-1 who examined these disputed documents with other admitted letter Ex. 31, 32, 33 Kha and other admitted documents of Subhash PW-1 stated that the cash memo and the letter Ex. Ka-34 do not tally with the admitted hand writing with which he made the comparison and that is what he has also mentioned in his report Ex. Ka-35 prepared after the approval of two other experts. There seems no reason to disagree with the opinion of CW-1.
32. DW-4 Vimal Kumar Jain, Manager of Punjab National Bank, Branch Neechi Bagh, Varanasi as to establish business transactions between PW-1 and the accused, stated that two drafts of Rs.39810/- and Rs.16973/- drawn on State Bank of India, Ramanuganj were deposited in account no.8313 of accused Kalyanji. The Sessions Judge by a comprehensive reasoning has not found the statement of this witness dependable. Even accepting it on it's face value, since he has not stated that PW-1 Subhash sent these two drafts, it does not help the appellants. As will appear no question was asked from PW-1 by the appellants with regard to sending of these two drafts to accused Kanlyaji.
33. One more document the accused filed is a suicide note Ex. Ka-86, in the alleged hand writing of lady Neetu. In support is the statement of DW-3 Smt. Shanta Jailwal one of the daughters of accused Kalyanji and Smt. Madhuri, who lives 20 houses away from her parental house. According to her, she found it under the bed of Neetu after the accused were released on bail. Neetu was like her friend and she saw her writing letters. Neetu had also given her a copy of 'Bhajan' in her hand writing. Neetu also maintained a sewing register in her writing, which this witness identified. PW-1 has denied the suicide note and the notes in the register being in the hand writing of Neetu. The matter was referred to the Government Hand Writing Expert for examination, who was examined as CW-1. He proved his report Ex. Ka-35 to the effect that the alleged suicide does not tally with the admitted hand writing of deceased Neetu and there seems no reason to discord it.
34. It is also difficult to buy this theory as being sufficient for the lady to commit suicide. By no stretch of imagination can this circumstance alone be considered sufficient to provide cause and reason for a lady to commit suicide and beside that kill her two little children aged 7 and 2.
35. Human nature and mother's love being what it is, it is impossible to believe that a mother will kill her own little children with her own hands. There must be some other cause of death, which is being concealed, and the reason provided by the accused is wholly improbable and unpalatable. The mother will not kill her children for a reason like this, and there must be some other hand involved, in the murder. The accused have not been able to explain the death of the lady which occurred in their house and the explanation given by them is wholly improbable, and in the circumstances, an adverse inference must be drawn and liability must rest upon
36. Besides it will be seen that the theory of the accused that the lady Neetu hanged herself and the two children from the fan, itself, becomes extremely difficult to comprehend because according to the husband, the lady and the children were hanging from one sari, which is almost impossible. Further the medical report mentions multiple contusions below her right and the left knee region and obliquely placed ligature mark over her neck and left side of the neck and chin and the presence of these ante mortem injuries makes it likely that there was some resistance by the lady.
37. As regards the post mortem report of the two year girl, it mentions that she was killed by being smothered and P.W. 7 Dr. Arun Kumar, has categorically stated that she died a homicidal death which falsifies the version of the accused that this little girl died due to hanging.
38. As regards Neetu and her 7 year old girl Palak, the Doctor has mentioned as follows:-
i.Ligature mark in an area of 24 cm x 4-6 cm obliquely placed High up neck and adjacent base of face and chin of both side predominantly over front of neck and left side outer aspect of neck, including over the base of chin, where it is found prachmetised and has effects of folds of ligature clothes.
ii.Ligature is incompelete with gap at back, High up neck over hairy area from behind. (P.T.) on cut subjacent skin found echymosed but no contusion.
iii.Multiple contusions in an area 8 cm x cm x 10 cm on the inner aspect of Rt. Leg 4 cm below the knee joint (Rt.)
iv.Multiple contusions in an area of 28 (P.T.) cm x 10 cm on the front and inner aspect of leg left 5 cm below the knew joint.
