i CF0000062563 é) ‘ @ivisEoa $€nch ‘ Wnmw i ‘3 “i IN THE HIGH COURT OF JUDICATURE AT JABALPUR “mp” CRIMINAL APPEAL No. ___3 $3 ‘/1999 CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF RIMINAL PROCEDURE, 1973; APPELLANT r: PREP/IRAN @ PeiQEM, (In Jail) S/p Shri Jairam‘ Khadiya, ' Aged about 3O years, Occupation- Labourer, R/o village- Palepakhana Dumariya, Police Station Pharasabahar, Diatrict— Jashpur‘nagar (M.P.) VERSUS RESPONDENT : The state of Madhya Pradesh Through Police station Pharasbahar Tahsil— Kunkuri, District-Jashpurnagar C HIGH COURT OF CHHAT‘I‘ISGARH BILABPUR Criminal Appeal 110.383 of 1999 Pmm Ram @ Pmm 'Vs. State of Chhattisgarh a a JUDGMENT FOR CONSIDERATION Sdl- Sunil Kumar Sinh Judge 15.01.2007 Hon’ble 8hr! Justice L.C. Bhadoo H¢- J § Sd/— (Acting Chief Justice [é fL .o 1 .2007 Post for Judg/Ige/n‘tji) 1.2007 Sd/- JUDGE Tr 7 /g: .01.2oo7 a l HIGH COURT OF CHHAT’I‘ISGARH, BILAQPUR Criminal Appeal “0.383 of 1999 Pmm Ram @ Pmm Vs. State of Chhattisgarh Appeamnce: Shri Gaufam Kheira Pal, counsel for the appellant. Shri Ashish Shukla, Additional Public Prosecutor, for the State. A DIVISION BENCH hon’nm emu L.c. nHADoo, Ag.(:.J. Hownm sum 3mm. Rum 3mm, J JUDGMENT ( 17/012007) Following judgment of the Court was delivered by Sunil Kumar sinha, J, x (1] This appeal is directed against the judgment of convicu‘on and order of sentence dated O3. 12.1998 passed by the Addiu'onal Sessions Judge, Jashpur, in Sessions Trial No.125/ 1998 whereby the said Court held the appellant guilty of the onence punishable ~ u/s 302 IPC and sentenced him to undergo impiisonment for life and to pay a nne of Rs.5000/-, in default of payment of line, to further undergo simple imprisonmenffor 5 yeaxs. (2) The 'blief facts ale that the deceased namely Manpati Bai Q: was the second Wife of the appellant. She was daughter of Hem Ram Yadav (P.W.1). They were residents of the same village namely Palepakhna Dumariya. The accused has brought the \\<\ second Wife in the life time of his litst wife, who was also residing \ \\\ f 7 .__..,,7 or Who“ ,MW, ‘ x with him alongwith her two childmn: Initially the relations } between the accused and the deceased were cotdial, however, after some time, the accused slau led bean'ng her and pressm‘izing her to leave his house and to go to her parents place. On 14.4.1998, the i \ deceased had gone to the Sarpanch of the village namely Sitarnm Paikm (P.W.6) and a complaint was reduced into writing by the ‘ Sarpanch on the instructions of the deceased that on 12.4. 1998 at . u about 10 — 11 a.m., when the accused returned to the house, after i picking Mahua huits, he prepared and oh‘ered tea to the deceased, hilt the deceased saw that some black powder like substance was floating in the tea and she suspected that poison was mixed in it. On asking to the accused, the accused said that it is milk powder and he snatched the tea hem her hand and threw it. The deceased saw that in the bottom of the glass of tea some residual part of alleged poisonous substance was there which she had shown to one Sukhal Sai. Thereafter, in the intervening night of 14m - 15th of April, 1998 at about 2 a.m., the elder brother of the accused namely Dharam Khadia went to thehouse of father of the deceased and informed him that in the morning at about 2 a.m., his daughter (the deceased) has died on account of Haiza, vomitting & loose motions. Since the father of the deceased Hero Ram had seen the deceased hale and hearty just one day prior tor the said information and there was some quarrel between the deceased and the accused on the said day, he doubted the informah’on and he went to Sarpanch, Kotwar and other persons in the village including Bhadarsai Kanwar (P.W.4) and Bhjm Yadav (P.W.2) and told them the story and all of them went to the house of the accused to see the dead body. When they reached to the house of \ \ \\ \ ; the accused they saw that the accused and other family members have kept the dead body inside a mom and‘they have locked the t mom h‘om out side and they were not allowing any person to see ‘ the dead body. Ultimately when much pressule was created by the Evillagers, then, at about 3 a.1n., in the intervening night of 15- 16th iAprjl 1998, they opened the door and allowed the villagers to see ithe body. On the next day i.e., 16.4.1998, the other persons also isgw the dead body and thereafter the father of the deceased i namely‘Hero Ram (P.W.1) lodged a merg intimah'on to the Police Station vide No.8] 1998 (EXP. 1) at about 8.30 am. After recording fthe merg inundation, the Investigating O$cer M.S. Thakur (P.W.9) Ileft for the scene of occurrence and reached there at about 1 1 a.m. on the same day. He prepaled inquest on the body of thedeceased under EX.P-7 and sent the body for post mortem examination to Primary Health Center, Famabahar, on the same day, on which Dr.(Smt.) Kiran Kerketta (l3.W.7) conducted the autopsy on 17.4. 1998 and prepamd her report vide Ex.P-5. In the postmortem report; it revealed that the cause of death was Asphyxia due to throttling which was homicidal in nature. On the basis of such report, the Investigating O$cer registered an oEence‘vide Crime no.24/ 1998 on 24.4.1998 under Ex.P.8. After completion of the enquiry, the charge sheet was hled in the Court of C.J.M., Jashpur on 17.7.1998, Who in tum committed the case to the Court of Sessions on '3 1.7. 