Ka 8A on Sept. 7, 1974.
At the hearing of the appeal, Mr. Vishnu Bahadur has strenuously urged that the appellant is entitled to acquittal as the evidence on the record is number at all sufficient to bring home the guilt to him.
He was assisted in the management of the Shop by his younger brother P.W. Dinesh.
4 and the shoe Exh.
About a year and a half, before the occurrence, the deceased who was a Peon in the same institution gave up service at the instance of the appellant and set up a tea stall in a portion of the shop of P.W. Bharat Lal in front of the College.
Dinesh.
3 and underwear Exh.
The doctor was further of the opinion that the injury on the neck of the dead body was sufficient in the ordinary companyrse of nature to cause the death and that injuries Nos.
The Pyjama Exh.
Ka A and Ka 3 from a box lying in the room belonging to the former.
2 , Langot Exh.
Contradictory statements made by the appellant regarding the whereabouts of the deceased.
All above scrochin cut through and through cleanly.
Medical evidence Dr. Anand Khanna who performed the post mortem examination of the dead body which was discovered on Sept. 3, 1974 has opined that its death was due to shock and haemorrhage resulting from the aforementioned incised injuries which were caused by Banki Exh.
On August 29, 1974, the appellant pressurised Kapoora and the deceased to write letters Exhibits Ka 2 and 3 expressing regret and admitting therein that the companyplaints made by Kapoora to the deceased about the misbehavior of the appellant were false.
The appellant replied saying that he had fallen in a pit near the railway line.
6 which he had purchased a day or two earlier from P.W. Vishwanath and companycealed his body in a pit close to a nearby nallah.
On companypletion of the investigation, the appellant was proceeded against in the Court of the Judicial Magistrate, 1st Class, Gorakhpur who companymitted him to the Court of Session to stand his trial under Section 302 of the Indian Penal Code.
After despatching the dead body, S.I. Anand Prakash Tiwari made a spot inspection and found some marks of blood and crushed paddy plants in the field of Phool Chand which he seized.
Kapoora and Bharat Lal as belonging to the deceased.
2489 of 1975 and Reference No.
On being apprised by Satya Narayan about the purpose of his visit, the appellant told the former to go back to the village and tell Kapoora number to worry about her husband.
On Kapooras asking him as to why the deceased had number companye, the appellant tauntingly told her as to how he would earn his livelihood if he would companye back daily to the village.
Dinesh and Bharat Lal, it is established hat at the time of his departure from Gorakhpur for his village, the deceased was wearing Pyjama Exh.
About 4 or 5 hours later on the same night, the appellant made another attempt to have sexual intercourse with Kapoora but the latter foiled the same by putting up stout resistance, whereupon the appellant inflicted an injury on her numbere with a knife.
The evidence of P. Ws.
4 which were found on the dead body at the time of its recovery on Sept. 3, 1974 belonged to the deceased and were worn by him at the time of his departure for his village on the evening of Sept. 1, 1974 along with his father.
On Sept. 4, 1974, P.W. Dr. Anand Khanna performed the autopsy on the dead body which had greenish discolouration on the stomach and genitals and lower jaw, neck and abdomen whereof had been eaten away by maggots and found the under mentioned ante mortem injuries on its person Incised wound 6 X 4 Trachea, oesophagus and external and internal carolid vessels deep on both sides of neck and front.
In reply to another query by Kapoora, the appellant told her that Gorakh had number companye as he was having stomach, pain.
From the evidence of S.I. Anand Prakash, and P.W. Shyam Lal, it is established that Pyjama Exh.
He would often talk in disparaging terms to Kapoora about the deceased and tell her that she would have a companyfortable and happy life if she agreed to live with him.
This time the deceased did number take things lying down and disclosed the nefarious designs of his father on Kapoora to his relatives and acquaintances whereupon the appellant felt humiliated and annoyed.
The appellant chided Kapoora a little later for being morose and glum without her husband.
6 by the appellant before the occurrence is proved from the evidence of P.W. Vishwanath.
It stands proved from the testimony of Kapoora that at the dead of the night intervening September 1 and 2, 1974, the appellant alone came to his house and on enquiry by her as to why his Dhoti was companypletely wet, the appellant told her that he had fallen in a pit.
Clothes seen worn by the dead body at the time of its recovery from the pit on September 3, 1974.
The purchase of Banki Exh.
The Sessions Judge, Gorakhpur companyvicted the accused under Section 302 I.P.C. and sentenced him to death subject to companyfirmation by the High Court.
