S. K. SHARMA, J. - (1.) THE appellant was indicated before the learned Sessions Judge Jaipur District in Sessions Case No. 76/1999 for having committed murder of his daughter. Learned Judge vide Judgment dated June 17, 2000 convicted and sentenced him as under :- U/s. 302 IPC : To suffer life imprisonment and fine of Rs. 10,000/-, in default to further suffer one year rigorous imprisonment. U/s. 201 IPC : To suffer rigorous imprisonment for two years and fine of Rs. 1000/-, in default to further suffer three months rigorous imprisonment. Substantive sentences were directed to run concurrently.
(2.) IT is the prosecution case that Prithviraj Singh (Pw. 1) on April 28, 1999 at 10. 55 PM telephoncially informed Bhagwan Singh SHO Police Station Kalwar (Pw. 7) about the death of his servant's daughter Sheela. Bhagwan Singh rushed to the spot and found the dead body of Sheela lying in front of the quarter of her father Ramesh (appellant ). Prithvi Raj Singh and appellant both were present there. Instead of drawing inquest report in the late hours of night the SHO drew it on April 29, 1999. In the inquest report (Ex. P-1) there is a reference of appellant's report on the basis of which Mali Ram, ASI (Pw. 11) made inquiry under section 174 Crpc and on April 30, 1999 FIR (Ex. P-11) was registered under section 302 and 201 IPC. Bhagwan Singh, SHO himself took the task of investigating the case. The appellant in his report stated that for the last seven years he along with his three daughters was residing in the Bungalow of Prithvi Raj Singh. Sheela was his eldest daughter. On April 29, 1999 around 8. 30 PM when Sheela went out of the house and did not return back for one hour the appellant searched her and did not find her in vicinity. On her return the appellant demanded explanation for her absence. The appellant further stated in the report that Sheela had affair with one Bablu and after she returned back light of bungalow went off and the appellant went out to ignite generator. When he came back to the room he found Sheela hanging on a prop (Balli) tying nose of scarf on her neck. After thorough investigation of the case Bhagwan Sahai came to the conclusion that it was appellant who committed murder of Sheela. Charge sheet was thereafter filed and in due course the case came up for trial before the learned Sessions Judge Jaipur District. Charges under sections 302 and 201 IPC were framed. The appellant denied charges and claimed trial. The prosecution in support of its case examined as many as 11 witnesses. In the explanation under section 313 Cr. P. C. , the appellant claimed innocence and stated that Sheela committed suicide by hanging herself tying knot of scarf on her neck. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellant as indicated above. We have heard the submissions advanced before us. Indisputably, in the present case there is no direct evidence, but it is a case of circumstantial evidence and the learned trial Court came to the conclusion that the prosecution has succeeded in proving the following circumstances against the appellant by credible evidence :- (i) Sheela did not die because of hanging but her death was caused as a result of pressure over neck. (ii) Appellant had motive to kill Sheela because he did not like her affair with Babloo. On the date of incident the appellant, on seeing Sheela and Babloo together, scolded Sheela and slapped her. (iii) Soon before her death Sheela was seen in the company of appellant. (iv) Conduct of appellant prior to the incident and subsequent to it was highly unnatural. Appellant gave false statement and created false evidence. Before dealing with each circumstance it will be useful to briefly consider the factual scenario of the case. Having scanned the material on record we noticed as under:- (i) In the inquest report (Ex. P-1) it was stated that except abrasion on the neck, no other injury was found on the dead body of Sheela. (ii) Blue scarf dotted with white, green and red colour of the length and width of 6'2" x 3'11" tied with wooden prop (Balli) was seized from the place of incident vide memo Ex. P-4 by the Investigating Officer. (iii) Prithviraj Singh (Pw. 1) deposed that when he reached to the house of appellant, dead body of his daughter was lying in front of the house. Appellant told him that she committed suicide by hanging herself and appellant untied her. (iv) Ram Singh (Pw. 3), who was serving at the Farm of Prithviraj Singh, deposed that the appellant came to him and informed him that his daughter hanged herself and died. This witness was declared hostile. (v) Babloo (Pw. 9) in his deposition stated that he wanted to marry Sheela. On April 28, 1999 around 8 PM Sheela met him near the well and persuaded him to run away with her. In the meanwhile appellant came over there, slapped Sheela and threatened