Kartik Ram vs State Of C.G.

This appeal is directed against impugned judgment of conviction and order of sentence dated 16/04/2013, by which, the appellant has been held

guilty of commission of offence under Section 302 IPC and sentenced for life imprisonment with fine of Rs.5,000/-, in default of payment of fine, 6

months additional R.I.

According to the story of the prosecution, as unfolded from the records of the case, an FIR was lodged in Ex.P/5 by Ankit Bada (PW4) on

19/03/2012 at about 14:30 hrs wherein it was stated that the dead body of Marium was found in her house and her neck was cut. Tersa, the mother of

the appellant informed Ankit Bada that the door was closed and when it was opened, she went and found that Marium was lying in blood bath and her

neck was cut by the appellant â€" Arun Bada. Marium was found dead. It was stated in the FIR that the appellant also cut his neck and he was

bleeding. According to this witness, at the spot, some other persons also arrived. On the FIR and receipt of information of death, morgue in Ex.P/6

was recorded containing similar details as in the FIR. Inquest over dead body was prepared in the presence of the witnesses, in Ex.P/18 and dead

body was sent for post mortem. Dr. S.P. Paikra (PW9) conducted post mortem and prepared post mortem report in Ex.P/10. The appellant, at that

time, however, was not arrested and his medico legal examination was conducted only on 30/03/2012 in Ex.P/13 by Dr. C.K.Sai (PW12) in which,

simple healed up injury was found. The appellant was arrested on 30/03/2012. Knife alleged to have been used in commission of offence was seized

by the Investigating Officer in the presence of the witnesses, vide Ex.P/2. Plain and blood stained soil were also seized from the spot vide Ex.P/3.

Knife, clothes of the deceased and soil collected from the spot were sent to FSL and a report in Ex.P/23 was received from FSL. Scene of crime in

Ex.P/15 was prepared by the Investigating Officer and spot map was prepared in Ex.P/11 by Teekam Singh Porte (PW10). After recording

statements under Section 161 CrPC and completion of usual investigation, charge sheet was filed. The appellant was charged for offence of

committing murder of his wife. The appellant abjured guilt and demanded trial. He was put to trial and the prosecution examined as many as 13

prosecution witnesses.

The appellant was then examined under Section 313 CrPC in respect of the incriminating circumstances and evidence led by the prosecution. The

appellant denied having committed offence and his defence is that he has been falsely implicated. No defence witness was examined.

Learned Trial Court, relying upon the proof of circumstantial evidence that Marium died a homicidal death; dead body was found in the house; knife

was seized from the mother of the appellant; appellant failed to explain circumstances under which he and his wife sustained injury and that there was

an evidence of quarrel between him and his wife, held the appellant guilty of commission of offence and sentenced as described above.

Learned counsel for the appellant, assailing correctness and validity of impugned judgment of conviction and order of sentence argues that the

conviction of the appellant is unsustainable in law because there is neither any direct evidence nor reliable proof of circumstantial evidence so as to

warrant conviction of the appellant. Only because the deceased happened to be the wife of the appellant, the appellant has been held guilty. He would

submit that the appellant had also sustained injury on his neck which goes against presumption of guilt. Knife was not seized from the appellant but it

was seized from the possession of Tersa (PW5), the mother of the appellant and the prosecution has not explained this aspect as to why the knife was

found in possession of Tersa. Except this, there are no other incriminating circumstances. Therefore, conviction of the appellant is unsustainable in

law.

On the other hand, State counsel supports the judgment of conviction and order of sentence by submitting that even though there is no eye witness,

the fact that Marium died homicidal death in her house, appellant failed to explain her injury and his own injury and that the seizure of knife from Tersa

was found blood stained and witnesses have stated that the knife was recovered from the spot only and that there is an evidence of quarrel and

dispute between the husband and wife, taken together, constitute a complete chain of circumstances to point towards the guilt of the appellant only.

Therefore, conviction does not warrant any interference.

The conviction of the appellant is based only on circumstantial evidence. There is no eye witness. Before proceeding to examine the material on

record to find out whether the appellant is guilty of commission of offence, we shall state the settled legal position with regard to the circumstantial

evidence and proof of guilt, where the case of the prosecution is based entirely on circumstantial evidence. In the case of G. Parshwanath v. State of

Karnataka (2010) 8 SCC 593, it was held :

 “23. In cases where 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. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must

be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of

primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question

whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of

benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the

surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must

have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter

has to consider the effect of proved facts.â€​ In yet another decision in the case of Vijay Kumar Arora v. State (Government of NCT of Delhi), (2010)

2 SCC 353, it was held as under:

 “16.5. 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; and where the various links in a chain are in

themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court.â€​

FIR in Ex.P/5 lodged by Ankit Bada (PW4) has been proved by him and the Investigating Officer (PW13). Ankit Bada, in his Court statement, has

deposed that he was informed by his aunt that her sister-in-law â€" Marium has died and thereafter, he lodged report in the police station. He has

proved his signature. This witness has also proved his signature on morgue intimation (Ex.P/6) but he says that has not given any statement to the

police. On this aspect, he turned hostile in his cross examination, he stated that Marium-the deceased had heavily consumed liquor and she was used

to the same. In cross examination, however, he states that he has not stated in the police station that Marium was murdered by the appellant.

