Madhya Pradesh High Court
Pahal Singh vs The State Of M.P. on 2 April, 2019
Author: B.K. Shrivastava
Bench: B.K. Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 138 of 1997 &
176 of 1997
Parties Name Pahal Singh
Vs.
State of Madhya Pradesh
&
Ronu (deceased) and others
Vs.
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice Huluvadi G. Ramesh
Hon'ble Shri Justice B.K. Shrivastava.
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Shri R.S. Shukla, Amicus
Curiae, in both the cases.
For respondent/State: Shri Alok
Tapikar, Government Advocate, in both
the cases.
Law laid down
Significant paragraph
numbers
J U D G M E N T (Oral)
(03.04.2019) Per: Huluvadi G. Ramesh, J.:
1. Both the criminal appeals are filed against a common judgment dated 14.12.1996, hence, are decided by this common judgement.
2. Criminal Appeal No.138 of 1997 has been filed appellant-
Pahal Singh against the judgment dated 14.12.1996 passed in Sessions Trial No.94/1996 by the Court of Additional Sessions
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CRA No. 138/1997 & CRA No. 176/1997 Judge, Mandla (M.P.) and the Criminal Appeal No.176 of 1997 has been filed by the appellants-Ronu (deceased) and three others against the same judgment. The trial Court held the appellant- Pahal Singh guilty for commission of offence punishable under Sections 302 and 201 of Indian Penal Code and sentenced him to undergo life imprisonment and rigorous imprisonment for three years alongwith fine of Rs.200/- and Rs.100/- respectively, with default stipulation to undergo rigorous imprisonment for two months and one month respectively. Appellants-Ronu (deceased), Hammu, Laluju and Naval Singh were held guilty for commission of offence punishable under Section 201 of Indian Penal Code and sentenced to undergo rigorous imprisonment for three years alongwith fine of Rs.100/- each with default stipulation to undergo rigorous imprisonment for one month each.
3. Appellant-Ronu S/o Shri Adhnu Gond (Cr.A. No.176/1197) died during pendency of the case and the appeal filed on his behalf has already been dismissed as abated vide order dated 29.01.2007.
4. According to prosecution deceased Langadi @ Bhage Bai is the wife of appellant-Pahal Singh. Her sister namely Buddho Bai was also residing at the same village. The deceased was having suspicion that there was illicit relationship between Pahal Singh and Buddho Bai. There used to be often quarrel between Langadi
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CRA No. 138/1997 & CRA No. 176/1997 @ Bhage Bai and appellant-Pahal Singh in connection with illicit relationship with Buddho Bai. On 05.03.1996, a dispute arose between the husband and the wife on the aforesaid issue and during that quarrel, appellant-Pahal Singh assaulted Bhage Bai on his stomach by fist and also inflicted lathi blow on her head, due to which she died. When the villagers asked Pahal Singh to report the death of his wife to police, he, with the help of other co- accused persons, cremated the dead body of the deceased. On the query of the villagers how his wife died, he replied that he assaulted her by fist and lathi, due to which she died. He admitted his guilt before PW-1 Bhagchand, PW-4-Gulab Singh and PW-5- Ghanshyam and also requested them to save him. Ultimately, the incident was intimated to the police by PW-1 Bhagchand and offece at Crime No.26/1996 for offence under Section 302, 201 and 34 of IPC was registered against the appellants. After investigation, challan was filed before the competent Court. Learned trial Court framed charge against the appellants. The appellant abjured the guilt and pleaded innocence. The trial Court, after trial, held the appellant guilty for commission of offence and awarded punishment, as mentioned above in the judgment.
