Madhya Pradesh High Court
Radhe vs State Of M.P. on 13 July, 2022
Author: Rajeev Kumar Shrivastava
Bench: Gurpal Singh Ahluwalia, Rajeev Kumar Shrivastava
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
+BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH
AHLUWALIA
&
HON'BLE SHRI JUSTICE RAJEEV KUMAR
SHRIVASTAVA
CRIMINAL APPEAL NO. 259 of 2012
Between:-
RADHE SON OF TULARAM HARIJAN,
AGED 32 YEARS, OCCUPATION-
AGRICULTURE, VILLAGE RAMPURA,
POLICE STATION TYONDHA, DISTRICT
VIDISHA, MADHYA PRADESH
.... APPELLANT
(SHRI VINAY KUMAR- COUNSEL FOR THE
APPELLANT )
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION TYONDHA
DISTRICT VIDISHA (MP)
....RESPONDENT
(SHRI RAJIV UPADHYAY-PUBLIC
PROSECUTOR FOR THE RESPONDENT/
STATE)
2
Reserved on : 7TH JULY, 2022
Delivered on : 13th July, 2022
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This appeal coming on for final hearing, Hon'ble Shri
Justice Rajeev Kumar Shrivastava, passed the following:
JUDGMENT
Being aggrieved by the judgment of conviction and sentence dated 10th January, 2012 passed by Second Additional Sessions Judge (FTC), Ganjbasoda, District Vidisha (MP) in Sessions Trial No.119 of 2009 convicting the appellant u/S 302 of IPC and sentencing him to undergo life imprisonment with fine of Rs.1,000/- with default stipulation, the present appeal u/S 374 of CrPC has been filed. (2) In nutshell, prosecution case is that on the basis of information given by Chowkidar Mohan (PW3), the police recorded a dehati nalishi at around 10:55 O'clock for commission of offence u/S 302 of IPC to the effect that the said Chowkidar got an information from one Devraj of village that the appellant has committed murder of his wife. On arriving village Rampura, they entered in the house of 3 appellant and found that corpse of Shardabai (wife of the appellant) is lying with bloods-stains in the kitchen room and the appellant informed that he has committed murder of his wife by an axe on the ground that he was always upset because of demanding a share in the land by his sister. On the basis of dehati nalishi Ex.P14, FIR (Ex.P16) was registered and the matter was investigated. During investigation, the statements of witnesses were recorded and a Naksha Panchanama and postmortem requisition form Ex.P15 were prepared. Bloods-stained and plain soil as well as hair braid of the deceased were seized vide Ex.P17 and spot map was prepared vide Ex.P2. The accused-appellant was arrested vide arrest memo Ex.P4 on the basis of his memorandum Ex.P5. As per memorandum Ex.P6, bloods-stained axe was seized from the possession of appellant vide Ex.P16. Seized articles were sent for examination to RFSL Bhopal. On completion of investigation, the charge sheet was filed before the competent Court from where the case was committed to the Sessions 4 Court. Accused-appellant abjured his guilt, pleaded complete innocence and claimed for trial.
(3) Appellant, in his defence, got examined his real sister Sakhi Bai as DW1. Prosecution in support of its case examined as many as 12 witnesses.
(4) The Trial Court, after appreciating the entire evidence led by prosecution and relying on the same, found charge against appellant as proved and accordingly, convicted and sentenced him for commission of offence as indicated above in paragraph 1 of this judgment.
(5) It is the say of counsel for the appellant that the judgment passed by trial Court is contrary to law as the trial Court has not evaluated the evidence properly while convicting the appellant. There is no eye-witness to the incident and the incident is based on circumstantial evidence and the trial Court has relied upon the statements of hearsay witnesses. It is further submitted that PW-1 Raju, PW2-Pritam, PW3-Mohan, PW4-Kunjilal, PW5-Bhupendra, PW6-Devraj, 5 PW8-Parvati Bai & PW9-Ghanshyam have not supported the prosecution version, therefore, the death of deceased is under suspicion. No motive of the appellant regarding murder of his wife is proved by prosecution. Complainant/Chowkidar of Village, namely, PW3- Mohan did not categorically mention the name of person who had committed offence. None of prosecution witnesses has seen the incident regarding murder of the wife of appellant. Father of deceased Kunjilal also in his evidence stated that at the time of incident the appellant was with him. The Trial Court has committed an error by drawing a finding in regard to blood-stains on the clothes of appellant accused. The chain of circumstances is not fully established. On these grounds, the appellant prayed for his acquittal and the impugned judgment passed by Trial Court deserves to be set aside.