Investigating Officer (PW13) has stated in his evidence that on the report lodged by Ankit Bada, he had recorded FIR in Ex.P/5 and has proved his

signature.

As far as lodging of FIR is concerned, Ankit proves that he lodged FIR but this witness has not supported the entire contents of the FIR. This witness

has also stated that he gave morgue intimation and has also admitted his signature on the morgue intimation (Ex.P/6). Therefore, to the extent that

Marium was found dead in her house and it was seen by this witness and that he informed this to the police, on which, FIR was registered, is proved

by the prosecution.

Dead body of Marium was found in her house, which fact is proved from the inquest report Ex.P/18 prepared by the Investigating Officer (PW13).

Investigating Officer (PW13) has deposed in para 12 that he prepared inquest report on 19/03/2012 in the presence of the witnesses. This statement

of J.P.Singh - Investigating Officer (PW13) has not been controverted in his cross examination. In the inquest report, it has been stated that the dead

body of the deceased â€" Marium was found in the kitchen and the appellant â€" Arun Bada was also found injured and blood was oozing out from his

neck. Dead body of the deceased was found on the mattress lying in the kitchen. Therefore, from the evidence of this witness and inquest report, it is

clear that the dead body of Marium was found inside her house in the kitchen which was lying on a mattress. Chandan Khalkho (PW2) has deposed

that when he went to the house of the appellant, he found that Marium was lying dead. Rajesh Kumar (PW6) has also stated that when he learnt

about the death of Marium, he went to her house and saw that the dead body was lying inside the house. Vijay Nayak (PW7) has also deposed that

the dead body of Marium was lying in her house. Similar is the evidence of Anil Jaywant Dhundhun (PW8). Thus, from the aforesaid evidence, it is

proved beyond doubt that Marium was lying dead in her house and there was an injury seen on her neck. It is also proved from the evidence that the

appellant â€" Arun Bada was also present at the spot and he had also sustained an injury on his neck from which also, blood was oozing out.

Homicidal death of Marium has been proved by the prosecution not only from the testimony of the witnesses who have seen the body with injuries

and lying in blood bath, but conclusively from the post mortem report (Ex.P/10) proved by Dr. S.P. Paikra (PW9). In his Court statement, the doctor

has proved his post mortem report and stated regarding injuries and his opinion as below -

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vk[ksa vk/kh [kqyh gqbZ ,oa iqryh QSyh gqbZ rFkk fLFkj Fkk] ukd esa fdlh izdkj dk fMLpktZ ugha Fkk] eaqg vk/kh [kqyh gqbZ] thHk vanj Fkk]

nkfguk gkFk QSyh gqbZ] ck;k gkFk vk/kh eqMh gqbZ] gkFk dh vaxqyh vk/kh eqMh gqbZ Fkh] Nkrh] isV] tuu bafæ;k lkekU; Fkk nksuksa iSj QSyh

gqbZ Fkh] 'kjhj esa fuEu pksVsa ik;h xbZ Fkh %&

1- ,d frjNk rst dVk pksV xys ds e/; esa lkeus lkbM ekStwn Fkk] pksV dk vkdkj lk[kksyus ij ogka ij [kwu dk FkDdk ekStwn Fkk] ogka dh peMh nkfguh LVjksesLVkbM elYl] nfguk tqxyhj osu] Vªsfd;k dV dj vyx gqvk FkkA

[kksiMh] diky] flYyh] efLr""d lkekU; Fkk] ilyh dkseykLFk] QqLQql lkekU; FkkA daB vkSj 'okluyh Vªsfd;k dk e/; dV dj vyx gqvk FkkA nkfguk

QsQMk] cka;k QsQMk isjhvksu ijdsfl;e rFkk lkekU; FkkA g`n; [kkyh Fkk] o`gn okfgdk lkekU; Fkk] inkZ] vkarks dh f>Yyh] eqag lkekU; Fkk] [kkus

dh FkSyh [kkyh FkhA cMh vkar esa v/kZ Bksl inkFkZ ,oa xSl ekStwn FkkA ;d`r] Iyhgk] dqnkZ datsLVsM FkkA ew=k'k; esa ew= ugha FkkA

cPpknkuh lkekU; FkkA

4- e`frdk efj;e ds igus gq, diMs ,d lkMh] Cykmt] ,d xksnjh] ftlesa [kwu ekStwn Fkk] dks lhy iSd dj mlh vkj{kd dks lkSai fn;k FkkA

5- vfHker%&&&&&&&& iksLVekVZe tkap ds ckn e`R;q dk dkj.k nkfguk tqxhyj osu ,oa Vªsfd;k ds dVus ls vR;f/kd jDrlzko gksus ds dkj.k e`frdk

dh e`R;q gqbZA e`R;q dh izd`fr gR;k izrhr gksrk gSA e`frdk dh e`R;q yxHkx 23 ls 25 ?kaVk iwoZ dk FkkA esjh fjiksVZ iz-ih- 10 gS] ftlds v ls v Hkkx

ij esjk gLrk{kj gSA ^^

It is, thus, clear that Marium was assaulted with the help of sharp edged object with so much of pressure that her trachea and wind pipe were cut and

separated. The pressure which was used for cutting Trachea and Wind Pipe, looking to the opinion of the doctor, clearly proves that there was an

assault on Marium by a sharp edged weapon.