5. The grounds of appeals in common are that the trial Court failed to appreciate the evidence of the prosecution witnesses and wrongly convicted and sentenced the appellants on the basis of extra judicial confession. However, there is no iota of evidence
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CRA No. 138/1997 & CRA No. 176/1997 regarding extra judicial confession. Appellant-Pahal Singh has not stated anything regarding involvement of co-accused persons in commission of the offence. It is further pleaded that the appellants have been convicted on the basis of circumstantial evidence, but there is no circumstantial evidence disclosing the fact that the appellants were present at the spot, where the dead body was burnt. The prosecution has failed to produce any witness, who had seen accused persons carrying dead body of the deceased or had seen them helping main accused Pahal Singh in destroying the dead body of the deceased. The chain of the circumstantial evidence is also incomplete.
6. Apart from this, learned Amicus Curiae appearing for the appellants submits that the appellants are innocent. They have not committed any offence. They have been implicated falsely. The deceased died due to fever and as per the customs prevalent in the society, her last rites were performed. It is further submitted that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court committed an error in holding the appellants guilty for commission of offence of murder and disappearance of the dead body respectively and awarded severe punishment.
7. On the other hand, learned Panel Lawyer appearing on behalf of the State submits that the appellant-Pahal Singh
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CRA No. 138/1997 & CRA No. 176/1997 committed murder of his wife and the other co-accused persons helped him in causing disappearance of the dead body and as such, they destroyed the evidence. Their act is cruel in nature. There is ample evidence on record against the appellants. Before PW-1, PW-4 and PW-5, Pahal Singh made extra judicial confession and disclosed the fact that he committed blunder and killed his wife. The trial Court has rightly held the appellants guilty and awarded a proper sentence.
8. The prosecution, in order to prove its case, examined as many as seven witnesses and exhibited about 10 documents.
Accused persons in their statement under Section 313 of Cr.P.C. denied all the allegations and pleaded that they have been implicated falsely.
9. PW-1 Bhagchand deposed that deceased Bhage Bai was the wife of appellant-Pahal Singh, who died in the month of March. At about 3:00 O'clock, Pahal Singh told Gulab Singh that his wife had died. On the call of Gulab Singh, this witness went to the house of Gulab Singh. They asked Pahal Singh how his wife died. Mukaddam told Pahal Singh to call Kotwar and get the body examined to know the cause of death, but on the same day, dead body was burnt. Though, he admitted the fact that he gave intimation to the police, but he denied the contents of Merg Intimation Ex.P/1. He was declared hostile. In his cross-
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CRA No. 138/1997 & CRA No. 176/1997 examination by the prosecution, he deposed that he did not go to the place, where dead body of the deceased was burnt. He admitted the fact that he told the police that Pahal Singh came to the house of Mukaddam and told that his wife had died.
10. PW-2 Sher Singh deposed that accused persons are his relatives. He did not go to the place where dead body of the deceased was burnt. He denied the fact that police interrogated Pahal Singh before him, but admitted his signature on Ex.P/3. He further deposed that police took out one stick (danda) and one green saree from the house of Pahal Singh. He was declared hostile. He admitted his signature on seizure memo Ex.P/5 and Ex.P/6. He admitted the fact that police seized bones of the deceased from the place, where her body was burnt and he admitted his signature on Ex.P/6-A. He disclosed that cloth of accused Pahal Singh was seized vide Ex.P/7 and admitted his signature on the same.
11. PW-3 Chhatar Singh is the son of appellant-Pahal Singh. He deposed the fact that other accused persons are his relatives. Deceased Bhage Bai was his mother, who died in the month of fag (March). After her death, her body was burnt in the field. At the time of death of the deceased, he was present in the house. He alongwith all the accused persons went to cremate the body of the deceased. His mother died due to vomiting and loose motion
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CRA No. 138/1997 & CRA No. 176/1997 (diarrhea). No treatment was given to her. He was declared hostile. In the cross-examination by prosecution, he admitted that on the date of incident accused Pahal Singh and Buddho Bai came from Bhurka early in the morning. He further admitted the fact that after death of his mother, his father burnt her body without any intimation to the villagers. He further admitted the fact that crematorium, where other residents of the village used to cremate the bodies, is different from the place where body of her mother was burnt. He further admitted that he wanted that his father be acquitted from the case. There was no reason with him for not getting his mother treated. On contrary, in his cross-examination by the accused, he deposed the fact that his mother was the patient of diarrhea, for which she was got treated but all in vain.