(6) In reply, counsel for the State supported the impugned judgment and submitted that there is no infirmity in the impugned judgment and the trial Court has not committed any 6 error in convicting and sentencing the appellant for the aforesaid offence. Hence, prayed for dismissal of this appeal. (7) We have heard the learned counsel for the parties and perused the impugned judgment as well as the evidence of witnesses.
(8) Raju (PW-1) in para 1 of his examination-in-chief has stated that appellant informed him that he has committed murder of his wife and the appellant is standing outside at the time of assembling of the villagers. Pritam (PW-2) is the hearsay witness who came to know from somebody else that accused-appellant has committed murder of his wife. Mohan (PW-3) who is the Chowkidar of the village, in para 1 of his examination-in-chief, deposed that Devraj informed him that the appellant has committed murder of his wife and thereafter, he informed to the police. When he reached the house of appellant of village Rampura, he found that the police was already sitting there and the corpse of deceased along with blood stains was lying in kitchen room and afterwards, the 7 police conducted other written formalities. This witness has turned hostile by the prosecution. Kunjilal, father of deceased (PW-4) and Bhupendra (PW-5) have turned hostile by the prosecution as they did not support the prosecution version. Devraj (PW-6) in para 2 of his cross-examination admitted that he got an information from somebody else to inform the Chowkidar of village regarding murder of deceased so that the police received information from Chowkidar, who in his evidence deposed that the wife of appellant was murdered. This witness has admitted that the Chowkidar of village informed him that the appellant himself has admitted that the murder of his wife was committed by appellant himself. This witness has also turned hostile as he did not support the prosecution version. Mansingh (PW-7), Parvati Bai (PW-8) and Ghanshyam (PW-9) have turned hostile as they did not support prosecution story. Ramesh Prasad Dwivedi (PW-12) is the Head Constable of Police Station Tyondha in para 2 of his examination-in-chief has deposed that on the date of incident, 8 he had gone along with Officer in-Charge of said police station and when they reached the house of the appellant, they found that the deceased was lying dead.
(9) Dr. Prashant Kumar Jain (PW-11) deposed that on 24- 11-2008 he had conducted the postmortem of deceased & found following injuries on the body of deceased:-
''(1) Left eye bluish colour and left upper- eye lid contusion 3''x1/2'' present.
(2) Left side of neck '' incised wound'' size 3''x2'' expository trachea punctured bone cut down (hole present) (3) Incised wound size 3''x1'' anterior side of the neck.
(4) Incised wound 2'x ½x ½'' ' upper-lip to skin 2'x ½ ''x ½ lower-lip deep to skin.
