Madhya Pradesh High Court
Rampratap Kumhar vs The State Of Madhya Pradesh on 26 February, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
1 Cr.A. No. 44/2008
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 44/2008
Rampratap Kumhar,
S/o Ramjiyawan Kumhar,
Aged about 62 years
R/o Guari, Thana Jaithari,
District Anuppur (M.P.)
Versus
The State of Madhya Pradesh
For the appellant : Shri Jai Singh Thakur, Advocate
and Shri Siddharth Sharma
Advocate as amicus curiae.
For the respondent : Shri Sudeep Deb, Govt. Advocate
PRESENT : Hon'ble Shri Justice R.S. Jha
Hon'ble Smt. Justice Nandita Dubey
Arguments heard on : 19.02.2018
Judgment delivered on : 26.02.2018
________________________________________________________
Whether approved for reporting : Yes/No
Law laid down
Significant paragraph numbers :
JUDGMENT
As per Nandita Dubey, J.:
This appeal has been filed by the appellant, being aggrieved by the judgment dated 19.09.2007, passed by Third Additional Sessions Judge, Fast Track Court, Shahdol in S.T. No. 305/2006, whereby appellant 2 Cr.A. No. 44/2008 has been found guilty for the offence punishable under Sections 302 of the Indian Penal Code and has been sentenced to imprisonment for life and fine of Rs.500/-, with a stipulation for three months simple imprisonment in case of default.
2. The prosecution story, in brief, is that, on 25.07.2006 in the evening, accused had beaten up his wife deceased Phagunibai and inserted a wooden stick in her private part, on account of which she sustained internal injuries and died.
3. According to the prosecution, accused Rampratap lived alone with his wife Phagunibai, separated from his only son Shobhalal. On 25.07.2006, he beated his wife and caused injuries to her private parts by inserting a wooden stick in such a manner that she bleeded profusely. On coming to know this, their son Shobhalal (P.W.-2) went to inform his maternal uncle Sudarshan Prajapati (P.W.-18), living at village Meduka. As per prosecution, Phagunibai died at 6 A.M. on the next day, i.e., 26.07.2006. Thereafter at 7.00 A.M., Dhukku, elder brother of the accused informed Tularam (P.W.-1), regarding the death of Phagunibai, who then lodged a report to this effect 3 Cr.A. No. 44/2008 (Ex.P-2) at 11.30 in the morning at Police Station Jaithari, wherein he has stated that on 26.07.2006 at 7.00 A.M. in the morning, Dhukku informed him that accused has killed his wife. On enquiring from accused Rampratap in the presence of Ramlal and Nemshay, he confessed that he had seen deceased in compromising position with Bindershwari Pandit, as a result, a fight ensued between them and he pushed a wooden stick inside her private part, which resulted into her death.
4. On the basis of FIR (Ex.P-2), a case under Section 302 of the I.P.C. was registered at crime No. 181/2006. Statement of the witnesses were recorded. Body of the deceased was sent for postmortem. The accused was arrested and on his direction, blood stained saree and wooden stick were recovered from his house.
5. Dr. Preeti Sharma (P.W.-14), who conducted the autopsy found the following injuries on the body of the deceased :-
P/v bleeding present on separation of labia oedema and laceration in labia majora, minora and vaginal wall.
Ruptured and teared left lateral wall of cervix and lateral cervix. Massive amount of blood filled in pelvic and abdominal cavity.4 Cr.A. No. 44/2008
Apart from this, no other injury was found on the body of the deceased. In the opinion of the doctor, the cause of death was rupture of lateral wall of cervix-pelvic internal organs leading to massive internal bleeding leading to shock and resulting to cardio-respiratory failure.
6. After completion of the investigation, charge sheet was submitted against the accused. To substantiate the charge, on behalf of the prosecution, total 19 witnesses were examined. The accused abjured his guilt and pleaded false implication. His stand was that the deceased fell down over the stick (खट), used to tie the cattles and received injuries in her private parts, alternatively it was stated that she fell down over the wooden handle of 'chakki' used for grinding atta.
7. The trial Court after detailed scrutiny of the evidence of record, found the appellant guilty as charged and convicted and sentenced him as aforesaid.