1998 and ultimately the case was received by the Addl. Sessions Judge on 24.9. 1998, Who conducted the nial. (3) In order to establish the guilt of the accused appellant, the — \\ prosecution examined 9 witnesses and thereatter, the accused : appellant was examined u/s 313 Cr.P.C.;who dcm‘ed the material ‘ brought against him by the prosecution and ultimately pleaded 1 that he had not assaulted the deceased and he only knows that the ; deceased was suEen'ng h‘om omitting and loose motions. He has not killed her and he has been falsely implicated. This is the only 1 explanation odexed by the accused. v (4) The learned SessiOns Judge has based the conviction on the tbllowing circumstantial evidence: (i) The accused appellant has brought the deceased s as his second wife 3 yeals pn'or to the date of incident as they were in love and the deceased was residing as the wife of the appellant in his house; (ii) The accused used to beat the deceased on account of quanel between the two wives residing in his house; (iii) Just two days pn'or to the date of incident, -a\ quarrel took place between the accused and the deceased and the accused had tried to give poisonous tea to the deceased but the deceased had not taken that tea; ‘ (iv) Even after ttying that the deceased should leave house of the accused, she was residing in his house as his Wife; (v) The murder of the deceased took place inside the house of the accused by causing throttling and the dead body of the deceased was found inside the house of the accused and the accused and his other family members wexe canvassing in the village that the deceased had died on account of omitting and loose motions and Ham'a; (vi) The father of the deceased namely Hem Ram Yadav (P.W.1) and other villagels went to the house of the accused for seeing the body, but they did not allow them to see the body as they had locked the mom mm out side, in which the body was kept. The dead body‘was lying there for about 24 hours and after a temendous pressure made by the villagers, they could open the door at about 3 a.m. on 16.4.1998 and then only the body was seen by the father. (v11) The dead body was found in suspicious condition and they were 'not explained either by th ‘ deceased or by the inmates of the house. u (5) Lea1néd counsel for the appellant argued that the circumstances set forth by the prosecution and relied on by the trial court are not su$cient to hold the appellant guilty of the aforesaid oh'ence and the trial Court committed an error of law by convicting the appellant under sech'on 302 ’of I.P.C. and sentencing him to undergo imprisonment for life. (6} On the other hand, learned State Counsel opposing the said arguments, supported the judgment passed by the trial Court. ('7) We have heard learned counsel for the parties at length and have also perused the records of the sessions trial. (8) So far as the involvement of the accused in crime in quesu'on is concerned, there is no direct or ocular evidence and the whole case rests upon the circumstantial evidence. For resting conviction solely based upon the circumstantial evidence, the law laid down / by the Apex Court in the matter of Dhananjoy Chhattcrfce Vs. state of ms. reported in (1994) 2 sac 22 is that : “In a case based on circumstantial evidence, the circumstances horn which the conclusion of guilt is to be drawn have not only e to be fully established but also that all the cimumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any masonable ground for the belief consistent with “F, the innocence of the accused. It needs no - reminder that legally established cimumstances and not merely indignation of the court can form hie basis of conviction and the more serious the crime, the mater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof.” (9) In the piesent case, the prosecution has tried to establish the involvement of the accused in C ' e in question on the cimumstances, Ieferred to above, in Pam-4. So far as these circumstances are concerned, it has been stated by the father of the deceased namely Hero Ram Yadav (P.W.l) that the accused had taken her daughter to his house on account of love between them, 3 years prior to the said information of hear death. Dharam (brother of accused) had told to him that the deceased had died due to vomiting and loose motions. On this information, he had gone to the house to see the deceased. When he reached there he saw that the appellant, his father and brother Dharam had locked their house and they did not allow to see the dead body of the deceased. The Sarpanch wa also present there, to Whom he reported this fact on which the Sarpanch said what can he do ? \ \On this a Panchayat was conducted but in the Panchayat also the \ \ G! x family members of the appellant were not‘convinced and he was hot allowed to see the dead body. On all this he went to the Police Station and told the story to the Police and the Police said that inrstly he should see the dead body and then only he should lodge the report. He returned back to village and thereaher on the next tnomjng he again went to the house of the appellant alongwith Bhim and Sudan and then only he could see the dead body of the deceased. He deposed that he had seen injuries on her body. She i has injuries ‘on her neck and also on her both shoulders, cheeks, face and nose.