Babloo not to meet her. (vi) Bhagwan Singh, SHO (Pw. 7) stated that he conducted investigation and seized Scarf (Chunni) which was tied with a prop (Balli) vide memo (Ex. P-4 ). The length of prop was 5'11". (vii) Dr. Vivekanand (Pw. 8) conducted autopsy on the dead body of Sheela, who was 17 years of age at the time of her death. According to postmortem report (Ex. P-12), cause of death was asphyxia as a result of injuries on the neck region. Dr. Vivekanand deposed that SHO wrote him a letter bearing No. 1490 dated May 3, 1999 asking his clarification about cause of death of Sheela. He gave his clarification vide letter dated May 19, 1999 (Ex. P-13) thus :-      " After going through above mentioned post mortem report it is clear there was no ligature mark around the neck. Hence it is clarified that the above mentioned person did not die because of hanging. She died because of asphyxia as the result of pressure over neck. " (vii) Meela (Pw. 10), younger daughter of appellant saw Sheela hanging in the small room with knotted scarf tied with prop. This witness was declared hostile. CAUSE OF DEATh In order to ascertain as to in what manner death of Sheela was caused we first proceed to examine medical evidence adduced at the trial. As already noticed in the postmortem report the cause of death was asphyxia as a result of injury on the neck region. Thereafter Dr. Vivekanand gave clarification that since there was no ligature mark around the neck, Sheela did not die because of hanging. Her death was caused by asphyxia as a result of pressure over neck. Modi in his book Medical Jurisprudence & Toxicology indicated that when a material with which an individual is alleged to have been hanged, is sent for medical examination the medical jurist should see if the mark on the neck corresponds with its thickness, and whether it is strong enough to bear the weight of the body of the sudden strain. He should also note its texture and length, and after labelling it with some distinctive mark for future identification should return it in a sealed packet to the police constable who brought it. The noose of the ligature is tied either as a granny or reef knot or as a simple slipknot, which makes a running noose. If there are two knots, usually one is not as tight as the second except in homicidal cases. According to Modi ligature mark depends on the nature and position of the ligature used, and the time of suspension of the body after death. If the ligature is soft, and the body be cut down from the ligature immediately after death, there may be no mark. The mark varies according to the nature of the material used as a ligature and the period of suspension after death. Sometimes, the pattern of the ligature material is impressed on the skin and characteristic diagonal marks of the strands of the rope are seen. The mark is superficial and broad, if a cloth or a soft rope is used. The wide band of cloth when used as a ligature on bare skin may cause a narrow ligature mark, due to the tension-lines in the stretched cloth. The width of ligature mark or the skin may thus be misleading if nylon, silk or terylene pieces of fabric are used as ligature. It is well defined, narrow and deep, if a firm string is used. The mark is a groove or furrow, the base pale, hard, leathery and parchment- like, and the margins red and congested. It is deepest near the know. the colour becomes reddish-brown or chocolate brown if seen after some hours of suspension. Ecchymoses and slight abrasions in the groove are rare, but may be found in some cases, for instance in judicial hanging. Ecchymoses alone have no significance as to whether hanging was caused during life or not, but abrasions with haemorrhage are strongly suggestive of it having taken place during life. Other Signs of hanging have also been described. The neck is found stretched and elongated, and the head is always inclined to the side opposite to the know and the arms of the loop of ligature. The face is usually pale and placid, but may be swollen and congested if the body has been long suspended. Petechial haemorrhages are occasionally seen on the face, under the conjunctiva and neck. The eyes are closed or partly open, and the pupils are usually dilated. If the ligature- knot presses on the cervical sympathetic, the eye on the same side may remain open and its pupil dilated. It indicates antemortem hanging (le facie sympathique ). The tongue is drawn in or caught between the teeth, or protruded and bitten. It is usually swollen and blue, especially at the base. Bloody forth is sometimes seen at the mouth and nostrils. Saliva is often found dribbling out of an angle of the mouth down on the chin and chest. This a sure sign of hanging having taken place during life, as the secretion of saliva being a vital function cannot occur after death.
