Madhya Pradesh High Court
Shivkumar Gond vs The State Of Madhya Pradesh on 14 August, 2019
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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HIGH COURT OF MADHYA PRADESH: JABALPUR
SINGLE BENCH: Hon'ble Mr. Justice Subodh Abhyankar
CRIMINAL APPEAL NO.1721 OF 2015
Shivkumar Gond and another.
Vs.
State of Madhya Pradesh.
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Shri Vivek Shukla, learned counsel for the appellants.
Shri R.P.Prajapati, learned Panel Lawyer for the
respondent/State.
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JUDGEMENT
(Delivered on the 14th day of August, 2019) This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellants A/1 Shivkumar Gond and A/2 Sukhlal Gond being aggrieved of the judgment dated 22/6/2015 passed by the Additional Sessions Judge, Sidhi in ST No.128/2007, whereby each of the appellants has been convicted respectively under Sections 306 read with Section 34 and 201 read with Section 34 of IPC and sentenced respectively to seven years' rigorous imprisonment with fine of Rs.500/- each and two years' 2 rigorous imprisonment with fine of Rs.300/- each with default clause.
2. In brief the facts of the case are that on 19.5.2006 complainant Avdesh Singh Gond (PW-12), cousin of the deceased Vimla lodged a report at Police Station Churhat to the effect that the first marriage of Vimla Devi daughter of Surajbhan Gond aged 19 years took place with Babulal Singh Gond at Village Barigawan Police Station Churhat where she stayed for four months and came back to her matrimonial house. There she be- friended appellant No.1 Shivkumar Gond at Village Sarai Police Station Laur District Rewa. According to the case of the prosecution, deceased Vimla Devi got married to A/1 Shivkumar who took her to Mumbai and came back after 15 days and when the complainant went to the house of Shivkumar to bring her, Shivkumar did not send her, hence they imposed a penalty of Rs.500/-, a buffalo and a goat to be given to Babulal the first husband of Vimla as she was earlier the wife of Babulal. Thereafter appellant Shivkumar took Vimla to the house of his brother-in-law Appellant No.2 Sukhlal Gond at Village Mohniya and on 17.5.2007 one Jaganandan Singh (PW-4) of his Village informed the complainant (PW-12) that 3 Vimla Devi has passed away on 15.5.2007. On this information when they reached Village Gaddhai where Shivkumar and his brother-in-law A2 Sukhlal were residing and asked about how Vimla Devi died, they informed that she committed suicide and when they enquired why this information was not given to them to which they gave no reply. Subsequently when these persons went along with family members to Village Gaddhai to fetch the ashes of deceased Vimla Devi, as she was also cremated by the appellants, on seeing them, the appellants fled from the village hence on 19.5.2007 an FIR was lodged at Police Station Churhat and on the basis of information a marg intimation was registered and on enquiry it was found that the deceased was being treated with cruelty and was harassed mentally and physically by her husband and brother-in-law, hence she committed suicide on 15.5.2007. Thus, a case was registered against the appellant Shivkumar Gond and his brother-in-law Sukhlal Gond under Sections 306, 201, 120-B read with Section 34 of IPC at Crime No.140/2007. The appellants have taken a defence that the deceased Vimla had solemnized the marriage with appellant No.1 Shivkumar on her own volition and was residing with him 4 only, which was not approved by her family members and hence when deceased died due to cholera, a false case has been registered against the appellants. Appellant No.2 Sukhlal Gond has taken a defence that since appellant Shivkumar is his brother-in-law, only to falsely implicate him along with Shivkumar, he is also dragged in the alleged offence as a co-accused.
3. After investigation, the charge sheet was filed before the competent Court and after its committal, the learned Judge of the trial Court, after recording the evidence, has convicted the appellants as aforesaid and being aggrieved of the same, the present appeal has been preferred by the appellants.
4. Learned counsel for the appellants has submitted that the appellants have been falsely implicated in the present case, as it is a case of natural death of the deceased, as she died due to cholera and only to settle the personal score, the family members of the deceased Vimla Devi have lodged the FIR and have deposed against them, as they were not ready to allow the deceased Vimla Devi to stay with A/1 Shivkumar despite the fact that Vimla Devi had solemnized the marriage with A/1 Shivkumar, as she was in love with 5 him. It is further submitted by the learned counsel for the appellants that the defence witness Maan Bahadur (DW-
1) has also stated that he is well acquainted with the appellants as appellant No.1 Shivkumar used to come to his house along with his wife Vimla Devi and both of them were working at Mohniya Paath Pahad (hill) on a road construction site. According to this witness (DW-1), between 12 O'clock to 2 PM during the lunch hour appellant Shivkumar's wife Vimla Devi suddenly suffered from loose motions and vomiting and as a result she died.