12. PW-4 Gulab Singh deposed that on the day, when the deceased was died, accused Pahal Singh came to him and told the fact that his wife died due to fever. This witness called the Sarpanch, Member-Sher Singh, Bhag Singh and the Kotwar of the village. This witness forbade accused Pahal Singh to cremate the body of the deceased and advised him to inform the police first, but he burnt the body of the deceased. He further deposed that Pahal Singh requested him to save him. Pahal Singh told him that a quarrel had taken place in connection with illicit relationship and in that quarrel he fisted the deceased and also inflicted danda blows to her, as a result of which she died. On coming to know
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CRA No. 138/1997 & CRA No. 176/1997 the aforesaid fact, they intimated the police on the next day. He admitted his signature on Ex.D/1.
13. PW-5 Ghanshyam deposed that on 6th day of the month, at 7:00 hours in the morning, Assistant-Sarpanch namely Bhag Singh gave intimation in writing about death of the deceased Bhage Bai. When he was going to village Dhamni, on the way, sister of the deceased namely Bhagwati met with him and told the fact that Pahal Singh had killed her sister Bhage Bai. He further deposed that Chhataru (Chhatar Singh) admitted the fact that he told Bhagwati that Pahal Singh had killed Bhage Bai. He further deposed that Pahal Singh requested him to settle the matter and not to report the same to the police. Before him, Pahal Singh admitted his guilt that he had killed Bhage Bai.
14. PW-6 J.S. Tomar deposed that from 11.10.1995 to 24.06.1996, he was posted as Station House Officer Incharge of Police Station Mohegaon, District Mandla. On 07.03.1996, he prepared spot map Ex.P/8 and signed the same. He also prepared the map of the place, where dead body was burnt, which is Ex.P/9 and signed the same. He arrested accused Pahal Singh and recorded his memorandum Ex.P/3. On the basis of Ex.P/3, he seized one lathi vide Ex.P/5 and signed the same. On the same day, another memorandum of accused Pahal Singh was also recorded, which is Ex.P/4. On the basis of memorandum of Pahal
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CRA No. 138/1997 & CRA No. 176/1997 Singh Ex.P/4, he seized one blood stained ladies saree vide Ex.P/6 and signed the same. On the same day, he seized pieces of bones of the deceased, from the place where her body was burnt, vide seizure memo Ex.P/6-A and signed the same. He also seized dhoti of Pahal Singh, on which there were blood stains, vide seizure memo Ex.P/7. Seized articles were sent for chemical examination. He recorded evidence of the witnesses Manohar, Gulab Singh and Ghanshyam.
15. PW-7 R.K. Sharma deposed that he was posted as Police Chowki Incharge, Mehadwani. On 06.03.1996, Bhagchand came and got registered first information report, which is Ex.P/10.
Based on the statement of Bhagchand, he recorded merg intimation Ex.P/1 and signed the same. He recorded statement of Bhagchand, which is Ex.P/2, and signed the same. He also recorded the statement of Chhatar Singh, which is Ex.P/8.