8. Shri Jai Singh Thakur and Shri Siddharth Sharma, learned counsel appearing for the appellant 5 Cr.A. No. 44/2008 have assailed the judgment contending that it was a case of circumstantial evidence and there were no eye witnesses. It is urged that there is material omission and contradiction in the FIR, case diary statements and the court statement of the witnesses, which render their evidence untrustworthy. It is further submitted that P.W.-1 Tularam, P.W.-2 Shobhalal, P.W.-3 Ashok Kumar, P.W.-4 Nemshay, P.W.-6 Radhelal and P.W.-8 Dhaniram have not supported the prosecution story and were declared hostile and under such circumstances, the appellant could not have been convicted as aforesaid.
9. Shri Sudeep Deb, learned Govt. Advocate appearing for the State, on the other hand, has made submissions in support of the impugned judgment contending that the view taken by the trial Court was reasonable, having regard to the evidence on record.
10. We have heard the learned counsel for the parties at length and perused the record.
11. It is settled law that evidence of hostile witnesses can be relied upon to the extent to which it supports the prosecution version.
6 Cr.A. No. 44/2008
12. In (1980) 1 SCC 30 Syad Akbar Vs. State of Karnataka the Supreme Court has held:
"As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him 'hostile' and had cross- examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration (1):
"Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."7 Cr.A. No. 44/2008
13. The Supreme Court in State of U.P. Vs. Ramesh Mishra and another AIR 1996 SC 2766 has held that:
"It is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted. In K. Anbazhagan v. Superintendent of Police and Anr., (AIR 2004 SC 524), this Court held that if a court finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly what was done in the instant case by both the trial court and the High Court and they found the accused guilty."
14. Shobhalal (P.W.-2), son of the deceased, though had been declared hostile, as he had stated that he was in the field at the time of incident and has no knowledge about the dispute between his parents, but in his cross-examination has admitted that at the time of his mother's death, only his father was present in the house. He has further admitted that his parents 8 Cr.A. No. 44/2008 used to quarrel and fight a lot on account of the fact that his mother had illicit relations with Bindeshwar Pandit. He has further stated that at 6.30 A.M. in the evening, he found his mother lying down and on asking, she has told him that accused has beaten her. He has further stated that he asked his father to call the doctor, on which the accused has called Sitaram (P.W.-11), who suggested that Phagunibai be taken to the hospital. He has further stated that on her mother's asking, he went to call his maternal uncle Sudarshan Prajapati (P.W.-18), where he came to know that his mother had already died.
15. Testimony of P.W.-2 Shobhalal finds corroboration from the statement of P.W.-11 Sitaram, who had clearly stated that the accused came to call him to treat his elder brother Dhukku, where he found the deceased sitting in a pool of blood and advised Shobhalal to take her to the Hospital, on which P.W.-2 Shobhalal has replied that " eSa ugha ys TkkÅaxk ftlus tks fd;k gS oSlk Hkksxs". Sitaram has further stated that on the very next day he came to know about the death of Phagunibai.
16. Sudarshan Prajapati (P.W.-18), brother of 9 Cr.A. No. 44/2008 deceased has corroborated that Shobhalal (P.W.-2) came to his house and informed him about the incident and the condition of his mother, but by the time they reached on the next day, Phagunibai had already died. He has further confirmed the fact that the accused and deceased were living alone. According to him, deceased had earlier informed him that the accused used to fight with her, as he had suspicion about her having illicit relationship with others. This witness has further stated that 10-12 days prior to the incident, the accused had made a compromise with the deceased and had written a note (Ex.P-20) that he would not fight with his wife.
17. P.W.-1 Tularam, who has lodged the FIR has also been declared hostile. However, in his cross- examination, he has stated that the accused confessed before him, in presence of Ramlal that he has committed the crime as alleged. However, Ramlal (P.W.-10) denied going to the house of accused. However, Tularam has proved Ex.P-6, i.e., the seizure of blood stained dhoti and wooden stick, which were recovered at the instance of the accused.
