IN I THE HIGI-I COU RT OF MAA‘PADE WYRSE AT JABIPUR. AL I Cvrimin al‘ Appeal No. ' Q“ ‘ 0f 1992. Appgllmt. BHIM BAHAwR son of Khanha singh aged about 43‘ years,“ con st able No. 311 K an'd sAF 11th Battalion, Bhilai ‘I‘ahsil District mrg‘i / pemanémt address mkhet post Pilaqhar, Police station pmoli District Tanhu Nep al.’ / n VErsuS ,f ‘R$§pondent g The State of Madhya Pradesh. APPEAL UNDmR SLC’HON 374 (2) OF I‘HE COLE 0" CMMINAL PmCEwQE (Acainst the Judgment and tnd‘ngs of shri .B p.Mj. shra, 3rd Addl tlonal Sesmons Judge, mrg, passed 1n Sesam I‘mal N9. 101/90 ( ated 6th day of Decanber 1991 ). ‘« ‘ XI—HC-78 o 3aW, Wm, W Wm W4‘&H/C’L a? 200 WW(W) XI—HC-78 EW,W,W o ooooo..‘.¢... ‘...o.‘. a 200 WawTW WWW } x > warm—Em WW WW° éEWW poh'fce statian Mohan Nagar, D1 n‘g t0 the e§ect that he is Working as Htad Constable in 11th Bataj \ Kaflulbod with his wifc Bilmaya ’ 1V2 1310mm Bhi'm Balladur, SAF‘ 31 1% is residing a$ a tanant aim: thei adjoining room, since last I ba‘férm ther‘eta of tht”: incid€nt, 1' I ' Whén he Lame t0 his house, at 1 hmise. After Som€time Bhhn B about 7.30 p.131. 1'11 the wem'rlg emailing roll call. a By that time (lid not return. At about 1‘ ratm‘rled {mm the BattaJion } talking slowly in their mom. He rhlmex and illarcafter at about mOming Wham Marm clack sta 0bserving nmrning cnursa. he s Bahadur was opened a11c1 light wake up daily in the marm‘gg, not woke up, therefore, he went towards the houoe of Bhjm Lte was no response, therefore, he t What has hapyened. His with went ’ered the house amt °saw that harld a of Wife of Bhjm Bahadur was out of the mosquito net and was gale. She returned and mformed him \ lion of S.A.Fl, Bhilai. He is living £11 ill the houee of Patiram Baghel. in g with his Wife Buclhimaya. A day n the evening, at about 5.30 p.111. hat time Bhlm Bahadur was ill his; ahadur went far evening stroll. At g he left fm‘ SA]? line for attending accusedf appellant Blu'm Bahadur IUD p.111. in the night, when. he Ehlm Bahatiur amlhis Wife were ' recognized their voice. He took his 11.0G p‘m. he went for sleep. In the rted rillging he woke up and after aw that door of the houSe of Bhim was on. As Bhim. Bahadur used to he thought that today Why he has Bahadut and shouted but tht asked his wife to go and had ou ami shouted. Thereaftey She en‘ . Thereafter he went to the house of Bhim Bahadur, saw that Bhlm Bahadur was not on the cot P.T.O. WW(W) XI—HC—78 u; HW,WW,%W WWW WWW matwm I i ‘ ‘ ‘ whereas hi3 Wife was bring uncier the mesquite net, her tongue was gafcytrudjng, a pink terrieot Saree was around her neck, she was ahead}; dead. He immediately took his bicycle and went t0 the SAF line, tniermed. Havaldar Major Top Singh. Thereafter he along wit T%}p Singh arid Laksheshwaxi went ta the house of Bhi‘m Balladur, saw the dead body of Budl'u'in aya. He was askeil to repoyt the matter to the police. Receiving this report, Sl-IO of police etation Mohan Nagar regi$ter6d Crimé afferiai undm‘ Sectitm Occurrence, aftér giving natice i th€ body 0f Budhjmaya. The bo mortem t0 Governmen‘i Homm KK. Misha‘a and Dr. N.L. Jain EX.P—12 was pmpared. They 0 asphyxia due to strzmgulation 3. After complstion of inveS the C(mrt of Judicial Magistrz cammitted Th€ case to thta Ses léarued Additimlal Séssioms .JLu ti‘ial. 4. The proseciltion in order accuwd/ appeDant examiimd accuSed was mcorded undrsr Sta denied thé matxerial rappeayjm mfidrmc€ 311d 3tated that in t1 t i t t t t t J \ WW§WW éawanéw f m. ; E) No. 332189 for commi‘ssion of 1:314? th€ IPC. 15ft for the scene of 3x.P-3, prepargd