In so far as seizure of knife is concerned, the Investigating Officer (PW13) has stated that he has seized the knife from the possession of Tersa

Bada. The seizure of knife has been made vide seizure memo (Ex.P/2). Tersa Bada (PW5) states in para 3 of her evidence that knife was seized by

the police. Chandan Khalkho (PW2) says that his statement was taken by the police and in his presence, a sharp knife was seized by the police in

Ex.P/2 and has proved his signature. In the FIR lodged by Ankit Bada, it has been stated that at the spot, Tersa had snatched away the knife from the

hands of the appellant. Tersa, in her evidence has stated that when inquest over dead body was prepared, she was present at the spot. Therefore, the

entire evidence taken together leads to an inference that Tersa was present at the spot and from her possession, knife was seized.

Seizure of knife is not in dispute. The knife which was seized from Tersa, who was present at the spot, was sent for Forensic Test and the

Forensic report states that it was blood stained. How the blood was found on the knife which all through is said to be used in kitchen, was required to

be explained by the accused as it is an incriminating circumstance appearing against him. The evidence has also come on record to show that there

was some dispute between the appellant and the deceased. Joshwin Lakra (PW11) has stated that a day before the date of incident, there was quarrel

between the appellant and the deceased. This statement has not been controverted in her cross examination. Ignesh Lakra (PW6) also states in his

cross examination that the appellant used to quarrel with his family members.

One of the most important circumstances of the case is that though the evidence on record proves beyond doubt that the dead body of the

deceased was found in her house, the appellant was present in the house and the deceased died homicidal death, the appellant has completely failed to

explain as to how he and his wife sustained injury. The appellant was examined under Section 313 CrPC in respect of all incriminating circumstances

and material evidence led by the prosecution, but the appellant has only stated that he is innocent and has been falsely implicated. The evidence on

record, particularly, the FIR, morgue intimation and statement of witnesses prove that the information of the incident was given to the police at 2:30

PM on 19/03/2012 and the dead body of Marium was found in her house. In the post mortem report and the evidence of the doctor, it has been clearly

stated that the time of death is 23-25 hrs. before post mortem. The post mortem was conducted on 20/03/2012 at 11:40 AM. This shows that Marium

died between 10:30 AM to 12:30 PM. There is no evidence on record to prove that at the time of incident, there were other persons present in the

house.

Therefore, in the above proved facts and circumstances, it was the burden on the appellant to explain the circumstances in which he and his wife

sustained injuries and his wife died, as required under Section 106 of the Evidence Act,1872. The appellant has completely failed to discharge his

burden of proof and therefore, it is a case where an inference should be drawn against the appellant. This, therefore, is also an incriminating

circumstance to prove the guilt of the appellant. Explaining the principle underlying Section 106 of the Evidence Act, Their Lordships in the Supreme

Court propounded the law in the case of Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 in following words -

“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 Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11

SCC 271). 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 traveling on a railway without ticket. The burden of proving that he had a ticket is on him.

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.â€​

Keeping in view the overall circumstances of the case, we have no doubt in our mind that the circumstantial evidence point only towards guilt of

the appellant. Learned counsel for the appellant laid stress on the fact that the appellant was also found injured. In this regard, we find that the

appellant was subjected to examination by Dr. C.K.Sai (PW12) only on 30/03/2012 i.e. after 11 days of the incident. It proves a healed up simple

injury. Infact, from the mulahija form dated 30/03/2012, we find that after the incident, the appellant was taking treatment from Kunkuri, Holi Cross

Hospital and after he was discharged from the said hospital, he was subjected to MLC. We searched from the records of the present case and found

that infact, on 19/03/2012 itself, the appellant was taken to Primary Health Centre, Kunkuri where he was examined by a doctor but this medical

examination report was not placed before the Court nor proved. We are shocked and surprised to see that though in the morgue intimation and FIR,

the allegation against the appellant is that he has murdered his wife and all the reports show simple injury on his own neck, the police did not arrest

him. Even during trial, learned Trial Court did not notice this fact, we can only say that this was a lapse on the part of the Investigating Officer.

However, taking into consideration that the appellant has failed to explain injury on his own body and the injury was simple in nature and there is no

material on record to show that it was grievous in nature to create probability that someone came from outside and inflicted injury on the appellant and

the deceased, we do not find it a circumstance incompatible with the hypothesis of the guilt of the appellant.

In the result, we are not inclined to interfere with the impugned judgment of conviction and order of sentence. The appeal is, accordingly,

dismissed.