Madhya Pradesh High Court
Sitaram vs State Of M.P. on 29 October, 2021
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 209 of 2010
Sitaram
Vs.
State of M.P.
Shri R.P. Gupta, Counsel for the Appellant.
Shri C.P. Singh, Counsel for the respondent/State.
Date of Hearing : 26-10-2021
Date of Judgment : 29-Oct-2021
Approved for Reporting : Yes
Judgment
29th-Oct. -2021
Per G.S. Ahluwalia J.
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 15-1-2010 passed by 2nd Additional Sessions Judge, Dabra, Distt. Gwalior in Sessions Trial No.57/2009, by which the appellant has been convicted under Section 302 of I.P.C. and has been awarded Life Sentence and a fine of Rs.500/-, with default imprisonment of 6 months R.I.
2. The prosecution story in short is that the appellant is the husband of the deceased Papitabai. He got married with her in the 2 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) year 2002. The deceased was residing with the appellant in Ayodhya Colony, Jail Road, Dabra. In the morning of 16-12-2008, Sudama informed Atar Singh, the father of the deceased, that his daughter has expired, therefore, he should come immediately. Accordingly, Atar Singh, Rajvir Singh, Chandan and Bhupendra came to Dabra and found that the dead body of the deceased Papitabai was lying supine in the house of the appellant. Thereafter, Atar Singh lodged report in Police Station Dabra and accordingly, Merg No.122/2008 under Section 174 of Cr.P.C. was recorded. The statements of the witnesses were recorded. The spot map was prepared. The post-mortem of the dead body of Papitabai was got done. The cause of death was found to be strangulation. It was also found that the appellant was demanding a motorcycle and an amount of Rs.20,000/- and was harassing her for the same. It was also found that accordingly in the night of 15-12-2008, the appellant had beaten his wife Papitabai. The cause of death was strangulation, accordingly F.I.R. No.912/2008 was registered. The police after completing the investigation, filed the charge sheet for offence under Section 304B/302 of I.P.C.
3. The Trial Court by order dated 24-2-2009 framed charges under Section 302 of I.P.C. or in the alternative under Section 304B of I.P.C.
4. The appellant abjured his guilt and pleaded not guilty.
5. The prosecution examined S.C. Swarnkar (P.W.1), Satyadev Sharma (P.W.2), Rampyari (P.W.3), Sushil Sharma (P.W.4), Sudama 3 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) (P.W.5), Parmanand Anuragi (P.W.6), Dr. Vibha Kurele (P.W. 7), Atar Singh (P.W.8), Chandan Singh (P.W.9), Ranveer Singh (P.W.10), Bhupendra (P.W.11), Meena (P.W. 12), Dr. R.K. Singh (P.W. 13), Yashwant Singh (P.W. 14), Rakesh Singh Jadon (P.W. 15) and D.K. Dixit (P.W. 16).
6. The appellant did not examine any witness in his defence.
7. The Trial Court by the impugned Judgment and Sentence, convicted the appellant for offence under Section 302 of I.P.C.
8. Challenging the impugned judgment and sentence, it is submitted by the Counsel for the appellant, that the appellant has been convicted mainly on the ground that he has failed to explain as to how his wife met with homicidal death. In fact the prosecution has failed to prove that the death of the wife of the appellant was homicidal in nature. The children of the appellant were not examined. The possibility that some unknown person might have committed the offence is not ruled out.
9. Per contra, the Counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court.
10. Heard the learned Counsel for the parties.
11. Before adverting to the facts of the case, this Court thinks it apposite to find out as to whether the death of Papitabai was homicidal in nature or not?
12. Dr. R.K. Singh (P.W. 13) has conducted the post-mortem of the dead body of Smt. Papitabai, and found the following injuries on her 4 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) body :
(i) One contusion of 3 cm x 2 ½ cm over right side of neck starting from mastoid process to the angle of mandible.
(ii) Two Parallel contusions on left side of neck.
(a) 1 cm x 1 cm mandible towards angle.
(b) below "a" extending from left pinna downwards 2 cm x2 cm.
(iii) One Contusion of 2 cm x 1 cm over middle of mandible.
(iv) One Contusion in area of 3 cm x3 ½ cm over chin extending downwards.
(v) Multiple Contusions with swelling and abrasion in area of 5 cm x 4 cm extending from right eye to right ear.