inqufssi Ex.P—2 on dy of Btumjm aya was sent fur poet a1, Durg under EXP—5 where Dr. conducted the post martem, repair: ymed that the eause of death was 302 011' tigation, charge sheet was; filed in. tte Fir3t Claas, Durg who in turn sians Judge, Dung from Where the ige received the caSe on traJlsfer fer t t0 eatablieh the (mine agajilst the 12 Witnessea. Statement of the cticyn 3 13 of the Cr.P.C. in which he t against him 1n the pmaeeutian 1e fateful night he W513 not at hi3 1 P.T.O. v \ WW(W) h XI—HC—78 .t. WW,W,W ...o.... W 200 WW(W) W$IW WWW mmHf-‘wm WW§WW %mm W 1 ‘ \ \ \ ' v 1 ) ‘ hefom the polica station. Ht: has ing he left his house at 5.00 p.m., résidence. He himself appeared stlatgd that on tha fatsful even reiiumled at about 12.00 midnight. W'hen he apened the door of his 'as lymg dead, he became panicky allld ran away. He has been falsely implicated in the orime. l 5} Learned Additional Ses réa§€ct§ve partiee convicted aforementioned. 6. *We have heard M12 Dhoté and Mr. MP3. B‘hatia 011 behall 7. In this case there is 1 establish the crime against reats on the circumstantial evid‘ 8. As per settled law in on circumstantial evidence, as per the matter of Dhananiov Chati {1994-} 2 $CC 220, the circun followm'g tests: from which an inference of guilt is W1, must be cogently and hrmly 0 n' rs should he of a deiinite tendency towards guilt of the accused; the circumstances sought to be drat established; those circumstancc unerr’mgly pointing sions Judge after hearing the sentenced and the accused as counsel for the acousedi appellant of the State. 10 ocular and direct evidence to accused] appellant. The conviction 3TH; G. [er to rest <::onviction based on the the decision of the Anex Court in 1eriee Vs. State of “LB. reported in 1stantial evidence must satisfy the P.T.O. himse, he saw that his Wife w i XI-HC—78 HW,W,W uh mamm WWW matwm the circumstances, Chain so c0mplet€ (:onchlsion that wit wa$ (:Ommitmd by t the circumstantia cmwiction must , explanation of any guilt of the accu’srsc he consiistent with WW§WW éawm ‘ w f) taken cumulatively should form a that there is no escape from the bin all human probability the crime he accueed and none else; and l evidence in order to Suetain be ccmplete and incapable of other hypothesis than that of the i and such evidence Should not only b6 incon3i3tent wit] the guilt of the accueed but should l to establish the crime against the of. following circumstances:— Death of Budhjmay The accusedf appe] their room in the fa The accused was albscontling from his house The accuSed gavi abemndance from ‘x As far as first Cireumstz who (zomdueted the Budhimaya, has étated that 01 Jaiil conducted ti Budhimaya, at that time, theJ tied around the neck of Bu contusion in the size of 3"x3” s: 9. The prosecution has triet accused} appellant on the basis 11 1 0 . Mishr a. i hi5 innocence. i ia was homicidal. lant and deceased were talking in. ' teful night. i false explanation regarding his he house. Lnce is ooncernetl, P.W.—12 Dr. KK. post mortem on the body of 1 15th of August 1939 he along with 1e postmoi‘tem 0Y1 the body of ‘e was a cream brown colour saree dhimaya. ligature mark anti a n the left side and behind the neck. P.T.O. Dr, N,L. o .