Total contusion No. 5 (Multiple Contusion)."
i. Localized contusion with abrasion 3 cm x 2 cm oval on shape in area of thyroid cartilage level at front of Neck more over left side front.
ii. Nail crecenteric mark.
Iii. One over the Hyoid level and another over base of Chin.
39. The presence of aforenoted ante mortem injuries nos. 3 & 4 as mentioned by Dr. in post mortem reports of lady Neetu and her daughter Palak defies the theory of hanging and is indicative of their being killed with the intervention of a third person. It is also significant to note that no suggestion was given from the side of the accused to the P.W. 7 Dr. Arun Kumar that the death of all the three could be caused by hanging from a fan.
40. As mentioned earlier, it is for the accused in this case to explain to the satisfaction of the Court, the circumstances of leading to the death of the deceased lady and two children. Any shortcomings in the prosecution case, will not, therefore, make any substantial difference.
41. The counsel for the accused has referred to the following cases:-
(i) Sewal Das Vs. State of Bihar, 1974 A.C.C. (S.C.), 192.
(ii) Sucha Singh Vs. State of Punjab, [2001 (42) A.C.C. 908]
(iii) Trimukh Maroti Kirkan Vs. State of Maharashtra, [206 (3) J.I.C. 371 ( S.C.)]
(iv) Lekh Ram and Brij Lal Vs. State of Punjab ,1992 S.C.Cr.R.,516.
(v) Bhagwan Dass Vs. State of Haryana, 1996 S.C.Cr.R.,337.
43. Out of these, we need refer to only case of Sewal Das 'Supra' because the rest have no direct bearing on the issue involved in the case. In this case, it was held by the Supreme Court that the primary onus is on the prosecution to establish the basics of the case which can provide ground for conviction and it is only thereafter, that the onus can shift to the accused. In this case, the prosecution has discharged its primary onus by leading evidence that the lady and her children were killed inside the house and there is no suggestion that some body from out side came and killed her and the two children. The very factum of the homicidal death of the lady and the two children inside the house, provides primary evidence, from the side of the prosecution, about the commission of the crime.
44. The prosecution has also established by evidence that there was demand from the side of the husband for money which was in the nature of dowry demand. The prosecution has thus also provided a motive. It cannot, therefore, be said that the prosecution has failed to discharge its primary onus and the picture which has over all emerged is that the accused have no qualms for fabricating documents and producing false evidence with a view to escape the penalty of law.
45. The entire defence evidence is in the same line and is clearly false and untrue. It must, therefore, be held that the accused have not been able to explain the death of deceased Neetu and her two children and the responsibility for the same must lie on their shoulders. The incident is horessic. The two girls aged 2 and 7, who had no strength to resist, were mercilessly done to death and by whom? By their own father. Blood taking it's own blood. The lives of two little children were extinguished most callously. The lady was also brutally killed. There is something wrong with our society and civilization. We seem to be turning into barbarians ' O Tempora O Mores' 'What Man what Morals'.The incident should provide a case study for sociologist and psychologist to probe into the matter, and see what's going wrong, with our society.
46. We need not, however, be overwhelmed by the ghastly character of the crime, and the awesome tragedy, so as to convict all the accused irrespective of positive proof, about their participation. The husband of course, is the primadona and is the real culprit, about which, there need not be any doubt, but, it must be stated that the participation of the other four accused the father, mother, sister and brother of the accused husband, has not been fully and firmly proved. There may be likelihood of a helping the husband in the commission of the crime by the husband, but mere likelihood, is not sufficient for conviction. For that we need proof positive, which is lacking here. As a measure of abundant caution, we have, therefore, decided to exonerate the remaining four accused, except the husband.
47. The appeal, therefore, partly succeeds and the remaining four accused except the husband Sunil shall stand acquitted. The conviction of husband Sunil is sustained and his appeal is dismissed.
Dt. 8th May 2007
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