(vi) Contusion with swelling over right upper and lower eye lid with black eye.
(vii) Contusion with swelling over left upper and lower eye lid with black eye.
(viii) Contusion of 1 ½ cm over right pinna.
All injuries were ante-mortem in nature.
In the opinion of the Doctors, the cause of death was Asphyxia due to Strangulation. However, viscera was preserved and mode of death was homicidal, but it was also mentioned that finally will depend on circumstances and the evidence. The time since death was 6-12 hours of P.M. The post-mortem report is Ex. P.7.
13. This witness was cross-examined and only one suggestion was given that the witness has prepared the false report, which was denied by Dr. R.K. Singh (P.W. 13).
14. It is submitted that since, in the post-mortem report, Ex. P.7, it was also mentioned that final opinion would depend on circumstances and the evidence, therefore, it is clear that the Autopsy Surgeon were not sure about the cause of death.
15. Consider the submissions made by the Counsel for the 5 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) appellant.
16. In the Post-mortem report, Ex. P.7, it is clearly mentioned that the cause of death is Strangulation. However, it was also mentioned that the final opinion would depend on other circumstances and evidence. This does not mean that Strangulation was not the cause. Further, the presence of multiple injuries on neck, face, both eyes, clearly shows that the deceased had struggled. Thus, after considering the evidence of Dr. R.K. Singh (P.W. 13) coupled with the number of injuries sustained by the deceased Papitabai, it is held that the prosecution has succeeded in establishing that the death of the deceased was homicidal in nature.
17. The next question for consideration is that whether the appellant has committed murder of his own wife Smt. Papitabai or not?
18. S.C. Swarankar (P.W.1) had given notice to the Panchas and the Safina Form is Ex. P.1. The Lash Panchnama, Ex. P. 2 was prepared. This witness was cross-examined. In cross-examination, this witness clarified that the Lash Panchnama Ex. P.2 was prepared outside the house of the deceased. The Lash Panchnama was prepared in presence of the witnesses. He had received the information regarding death of Papitabai in the morning of 16-12-2008. He was informed by Tahsildar.
19. Satyadeo Sharma (P.W.2) did not support the prosecution case and turned hostile.
6
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)
20. Rampyari (P.W.3) also did not support the prosecution and was declared hostile.
21. Sushil Sharma (P.W. 4) had brought Viscera, salt solution and specimen of seal from dead house and handed over the same to Head Constable Rakesh Singh who seized the same vide seizure memo Ex. P.5 in the presence of Parmanand Anuragi (P.W.6).
22. Sudama (P.W. 5) has stated that he had informed Chandan Singh regarding death of Papitabai. However, he did not support the prosecution story on other aspects, therefore, he was declared hostile.
23. The entire prosecution case is based on circumstantial evidence, and is based on following circumstances :
(i) The deceased and the appellant were residing under the same roof.
(ii) On the date of incident, the deceased was with the appellant.
(iii) The death of deceased was homicidal.
(iv) As required under Section 106 of Evidence Act, the appellant has not given any explanation as to how, his wife died a homicidal death.
(v) Immediately after the incident, the appellant was found missing.
(vi) False Explanation by the appellant under Section 313 of Cr.P.C.
The deceased and the appellant were residing under the same roof and on the date of incident, the deceased was with the 7 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) appellant.
24. Undisputedly, the deceased Papitabai was the wife of the appellant. Atar Singh (P.W. 8) is the father of the deceased, whereas Chandan Singh (P.W.9) is the cousin brother of Atar Singh (P.W.8). Ranveer Singh (P.W. 10) is the brother of Atar Singh (P.W.8). Bhupendra Singh (P.W.11) is the brother of the deceased. Meena (P.W. 12) is the mother of the deceased.