‘Theleaiter, he again went to the police station, told the entiie stoxy to them and lodged the report. He supported the contents of the report lodged by him. He specihcally stated that he had not seen either the vomiting material or excreta near the body. The other Witness Bhim Yadav (P.W.2) has also stated that he had seen the deceased hale and hearty just one day prior to the date of incident. Siuc'e she was the sister (cousin) of this Witness he was told by the bmther-in-law (Dewar) of the deceased namely Dharam Ram that the deceased had died out of vomiting, loose motion and Haiza. On this information, when he reached to the house of the appellant, he saw that Sarpanch etc., were holding meeh'ng in his house and the appellant and his family members did not allow him to see the dead body. This meeting continued upto 4 p.m. in the evening but even after that, the villagers were not allowed ti) see the dead body. He stated that when the family members of the appellant did not allow them to see the dead body he suspected that they have killed her and if she has died out of loose motions and vomiting, there was no reason with the family members to not allow them to see the dead body. He has stated 3‘ ‘t that when he saw the dead body he had a1so seen the injuries on Bile body particularly’ on the neck and he had not seen the vomiting material or excrete near the body He has supported the P W 1 on matenal particulars. He has also said 1n the cross r examination that there was some quarrel between the deceased and the appellant and the deceased IePorted the matter to Smpanch In the cmss examination done by the defence m paras 4&5 this Witness has stated that the quarrel between the mst Wife of the appellant and the deceased most oftenly took place but aftersthat both.were residing in usual manner. Almost similar is the evidence recmded by P.W.3, Vimndra Kumar, who also stated that he was not allowed to see the body by the family members of the appellant and in the village Panchayat, the appellant was saying that the Panchayat should decide the matter for which he Will pay Rs 5000/ to them He also stated that pnor to the date of meldent he met the deceased and the deceased had sald 111111 that the appellant was pressing her to leave his house and when she resisted it, he had assaulted her on her right hand with a knife. The deceased had also told him that the appellant had given poison in her tea and on account of this, on Tuesday, she is calling a village Panchayat. (10) P.W.4 Bhadarsai Kanwar and P.W.5 Sagar Sai Kanwar were declared hostile by the prosecution as they had not supported the case of prosecution. Another witness is P.W.6 Sitaram. Paikra, who is the Sarpauch of village. He stated that in the month of March, the deceased came to Panchayat and made a complaint that the appellant is not Willing to keep her and he gave her \ \ \ poison by mixing the same in her tea H6 speciiically stated that ‘the deceased dled on the followmg mtervenmg mght of the day, on winch she made complmnt He further stated that the appellant :alongmth a person had come to hlm and he has given mformatlon 1’that l the deceased died due to vomiting and loose motion. 0n hearing this, he had gone to the house of appellant alongwith iBudhinram Chowkidar, Nageshwar Sal, Up—Sarpanch and other members of village. He has stated that after seeing the dead body, he had sent‘the villagers to lodge the report to the Police Station on the next day and atter arrival of the police to the village he went to see the dead body and he had noticed a black spot on the neck of the deceased. He hirther stated that the complaint which was given to him by the deceased, was handed over to the Police vide EXP-4. The said complaint of the deceased bears her thumb impiession at portion “A” to “A”. In the cross examination, this Witness has stated that the complaint EX.P.4 was reduced into writing by him on the instructions of deceased Manmati and she had put her thumb impression on it. He has denied the suggestion that the document does not bear the thumb impression of Manmati (deceased) and it was the thumb impxession of some other person. (11) Apart hom the above evidence of witnesses, Dr. (Suit) Kiran Kerketta (P.W.7) stated in her examination that she has conducted the autopsy on the body of the deceased on 17.4.1998 at about 10.00 a.m. and she found that the body was in the stage of putrihcation. Both eyes were closed and tongue was pressed in between the teeth. There was one abrasion on the lateral side of \ WK \ \ \ €77 ‘ 10 the right writ admeasun‘ng 1 V2 cm x 1/2 c111, which was of about cine week duration and was caused by hard and blunt object and Was antemortcm. Them was clear impmssion'on the right side of the neck about preSsing of the neck by thumb, in the form of a bjruise, admeasuring 3 cm x 1V2 cm, and was transversely placed. ’I‘ihere wexe also marks of two dngers (bruises) on the left side of the neck admeasuring 5 cm x‘l cm and were oblique downwards. Theme were impxessions/ marks of many fingem mganiing pwssing of neck. i She had also marked cluster of nnger marks (bruise) on the neck just beneath the lower jaw which were extended upto the corona thyIOid “(deeper portion of the neck). She has specincally stated that all these injuries were antemortem in