18. In the instant case, the statements of the 10 Cr.A. No. 44/2008 hostile witnesses cannot be discredited altogether. The evidence of Shobhalal (P.W.-2), Suradshan Prajapati (P.W.-18) that accused and deceased were living alone and she was found injured in the house a day prior to the date of her death was corroborated and established by Sitaram (P.W.-11) and Dhaniram (P.W.-8). We find that the same is creditworthy and can be relied upon.
19. The law regarding basis of conviction by the Courts on circumstantial evidence is well settled. In Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1994 SC 1622, while dealing with circumstantial evidence, the Supreme Court has held that :-
"The onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are:
(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned must or should and not may be established;
11 Cr.A. No. 44/2008(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the-
innocence of the accused and must show that in all human probability the act must have been done by the accused."
In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 1 SCC 681 the Supreme Court held :-
"12. In the case in hand there is no eye- witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the 12 Cr.A. No. 44/2008 circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
20. In the instant case, though there is no direct evidence against the appellant, but the facts and circumstances of the case clearly established the involvement of the appellant in the crime. The series of facts that the accused and the deceased were living alone in the house and at the time of incident, that the accused was alone in the room with the deceased, that deceased admittedly suffered injuries in the house a day prior to her death, which is also established from the evidence of Shobhalal (P.W.-2), Sitaram (P.W.-11) and Dhaniram (P.W.-8) and the fact that despite advised by Sitaram (P.W.-11), she was not taken to the hospital, clearly points towards the guilt of the accused. If the deceased had injured herself by falling on the wooden stick (खट), the natural course of conduct of the husband would be to take her immediately to the hospital, but in the present case, as evident from record, the deceased was left untreated, 13 Cr.A. No. 44/2008 uncared for to suffer the injuries. Apart from this fact, if the deceased had fallen on the wooden stick ( खट) and injured herself, in that situation her dhoti/saree would have been torn but the same is not found so in the present case. It is pertinent to note that Anil Kumar Shukla (P.W.-19), who conducted the investigation has found blood only in the room, where body of deceased was found. The spot map (Ex.P-10), as well as the statement of I.O., does not mention anything about any 'khuta' being found in the house. The I.O. has stated that the wooden stick and dhoti were recovered at the direction of accused vide Ex.P-6 and the same was proved by Tularam (P.W.-1).
21. Moreover, from the postmortem report, which clear mentions that p/v bleeding was present on separation of labia oedema and laceration in labia majora, minora and vaginal wall. The left lateral wall of cervix and lateral cervix were ruptured and teared. Massive amount of blood filled in pelvic and abdominal cavity. Therefore, it is clear that such deep internal injuries received by the deceased could not have been the result of fall, as no other injury was found on the body of the deceased. Once the prosecution has been able to show that at the relevant time, the room was in 14 Cr.A. No. 44/2008 exclusive occupation of the couple, the burden of proof lay upon the appellant to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.
22. In (2007) 12 SCC 288 Swamy Shdaddananda alias Murali Manohar Mishra Vs. State of Karnataka, the Supreme Court has observed that if it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.
23. In Nika Ram Vs. The State of Himachal Pradesh AIR 1972 Sc 2077, the Supreme Court has held:
"It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, 15 Cr.A. No. 44/2008 and Bhagat Ram school teacher (PW 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.
24. From the aforesaid analysis of material on record and the preposition of law laid down by the Apex Court, it is apparent that the prosecution has firmly established the chain of evidence leading to the guilt of the appellant. The commission of the offence by the accused person has been clearly established and the trial Court has rightly considered the statements of the witnesses and the documents on 16 Cr.A. No. 44/2008 record, in recording a finding of guilt against the appellant. Therefore, we do not find any illegality or perversity in the finding of guilt recorded by the trial Court.
25. Accordingly, the appeal filed by the appellant, being devoid of merit is accordingly dismissed. The conviction of the appellant under Section 302 of the I.P.C. is affirmed and upheld. Appellant Rampratap, who is in jail shall remain incarcerated to undergo the remaining part of their jail sentence (R.S.Jha) (Nandita Dubey) JUDGE JUDGE 26/02/2018 26/02/2018 gn Digitally signed by GEETHA NAIR Date: 2018.02.26 16:23:54 +05'30'