CFOOObb58336 -Division Bench (Crin, lll . . . ... IN THE HISH COURT OF M&DHYA PRADESH AT JMALFUR. t^L(<?- .-. Cr.Appeal No.__________OF 1995. ,•> A \<v r -'lLll- .„•,.• I—""*** "•""""'^" pl.t"^ \.~:^^'"»t^»' ,,...-u«^'"—""' ;^:^; .!' ••^•'- ':"' R.teD.a. .l.!.!^- -Subhash Jaiswal-,.S/o Ram Chand' O'ai swal, .figed 37 year^/" R/o Amarkantak Ro&, <^' Gaurrela, Distt. Bilaspar. w.~ 'Qie St'ate of filadhya Pradesh.'" APPELIANT RESPOI©ENT 0?1)1EADVOC<^ Been Ii'o.t CRIHIN&L APEE&L UHDER SECTION 374(2) OF THE CODE OF'.'CRIMId&L PaOCEBURE. 'n*- XI-HC-22 an^nqCT feiwsiiin •stiwgfta ~s:s( -snsvvpf, wSf^s, ^v\wy sn^iTOnwaf?^ ^rqfepfrt ^niRff'? fstzt A-^K •^ SlfigH 311^1 DLvisjen Bench: - Hoh'ble Mr. LC. Bhadooand Hon'ble Mr. Dhirendra Mishra. JJ. 14.2-2006 Mr. Neeraj Mehta, counsel fo( Mr.J.D.Baipayee& Mr. U.Nj Mr. Akhil Mishra, Panel Lawyer for tl| Oral judgmerit dictated on Da| Per L.C. Bhadoo. J:- Appellant Subhash Jaiswal h^ (2) of.the Code of Criminal Procedi) the judgment.ofconviction and ori passed by the 3' AddiUonat Ses^ No.200/1995, whereby leamed Ad( aceused/appellant guilty for commis| convicted him under S6ction 302 imprisonment for fife and pay a fine to furtber undergo R.t.for one year. the appetlant. •; Deo.Additional Public Prosecutors with e State/resp&ndent. is preferred this appeal under Section 374 re questioninglegality and correctness of ler of sentence dated 31st August, 1^5 >ions Judge, Bitaspur, in Sessions Trial itional Sessions Judge after holding the feion of the murder of his wife Usha Lata [?f the I.P.C. and sentenced to undergo 3fRs.3,000/-,indefauitofpaymentoffine Case ofthe prosecution.in b lodged the report (Ex.P-1) in Polio 8.15 p.m. to the effect that on 8-1-1 in the hotel of Ramjivan Jaiswal, at the house of Subhash Jaiswal, Dr. bring auto rickshaw as the wife of Si .biaughtAie auto, thereafter, he al< |ief, is that Syresh Kumar Sharma (R/V-1) Station: eaurelaon 8-1-1^3 at-about !p93 at about 6 p.m. he vras taking brunch that time he heard noise from the side of Bengali of Chandsi Clinic asked him to ^bhash 1s serious.on which he immediately i|ng with Chhabilal Sahu went inside the •*»,- •; ['Tfl^ ^io^ s^: :1.f" Xl-HC-22 ^"^••^raRFt, ;, facii'yy €D XR^? /_ ^ ..:..j£^l^t3/^:. g^fq;:-------'--f"-7^ 2W-- sn^siqii f?:tia; 311^1 ?h4i^^t?^T •Sffl^I^'IIWlifttf shl^[<n41'l 'i:TPETcff/^ 1^T3T :<f^ gT< ^;3lPgq3iI^[ house of Subhash and saw that th|e wife of Subhash was lying onthe ftoor in the pool of blood, her brain mat^rial was coming out onaccount of head injuries and blood was oozing out of the injuries. At that time, the mother of accusedSubhash raised cries th^it Subhash has assaulted her daughter-in- law with grinding stone,savetier|. Daughter and son of accusedSubhash stated.Uiattheir father has murd^red their mymmy, save mummy. Saroj, sister of accused Subhash, said (hat after closing the door from inside, his brotherhas murdered his wife. Dr.| Gupta came and declared Usha dead. On receiving this report, offence under Section 302 of the the Station House OfRcer registered the .P.C. and left forthe scene of occurrence. After giving noticeto the Pancha^, he prepared the Panchnama (Ex.P-2) of the dead bodyof Usha. Under E)^.P-3,he took into possession blood steined pieces and plain pieces of the floor. Site Plan (Ex.P-6) pf the place of pccurrence was got prepared fron^ in a packet by the doctor of the Ex.P-7. Letter (Ex.P-8) written by[ law Daya Shanker along with the written by deceased Usha to her b| the Patwari. Clothes of the deceased sent |iospital were taken into posse^ion under theaccusedon 27-6-1989 tohisfather-in- ^nvelope (Ex.P-9) and one letter (Ex.P-10) rother Narendra were taken into possession under Ex.P-11. Th.e body of Ush^ was sent for post-mortem examination to the Civil Hospital, Pendfa under gx.P-12. Afterconducting post-mortem, Dr. R.C. Mishra prepared the post-ftiortem report (Ex.P-14). While in potice custody, the accused gave infon|nation (Ex.P-19) under Section 27 of the Indian Evidence Act regarding' |e place where he concealed the grinding ^ grinding stone was taken into possession |e accused. The grinding stone was sent to -Stone and in pursuance ofthat, th| under Ex.P-21 atthe instance ofttl the doctor/of Civil Hospttal, Pendila, under Ex.P-15 for exarmnation on which -«ia- [^^ ^fo^ :\. XI-HC-22 Tg'^iraRTT, d'di'y'is, '^ifi'My sn^!