25. Atar Singh (P.W. 8) has stated that they had gone to marry his son, however, the appellant did not go with barat. Before the Barat could return, the appellant took away the deceased with him. It was also stated that the appellant was married to his daughter about 15 years back. Initially, the appellant used to keep the deceased properly, but for the last about 1 year, he was harassing the deceased. After receiving the information, he went to the house of the deceased. The appellant was missing, and his daughter was lying dead in the house. Accordingly, he made complaint, Ex. P.8. Safina form is Ex. P.1 and Lash Panchayatnama is Ex. P.2. The spot map is Ex. P. 9. The dead body was handed over to him and its acknowledgment is Ex. P. 10. The last rites of the deceased were performed by this witness in village Mohangarh. In cross-examination, this witness has stated that the deceased had three children. The elder daughter is aged about 12 years, whereas one son is aged about 9 years and another is aged about 7-8 years. He admitted that in complaint, Ex. P.8, he did not mention that the appellant used to beat his daughter. He further 8 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) admitted that he had not mentioned in his complaint, Ex. P.8 that the appellant has killed the deceased, but clarified that he had not seen the incident. He denied that he wants money from the appellant.
26. Chandan Singh (P.W.9) has also stated that before the marriage of the brother of the deceased could be completed, the appellant took the deceased back and he also went to the matrimonial house of the deceased and found that she was lying dead. He used to beat and harass her. In cross-examination, he admitted that earlier no report regarding beating was ever lodged.
27. The evidence of Ranveer Singh (P.W. 10), Bhupendra (P.W.11), and Meena (P.W.12) are in similar lines. These witnesses were cross- examined very briefly, but nothing could be elicited from their cross- examination, which may make their evidence unreliable or untrustworthy.
28. Thus, from the evidence of Atar Singh (P.W. 8), Chandan Singh (P.W.9), Ranveer Singh (P.W.10), Bhupendra Singh (P.W.11) and Meena (P.W.12), it is clear that the appellant used to beat the deceased. The appellant did not attend the marriage of his brother-in- law and also took away the deceased with him, even before completion of marriage of his brother-in-law. The appellant has not proved that the deceased Papitabai was not with him at the time of incident. On the contrary, in his statement recorded under Section 313 of Cr.P.C., the appellant has admitted that he had returned from the marriage of his brother-in-law along with the deceased. 9
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)
29. Thus, the prosecution has succeeded in establishing the strained relationship between the appellant and his wife Papitabai, and the deceased Papitabai was with the appellant on the date of incident.
30. Furthermore, the dead body of the deceased Papitabai was found in the house of the appellant.
31. The Supreme Court in the case of State of T.N. v. Rajendran, reported in (1999) 8 SCC 679 has held as under :
6. Coming now to the second question, the law is fairly well settled that in a case of circumstantial evidence, the cumulative effect of all the circumstances proved must be such as to negative the innocence of the accused and to bring home the charge beyond reasonable doubt. It has been held by a series of decisions of this Court that the circumstances proved must lead to no other inference except that of guilt of the accused. [See Ram Avtar v. State (Delhi Admn.)1 and Prem Thakur v. State of Punjab2.] The law relating to circumstantial evidence no longer remains res integra and we do not think it necessary to multiply authorities on this point. The circumstances which can be said to have been established by unimpeachable evidence are that the husband and wife namely the accused and the deceased were frequently quarrelling and even on the date of the incident they quarrelled with each other from 7 p.m. to 9 p.m., as has been deposed to by PWs 1, 3 and 4. The incident namely the death of the deceased and her two children occurred inside the house of the accused and the accused had been seen inside the house at 9 p.m. on the date of the incident, which has been established through the evidence of PWs 1, 3 and 4 and PW 1 happens to be a neighbour. In course of the incident, the accused himself was seen coming out of the house through the roof as deposed to by PWs 1 and 3 and the accused has also admitted in his statement under Section 313 of the Code of Criminal Procedure. The very conduct of the accused in not raising any alarm even on seeing the fire, knowing fully well that his wife and two daughters were inside the house (sic) and no attempt had been made by the accused to save any one of the deceased persons. On the other hand the 10 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) prosecution evidence indicates that after coming out the accused was standing as a silent spectator. The opinion of the doctor indicating that the wife of the accused died of asphyxia due to strangulation and not on account of burn injuries and several findings indicated in the post-mortem report undoubtedly supports the conclusion about the death on account of asphyxia. If the accused and his wife were seen together in the house at 9 p.m. and the accused came out in the morning through the roof, leaving the wife and two children and the death of the wife was found to be not on account of burn injuries but on account of strangulation and on being asked, the accused offers an explanation about the accidental fire which is found to be untrue, then in such a case, there cannot be any hesitation to come to the conclusion that it is the accused who is the perpetrator of the crime. In a case of circumstantial evidence when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This proposition fully applies to the circumstances of the present case. On the circumstances enumerated above which have been established by the prosecution, we have no hesitation to come to the conclusion that the charge of murder has been proved beyond reasonable doubt as against the accused respondent and the High Court erroneously acquitted him of the said charge.