\ WW(W) XI-HC—78 mw,m,m o \ WW(W) mamm x WWEWW mmm %WW ' G11 internal €xamination, Skin” musclas and blood veS$el$ wgm cbngest-sd. Other organss Le. brain mambrane, neck, Wind gaipe, bbth lung3 and membréme of the intastilm, Eva? splaen were ciongéstvad. Smell 0f the kerosene “7&3 (amallating fmm Sari. In his o‘pim'on, déath of the d6ceaSed'was hemicidal in nat‘um: $ame was \ dha t0 asphyxia as a resglt 0f strangulation. His mport i$ EX.P— 12. PLWI-T) N.L. Jajn has; c0rmbm‘ated tlm aboV€ evidsnce and stated That ha along with Dr. KK. Mtshra conducted the post mortem 0n the bedy of Bu dhimaya, their report :irS EX.P— 125 He concurred with the finding given by Dr. Mishh‘a. in his opinion also the. cause of deafh was asphyxia due to shangulation. In cross—examination of these two witnesses, defenct has not been able to elicit any circumstance to Show tha: the cause of death wao not strangulation. In View of the above medical evidence, it is. eetablished that death of the deceased was homicidal in nature. ll. Mr. Dhote, counsel for the accused] appellant argued that in this cage the prosecution has not adduced any evidence regarding motive of the accused] appellant for committing murder of his Wife. 12. It is a settled law that it the cases of circumstantial evidence if motive is known, then same plays an important role in connecting the accused with the crime in questiori: if the motive is not known, even then based on the cireumstantial evidence accused can be held guilty for the crime. v m. \ 'e’li P.T.O. x XI—HC-78 mw,mm . mw<W> man—rm WWW . mmmm 133. Kumar £5 Others reported ‘ m: Lai reported in 1 992 CnLuJX I 54 §_held that in cases of circumstantial ein'dence motive bears ilnportant signiiicance, but failure to l d§scover th6 motive of an offétce £1068 not $ignjfy itS nan—existence. hot fatal as a matter of law. Proof of .e for conviction. 14. ‘In the present cam: th 1:116 circumaang‘e that 1'11 the deceas€d were 1'11 their mom, accused absconded &0m the 1 the marm'ng dead body of Bu this connection P.W.—2 Birendra Bahadur has stated that Bhim' Bahabur and Budh'imaya uS adjoining t0 their foamy he wa was of one Pati Ram. He hag 14th of August 1989 he heard his wife who were talking slow dm on 15”] OfAuguet 1989 ht to g0 fer attending the N111 of hbuse of Bhim Bahadur was t he returned after attending t] opened, h'ght was on. He thou woke up early but nothing w WW§WW %3T%n311%zr on case. Dinesh The Apex CQ‘ilrt 1'11 th: matter of Mulk Raf V . Satish in 1992 Cr.L.J. 1529 _a;1d in the Maharastra Vs. State of , Th‘g iajlure t0 pram: motiv€ is metive is xlwar an indispenzsab a prooecution hag trieti to establish fateful night accusedf appellant and after committihg murder of hie Wife, oom Without informing anybody. In dhimaya. was found in the room. In. ed to reside in a room which was s residing as a tenant and the house stated that on the fateful night, on the talks of accused} appellant and ly. He Went for sleep. At about 4.00 3 Woke up and came out of his house nature. He saw that the door of the 0 )pened and light was on. EXIen when Ie call of nature, the door was still git that Bhim Bahadur might have as audible from the house of Bhim I P.T.O. XI—HC-78 - . ..oo...o~.... \ W 3am, whim—gr, W 200 mW<W> m$m WWW WW§WW€ égmmaw ‘ Bahadur. Ha: thaught that Bh duiy. When he came out of hi: cvén th€n th€ dom‘ of tha 1101; light was 0117 thereforq he SuSE acbumti alang with his Wife am Wzi$ lying dead. on the cot, hm not.