^ R-ii?' sn^T '^'RN'^Tfi^ WWITSiinqi _...&>:.:4..L^C[/K accused. Merfl intimation Ex.P-24 qOTfepTFT iWRff ^1%tA ^aipgqsi^r the doctor gave hisopinion und^r Ex.P-16 and opined that the injuries mentioned in the post-mortem repo|t canbe caused by this stone. Clothes of the accused wers taken into posse|ssion uhder Ex.P-18 on production by the h?as given by Suresh Sharma (R/V-1). Site inspection Panchnama (Ex.P-25) o{ the place of occurrence was prepared by the Investigating Officer. Sjte pl^n (Ex.P-26) was also. prepared by the Investigating OfRcer. The stone ^as taken into possession under Ex.P-27. Seized articleswere sent for chenkicat examination to the Forensic Science Laboratory.Raipur, from'where rep()rts Exs.P-33, P-34 &P-35werereceived. One letter (Ex.P-37) written by possession. appellant inthe Court ofJudicial M^ turn committed the case to the Se^ Lakshmi on 16-1-1992 was taken into -After compretion of .investi^ation, charge sheet for commtesion of offence UnderSection 302 of th^ I.P.C. was filed against the aceused/ igistrate.First Class, Pendra Road.wh&in sions Judge, Bitaspur, from where learned 3 Additiohal Sessions Judge, Bilas^ur, received the case on transfer for trial. The prosecutjon in prder t|3 establish ebarge against the accused examined as many as 14 witness^s. On the other hand, statement of the accused was reeorded underSectt>n 313 ofthe Cr.P.C. inwhich he denied the material evidence appearing gainst him and stated that he has been falsely implicated in the crime. Th^ accused has fiirtherstated that he never quarreled with hiswife, they used 1|o remain peacefully and his brother-in-law borrowed money from him, when h4 demarided thetTioney back aritfthe same was refused, in order to pressuri^e him, false case has been cooked up againsthim. -*0. [Tft^ ^Ka^ --!— XI-HC-22 an^T^ Rli* 311^1 WtiWHi^I '35? '^ffifRra, ®ii1<H*w,r««i!-yy :.&.J&^3^- 'fN^ar' Learned Additional Session^ Additional Public Prosecutor and senteneedthe accused as mentionejd ^ Judge after hearing the arguments of lcounsel for the accused convicted and in para 1 of this judgment. We have heard. Mr. Neeraj M Mr. J.D. Bajpayee & Mr.'U.N.S. D with Mr. Akhil Mishra, learned Panel The homicidal death ofUsha ^hta, learned counsel for the appellant and ^o, tearned Additional Public Prosecutors Lawyer on behalf of the State/respondent. In this case, alnnost all the wi| and the deceased and other witn) prosecution rests on the circumstatifial based on the circumstantial evideni can record conviction, it must. satis|fy inference ofguilt could be drawn eVidence ied by the prosecution aj are not only of a conclusive nature] unerringly point to the guilt of accu^f which is not consistent with the hypf Now, we shall proceed to and see whether the prosecution the criroe in question based on the| has tried to establish the case on 1. At the time of comtT|i ^. . • '.'•'" .'. house along with his ^ffe +l<iicl'iil;] 'qT'TCS •? 'fe^ <fa^i< ^7 3lfS?FT 3Tl^i Latais not indispute. tnesses i.e. son & daughter of the accused tesses have turned hostite. Caseof the evidence. Inorder to rest conviction |;e, as per the settled law, before the Coyrt itselfthatcireumstancesfrom which an have been established by unimpeachabte jld that all the circumstances 'put together but also^omplete the chaih so fully as to [ed andare not capable of any explanation rthesis of the guitt 6f the accused. 4xaminethe evidence available on record been able to connect the accused with circumstantial evidence: The prosecution llowing cireumstances: - ission of crime.the accused was in the Has thefol 1»^—:I^-^-=' [•qQ^g^ Kftta^^i^^ihi.,^.;^^ ..^. ~T-' XI-HC-22 's^s •^nmi, WQ\W , 'facii'My _.