The Supreme Court in the case of Kalu v. State of M.P., reported in (2019) 10 SCC 211 has held as under :
13. In the circumstances, the onus clearly shifted on the appellant to explain the circumstances and the manner in which the deceased met a homicidal death in the matrimonial home as it was a fact specifically and exclusive to his knowledge. It is not the case of the appellant that there had been an intruder in the house at night. In Hanumant v. State of M.P., it was observed: (AIR pp. 345- 46, para 10) "10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the 11 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
14. In Tulshiram Sahadu Suryawanshi v. State of Maharashtra, this Court observed: (SCC pp. 381-82, para
23) "23. It is settled law that presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilised. We make it clear that this section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it 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. It is useful to quote the following observation in State of W.B. v. Mir Mohammad Omar:
(SCC p. 393, para 38) '38. Vivian Bose, J., had observed that 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. In Shambu Nath Mehra v. State of Ajmer the learned Judge has stated the legal principle thus: (AIR p. 406, para 11) 12 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) "11. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."'"
15. In Trimukh Maroti Kirkan v. State of Maharashtra, this Court was considering a similar case of homicidal death in the confines of the house. The following observations are considered relevant in the facts of the present case: (SCC pp. 690-91 & 694, paras 14-15 & 22) "14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult 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 courts. 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. Both are public duties. (See Stirland v. Director of Public Prosecutions
-- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
'(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him.' 13 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)
15. Where an offence 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 a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.
* * *
22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
16. In view of our conclusion that the prosecution has clearly established a prima facie case, the precedents cited on behalf of the appellant are not considered relevant in the facts of the present case. Once the prosecution established a prima facie case, the appellant was obliged to furnish some explanation under Section 313 CrPC with regard to the circumstances under which the deceased met an unnatural death inside the house. His failure to offer any explanation whatsoever therefore leaves no doubt for the conclusion of his being the assailant of the deceased. The Supreme Court in the case of Shivaji Chintappa Patil v. State of Maharashtra, reported in (2021) 5 SCC 626 has held as under :
20. That leads us to the reliance placed by the High Court as well as the trial court on the provisions of Section 106 of 14 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) the Evidence Act. In Subramaniam, this Court had occasion to consider the similar case of the husband and wife remaining within the four walls of a house and death taking place. It will be relevant to refer to the following observations of this Court: (SCC p. 426, para 23) "23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration.
Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor."
21. In Subramaniam, reliance was placed on behalf of the State on the judgments of this Court in Trimukh Maroti Kirkan v. State of Maharashtra and Ponnusamy v. State of T.N. This Court observed thus: (Subramaniam case, SCC p. 428, para 26) "26. In both the aforementioned cases, the death occurred due to violence. In this case, there was no mark of violence. The appellant has been found to be wholly innocent. So far as the charges under Section 498-A or Section 4 of the Dowry Prohibition Act is concerned, the evidence of the parents of the deceased being PW 1 and PW 2 as also the mediators, PWs 4 and 5 have been disbelieved by both the courts below. That part of the prosecution story suggesting strong motive on the part of the appellant to commit the murder, thus, has been ruled out."
22. It will also be relevant to refer to the following observations of this Court in Gargi: (SCC p. 775, para 33) "33.1. Insofar as the "last seen theory" is concerned, there is no doubt that the appellant being none other than the wife of the deceased and staying under the same roof, was the last person the deceased was seen with. However, such companionship of the deceased and the appellant, by itself, does not mean that a presumption of guilt of the appellant is to be drawn. The trial court and the High Court have proceeded on the assumption that Section 106 of the Evidence Act directly operates against the appellant. In our view, 15 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) such an approach has also not been free from error where it was omitted to be considered that Section 106 of the Evidence Act does not absolve the prosecution of its primary burden. This Court has explained the principle in Sawal Das v. State of Bihar in the following: (SCC p. 197, para 10) '10. Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused.'"