(3.) COMING to the post mortem report (Ex. P-12) of Sheela we notice that at the time of autopsy her eye were found semi opened and looked like protruded. On opening eye were reddish congested with conjunctival haemorrhage. Both pupils were found dilated. Mouth was closed. Lips and face along with nails showed bluish discolouration. Abrasion 1. 5cm x 1/2cm on area 2cm blow middle of Rt. mandibular rim on upper neck and 1/2cm x 1/4cm on right side neck in middle 1/3 were found on the dead body. On dissection of neck haematoma with tissue staining found at following places:- - effusions extra vessation red in colour - left lateral side of trachea upper /3 size 1/4 x 1/4 cm - left lateral side of trachea middle /3 size 1/4 x 1/4 cm - left lateral side of trachea middle /3 on area 1/4 cm below, above injury size 1/4 x 1/4 cm - right side front of neck underneath external injury No. 1 on antero lateral of trachea upper 1/3 size 1 cm x 1/2 cm above the level of hyoid bone. Further examination showed (trachea) congested areas in tracheafine white fronth. There was haematoma of soft tissues near upper part of trachea over right side neck in middle /3 upper part. left side neck also showed such haematoma in an area of 2 cm x 1/2cm. There was froathy blood which came out through upper respiratory tract. Undeniably the scarf seized by memo Ex. P-4 was sent for medical examination to Dr. Vivekanand to see if the abrasions found on neck of the dead body corresponded with its thickness and whether it was strong enough to bear the weight of the body or sudden strain. It was the duty of the medical jurist to note texture and length of the scarf and after labelling it with some distinctive mark for future identification, to return it in a sealed packet to the police. Bhagwan Singh, IO (Pw. 7) did not choose to send the scarf to medical jurist for examination. A look at recovery memo of scarf (Ex. P-4) reveals that noose of scarf was tied with a prop and the police got it recovered after untying it. It also appears that when the Investigating Officer sought clarification from Dr. Vivekanand about the mark of ligature, the scarf was not sent to him and Dr. Vivekanand gave opinion like a common man that since there was no ligature mark around the neck, the deceased did not die because of hanging. In our view, this was not an opinion of expert. This opinion appears to have been given casually, without going through the medical jurisprudence. As already noticed by us that according to Modi, Ligature mark depends on the nature and position of the ligature used, and the time of suspension of the body after death. If the ligature is soft and the body be cut down from the ligature immediately after death, there may be no mark. In the instant case the appellant in his explanation under section 313 Crpc categorically stated that immediately on seeing Sheela hanging he got her free from the clutches of noose and brought her down. In view of the fact that scarf was soft ligature and the body of Sheela was immediately brought down, it was quite possible that mark of ligature did not appear. We do not seen any good reason to disbelieve Meela (Pw. 12) younger sister of the deceased, who had seen Sheela hanging on a prop tying noose of scarf on her neck. Dr. Vivekanand while giving clarification did not care to read Medical Jurisprudence and casually observed that as there was no ligature mark around the neck, Sheela did not die because of hanging. Since the clarification was given by Dr. Vivekanand after 21 days of the death of Sheela and that too without considering Medical Jurisprudence, we find ourselves unable to accept it. In such a situation, we have not option but to believe the ocular testimony of Meela and we hold that Sheela died because of hanging. MOTIVe Learned trial Judge in the impugned judgment observed that the appellant had motive to kill Sheela as he did not like her relations with Babloo and on the date of incident he had seen them together to make a plan to run away. We do not see any justification in this finding. Sheela was minor on the date of incident and the appellant being her father, had every right to show her right path. If he was against her relations with Babloo and scolded and slapped her, it did not mean that he had a motive to kill her. In the facts and circumstances of the case this possibility can not be ruled out that finding her father against her relationship with Babloo, Sheela became highly depressed and took extreme step to end her life. LAST SEEN: ;