With a view to implement his evil designs on Kapoora, the appellant often suggested to the deceased number to return to the village every evening as that would be detrimental to his business.
Satya Narayan accordingly went back to the village and companyveyed the appellants message to Kapoora.
2 , Langot Exh.
Abrasion wound area of 8 X 8 in front abdomen.
On the same day at the instance of the appellant, the S.I. recovered Banki Exh.
On 4th and 5th of September, 1974 also, the appellant went to Gorakhpur in the morning and returned alone therefrom in the evening.
Earlier in the day when P.Ws.
Dinesh and Bharat Lal inquired from him at the tea stall at Gorakhpur about Gorakh, the appellant told Dinesh that Gorakh had stayed behind as he was having an abdominal pain.
On the evening of September 1, 1974, the appellant left Gorakhpur for his village Patra along with the deceased who was at that time wearing Pyjama Ext.
On learning from one Sukhbai Singh on the morning of Sept. 5, 1975 that Goratoh was missing since 4/5 days, S.I. Anand Prakash repaired to village Fakirahana and interrogated the appellant.
3 and Underwear Exh.
6 by the appellant.
Satya Narayan accordingly went to the tea stall of the deceased at Gorakhpur and made enquiries about the latter from P.W. Dinesh who told him that the deceased had gone to his village four days ago and had number returned since then.
It is also true that before a companyfessional statement made under Section 164 of the CrPC can be acted upon, it must be shown to be voluntary and free from police influence and that the companyfessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that 1 there is numbercontemporaneous record to show that the appellant was actually kept in jail as ordered on Sept. 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, 2 Shri R.P. Singh who recorded the so called companyfessional statement of the appellant did number question him as to why he was making the companyfession and 3 there is also numberhing in the statement of the said Magistrate to show that he told the appellant that he would number be remanded to the police lock up even if he did number companyfess his guilt.
In reply to another query made by Kapoora about the deceased, the appellant told her that he had number accompanied him because he was having stomach ache.
While working in his field on the morning of Sept. 3, 1974, P.W. Shyam Lal was informed by one Mohammad that a dead body was lying in a pit near the field of Phool Chand.
1 from the pit from which the dead body had been recovered four days earlier.
Thereupon the S.I. got some villagers from the adjoining village but numbere was able to identify the dead body.
On one night the appellant became so desperate that he told Kapoora that he would have illicit intercourse with her at any companyt.
As the appellant, did number give satisfactory and straight replies to his queries, the S.I. got suspicious and proceeded to examine Kapoora.
Incised wound 1 X 1/4 on outer part of middle of left pina, skin and cartilage both cut through and through.
Dinesh and Bharat Lal go to prove that the aforesaid garments viz.
Feeling insecure, Kapoora slipped away and took refuge in the house of a neighbour and came back therefrom after a day and a half when her husband returned to the village from Gorakhpur.
During the absence of the deceased from his village the appellant persisted in his attempts to have illicit intercourse with Kapoora.
4 lying therein.
Next morning the appellant left for Gorakhpur as usual and came back alone the same evening.
The story as put forth by prosecution was as follows The appellant who belongs to village Patra, District Gorakhpur was employed at the relevant time as Daftary in the D. A. V. College, Gorakhpur.
After thus disposing of the deceased and companycealing his body the appellant arrived at his house at 2.30 a.m. when numbericing the appellant companypletely drenched Kapoora asked him the reason for the same.
As Nihal Singh was in a hurry to go to Gorakhpur to purchase some medicines and to attend the companyrt of the S.D.M. in companynection with some case he wrote out the report Exh.
The doctor made the following additional remarks on the post mortem report Sealed bundle one underwear, one silk pyjama piece and one langot sealed and handed over to accompanying companystable.
Thereupon he went and informed the Pradhan of the village Patra named Nihal Singh.
4 in addition on to other clothes.
Abrasion wound area of 4 X 4 in front and middle of chest.
The S.I. left for Pipraich the next day as the Deputy Inspector General of Police had to inspect his Police Station.
Purchase of Banki Exh.
External Organs of Generation.
2 , Langot Exh.
1, 2 and 5 companyld be caused by Banki Exh.
2, striped underwear Ext.
The assurance sought to be companyveyed by the appellant to Kapoora through Satyanarayan when the latter went to Gorakhpur at the behest of Kapoora to enquire about the where abouts of the deceased is also number with out significance.
64 of 1975 companyfirming the companyviction of the appellant under Section 302, I.P.C. and the sentence of death imposed on him thereunder for intentionally causing the death of his own son named Gorakh Prasad aged about 30 years, on the night between September 1 and September 2, 1974, in the field of Phool Chand Lonia on the outskirts of village Patra Tola Fakirahna within the jurisdiction of Police Station Pipraich, District Gorakhpur.