nature. In the internal examination, she found that the soft tissues beneath above injuries were swollen due to pressure, left chamber of the heart was empty and right chamber was containing some blood, She has opined that the death was due to asphyxia as a result of throttling and was homicidal in nature. (12) Nothing adverse could be brought against the evidence of above witnesses produced by the prosecution. On account of evidence g'vcn by the father of the deceased and her cousin brother, it is established thatathe deceased was living as the second wife of the appellant 3 years prior to the date of incident and some quarrel, most oftenly Insed to take place between them which the deceased had reported to the Panchayat and prior to the said incident, the Panchayat had handed over the deceased to the appellant and she was residing with him alongwith the other ‘1‘” family members of the appellant. It is also established that just j WK ll one day prior to the date of incident, the appellant had oii‘emd tea ‘to the deceased which accoxding to the deceased was containing some poisonous substance, on which, she had denied to take the same and the appellant atonce snatched the tea and threw it, then ithe deceased could see that it was containing some block powder jsubstance, on account of this, the deceased had met the Sarpanch iand she has lodged a complaint to him which Sarpanch reduced into writing and the deceased made a thumb impression on it, but before the Fanchayat could do any thing, this incident took place in the following intervening night of the date of complaint made to the Sarpanch. It is further established that after the death, the father of the deceased and other family members had gone to the house of the appellant but they did not allow them to see the dead body and even after Panchayat they could not see the dead body and ultimately atter tremendous pressure, on the next day , they were allowed to see the body of deceased and then only, the xeport was lodged to the police, on which, the investigation commenced. Apart horn this, the most important circumstance is about the conduct of the appellant and his family members who started canvassing in the village that the deceased died due to vomiting, loose motion and ’Haiza, but the posnnortem report would show that she died on account of Asphyxia due to throttling and ultimately the homicidal death has been established on record by the evidence of the Doctor. Q (13) Admittedly, the murder took place in the house of appellant, which was not at all explained by the appellant and his family members. The conduct of the appellant would show that he was lj not able to misc a plausible, reasonablc cfefencc to show that the ‘death of the deceased was not homicidal or if the eame was homicidal then he was not responsible for the same. In his ‘examinau'on u/ s 313 Cr.P.C., he has only o£ered this explanation ;that “he has not assaulted the deceased and he only knows that \ ithe deceased was sun‘en‘ng mam vomiting and loose motions and v ihe does not know anything. VHe is not guilty and he has been falsely implicated in this case”. As per the pmvisions of section i 106 of Indian Evidence Act, “when any fact is especially within the knoinledge ofany pelson, the burden of proving that fact is upon him.” Since the deceased was wife of the appellant and her presence in his house in alive condition in the fateful night was not denied by the appellant, therefom, in view of the above provisions, it was duty of the accused to give true and conect information to the police about the cause of death of the deceased and the circumstance in which the incident took place. By not explaining all these, on the conhaty the appellant has od‘eied an explanan‘on that the deceased has died out of vomiting, loose motions and Haiza which was ultimately found to be false on the face of evidence on Iecord, referred to above. (14) In the facts and circumstances of this case, as per section 106 of the Evidence act, the bmden was on the accused to explain how and in What circumstance the murder of his wife was committed. Merely remaining silent does not dischaige the burden, which was on the accused. No doubt, in a criminal case, initially the pmsecun‘on was requixed to establish the ingmdients \ of the od'ence' and then burden shifts on the accused to discharge \ \ 13 his burden by cross examining the pmsecution Witnesses or by adducing his evidence to show that how the muMer of deceased was committed. The prosecution was able to discharge its burden, whereas, the accused was not able to discharge his burden, which was on him, as per the provisions of secn'on 106 of The Evidence Act. In this regani, the latest two judgments of Apex Court are important. In the matter ofM Mmukh Maroti Kirkan ms- State “at Maharashg 2006 AIR SCW 5300 interpleh'ng the ‘ provisions of section 106 of the Evidence Act, the Apex Court held ‘ £ as follows: u ifan on‘ence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the od'ence at the time and in circumstances of their choice, it will be extremely diEcult for the ‘ prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Court. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an oh‘ence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. the burden would be of comparatively lighter character. In view of