^.f\J±^^s- Sii^I'qiI l'?ii?? 3iii?f WRW^fe •aT^n'FRiiwgfei <^ ^raferiN iw:Rff-q fs^r ^sifisiian^r 2. Blood stained cloth< possession. • 3. The weapon'of offe<ice instance of the accus^d under Section 27 of th^ 4. Previous conduct of th) 4s of the accused were taken into was taken into possession at the teading to the information given by him Indian Evidence Act. fe aceused. As far as the circumstance (R/V-1) has stated in his evidencett at the hotel of^Ramjiyavan Jaisws accused, he heard noise frorn thesi went towards that side, Dr. Bendali Subhash has assaulted his wife Chhabilal Sahu brought the' auto accused, where accused Subhash the hospital and save her. Thereaffer wherte wife 6f the-accused was lyin^ Lakshmi Jaiswal (PW-3), daughter| evidence has stated that on 8-1-1i mother and brother Yashwant werel time hisfather came, KWmotherwt enquired from her mother 'Where a[ she will go leaving him. On this, going to Manendragarh to your par^r turned hostile, but frQm this e^idenl: question wa^ committed the accusf were notcFbss-examined to the efft ?-iS§h (1) is concemed, Suresh Kumar Sharma (at on the fateful day he was teking brunch which is adjacentto the house of the (le of the appellant's houss, therefore, they jali of Chandst Clinic said that accused mng the auto riekshaw.pn which he & Irickshaw and went to the house of the IJaiswal met and said that take his wife to |er, they entered the house of the accused in injured condition in pool of blood. Kum. |of deceased &accused,in para 3 of her |993 at about 6 p.m.she along with her in the house, it is correct to say that at that asfolding the clothes, therefore, her father 1-e you going?", on which she replied where ?er father said, "No,. it seems thatyou are ^ntal house". Even though this wjtness has ;e, It is established that when thecrime in id was at his residence. These witnesses sctthat the accused was ndt present in his .[1tft^if^ . .. ^" :^. ;a-HC-22 ^^;';qraRpi, «Tfl1*<<is, i»«v)i+ili,< *ii*)CTi a-.iich r q^ra? / ..'Ss^Adfc'fcSj^ ^...........,.....................,...^ 3Il^?[^iT fewai^t STCIWHfig houseat the time of commissioi Section 313 of the Cr.P-C., he implicated in the crime by his brc reply to question No,19, he has s has been mentioned above, on cross-examined. Therefore, then Sharma (PW-1) andKum. Lakshm of crime; Even in his statement under h^s simpty stated that he has been falsely ther-in-law on the ground of animosity. In itetedthat he was not at his residence. As |his aspect, the witnesses have not been is no reason to disbelieve Surtesh Kumar i Jaiswal (PW-3). The injury report and theev dsceased Usha Late received foltofi 1. One lacerated wour parietal region, margfns oozing out ofit and ' 2. One lacerated wourld temporal region, blo| bone was fractured; 3, One lacerated wounl region, b1ood was o< pieces. 4. Onecontusion in th^ in colour.' On opening the head.it w4 fractyred and bleeding in ttie brait ^fhe doctor, the jnjuries were btunt object. The death of deceat has further stated he examined '^BPfe'ft^ l!Tiraf •?ft^ T&re^ ^Slfwq 311^1 - |dence of Dr. R.C, Mishra (PW-85.show that Wlng injunes: - d in the sizeof 10 x 4 x3 ems. on left of the wound were irregular, biood was ft parietal bone was fractured. in the size of 10 x 3 x 2 cms. on /ight )d wasoozing out of it and right temporal in the size of 6 x 4 x 2cms, on occipital 'zing out of it and oceipital bone turned into size of 2.5 x 1.5 x 1 cms. on left elbow red antd-mortem found that parietal & occipital bones were membrane was present. In the opinion of in nature .and were caused with a ied Usha Lata was homicidal in nature. He tie grindingstone, whichwas sent by the [^^firt 's'^-'"'^. XI-HC-22 "3^( •^Kiiri'4, wft?pre, T«i<ii'My sirarqii feiti?;3tlS?I wiN^riN •fc . •.:.Q2^1<k^.fy5- l<IWIi%tjl% sn^i'ronm ^rf??i. •7-h qhl^^if ^iW^ ^ f^St ^^.K ^? aip^n antn S.H.O. forexamination.and itwas found on the head of the-deceased Ex.P-16. j^os^ble to cause the injuries, which were \|by the said grinding stone. His report is df Therefore, when presenc® received so many homicidal injurie|s coming from the.aceused as to how was present