Its information was given to her family members and since nobody came, hence her body was cremated.
5. Learned counsel for the appellants has further submitted that there is no evidence on record to connect the present appellants with the offence of suicide and it is only on the basis of conjuncture and surmises that the learned Judge of the trial Court has come to a conclusion that it might have been a case of suicide after which she was cremated without any intimation to her parents. It is further submitted by the learned counsel for the appellants that it was neither a case of suicide nor concealment of evidence, hence it is prayed that the appellants be acquitted.
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6. On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that the death of Vimla Devi took place under suspicion circumstances. It is submitted that the defence has not produced any document on record to show that deceased Vimla Devi in way was suffering from cholera and she was cremated by the appellants without giving any intimation to the family members of deceased Vimla Devi. It is further submitted by the learned counsel for the State that the learned Judge of the trial Court has rightly drawn an adverse inference against the appellants under Section 106 of the Indian Evidence Act, 1872 to hold that the deceased had died in suspicion circumstances and the onus was on the accused persons to prove that she died otherwise. In such circumstances, it is submitted that no illegality has been committed by the learned Judge of the trial Court in convicting the present appellants for the aforesaid offences, hence the present appeal be dismissed.
7. Heard the learned counsel for the parties and perused the record.
8. From the record, it is apparent that in support of the prosecution as many as 17 witnesses have been 7 examined whereas the accused appellants have also examined one witness DW-1 Maan Bahadur. Although there is no evidence on record, but it appears that the deceased Vimla died on 15.05.2007 and it is alleged that she committed suicide and subsequently, the appellant No.1 Shivkumar Gond and his brother in law appellant No.2 Sukhlal Gond cremated her without any intimation to the family members of the deceased. However, it is also found that none of the prosecution witnesses have actually seen the appellants harassing the deceased Vimla in any manner and none of the witnesses have also seen the deceased to be hanging to prove that she committed suicide and after that she was cremated. Thus, the conviction of the appellants is solely based on the circumstantial evidence and has to be tested on the well settled principles of circumstantial evidence i.e. "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", as has been held by the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported as 1984(4)SCC 116. 8
9. Maanwati Gond (PW-1) has stated that deceased Vimla was her daughter, who was earlier married to one Babulal Gond but when she came back, she had an affair with the appellant No.1 Shivkumar and solemnized a love marriage with him and soon thereafter Shivkumar took her to Mumbai. She has also stated that the first wife of the Shivkumar had also died in suspicious circumstances as he had also killed her by burning and this fact was also known to Vimla Devi but she told her that since Shivkumar is in love with her, hence he would not harm her but later, after one-two months she informed her that the appellant is troubling her. This witness has also stated that the appellant Sukhlal has killed her daughter on account of dowry, although she has also admitted that in her in-chief that appellant Sukhlal had also given to Babulal, a buffalo, a goat and Rupees Five Hundred only towards compensation for marrying Vimla. She has also stated that one Samarjeet, who is dead now, informed her that after beating the deceased Vimla, the appellants have burnt her body.
10. All the other witnesses, most of whom are the relatives of deceased Vimla and the residents of the same village have given the statements on the same line and 9 almost all of them have also stated that they were angry at appellant No.1 Shivkumar because of the marriage which he solemnized with the deceased Vimla. However, Jaikaran (PW-10), the Sarpanch of Gram Panchayat Mahoniya for the year 2004-05 till 2008-09, has certified that he had given the death certificate (Ex.P/3) of Vimla on 20.05.2007 and in his cross examination, he has stated that he knew that Vimla died of cholera and when the police had asked for the death certificate, at that time also he had informed the police that Vimla had died of cholera. He has also stated that since Vimla was residing with Shivkumar as his wife after leaving her first husband, hence the parents and other family members of Vimla were angry at appellant No.1 Shivkumar. He has also stated that when the parents of Vimla came to the village, he had also informed them that Vimla had died of cholera but as they were angry, they said that they would falsely implicate Shivkumar for the same. Surprisingly, this witness has not been cross examined by the prosecution on any count and thus, being the prosecution witness, his testimony is binding on the prosecution. B.L. Sharma (PW-13), Investigating Officer, has stated that the only articles which he seized at the instance of the 10 appellants were the ashes and the bones of the deceased Vimla, who was cremated by them.