23. It could thus be seen that it is well-settled that Section 106 of the Evidence Act does not directly operate against either a husband or wife staying under the same roof and being the last person seen with the deceased. Section 106 of the Evidence Act does not absolve the prosecution of discharging its primary burden of proving the prosecution case beyond reasonable doubt. It is only when the prosecution has led evidence which, if believed, will sustain a conviction, or which makes out a prima facie case, that the question arises of considering facts of which the burden of proof would lie upon the accused.
32. Thus, if the evidence led by the prosecution is considered in the light of the judgments of the Supreme Court, then it is clear that the prosecution has established beyond reasonable doubt that the deceased Papitabai was residing with the appellant under the same roof, and on the date of incident, the appellant and the deceased were together and the dead body of the deceased was found in the house of the appellant. It has also been established, that the relationship between the appellant and deceased were strained. Further, the appellant has also admitted in his statement under Section 313 of Cr.P.C. that he had returned from the marriage of his brother-in-law 16 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) along with the deceased.
The death of the deceased Papitabai was homicidal
33. This Court in para 16 of the judgment has already held that the death of deceased Papitabai was homicidal in nature.
As required under Section 106 of Evidence Act, the appellant has not given any explanation as to how, his wife died a homicidal death.
34. The prosecution has already proved that the appellant was residing with the deceased under the same roof and on the date of incident also, the deceased was with the appellant, and She died a homicidal death in the house of the appellant. The dead body of the deceased was also found in the house of the appellant.
35. The appellant has not given any explanation as to how his wife died a homicidal death. The complaint, Ex. P.8 was made by Atar Singh (P.W.8) at 9:45 A.M. in Police Station Dabra, Distt. Gwalior and therefore, it is clear that the deceased Papitabai had already died much prior to 9:45 A.M. As already pointed out, the appellant had also admitted in his statement under Section 313 of Cr.P.C., that he had returned from the marriage along with the deceased. However, in his statement under Section 313 of Cr.P.C., the appellant has taken the following defence :
vrj flag us xksfoUn ls 40]000 pkyhl gtkj :i;s dqN fnu ds fy;s Fks ftl fnu iihrk ckbZ ejh FkhA ;g :i;s enu pkSgku fuoklh cMkSuh ds lkeus fy;s FksA eSus viuh iRuh iihrkckbZ dks ugh ekjkA eSus dHkh ekjihV ugh dhA dHkh dksbZ ekax ugh dhA eS ?kVuk okys fnu Mcjk eaMh es iYysnkjh djds fnu ds yxHkx 4 17 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) cts vius /kj x;k Fkk rFkk ySV~hu djus pyk x;k FkkA tc eS ySV~hu djds vius /kj okfil vk jgk Fkk rks eq>s xksfoan esjs /kj ls fudyrs gq, feyk rFkk /kj es esjh iRuh eq>s ejh iMh feyh rFkk cPps jks jgs FksA xksfoan esjs lekt dk gSA dksbZ fj'rsnkj ugh gSA eS funksZ"k gwa eq>s >wBk Qalk fn;k gSA
36. From the defence taken by the appellant, it is clear that he has taken a defence, that when he returned in the afternoon at about 4 PM., then he saw that Govind was coming out of the house and his wife was lying dead. It is not out of place to mention here that the deceased died in the morning hours, some times around 4-6 A.M., whereas the appellant has claimed that he returned back at 4 P.M. and his wife was lying dead. Further, the natural conduct of the appellant should have been to inform the police and should have participated in the police investigation. However, the Counsel for the appellant, could not point out any police document, which may indicate, that the appellant was present and had participated in the investigation. On the contrary, it is clear that all the investigation was done in the presence of Atar Singh (P.W.8) and other relatives of the deceased.
Even the dead body of the deceased was received by Atar Singh (P.W.8) and even the last rites of the deceased were performed by her father Atar Singh (P.W.8) and not by the appellant. Even in his statement under Section 313 of Cr.P.C., this witness has admitted that Atar Singh had performed last rites of the deceased in village Mohangarh and other rituals were also performed by Atar Singh (P.W.
8).
37. Further in reply to another question put to the appellant under 18 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) Section 313 of Cr.P.C., it was replied by the appellant as under :
ughA eS VsEiks ls yk'k dks Qasdus ugh tk jgk FkkA bykt djkus ys tk jgk FkkA
38. Although the original prosecution story was that the appellant was trying to dispose of the dead body by taking it in a tempo, but after noticing the residents, he ran away after throwing the dead body on the spot. However, it is made clear that all the witnesses to the above mentioned circumstance have turned hostile. But the appellant has admitted in his statement under Section 313 of Cr.P.C. that he was trying to take the deceased to the hospital for treatment. Thus, if that defence is correct, then the appellant should not have left the dead body on the spot and should have taken it to the hospital.