16. From the aforesaid evidence, it is clear that the wife of appellant-Pahal Singh died in suspicious circumstances and on the same day, in the evening, her body was burnt without any intimation to the police. PW-4 Gulab Singh and other persons advised Pahal Singh not to cremate the body and intimate the police first, but he burnt the dead body in a field. At the instance of appellant-Pahal Singh, a blood stained saree was seized from his house. A danda was also seized from the possession of the
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CRA No. 138/1997 & CRA No. 176/1997 appellant-Pahal Singh. There were blood stains on the dhoti seized from appellant-Pahal Singh, which he was wearing. PW-3 Chhatar Singh, who is the son of the deceased-Bhage Bai and appellant-Pahal Singh, disclosed that after death of his mother, his father cremated her body without intimating the villagers. Even from the evidence of PW-4-Gulab Singh and PW-5-Ghanshyam, it is clear that Pahal Singh by way of extra judicial confession disclosed the fact that he had killed his wife. It is also clear that on account of quarrel between the husband and the wife in connection with illicit relationship, Pahal Singh fisted his wife and also gave lathi blows, due to which she died. There is evidence to the effect that he caused disappearance of the dead body. Neither there is any postmortem report nor any other report of the deceased on record. In view of the facts and situation of the case, it is a case of house murder and it is for the husband to explain the situation in which the deceased died. Though PW-3 Chhatar Singh turned hostile, but so far as causing disappearance of the dead body is concerned, he states that Pahal Singh burnt the body of the deceased in the field even without informing the villagers. In the factual situation of the case and as per the version of the witnesses, it is a case of house murder, in which, appellant- Pahal Singh caused death of his wife and also caused disappearance of her body without intimating the police ignoring the advice of the complainant and other villagers in this regard.
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CRA No. 138/1997 & CRA No. 176/1997
17. Section 106 of the Evidence Act 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 traveling on a railway without ticket. The burden of proving that he had a ticket is on him."
18. In Nika Ram v. State of H.P." AIR 1972 S.C. 2077 the accused was alone was with his wife in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, court held guilty and said in para 16 :-
"16. .......The accused also does not deny that he was with the deceased at his house on the day of occurrence. ...........The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt."
19. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife.
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CRA No. 138/1997 & CRA No. 176/1997
20. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly Supreme Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC.
21. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that
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CRA No. 138/1997 & CRA No. 176/1997 there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.
22. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 = 2006 AIR SCW 5300 the court said that where an offence like murder is committed in secrecy inside a house, silence of inmates of house about cause of death would become additional link in chain of circumstances. Case was related to dowry death and court said that in view of S. 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 court said in para 12 as under :-
"12. 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............ 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."
Court again observed :-
"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
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CRA No. 138/1997 & CRA No. 176/1997 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."
The Court further explained in para 16 :-
"16. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that 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 view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)]".
23. In "Ravirala Laxmaiah v. State of A. P" 2013 CRI. L. J. 3147 [S.C.] Accused-husband and deceased were last seen together and no explanation was given by accused that how death occurred. The defence raised by accused that wife committed suicide by hanging with sari was found false. Accused was doubting fidelity of deceased which was motive to eliminate deceased. The court said that conduct of accused of giving false information to in-laws, living in guest house while dead body of
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CRA No. 138/1997 & CRA No. 176/1997 wife was in house and absconding after incident, Clearly point that accused was guilty and conviction of accused cannot be said faulted. In para 15 court said :-
"15. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye- witness's account is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, 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. (Vide: State of U.P. v. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045; : (1992 AIR SCW 2417), Gulab Chand v. State of M.P., AIR 1995 SC 1598 : ( 1995 AIR SCW 2504), State of Tamil Nadu v. Rajendran, AIR 1999 SC 3535 : (1999 AIR SCW 3536) State of Maharashtra v. Suresh, (2000) 1 SCC 471; and Ganesh Lal v. State of Rajasthan, (2002) 1 SCC 731 : (2001 AIR SCW 5251)."
24. In Neel Kumar alias Anil Kumar v. State of Haryana, (2012) 5 SCC 766, : (AIR 2012 SC (Cri) 1110 : 2012 AIR SCW 3766) this Court observed :
"30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC.
Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal, AIR 2010 SC 773 : (2010 AIR SCW 1008)".