in the house of the a|c drawn on the basis of presence of th< are to be discussed later on that thel question. the accused is established, his wife |s on head and there is no explanation >he receivedthe injuries, n6 other person lccused, a reasonable inference can be accusedand othercireumstances which laccused wastheauthor ofthe injuries in As far as the cireumstance (( Investigating Officer, has stated io were taken into possession under E.) 1993 on being produeecTby accusecj and one tefficot full pant stained wittji Ex.P-18. Amarchand Jaiswal (PWt police took into possession clothes] signature isin between 'A'to 'A' plac| as to how his clothes were stained stained clothes ofthe accused undei) Ex As per the F.S.L. report Ex.P-1; accused. It istrue that in this casel this is notthe only circumstance b^sed eonnectect-'with'thecrime in quesUot 2) is concerned, Sitaram Singh (PW-14), his evidence that blood stained clothes :.P-18. He has further stated that on 8-1- Subhash Jaiswal, one terricot open shirt blood were taken into possession uncter 10) has stated in his evidence that the of the accused under Ex.P-18 and His 3. There is no explanationof the accused yith .blood. Therefore, recovery of blood (.P-18 is established. •««- 4, blood was found on shirt & pant of the the Serologist's report is riot there. But on which the accused is said to be This circumstance is being taken into [Tft^^fia^ [-HC-22- WWVI ^fWSI^I 9CTWHI??! <.~> •g^^nqi^, -g^PTS, -fiRTOy ,_...&: ^...ti£^5: 'iWRWWir^ aid as an additional circumstancei has been held by ttie Apex Cpurt I Ram and others reported in (199'} "Failure of thel the blood due to di meanwhile does not axe would not have itoconnectthe accused with the crime. As i|n the matter ofStateof Rajasthan vs. Teja >)3SCC507 seroiogist to detect the origin of i^infegration of the serum in fhe imean that the blood stuck on the Iteen human bloQd at all. slaid Ittannotbe was failure of circumstance arisin^ would stand relegat4d As far as the cTrcumstanc^ Investigating Officer-, has stated ir| gave memorandum Ex.P-19 und^r regarding the grinding stone and weapon of offence, in a well whic^ the same recovered. Thereafter, grinding stone and the production of the stone, same Seizure witness Ramadhar (PW-1 supported the Panchnama, but his house from where he took the| standing and Ex.P-21, the went inside the well and broug^t supported the case of the disbelieve the eviclence of Sitararti R.C. snarma''(PW-^) has stated *e Panchahama v|fas 1|2), hals Panclhanama pros^cutiQn him on the request of the S.H.Oj qiraRCTt^ iin?if •? fs%? ^f ^SiPOT 311^1 that in altcases where there the origin of the blood.the from recovery of the weapon todisutility." <3) is concemed, Sitaram Singh (PW-14), his evidence that on 9-1-1993 the accused ^r Section 27 of the Indian Evidence Act ^tated that he threw the grinding stone, the is existing behind his house and he can get accused went inside the wett, brought the (Ex.P-21) was prepared, on being taken into possession under Ex.P-27. ), even though hastumed hostile, has not statecf that the accused took fhe Police to |Police to the well, other persons were also beare his signature. One person thestone. But.this witness has not However, there is no reason to Singh (PW-14), Investigating OfRcer. Dr. the stone in question was examined by and the injuries which were found on the that ^^ T i- XI-HC-22 'S^ -^WW^, (STfl'M'is, rqwi'ay sn^r'qn . fewan^T ^i^i^ '^f^T sn^fTOsiwal^l -^ head of deceased Usha Lata question. Therefore, the weapo|i was taken into possessionatthe j;ould possibly be caused by the stone in of offence by which injuries were'caused Instance of the accused. accilised Pte As far as the circumstant (Ex.P-8) was written by the was wr'rtten by the deceased | Ravindra Kumar Jaiswal (PW^ examinedand he has stated in hi| by,his sister and the letter Ex.f these letters shows that relation not eordial. In Ex.P-8 the accus^d any relation of Usha insist for tak( the extent of committing her muilder tQ their place, Ex.P-10, the accusedused to harass her. shows that relation between thje cordial. Ev4n refetions dec^ased In view of the above were not maintainina cordial present in the house and receiving serious injuries on hea<? clothes of the accused were foun|d offence i.e. stone was taken intd the cumulative effect ofwhich is the only (ferson who was ths auti|ior ^a^. ^)i^4ii"i ^i^^iT^ Is^ xt^^R ^; arfigii sn^r i(;e.