MAHENDER PRASAD Vs. STATE OF U P

JUDGEMENT

(1.) U. S. Tripathi, J. This appeal has been directed against the judgment and order dated 16-12-1980, passed by V Additional Sessions Judge, Agra in Session Trial No. 378 of 1980, convicting appellant Mahendra Prasad under Section 302 I. P. C. and sentencing him to undergo imprisonment for life.

(2.) THE persecution story briefly stated was as under : Smt. Mahendri Devi (30) deceased, was sister of Shri Krishna (PW1 ). THE marriage of Smt. Mahendri Devi was performed with the appellant Mahendra Prasad some 12 years before the occurrence of this case and she was residing at her matrimonial home in village Kanwara P. S. Khergarh, District Mainpuri. Out of wedlock of appellant Mahendra Prasad and deceased Mahendri Devi two children, one male and one female were born. Subsequently the appellant kept a prostitute named Santo and started residing with her at her house. Smt. Mahendri Devi deceased objected the appellant on keeping a prostitute and living with her. On it the appellant used to beat the deceased. THE appellant owned about 18 bighas agricultural land. In order to provide money to the prostitute the appellant wanted to sell his agricultural plot. THE deceased had got published a news in newspaper "amar Ujala" warning to all concerned, not to purchase land of appellant as he wanted to sell it for illegal purposes. Prior to the occurrence of this case Smt. Mahendri deceased had come to her Maika at the house of Shri Krishna (PW1) at Tilak Nagar, Firozabad. She was patient of tuberculosis and her treatment was going on. In this connection she used to go to the clinic of Dr. Kshetra Pal (PW3) at Firozabad for getting injection. On 30-3-1980 at about 9. 00 a. m. Shri Krishna (PW1) alongwith Munna Lal (PW9) took Smt. Mahendri deceased to the clinic of Dr. Kshetra Pal (PW3) at Firozabad, where Dr. Kshetra Pal injected medicine to her Smt. Mahendri deceased felt uneasiness after injection Shri Krishna (PW1) took her to Damma Mal Dharamshala, Agra Gate, Firozabad for rest. Mahesh Chandra (PW2), brother-in- law (sister's husband) of Mahendra Prasad appellant was Manager of said Dharamshala. On the gate of Dharamshala, Ramesh Chandra also met with Sri Krishna (PW1) and went alongwith him in Dharamshala. On reaching Dharamshala Shri Krishna (PW1), Munna Lal (PW9) and Ramesh Chandra sat with Mahesh Chandra (PW2) in the eastern verandah and were talking with him. Smt. Mahendri, deceased went in room No. 6 of Dharamshala and laid down there on a charpai. After five minutes at about 10. 30 a. m. appellant Mahendra Prasad came to Shri Krishna and others in the said Dharamshala and after talking with him he went in the room where Smt. Mahendri deceased was taking rest. He closed the door of kothri and started talking with the deceased. When Shri Krishna did not hear the talks of deceased and appellant he suspected something and came to room. He peeped from the gap of two door planks and saw that the appellant was pressing the neck of the deceased with a rope. Observing it he raised alarm. THE appellant came out of the room and pushing Shri Krishna (PW1) aside went away. Shri Krishna and persons with him tried to chase him but he could not be apprehended. On entering into room Shri Krishna found his sister Mahendri deceased dead. Rope Ext. 1 was lying near her charpai. A police constable came on the gate of Dharamshala. Shri Krishna (PW1) alongwith others proceeded to police station. In the way his relative Kanta Prasad Pachauri met him from whom he got prepared a report Ext. Ka-1 and lodged the same at police station Firozabad Dakshini at 12. 05 p. m. Chick FIR Ext. Ka- 2 was prepared by Shri Bhudutt Verma, P. W. 5, who made an endorsement of the same at GD report Ext. Ka-3 and registered a case against the appellant under Section 302 IPC. Investigation of the case was taken up by Kshetra Singh (PW8 ). He interrogated Shri Krishna (PW1), Head Moharrir, Bhudutta Verma (PW5) and Vinod Bihari, who had come alongwith the complainant, at the police station. THEreafter he alongwith Sub Inspector Suresh Chandra Gupta, (PW7) and other constables came to Damma Mal Dharamshala. THE dead body of Smt. Mahendri deceased was lying on a charpai in room No. 6. Inquest of the dead body of Mahendri, deceased was conducted by the I. O. and inquest report Ext. Ka-6 and other relevant papers, Exts. Ka-7 to 10 were prepared by Sub Inspector, Suresh Chandra Gupta, (P. W. 7 ). THE dead body was sealed and was handed over to constables Nathoo Ram and Gajendra Singh, (P. W. 4) for taking it to mortuary. THE I. O. took into possession a rope Ext. 1 a pair of chappals and recovery memo, Ext. Ka-12 was prepared by SI Suresh Chandra Gupta, (PW7 ). THE I. O. interrogated Munna Lal (PW9), Mahesh Chandra (PW2) and other witnesses. He inspected the place of occurrence and prepared site plan, Ext. Ka-13. On 31-3-1980, the IO inspected the register of Dharamshala. Shri Krishna, P. W. 1 handed over a paper cutting of "amar Ujala" newspaper to the IO who took into possession and prepared a recovery memo, Ext. Ka-16. THE autopsy on the dead body of Mahendri deceased was conducted on 31-3-1980 by Dr. P. K. Jain, P. W. 6, who found ligature mark on the neck of the deceased and cause of death due asphyxia as a result of strangulation. Dr. Jain prepared post mortem report Ext. Ka-5. THE appellant was absconding and the I. O. obtained process under Section 82/83 Cr. P. C. and sent the same to police station Khergarh, District Mainpuri for execution. On completion of investigation a charge sheet was submitted against the appellant.

(3.) THE prosecution examined Shri Krishna (PW1), Mahesh Chandra Sharma (PW2), Dr. Kshetra Pal, (PW3), Constable Gajendra Singh (PW4), Head Constable Bhudutta Sharma (PW5), Dr. P. K. Jain (PW6), Sub Inspector Suresh Chandra Gupta (PW7), Kshetra Singh, I. O. (PW8) and Munna Lal (PW9 ). Shri Krishna (PW1), Mahesh Chandra (PW2) and Munna Lal (PW9) are the witnesses of fact, while the evidence of remaining witnesses is formal in nature.