25. The Investigating Officer raised query from appellant-Pahal Singh that how his wife was died, he replied that the deceased died due to fever, but later on, he admitted that due to assault his
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CRA No. 138/1997 & CRA No. 176/1997 wife died, which proves the fact that Pahal Singh murdered his wife. The Apex Court in the matter of Gajanan Dashrath Kharate vs State of Maharashtra reported in (2016) 4 SCC 604 has held that initial burden to prove the case lies on the prosecution, but, in view of Section 106 of the Evidence Act, the burden also lies on the inmates of the house to cogently explain how the crime was committed. Further, when the prosecution has proved presence of the accused at his home with the deceased at the time of incident, the accused is duty bound to explain as to how the death of deceased was caused.
26. After marshaling with the evidence on record, it is established that on the date of incident a quarrel took place between the husband and the wife, and the husband assaulted the wife, as a result of which, she died. After her death, husband told the villagers that his wife died due to fever, but later he admitted the fact that he assaulted his wife, due to which she died. Blood stained saree of the deceased was seized at the instance of the appellant. The danda was also seized at the instance of Pahal Singh. There were blood stains on the dhoti of appellant-Pahal Singh, which was seized from him. Initially, Pahal Singh disclosed that his wife died due to fever, but did not produce any documents regarding ailment or treatment of his wife. It is a case of house murder and the husband has failed to offer any explanation regarding cause of death of the deceased. Apart from
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CRA No. 138/1997 & CRA No. 176/1997 this, despite there being advice of the villagers not to cremate the body without intimating the police, he burnt the body of the deceased in the field. Hence, it is proved that appellant-Pahal Singh committed murder of his wife and also cause disappearance of the dead body. On marshaling with the evidence of the prosecution witnesses, we do not find any illegality in the impugned judgment and order convicting and sentencing the appellant-Pahal Singh under Sections 302 and 201 of IPC.
27. So far as other accused persons namely Hammi S/o Adhnu Gond, Laluju S/o Chammu Gond and Naval Singh S/o Chammu Gond are concerned, they are the persons who are stated to have gone at the place where dead body of the deceased was cremated, but there is no overt act of them in causing disappearance of dead body. Except the evidence of PW-3 Chhatar Singh to the effect that they were present at the time when the body was burnt, there is nothing on record against them. Hence, having regard to the evidence of the witnesses and the fact that most of the villagers do not know the consequence of these things and also there is nothing on record to establish that these people had gone there knowing fully well about causing of disappearance of the dead body, in absence of any such cogent evidence on record, in our opinion, they cannot be held guilty for commission of offence punishable under Section 201 of IPC.
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CRA No. 138/1997 & CRA No. 176/1997
28. Looking to overall facts and circumstances of the case, in our opinion, there is evidence against appellant-Pahal Singh that he caused murder of his wife and also caused disappearance of her body, hence, in our opinion, the trial Court has rightly convicted the appellant-Pahal Singh and awarded a proper sentence. We do not find any merit in Criminal Appeal No.138/1997 (Pahal Singh vs State of Madhya Pradesh), it is hereby dismissed and the judgment of the trial Court is affirmed. He is on bail. His bail bond stands canceled. The accused is directed to surrender before the trial Court within 15 days, if he fails to do so, the trial Court to take appropriate steps to take him into custody and send him to jail for serving out remaining part of the sentence. He shall entitle benefit of set off under the provision of Section 428 of the Cr.P.C.
29. So far as accused persons namely Hammi S/o Adhnu Gond, Laluju S/o Chammu Gond and Naval Singh S/o Chammu Gond are concerned, there is no legal evidence on record to establish the fact that they caused disappearance of the body of the deceased. Hence, Criminal No.176/1997 (Ronu (deceased) and three other vs State of M.P.) is hereby allowed and the impugned judgment is set aside. They are acquitted from the charge under Section 201 of IPC. They are on bail, their bail bond stands discharged.
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CRA No. 138/1997 & CRA No. 176/1997
30. High Court Legal Services Committee to disburse fee of Rs.4000/- for each case to the learned Amicus Curiae.
(Huluvadi G. Ramesh) (B.K. Shrivastava)
Judge Judge
vkt
Digitally signed by VINOD KUMAR TIWARI
Date: 2019.04.10 15:10:30 +05'30'