Madhya Pradesh High Court
Jairaj Singh vs State Of M.P. on 16 August, 2000
Equivalent citations: 2001(1)MPHT270
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT Shambhoo Singh, J.
1. This appeal is directed against the Judgment & Order dated 3-5-94 passed by Sessions Judge, Mandsaur in S.T. No. 25/92, whereby the appellant was convicted for offences under Sections 302 and 201 of the I.P.C. and sentenced to life imprisonment under Section 302, IPC and seven years R.I. under Section 201, IPC.
2. The prosecution case, in brief, was that the deceased Kailashkun-war, the sister of Jujharsingh (P.W. 6), resident of Village Tal, District Ratlam was married to the appellant who was resident of Village Chhotipatlasi, Distt. Mandsaur. The appellant was in habit of consuming liquor and he used to beat Kailashkunwar, therefore, Kailashkunwar and her daughter Dhyankunwar (P.W. 16) were living in Village Tal with Jujharsingh, the brother of the deceased. On 13-7-92 the appellant sold his land survey No. 279, area 0.222 to Nabinoor (P.W. 4) Kailashkunwar and Dhyankunwar opposed and did not allow Nabinoor to cultivate this land and they filed Civil Suit No. 103-A/92 in the Court of Civil Judge Class-II, Sitamau. This led quarrel between husband and wife. On 20-7-92 Kailashkunwar and Dhyankunwar came to Patlasi and stayed with the appellant in his house. Kailashkunwar obstructed Nabinoor to take the crop sown in the disputed land. On 8-10-92 Nabinoor lodged report Ex. P-13 against Kailashkunwar at Police Station, Sitamau. The appellant beat Kailashkunwar on the field. On 23-10-92, in the night, the appellant came armed with sword to kill Kailashkunwar and Dhyankunwar. He beat Kailashkunwar, therefore, they had to stay in the night in their neighbour's house and in the morning they again came in their house and thereafter Dhyankunwar went to her maternal uncle Jujharsingh's house. On 4-11-92, Prabhulal (P.W. 1), the neighbour of the deceased saw smoke coming out of the house of the appellant. The house was closed from inside. It was giving smell of burning of flesh. He informed Raghurajsingh (P.W. 13), the cousin brother of the deceased who also saw the same thing. They peeped through the slot of the door-leaf and saw a pyre burning in his 'Bada' (open land) in the house, quilt and 'Gadda 'were also burning. Raghurajsingh sent letter Ex. P-1 through Prabhulal to S.H.O., Sitamau. On this, the Incharge of P.S. Subodh Kumar Tomar (P.W. 17) and constable Bhartcndra Singh (P.W. 15) went to the house of appellant in Village Chhotipalasi. The door was closed from inside. When door was not opened, constable Bhartendra singh jumped into the house of the appellant and opened the door. They found that dead-body of a human being was burning. In one leg there was 'paijeb' and in one hand there were some bangles. The appellant was found drunk in the house. He was taken into custody and a panchnama Ex. P-29 was prepared. Subodh Kumar Tomar held inquest on the dead- body which had already burnt and prepared report Ex. P-
3. On 4-11-92 Dhyankunwar (P.W. 13), the younger sister of the deceased Kailashkunwar was called from her village. She saw the leg, hand etc. and identified it to be the dead-body of Kailashkunwar vide panchnama Ex. P-27. Dehati Nalishi Ex. P-32 was written. The appellant was sent for medical examination. Dr. S.K. Mehta found one abrasion on his left hand vide report Ex. P-16. The appellant was drunk. On the next day 5-11-92 Investigating Officer S.K. Tomar prepared map of the house of the appellant. The appellant had two brothers Karansingh and Harirajsingh. Karansingh and Harirajsingh were in service, therefore, the whole house was in exclusive possession of the appellant. In the room situate on the first floor, a spot was seen where the dead-body was kept for some days. Investigating officer seized pupas, larvae, stained and unstained earth and pieces of bangles from this place vide seizure memo Ex. P-6. He also seized the skull bone, intestines, half burnt foot, hip bone, paijeb, burnt bangles, bone pieces and ashes from the pyre vide seizure memo Ex. P-5. The bone etc. were sent to District Hospital, Mandsaur tor post-mortem and therefrom to the Director, Medico Legal Institute, Bhopal, who after examining these articles opined that the bones were of an adult female vide report Ex. P-38. On 5-11-92 the appellant gave information under Section 27 of the Evidence Act and produced two pieces of rope, one of which was stuck with hair and a knife which were seized vide seizure memo Ex. P-20. The chemical examiner, F.S.L. Sagar, opined that both pieces were part of one rope and the hair stuck to the rope were of a female vide report Ex. P-36. After completion of investigation, challan was filed. The appellant pleaded not guilty and false implication. The learned Trial Judge convicted and sentenced the appellant as stated above. Hence, this appeal.