39. Thus, it is held that the appellant has not given any explanation as to how, his wife Papitabai died a homicidal death. Immediately after the incident, the appellant was found missing.
40. As already pointed out, the appellant could not point out from any evidence or prosecution document, that he was present on the spot. Even otherwise, the appellant was arrested after 8 days of incident. Thus, the presence of the appellant, after the incident has not been proved. Thus, it is clear that the appellant absconded immediately after the incident. It is true, that this circumstance, by itself, may not be sufficient to hold the appellant guilty, but if this circumstance is considered along with the above mentioned circumstances which have been found proved, then it is clear that the 19 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) abscondence of the appellant from the spot is also an additional circumstance, which indicates towards the involvement of the appellant in the murder of his own wife.
41. The Supreme Court in the case of Omprakash Vs. State of Uttaranchal reported in (2003) 1 SCC 648 has held as under :
10.... Another circumstance to be borne in mind is that the appellant absconded and he was apprehended only after five long years. There was no apparent explanation for this.
The Supreme Court in the case of Dara Singh Vs. Republic of India, reported in (2011)2 SCC 490 has held as under :
88. The other circumstance urged by the prosecution was that A-3 absconded soon after the incident and avoided arrest and this abscondence being a conduct under Section 8 of the Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt.
The fact remains that he was not available for quite some time till he was arrested which fact has not been disputed by the defence counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him the required opportunity and followed the procedure which was rightly accepted by the High Court.
42. A specific question was put to the appellant in his statement under Section 313 of Cr.P.C. that the witness has stated that the appellant Sitaram was not found on the spot, then it was merely replied by the appellant that irk ughA
43. Thus, it is held that the appellant immediately absconded from his house and could be arrested only on 24-12-2008, Ex. P.13, which was admitted by the appellant in his statement under Section 313 of Cr.P.C. also.
20
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) False Explanation by the appellant under Section 313 of Cr.P.C.
44. The Supreme Court in the case of Rohtush Kumar Vs. State of Haryana reported in (2013) 14 SCC 434 has held as under :
29. "50. It is obligatory on the part of the accused while bexplanation with respect to the incriminating circumstances associated with him, and the court must take note of such explanation even in a case of circumstantial evidence, to decide as to whether or not, the chain of circumstances is complete."
[Vide Musheer Khan v. State of M.P. and Sunil Clifford Daniel (SCC p. 221, para 50).]
30. This Court in State of Maharashtra v. Suresh held as under:
"51. ... when the attention of the accused is drawn to such circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances." (Sunil Clifford Daniel case, SCC p. 221, para 51)
31. Undoubtedly, the prosecution has to prove its case beyond reasonable doubt. However, in certain circumstances, the accused has to furnish some explanation to the incriminating circumstances, which have come in evidence, put to him. A false explanation may be counted as providing a missing link for completing aing examined under Section 313 CrPC to furnish some e chain of circumstances.
45. As already pointed out, the appellant had offered false explanation in his statement under Section 313 of Cr.P.C., therefore, such false explanation also provides an additional link.
46. If the circumstances relied upon by the prosecution are considered in the light of the judgment passed by the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 SCC 116, then it is clear that the 21 Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010) chain of circumstances proved by the prosecution is complete. Therefore, it is held that it is the appellant and appellant alone who had killed his wife, Smt. Papitabai.
47. Accordingly, he is held guilty of committing offence under Section 302 of I.P.C.
48. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore, it does not require any interference.
49. Ex Consequenti, the judgment and sentence dated 15-1-2010 passed by 2nd Additional Sessions Judge, Dabra, Distt. Gwalior in Sessions Trial No.57/2009 is hereby Affirmed.
50. The appellant is in jail. He shall undergo the remaining jail sentence. A copy of this judgment be immediately provided to the appellant, free of cost.
51. Let a record of the Trial Court be sent back along with the copy of this judgment for necessary information and compliance.
52. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.10.29 16:42:22 +05'30'