(5) Incised wound 1 ½ ''x ½ '' x1'' on the left neck.'' According to the opinion of doctor, the cause of death of deceased was due to asphyxia as a result of incised wound over trachea. The duration of death of deceased was 24:32 hours before autopsy. According to the opinion of doctor, rigor moritis were present over the neck of the deceased. (10) Manoj Dubey (PW10) who is the Investigating Officer 9 of the case in his evidence deposed that Mohan, the Chowkidar of village Rampura had informed him that the appellant committed murder of his wife deceased and her dead body is lying in the house and on receiving merg information Ex.P14, immediately he reached the house of appellant and prepared Panchnama of dead body of the deceased and spot map was also prepared. Statements of the witnesses were recorded, blood-stained articles were seized, the appellant was arrested & other formalities were also done by him. This witness in para 5 of his cross-examination has specifically admitted that the Chowkidar of village Rampura given an information at 10:00 O'clock by telephone that the appellant had committed murder of his wife-deceased. (11) Sakhi Bai (DW1) in support of appellant-accused in para 3 of her statement, deposed that his brother appellant had four- five acres of land and she got a share in the said land but she returned the same to his brother appellant. This witness deposed that her name was also mutated in the revenue records 10 and denied that she returned the land at the instance of his brother appellant but the same was returned by her own wishes. This witness denied that there was any ill-will between her and her brother on account of land. This witness in para 4 of her cross-examination admitted that she had seen the dead body of the deceased and the injuries sustained by her on the head of deceased. This witness in para 12 of her cross-
examination denied that before the incident, a quarrel regarding the land was taken place between her and her brother appellant and since then, they did not have in talkative terms and also denied that her brother appellant was always furious and threatened to get back his land. From the evidence of this witness, it is clear that this witness is giving a false evidence in order to save his own brother appellant accused. (12 ) In continuation, it is submitted by learned counsel for the appellant that the impugned judgment is based on circumstantial evidence and on the basis of wrong appreciation of evidence on record, the Trial court has passed the impugned 11 judgment. It is further submitted that the IO did not get any clue regarding the murder of wife of appellant and the trial Court did not consider the defence evidence adduced before it on behalf of appellant. Therefore, the appellant deserves to be acquittal of alleged offence.
(13) So far as the contention of learned counsel for the appellant that there is no direct connection of the appellant in commission of murder of his wife and the chain of circumstances is incomplete is concerned, it would be in the interest of justice to consider the law-governing case based on circumstantial evidence before a case against the accused can be said to be fully established.
(14) In the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Hon'ble Apex Court has laid down a five golden principle as under which respect of a case based on circumstantial evidence:-
"(1) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long 12 and divides vague conjectures from sure conclusions.
(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''.
(15) The Hon'ble Apex Court in the matter of Padala Veera Reddy Vs. State of A.P. 1989 Supp (2) SCC 706 has held as under:-
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the 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 none else; and the circumstantial evidence in order to sustain conviction must be 13 complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
(16) The Hon'ble Apex Court further in the matter of Ramreddy Rajesh Khanna Reddy vs. State of A.P. (2006) 10 SCC 172 has held as under :-
''26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. '' (17) The Hon'ble Apex Court in the matter of Balwinder Singh vs. State of Punjab, 1995 Supp (4) SCC 259 has held as under:-
"4. ... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with 14 the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."
(18) The Hon'ble Apex Court in the matter of Sunil Clifford Daniel Vs. State of Punjab reported in (2012) 11 SCC 205 has held as under: -
''29. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] it was held by this Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (SCC p. 185, para 153) "(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.
(2) the facts so established should be consistent 15 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."
Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached.
Undoubtedly, suspicion however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.'' (19) Circumstantial evidence of following character needs to be fully established as laid down by Hon'ble Supreme Court in the case of Satish Nirankari vs. State of Rajasthan (2017) 8 SCC 497 under:-
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''(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.'' (20) In the light of law laid down by Hon'ble Apex Court in the above catena of decisions, it is needless to say that what is required, is not quantitative but qualitative, reliable & probable circumstances to complete chain connecting the accused with the alleged crime. In the case at hand, as the prosecution has established guilt of the accused beyond reasonable doubt on the basis of clear and cogent evidence, therefore, he is not entitled as of right to be acquitted. (21) Next contention of learned counsel for the appellant that the Trial Court had to examine the incriminating evidence relied upon by the prosecution that is extra-judicial confession made by the prosecution witnesses but the Trial Court has disbelieved the same and has wrongly convicted the appellant by the impugned judgment. In support of contention, he has 17 relied on the judgments of Hon'ble Apex Court in the case of Chandrapal (Earlier MP) vs. State of Chhattisgarh, reported in 2022 Live-law (SC) 529 & Sahadevan & Another vs. State of Tamil Nadu decided on 8th May, 2012 in Criminal Appeal No.1405 of 2008.