3. Shri Hardiya, learned counsel for the appellant, submitted that eye-witness account is not available in this case. The appellant has been convicted on the basis of the circumstantial evidence which docs not lead to the inference that the appellant killed his wife Kailashkunwar, He contended -that it has not been proved that the bones allegedly found in the house of the appellant were of Kailashkunwar and cause of death has also not been proved. On the other hand, Shri Desai, learned Dy. A.G. supported the impugned judgment.
4. We considered the arguments advanced by learned counsel for both sides and perused the record. It is settled that for proving guilt by circumstantial evidence it must be proved that the circumstances from which the conclusion is drawn, should be fully established and they should be conclusive in nature and all the facts so established should be of consistent only with the hypothesis of guilt of the accused and inconsistent with innocence of the accused. Their Lordship of the Supreme Court in case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC1622, observed that :--
"The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established......
*** *** *** *** (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."
5. Now we shall examine the prosecution evidence in the light of the guidelines given by the Apex Court. The first question that arises for consideration is whether the dead-body (skeleton) found burning in the house of the appellant was of Kailashkunwar.
6. It has come in the evidence of Dhyankunwar (P.W. 16), the daughter of the appellant and deceased Kailashkunwar that the appellant was in habit of consuming liquor and beating her mother, therefore, she and her mother were living with Jujharsingh (P.W. 6), the brother of Kailashkunwar in his house at Village Tal. She deposed that the appellant had sold their field to Nabinoor, On this, she and her mother had come to the house of the appellant in the month of July and stayed there. In the night of 23-10-92 the appellant consumed liquor and came to them having sword in his hand and beat her mother. On this, they left the house of the appellant and stayed in the house of neighbour in the night and came back in the morning, when the appellant had gone out. Dhyankunwar stated that thereafter she went to her maternal uncle Jujharsingh at Village Tal leaving Kailashkunwar there.
7. Apart from the evidence of Dhyankunwar, Prabhulal (P.W. 1), Ramlakshman Singh (P.W. 2) and Raghuraj (P.W. 13) also stated that Kaiiash-kunwar was living with the appellant in his house at the relevant time. Ramlakshman Singh (P.W. 2) deposed that he saw the deceased Kailashkunwar and the appellant quarrelling in their field, a day before 'Diwali' about the sale of their field. The appellant beat Kailashkunwar and took her to his house. The Calendar of High Court of M.P. for the year 1992 shows that 'Diwali' fell on 26-10-92. From this it becomes clear that Kailashkunwar was alive on 25-10-92 and she was taken by the appellant from his field to his house and after 25-10-92 Kailashkunwar was not seen and the appellant also did not state in his examination under Section 313 of the Cr.P.C. as to where the deceased had gone from his house. Thus, it is established that Kailashkunwar was in the house of the appellant on 25-10-92.
8. The evidence of Prabhulal (P.W. 1), Raghuraj (P.W. 13) is that on 4-11-92 they saw smoke coming out of the houseof the appellant and the house was closed from inside. They peeped through the slot of the door-leaf and saw a pyre burning there. On this, Raghuraj Singh sent letter Ex. P-1 to Police Station, Sitamau through Prabhulal, where upon the S.H.O., Subodh Kumar Singh Tomar and constable Bhartendra Singh came there. When the door was not opened, Bhartendra Singh jumped in the house and opened the door. They entered the house of the appellant. They found that a human body was burning on pyre. The body had almost burnt. Only a leg and a hand remained half burnt. There were burnt bangles in the hand and 'paijeb' in the leg. Dhyankunwar (P.W. 3), the younger sister of Kailashkunwar was called for identification. She saw the leg and hand wearing paijeb and bangles and stated that this was the body of Kailashkunwar. Dhyankunwar identified the paijeb 'Art. 1', pieces of glass bangles 'Art. 3' in identification conducted by C.M.O. S.N. Bhati (P.W. 11). He supported her evidence. Dhyankunwar stated that her mother used to wear these articles. As Dhyankunwar was living with her mother, therefore, naturally, she had full opportunity of seeing them, therefore, she could identify them. Dhyankunwar (P.W. 3) also stated that when Kailashkunwar came to her house she was wearing these articles. The evidence of these witnesses cannot be brushed aside on the ground that they are near relations of the deceased. Both of these witnesses were in a position to see the bangles and paijeb of Kailashkunwar, therefore, they could identify the same and they identified.
