DIMATI DEVI Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-6-53
HIGH COURT OF UTTARAKHAND
Decided on June 26,2013

Dimati Devi Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Barin Ghosh, C.J. - (1.) IN the instant case, the wife of the appellant died. Post -mortem of the dead body of the deceased was conducted by Dr. Piyush Goyal (PW5). In the post -mortem report, he reported that there is no sign of external injury, but the fourth and the fifth cervical vertebrae were found fractured and the hyoid bone was also found fractured. The Doctor opined that the cause of death is due to neurogenic shock which was caused by ante -mortem injuries. He, therefore, clearly spelled out in his report that the fracture of fourth and fifth cervical vertebrae and fracture of hyoid bone were ante -mortem injuries and the cause of death was those injuries. Post -mortem was conducted on 9th May, 2007 at 10:30 AM. According to the post -mortem report, the time of death was 24 hours to 36 hours before the post -mortem was conducted. Accordingly, death took place in between 10:30 PM of 7th May, 2007 and 10:30 AM of 8th May, 2007. At around 11:00 AM of 8th May, 2007, Police came on being informed about the death. After the police had arrived, inquest was made. Inquest was conducted in the matrimonial home of the victim. The husband of the victim, namely, Yashwant Singh (appellant) and her mother -in -law (Smt. Dimati Devi), it is not disputed, were present in the matrimonial home of the victim during the period 10:30 PM of 7th May, 2007 and 10:30 AM of 8th May, 2007. On 11th May, 2007, at around 2:15 PM, the First Information Report was lodged by Jeet Singh Rawat (PW1), father of the victim. In that, a case of dowry death had been made out. In course of investigation, it transpired that on 7th October, 2005, the victim was admitted in Military Hospital, Dehradun and she was discharged on 19th October, 2005. The reason for the said admission appears to be the treatment for fertility as the victim, by then, had not given birth to a child. At around that time, namely, on 7th November, 2005, appellant Yashwant Singh was also examined for the purpose of ascertaining, whether he is capable of fathering a child. The said state of affair demonstrated that efforts were made to see, whether the couple can successfully give birth to a child. However, when the charge -sheet was filed, it was held out that the appellants are guilty of commission of offence punishable under Sections 304B and 120B of I.P.C. as also, Sections 3/4 of the Dowry Prohibition Act. When the charge was framed, in addition to the charges levelled in the charge -sheet, an alternative charge under Section 302 of I.P.C. read with Section 34 thereof was also added. Upon conclusion of the trial, appellants have been convicted for offence punishable under Section 302/34 of I.P.C. They have been exonerated of the charge for offence punishable under Sections 304B and 120B of I.P.C. as well as Sections 3/4 of the Dowry Prohibition Act. In the present Appeal, the contention of the appellants is that it is not a case of murder, inasmuch as, there is no homicide as there is no medical evidence of presence of any evidence of inflicting the internal injuries for which the victim died. The learned counsel appearing in support of the Appeal drew our attention to Modi's Medical Jurisprudence and Toxicology, 22nd Edition at Page 423 of the paragraph under the heading 'Concussion of the Spine'. The learned counsel drew our specific attention to the following sentences: - - Concussion of the Spine may occur without any evidence of an external injury to the spinal column. It may follow a severe blow on the back, or a jar, or a fall from a height, or a bullet injury.
(2.) THEREFORE , what the learned author has propounded in those two sentences is that concussion of the spine may occur without any evidence of an external injury to the spinal column when a severe blow is given on the back, or by reason of a jar, or by reason of a fall from a height, or by reason of a bullet injury sustained in any other part of the body, which causes such a sever blow on the back, or a jar. In other words, the learned author has stated in so many words that concussion of the spine cannot occur without an external injury though the evidence of the external injury to the spinal column may not be available. As a bullet injury will leave an evidence of an external injury, so will a severe blow on the back on a fall from height, but not always where the injury is caused by a jar. The author has not said, nor we have shown that concussion of the spine caused by a jar can be self -inflicted. In the instant case, at the time, when the death occurred by reason of those injuries, appellants were in the same house, where the victim was also residing. None of the appellants made any effort to explain how such injury was received by the victim. The situation was such that each of the appellants acquired a duty to speak under Section 106 of the Evidence Act; they did not. On the other hand, they purported to lead evidence through one Khila Devi (DW1). She stated that in the night of 7th May, 2007, she had seen the victim banging her head on the mattress of her bed, and that, the victim was in severe discomfort. Having had seen the victim in such a condition, DW1 left the victim and returned on the next day a few second before the victim died. As aforesaid, concussion of the spine may occur by reason of a severe blow on the back, or a jar, or a fall from a height, or by reason of a bullet injury. The same cannot take place by hitting the head by the victim on the mattress. There is no dispute that the victim died by reason of concussion of spine. The same has taken place either by reason of a severe blow given on the back, or by reason of ajar, or by a fall from a height, or by reason of a bullet injury. There is no evidence that the victim received a severe blow on the back, as the post -mortem report does not speak about the same. If the victim had fallen from a height, there would be some mark of external injury in some part of the dead body of the victim, which was not found in course of post -mortem and there is no question of the victim suffering a bullet injury. The conclusion would be that the concussion of the spine of the victim occurred by reason of a jar. As aforesaid, the same cannot be self -inflicted. In the absence of discharging their duties under Section 106 of the Evidence Act, it is open to the Court to take adverse inference against the appellants. It has come on record that while the victim was a frail person, her husband was serving the Army then. The physical get up of the mother -in -law of the victim is, however, not available in the evidence. Be that as it may, taking such adverse inference against the appellants, the conclusion would be that the prosecution has been able to establish its case of commission of offence punishable under Section 302 read with Section 34 of I.P.C. against the appellants. That being the finding of the court below, we find no reason to interfere. The learned counsel for the appellants has cited a judgment of a Division Bench of this Court, where the Division Bench of this Court has given benefit to accused for there was no external mark of injury on the throat, but the cause of death was ante -mortem injuries of breakage of the second, third and the fourth cervical vertebrae. The learned counsel submitted that the ratio of the said judgment equally applies to the present case. We do not think so. In that case, it was the contention of the prosecution that the four prosecution witnesses had witnessed that the victim was done away with by the accused by strangulation. The Court held that the strangulation resulted in breakage of the second, third and the fourth cervical vertebrae, but there is no mark of strangulation in the dead body. In those circumstances, the Court did not rely upon the evidence of those four prosecution witnesses and gave benefit of doubt to the accused. In the instant case, the death has taken by concussion of spine occurred by reason of ajar, which cannot be self -inflicted and the appellants, despite being present, did not say a word as to how the victim received that severe jar causing not only the breakage of the fourth and fifth vertebrae of the spine, but also hyoid bone.
(3.) WE , accordingly, dismiss the Appeal. Appellants are in Jail. They shall serve out the sentences as have been awarded to them by the Court below. Let a copy of this judgment be sent to the court with lower court below along records.;


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