Incised wound 41/2 X 2 X muscle deep front of outer side of left forearm 3 3/4 X 3 3/4 above wrist joint.
2 , Langot Exh.
Pyjama Exh.
4, red langot Ext.
On the way to the village the appellant murdered the deceased in the field belonging to Phool Chand Lonia with Banki Ext.
The appellant also occasionally reprimanded and beat the deceased for number heeding his advice in the matter of his visits to the village.
2 , Langot Exh.
On companying to know that a dead body had been found from a pit near the nallah, Kapoora became intuitively apprehensive about the safety of her husband and requested P.W. Satya Narayan to go to Gorakhpur and enquire about the welfare of her husband.
1 were identified by P. Ws.
On receipt of the aforesaid report sent by P. W, Nihal Singh, S.I. Anand Prakash Tiwari, Officer in charge of the Police Station, Pipraich left for village Patra after making an entry in the general diary.
6 was re companyered on Sept. 5, 1974 from a box lying in the room admittedly belonging to and in exclusive possession of the appellant, the key of which was supplied by him.
Ka 1 and despatched the same to the Police Station, Pipraich, through his son Surendra Pal.
It stands proved from the evidence of S.I. Anand Prakash and P.W. Shyam Lal that, Banki Exh.
Arrival of the appellant at his house at the dead of night unaccompanied by the deceased.
From the testimony of P. Ws.
On being told by Satya Narayan that deceased had number returned to his house for the last four or five days, Dinesh went and fetched the appellant from the companylege.
3 and shoe Ext.
On the same day, the S.I. recovered shoe Exh.
The wound was on left side.
On receipt of this information, Shyam Lal went to the place indicated by the informant and saw a mutilated, disfigured, swollen, and unidentifiable dead body having a number of injuries on the left forearm, neck and other parts of the body lying partly inside and partly outside a pit near the paddy field of Phool Chand.
Garments worn by the deceased at the time of his departure from Gorakhpur for his village on the evening of September 1, 1974.
6 and letters Exh.
Identity of the clothes found on the dead body.
Once when Kapoora was alone in the house, the appellant went near her company at about 9 or 10 p.m. and caught hold of her hands with a view to companymit criminal assault on her but she hurled abuses at him and succeeded in extricating herself by pushing him aside.
After preparing the inquest report and some other papers, the S.I. sealed the dead body in a gunny bag and sent the same for post mortem examination through companystable Sarbjeet Misra and Chowkidar Ram Surat.
Jaswant Singh, J. This appeal by special leave is directed against the Judgment and Order dated April 15, 1976 of the Allahabad High Court in Criminal Appeal No.
3 and Underwear Exh.
The recovery of Banki Exh, 6 at the instance of the accused.
Kapoora companyplained about the misbehavior of the appellant to her brother in law Dinesh as also to her husband when the latter came to the village whereupon the deceased strongly protested to his father but to numberavail.
It is true that there is numberdirect evidence regarding companymission of the aforesaid offence by the appellant and the prosecution case rests entirely on circumstantial evidence.
In the opinion of the doctor, the death of the dead body brought to him was due to shock and haemorrhage resulting from the above numbered injuries.
3 and Underwear Exh.
Kapoora whom the deceased married about two years before the date of the occurrence resided in a separate portion of the house belonging to the appellant in village Patra which is about 14 miles from Gorakhpur.
The High Court has, as already stated, companyfirmed the companyviction and sentence of the appellant.
4 were in the wearing of the dead body at the time it was taken out from the pit at 10.00 a.m. on Sept. 3, 1974.
Some two months before the occurrence the appellant who was a widower started casting evil eyes on Kapoora and making indecent overtures to her.
The deceased used to accompany the appellant every evening to his village and to return to Gorakhpur next morning.
3 and Underwear Exh.
The disclosure made by Kapoora having companyfirmed his suspicion that the dead body was of Gorakh, the S.I. interrogated the appellant and arrested him.
On reaching the pit which lay towards the east of Tola near the railway line, the S.I. saw a mutilated and disfigured dead body wearing Pyjama Exh.
The key of the room was supplied by the appellant.
On Sept. 6, 1974, the S.I. produced the appellant before R.P. Singh, Judicial Magistrate 1st Class for having his companyfessional statement recorded under Section 164 of the CrPC.
The Judicial Magistrate sent the appellant to jail for a day and recorded his companyfessional statement Exh.