9. Ex. P-39, the report of Dr. D.K. Satpathy, the Director of Medico Legal Institute also supports the prosecution case. He examined the bones which were seized by Investigating Officer S.K. Tomar from the house of the appellant vide seizure memo Ex. P-6. He opined that the bones were of human being in origin and sex was female aged about 30 to 35 years. The hair which were stuck to the pieces of the rope discovered at the instance of the appellant from his house were examined by F.S.L. Sagar. It was opined that they were of an adult female vide report Ex. P.36, It is true that the appellant had two brothers and this house was partitioned and the room where dead-body was kept, came in the share of the appellant's brother Karansingh, as shown in the spot-map Ex. P-4. But his both brothers were in service and were living in other places. Therefore, the entire house was in exclusive possession of the appellant. The appellant also admitted in answer to Question No. 3 that he and his wife (Kailashkunwar) were living together in one house. It is not the case of the appellant, and is also improbable that someone would kill a woman and bring her dead-body in the house of the appellant, prepare pyre and burn it, in presence of the appellant and the appellant would not say a word to him or others. It is, thus, proved beyond reasonable doubt that Kailashkunwar met her death in the house of the appellant and the skeletons seized from the pyre was of her.
10. Now the question is whether the appellant killed Kailashkunwar. As stated earlier, there is no direct evidence available on record. The dead-body had been burnt, therefore, the cause of death could not be known. The death could be natural, homicidal or suicidal. We agree with the learned counsel for the defence that the burden is on prosecution to prove that the appellant killed Kailashkunwar. In our opinion, the circumstances and the conduct of the appellant clearly proves that it was the appellant and appellant alone who killed Kailashkunwar. Had Kailashkunwar met natural death, the appellant would have informed his family members, villagers, the relations of his wife and would have taken the dead-body to cremation ground and cremated her there. If she would have committed suicide or some other person would have killed her the appellant would have reported the matter to police and narrated the incident to the villagers. As the house was in exclusive possession of the appellant and he and his wife alone were in the house, therefore, it was for him to have explained as to how Kailashkunwar died, why her body was kept for about 7-8 days, why she was burnt in the house without informing anyone and closed the door from inside.
11. It has come in the evidence of Subodh Kumar Singh Tomar (P.W. 17) and Shivrajsingh (P.W. 10), that the appellant gave information under Section 27 of the Evidence Act vide memo Ex. P-19 and produced two pieces of rope and knife which were seized vide seizure memo Ex. P-20. Some hair were stuck with one piece of rope. This knife, pieces of rope, skin and the earth seized from the room of the appellant were found stained with blood by F.S.L. Sagar vide report Ex. P-35. The find of blood and other circumstances clearly establish that the author of this crime was the appellant. He killed Kailashkunwar.
12. In this case, the prosecution also proved motive. As Dhyankunwar, Ramlakshman Singh and Nabinoor deposed, and the appellant also admitted that he sold his field to Nabinoor vide sale-deed Ex. P-11. Kailashkunwar opposed this sale. She and their daughter Dhyankunwar filed a civil suit against the appellant and Nabinoor, the plaint of which is Ex. P-17. Not only this, the deceased brought labourers and cut the crop sown by Nabinoor, about which Nabinoor lodged report Ex. P-13 on 8-10-92 against Kailashkunwar at Police Station, Sitamau. Ramlakshmansingh deposed that on a day, before 'Diwali' (25-10-1992) the appellant beat Kailashkunwar on the field as she objected the sale of the field and from there he took her to his house and probably on the same day killed her. The appellant had received sale price. If opposition continued or the deceased won the case, he was required to return the money. The appellant was habitual drunkard. He was needing money every day for purchasing liquor and Kailashkunwar was creating obstruction in his way. Therefore, removing the obstacle, he killed her.
13. It was vehemently argued, and the appellant also stated that he was not examined by the Doctor on 4-11-92, on the basis that on medical report Ex. P-17 '4-10-92' was written. This argument deserves to be rejected. It has come in the evidence of Dr. S.K. Mehta that he examined the appellant on 4-11-92 and found one abrasion on his right cheek. He was smelling liquor. Dr. Mehta explained that inadvertantly he wrote '4-10-92' instead of '4-11-92'. Dr. Mehta is right. In the request letter Ex. P-31 at two places 4-11-92 is written. Not only this, the arrest-memo Ex. P-21, Panchnama Ex. P-29 and there are several other documents which prove that the appellant was arrested from his house on 4-11-92.
14. In our opinion, the prosecution has been successful in establishing the circumstances which lead to the conclusion that it was the appellant and appellant alone who killed his wife Kailashkunwar. They are consistent only with the hypothesis of the guilt of the appellant and inconsistent to any other hypothesis. We, therefore, hold that the learned Trial Judge rightly found the appellant guilty of the offence under Sections 302 and 201, IPC and sentenced accordingly. We confirm the conviction and sentenced imposed on the appellant.
15. In the result, the appeal is dismissed. The appellant is in jail. He shall suffer the remaining part of jail-sentence.
16. Criminal Appeal dismissed.