“ Ehim Bahadur was not Emilie the mom, liftod the mosr Budhimaya was protruding. Thercforo, he immodiatoly we informeti him. Theroaftcr? tht Bahadur. Laksheshwari HaVaL the roport 3'11 poiico Station, the] 15. In cross-examination, h hoard ta]ks of Bhjm Bahariur iu‘St talking like husbandL a Birondra Bahadur has statod tho S.A.F. Battalion, he was went to the house of Bhim B2 her hurshand came out of the accusedf appallant was open husband Tl'ter'eafter her husband went 'tito the houee of Bhim Bahadur and 3 night, ehe had not heard the voice md his Wife, but in the night of the $aw the body of his wifo. In th of tho talk of Bhim Bahadur mawf%aan%w m Balladur must have gone for his quarter aftm" gotting him s61f ready, se of Bhjni Bahadur was open and >ectod and went towards the room of i'saw that the wife of Bhim Balladm" one haud Wa$ out of the mo$quito at his rosidence? theroforg ho Went tuito net and saw that tho tongue of I‘here xvaS cloth ‘around her neck. nt to the Betalljon Havaldar aim. ’y returned to the houSe of Bhjm 1a]: Major aeked him to go and lodge 'efore, he lodged report Ex?“ 1. 3 has otated that in the night, he ' and his Wife Budhjruaya, they were Ind Wife. PEEL—1 Dihnayo, wife of that Bhim Bahadur was servmg 1'11 residing 1'11 the adjoining room. She hadur on the fateful morniilg when house and saw that the house of and h'ght was on, therefore, her (:ailed Bhim Bahadur but thew Wa’e no reeponse. c P.T.O. XI—HC—78 W 3am, wan—gr, :imm ~ m 200 i '\ ¢ y l f ; Q \ i i inmdcnt u Budhtmaya . and accused Wars m . than“ . hguse, In the crQSS examinatian she has stat€c acicu.$ed}‘ app ellant a11d his wife were in the houzse. 1Q. WWWW) m$riéiriz5 wmm matmm‘ WW WWe éawm that in. the fateful night the P.W.—5 Pati Ram, owner of the house, in para~5 of his cross— ex?3nmat10n ? . . has Stated that (hstanw . batween. thtt room 0f Bhun . Balia‘x‘iur a11d room of Bir’tmdra Wém abaut thrw f€et. Tharefmm, it wés paaeibie far Birendra Bahadur m hear talks of Bhim Bahadur has not been cross- exammed to mld his Wife. This; witness ascert‘ajn the faet that talk of P apnliblvs from thci‘r roam. 1.7. From the. evidence of R‘ Dilmaya Wife of Birendra Bak acclmed} appollant, it is estal was at hi$ residence; in the Birondra Balladur returned fro m the Battalion at about 10.00 p.111. Learneti counsel for the accused/ appeHzmt arguect that it was not poseible for Birendra Bahadur Wife during the night, but we argument for the reason that in the first instance, Peti Rann 1sndloré has stated that it was possible for Birendra Bahadur to hear talks of Bhtm Bahadur and his wife Budhjfnaya niom their room“ Moreover, Birendra Bahadur has categorically stated that he had heard their taJks at night Jhjm Bahadur énd hi5 wife was not KL-Q Birendra Baha‘dur and P.W.—1 adur who were just neighbours; of alished that the accused} appeHant aight and hoth were talking when to hear talks of the accueeo and his do not tEnd any subetance in thjS v. He is an independent witness; and nothing has been elicited in ”me ewes—examination, which shows P.T.O. § XI-HC—78 o \ Wm<W> mmm WWW WWW WW%WW émWm that this witxmsg has any acfcusedf appénant. 18. In View of ihe evidence 0f PERL—‘2. Birendra Bahadur, the cxiplarlatiml $f§if€d by accuSeRj appeiliant in 111$ Statenmnt unda Se‘ftion 313 0f the Cr.P.C. that when he returned at. about 12,00 mi‘Kimghi he saw the daad badiy 0f his wife, therafore, he became pahiemr and frightened and 1e that in the mat instance Bimm that he h6axd the Vaice of th€ Wife: at a‘gaout 11110 pm. in th the aamuised returned at abow body of hi$ wife then. in x immediately apprised the neighbaur abeut the inciéent and thereafter would have i1‘1fmai‘16c1 to pence after consulting the neighbaur . ea’nsequeucee af his abscnnda the neighbour, therefore, accueed} appehaht that he 1ef can‘eet. F11 the eircumstance Bahadm‘ is not a natural witmJse. 1C). AS far as questinn that regai‘ding his abscondauce in evkience of PERL-1 Dilmaya, Laksheshwari Frasad and P.