(4) is concemed, in this case, one letter on 27-6-1989 and one letter (Ex.P-10) |to his brother Nagendra Kumar Jaiswal. f13), brother of the deceased has been ii]sevidencethatthetetterEx.P-10waswritten was written by the accused. Reading of Itetween the accused and the deceased were even went to the extent that ifthe father or |ng Usha to their place, then he can go up to r, they should never ask for sending Usha written by Usha, also showre that the though these lettersare4-5 years old, but ie accused and Uie deceased were never l4tter circilmstances that the accused & ttie deceased >, on the fateful day the accused was Usha was found in a pool of blood 1 and nobody else was present in the house, stained with blood, similarty, the weapon of poss'ession at the instance of the accused, he irresistible inference fcatthe accused was of the crime in question ancl there was no '*»- ['^^f^ XI-HC-22 ^51 •^I^ICl'1!, SSTll'M41<o, MCTI'M^ 3!lt?I^I h-i •fflt^T an^ii<^> ^iT^ .(Q:.AJ±^!.Q^ 311^1 ?'RIIWHto (ol <^i^^^ ^t*i?iT'^f^<<l <P:fl'^R ^siPtpTsn^i pers^in chance of coming any third Therefore, we are of the consictere<li produced bythe prosecution points the crime in question. in committing the crime in question. opinion that the circumstential evidence owards the involvement of the accused in apf^el Leamed counsel for the Kum. Lakshmi (PW-3) it has come deeeased was folding her clothes, enquired from her as to where she she will go leaving him, that enr4 deceased was in a sarcastic mannetl. and in a heat of passron he picked on the head of the deceased. Exception 4to Section SOOotthe I.Pl llant argued that from the evidence of 4n record thait at the fateful time when the nlaking preparation, the accused came and is going on which she replied that where jged the accused because reply of the i|, the accused could not control his temper ijip the stone andassaulted with the same 'herefore, the matter is covered under lc. • • natulre As per the settled law, wher^ intention of the-accused, then samel and background in which the offencf on the body of the deceased, appellant and part of the bodywherej advanced by learned counsel for th^ because on such reply in the-first iij ^-reply. Wheh the deceased ~said tha( be taken as a ^circumstance which extent.toAssault her with a stone rt On the other hand, learned Aflditional Public Prosecutors supported the trial Court judgment; •**,- r^ it is difRculf to bring direct evidence of |can be gathered from the cireumstances ;^ was committed, nature of injuries-found of the weapon used by the accused/ the injuries were inflicted. The argument i^ appellant does not sound to the reason iitstancehow it can be taken as sarcastic where she will go leaving him, it cannot ^nraged or infuriated the accused to the 'peatedly for3-4 times pn her h6ad vital . [Tft^ ^fe4 . I^:—1:1:^"-~ XI-HC-22 ^^ -^WMi-l, ^f^FR, R^ltiy rd.-iicji gn^j S?i+i - ^H^I Soma ^.&.:.A,. f^s- ww< »w Sfl^T^^TOT'HfN. II part of the body. He repeatedly mercilessly that even the skull occipital bone were fractiired and the intention of the accused intention to cause her death. Thetjefore arguftent of learned counsel for th^ Elssaulted on the head of the deceased so torn into pieces, rtght parietal bone & llrain materiat was coming out. This makes that he assaulted the deceased with we do not'fmd any substance in the appellant. was cle^r In the resutt, the appeal ha^ tiable to be dismissed ahd it is here()y Consequently, M.(Cri.)P.No.^89/2000 sfands disposed of. Sd/- L.C.BHADOO Judge '^)raf"i<fl^ '^T^n* '4 t^st i?S!pgTSIT^! no force, same being devoid of merit, is 'dismissed. Sd/- DHBIENDRA MISHRA Judge '^&> [Tit^tfe^ Bil in :iil