11. It is surprising that no efforts were made by the Investigating Officer to find out the evidence regarding the mode of suicide viz. the rope or the place where it is alleged that the deceased Vimla committed suicide by hanging. Panchnama of the place where the alleged suicide took place has also not been prepared to demonstrate that the deceased could have died there only. The evidence so produced by the prosecution in support of the case of suicide is absolutely inadequate or rather missing to come to a conclusion beyond reasonable doubt that the deceased committed suicide by hanging and, it was on account of harassment meted out to her by the appellants. So far as the Appellant No.2 Sukhlal is concerned, again, there is simply no evidence on record except the fact that deceased Vimla was residing with appellant No.1 Shivkumar in the house of Sukhlal and there is also no overt act attributed to him.
12. Learned Judge of the trial Court has relied upon Section 106 of the Evidence Act, 1872 which relates to burden of proving fact specially within knowledge and provides that when any fact is specially within the 11 knowledge of any person, the burden of proving that fact is upon him. It is held by the learned Judge of the trial Court that since the deceased had died in suspicious circumstances and if the appellants have come out with a case that she died of cholera, in that case they ought to have produced some documents on record to show that she died of the disease; however instead of taking her to any hospital for her treatment, soon after the death, deceased Vimla was straight away cremated by the appellants without intimation to the family members of the deceased. Thus, in addition to Section 306 of IPC, the appellants have also been convicted under Section 201 of IPC which relates to causing disappearance of evidence of offence or giving false information to screen offender. At this juncture it would be apt to refer to the law laid down by the Apex Court in the case of Gian Chand v. State of Haryana, reported as (2013) 14 SCC 420, the relevant para of the same reads as under:-
"21. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872 (hereinafter referred to as "the 1872 Act").12
22. In State of W.B. v. Mir Mohammad Omar this Court held that if the fact is specifically in the knowledge of any person, then the burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
"38. ... Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused."
(emphasis supplied) Thus, testing on the anvil of the aforesaid dictum of the Apex Court, the aforesaid finding recorded by the learned Judge of the trial Court suffers from wrong appreciation of evidence and drawing unwarranted presumption by invoking Section 106 of the Evidence Act. In the present case, it is alleged that the deceased, a woman in her twenties died on account of suicide and has been cremated by her the husband without any intimation to her family members, but no evidence has been led by the 13 prosecution of the neighbors of the appellants or other persons of the village regarding the suicide and the manner of cremation. Thus, in the absence of any other evidence on record it cannot be presumed that the appellants had cremated the body of the deceased only in order to cause disappearance of the evidence of the offence committed by them. Thus, it is apparent that the presumption under Section 106 of the Evidence Act cannot be used as a tool to justify a conviction if the accused is not able to discharge his burden, but such conviction has to be based on the other cogent evidence connecting the accused with the offence and the failure to explain any circumstance under Section 106 of the Evidence Act can be used only as a missing link in the chain of evidence and cannot be used as the chain itself. In the case on hand, such presumption cannot withstand the scrutiny of the law as has been enunciated by the Apex Court in the case of Gian Chand (supra).
13. In view of the aforesaid discussion, this Court is of the considered opinion that this being a case of circumstantial evidence, the prosecution has not been able to produce any evidence regarding the ill treatment meted out to the deceased Vimla at the hands of the 14 appellants but on the contrary, the evidence is regarding the resentment of the family members of the deceased over her love marriage with the appellant No.1 and there is no evidence either regarding the suicide committed by the deceased Vimla.
14. In view of the aforesaid discussion, this Court is of the considered opinion that the conviction of the appellants under Section 306 read with Section 34 of IPC and Section 201 read with Section 34 of IPC cannot be sustained and is liable to be and is hereby set aside and the appellants stand acquited from the charges levelled against them.
15. As a result, the appeal stands allowed. At present appellant No.1 Shivkumar, who is in jail be released forthwith, whereas, appellant No.2 Sukhlal has already been released on bail, his bond shall stand discharged.
(Subodh Abhyankar) Judge 14/08/2019 Digitally signed by MANZOOR AHMED Date: 2019.08.14 16:10:45 +05'30' Ansari