‘ wag missing fmm hie house. f hxnL 7 ‘ P’TO. HW,W§,W grudgf: or animwity against mt: ft the ho‘zma, is falsé fér the reawn ira Bahadur has categnricaJly stated taJkS Of accxmed/ appellant ami hie : night alwd m the 3ecand place, had ' 12.00 midIJight emd..seen the dead \Lat'ural ceume he ought m have \ He being an emaloyee 'of the SAF. waa lmowmg the ace anti not hlibrniing the pelice er the explaiiation giveti by : the houae being frighteneé is net s, i1; cammt he 3aid that Bh‘endi‘a the accused gave false explana'titm in )m the huuse i5 concerned; as per RWnQ Birendra Bahaduix P.W.~3 R4 Top Singh, accused] appellant xecusal himeelf has admittecl in his ‘MW\ \ x XI—HC-78 . 11 MW,W,W a 200 Wm(@w) 1 S mmwm stakment under $6ction 313 t in ”aha uighi he became frighm a th€ Qmum émd did 1101: mport 1 0f the incident ha wa$ arreSt 13661? affared by tha accused a s to Why hrs mmajlmd ab$c011ded far such a 10mg perJiOd and did no I WWW WWW WWffwW w amavvr 311w Learned caunsel for acahusedgappdlant placing rdiauca (m \ 20. tha judgment 0f the Apax Ccurt in the mat‘mr 0f'Matru alias Giri$h Chandra V5. The Mate of t'.P. reported i1: AIR 1§71 $6 105G argued that merely 011 the ground of abeccmdance..the accuser} cammt be held guilty. 1n paragraph 15 0f the said jutigment, Apex Court has hald that:— ’1‘ th€ Cr.P.C. that Whsn he returned mmd and pal'litélgi, tharrsfore he l6ft he matter. Aftex mare t1} an 22 days; ed in the ca$€, 1m cxplanation has t repnrt th€ matter when he Saw hit: wife M35 lying deati in the r0011 . wl‘he appellant’s ( $150 rehbd uprm, itself (ioes not I canclusian of guilty mind. Even an innocent man may feel nan‘icky and try t0 evade arrest spected 0f a grave crime; act 0f absconding whm wrongly su ‘ such is the instinct of self—preaervation. Th6 is no doubt rel'evant piece of evideuce to be considered along with other ewidence but it's value weuld always depend on the circumetanms of each case”. - a 271. Therefore the fact of abeicondanoe has to be congdered aJong with other avidmrce 1'11 order id unduct 1‘11 absconding was Now meat absconding by .eccssarily lead to a mm connect accused} appeilant with the crime in question. in the instant ea'se: rm per the prosecution, midence, presence of the aceuiged,’ appellant on the fateful night in P.T.O. XI—HC-78 § oo...‘....¢o‘ .¢....z. HE 200 WW(W) a&$$ %$E WWW $mwwmmm%§%éR%ER % %na $ ‘G Suguna his house is establiShed, accu mom than 22. days, Only 3 expiallation ($‘ered by the am night at abeut 12.00 mid 111g boidy? being frigltened, ran aw \ cm‘vxi, therefora, th€ circu I acimsgdf appsuant from his k comlcctm'g tbs accuSedl amadla 221. case is complstq. . 1 €Rm&a%aa§w sed thereafter abscondad Ear abmlt ftm‘ thai’ 116 was aljl‘estcd. Th6 'Lwedf appsllant that on. th€ fateful ht 11$ rcturned and saw the déaé. iy has not been found. plau$iblc alld mstance absacondance of the .ouee is em additional groum}. for nt With the crime 1'11 questimm 1501‘ ’[hC for‘egoing reason: K aH ths ‘togisther, than cenclusi‘sie it'rasg that ths accusgdf appeuan’c quszgtian. Them i3 110 pOSSibJ bemmen far conmlitting crim€ il‘ fmd any eu‘ostance in this appeal 28. In ths r€sult, W€ do 1101 and the $13316 i5 Hable to be, dis; sul- \~-n L.C.BHADOO \ ‘ V Judge rjf ., chain of the czjJrEumstances in thiS circumstantial exddence'is taken stible inference can safely be drawn was: the author 0f the crime ii} Iity of any third person coming in 1 question. lissed. 1t is accordingly dismissed. sm— ‘ DHmENDRA MIsHRA; Judge ‘ t ' P.T.O. asw s EW,W,W