(22) In the catena of decisions, although the Hon'ble Supreme Court has held that it is settled principle of criminal jurisdiction that extra-judicial confession is a weak piece of evidence; unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinary conviction for offence of murder should not be made only on the evidence of extra-judicial confession but, the aforesaid law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. However, coming to the facts and circumstances of the present case, the confession is amply corroborated by evidence of Raju (PW-1) who in para 1 of his examination-in-chief had deposed that the accused-appellant informed him that he had committed murder 18 of his wife and after commission of murder, the appellant is standing outside the house at the time of assembling of the villagers and the nature of injuries sustained by the deceased is also supported by medical evidence. It appears that a man can not confess to himself; but he can only confess to another. (23) Next contention of the counsel for the appellant that the Trial Court has disbelieved plea of alibi of the appellant and in support of contention, he has relied on judgments of Supreme Court in the case of Shivaji Chintappa Patil vs. State of Maharashtra decided on 02-03-2021 in CRA No.1348 of 2013 and Kallu @ Laxminarayan vs. State of MP decided on 07-11-2019 in CRA No.1677 of 2010.
(24) It is settled principle of law that plea of alibi is used as a shield of defence and never as a weapon of offence by accused. It is a basic law that in a criminal case in which the accused is alleged to have committed murder of another person; the burden lies on the prosecution to prove that the accused was present at the scene of occurrence and has 19 participated in the crime. But, once prosecution succeeds in discharging the burden, it is incumbent on the accused who adopts plea of alibi to prove it with absolute certainty so as to exclude possibility of his presence at the place of occurrence.
When presence of accused at the scene of occurrence has been successfully and satisfactorily proved by the prosecution through reliable and cogent evidence, then normally the Court would be slow to believe any counter-evidence to the effect that the appellant was elsewhere when the occurrence was happened. It appears that the prosecution, in the present case, has successfully established its case beyond reasonable doubt. (25) In the light of above, it is apparent that the burden of proof lies on the appellant accused to prove that as to how crime was committed, as to who has committed murder of his wife and as to why his wife was murdered. The accused in the present case at hand, has utterly failed to establish/prove the above-said facts before the Trial Court. Even his sister Sakhi (DW1) has remained failed to establish/prove the said facts 20 and in order to save her real brother-appellant, she has given a false evidence before Trial Court whereby the trial Court disbelieved her evidence.
(26) So far as next contention of the counsel for the appellant that there is no eye-witness to the incident is concerned, in various judgments of the Hon'ble Supreme Court, it has been held that the Court will not insist on the corroboration by any other witness particularly, as the incident might have occurred at a time or place when there was no possibility of any other eye-witness being present. Indeed, the Court always insists on the quality and not on quantity of evidence. Just because most of prosecution witnesses had turned hostile is also not a ground or reason to discard the entire prosecution evidence. Witnesses turning hostile is a major disturbing factor faced by Criminal Courts in our country and the reasons may be the result of threat or intimidation or due to monetary consideration or by any other tempting offers or whatsoever reason, best known to them. 21 There is no doubt that the appellant had committed murder of his wife in a very devilish manner and the motive on the part of appellant-accused for committing murder of his wife cannot be ruled out.
(27) On the basis of prolix discussions made above and also considering the material available on record, we are of the considered opinion that the finding of conviction and sentence for offence u/S 302 of IPC recorded by the Trial Court against the appellant is well-substantiated by the evidence on record. The Trial Court has appreciated the evidence in the right perspective as such, we do not find any justification to interfere with the findings, therefore, the impugned judgment of conviction and sentence dated 10th January, 2012 passed by Second Additional Sessions Judge (FTC), Ganjbasoda, District Vidisha (MP) in Sessions Trial No.119 of 2009 is hereby maintained and affirmed. The appeal is, accordingly, dismissed.
(28) If the appellant is on bail, then his bail bond and surety 22 bonds are hereby cancelled and he is directed to surrender before the Court concerned forthwith, failing which Trial Court shall take appropriate steps to put the appellant back in jail to undergo the remaining jail sentence as awarded to him. (29) Let a copy of the judgment be sent to Jail Authorities as well as a copy of this judgment along with the Lower Court Record be immediately sent to the Court below for compliance and necessary entries be maintained in the relevant Register.
(G. S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
MKB
Digitally signed by MAHENDRA BARIK
Date: 2022.07.13 17:43:04 +05'30'