RAHUL GUPTA vs STATE OF M P AND ANOTHER

In the instant appeal preferred under Section 374(2) of the Code of Criminal Procedure [for brevity `the Code''] challenge has been made to the judgment of conviction and sentence dated 13- 02-2009 passed by the learned Sessions Judge, Bhopal in S.T.

No.294/2006 whereby the accused-appellant has been convicted under Section 302 of the Indian Penal Code [for short `the IPC ''] and sentenced to undergo imprisonment for life with fine of Rs.5000/-, in default, to suffer further rigorous imprisonment for one year.

The prosecution case, briefly stated, are that the deceased is Dr. Sugandha, who was married to the present appellant about 18 years prior to her death which is alleged to have taken place in the intervening night of 8/9-7-2006 at Bhopal. As alleged, the accused-appellant made a telephonic call to the police informing that when he came to his residence he found that his wife - the deceased was lying in a pool of blood. The police reached to the spot and prepared `panchnama'' of the dead-body and referred the same for postmortem examination.

An FIR was registered on 9-7-2006 at about 07:05 AM.

The accused-appellant is also said to have informed his brother-in-law, Shambhu Singh Gahlot (PW-2) on telephone, who informed the mother of the deceased, Tarabai (PW-4). They reached Bhopal from Hingoli (Maharashtra). When the appellant was suspected by the police he was interrogated. He tried to mislead the investigation and at his instance three 0.22 gun was recovered along with an empty cartridge from the house of father of the appellant. During autopsy a led was recovered from the body of the deceased. The report reveals that she died as a result of gunshot injury. The gun so recovered was sent for forensic analysis and ballistic report (Ex.P/24) was obtained by the prosecution.

The accused-appellant was charged under Section 302 of the IPC and under sections 25 and 27 of the Arms Act, 1959.

Other co-accused were also charged in respect of offence punishable under section 30 of the Arms Act.

The prosecution examined as many as 15 witnesses and defence also chose to examine two defence witnesses.

Appreciating the evidence brought on record, the learned trial Court acquitted other co-accused persons, namely, Ravindra Singh (A-2) and Shashi Bhushan Singh (A-3) of the charges framed against them and the present appellant has also been acquitted of the charge under Sections 25 and 27 of the Arms Act, however, convicted and sentenced him under Section 302 of the IPC as mentioned above.

Per contra, learned counsel for the State supported the order of conviction and submitted that the circumstantial evidence available in the present case has established the case against the appellant beyond any reasonable doubt and further that the appellant has tried to mislead the investigation by getting three .22 rifles recovered .

To appreciate the rival contentions raised at the Bar, we consider it appropriate to first consider the testimony of PW-1, Arti Asthana, PW-2, Shambhu Singh Gahlot, PW-3 Arti Sinde and PW-

4 Tara Bai. Arti Asthana(PW-1) is a counsellor in Family Consultation Centre, T.T. Nagar, Bhopal. She has proved that the deceased had come to her office for the consultation and has narrated that her husband used to quarrel with her and he was having extramarital relations with other woman. From her cross examination, there is nothing to suggest that there was any reason to falsely implicate the present appellant. PW-2 Shambhu Singh Gahlot is brother of the deceased, who has deposed that the appellant used to quarrel with the deceased, as the deceased was not having any

issue. He has also stated that on 08-07-2006 the accused called him and informed that his sister was lying in a pool of blood. He has informed the same to his mother. PW-4 Tara Bai is mother of the deceased. She has also stated that the relations between the deceased and the appellant were bitter and the appellant used to quarrel with her daughter, as it was informed by the deceased that the appellant was having extra marital relation with the other woman. Another independent witness PW-3 Arti Shinde, who was posted as Sub Inspector in Police Station T.T.Nagar Bhopal was examined by the prosecution to prove that the deceased had submitted a complaint before her regarding the harassment being caused by her husband and brother-in-law Ravindra Singh. These witnesses have proved the fact that the relations between the appellant and the deceased were bitter and not cordial and the appellant used to quarrel with the deceased because of his extra-marital relations with the other ladies.

R.S. Ghuraiya (PW-14) the Investigating Officer has deposed that he received telephonic call from the appellant and when he had gone to the spot, the appellant was present there. He had prepared the panchnama Ex.P-14 and the other map etc. He has also carried out the seizure of rifle and one empty cartridge vide Ex.P-6 from the house of the father of the appellant on his disclosure statement. On the basis of the disclosure statement of the appellant, other rifles were also seized. He has sent these seized weapons for chemical examination. The FSL report with ballistic opinion has been filed as Ex.P-24. The .22 bore gun with Magazine No.03310037 was seized on which it was written "Sporting Rifle in English". The said recovery was made on the disclosure statement of the appellant from the house of his father Jitendra Singh from a hidden place.

Another .22 bore rifle with telescope on which in English TASCO 3- 9 x 40 was written, the same was recovered on the disclosure statement of the appellant from the house of Chandan Singh Yadav.

Another rifle .22 bore was got recovered from the house of one Rishi Kumar Singh, which was said to be in the name of father of the appellant Jitendra Singh. The same was recovered vide Ex. P-

He has sent these seized weapons for chemical examination. The gun .22 bore in which it was mentioned " Make-Indian" No.033100327 was marked as Ex.A-1 was sent for chemical examination. The rifle seized with telescope was marked as Rx.A-2 and rifle in which it was mentioned made in "England" was marked as Ex.A-3. The empty cartridge Article-F was marked as Ex.EG. The ballistic expert had mentioned in his report that all the three weapons, Ex.A-1, Ex.A-2 and Ex.A-3 have been found to be in working condition. He further opined that by use of these guns, fatal injury could have been caused. After examining empty bullet as there was marks of firing pin, he opined that the empty cartridge could have been fired by the rifle Ex.A-2 and also opined that the led EB-1 was fired with the rifle, Ex.A-1.

Thus, though the seizure of the weapons has not been supported by the independent witnesses but was supported by PW-

14 R.S. Ghuraiya, the Investigating Officer and the ballistic expert report made it clear that the led which was recovered from the dead body has been found to be fired by A-1 .22 bore rifle. The recovery of the empty cartridge has not been recovered from the spot but from the house of the father of the appellant. The led was recovered from the dead body of the deceased and has been found to be fired by A-1 .22 bore rifle. As per the postmortem report and

the testimony of PW-9 Dr.C.S.Jain, it was found that there was wound surrounded by blackening which proves that the fire was made from a short distance. Thus, the story of the defence that the deceased used to play with the cats on the terrace of the house and the possibility was that somebody fired from the outside cannot be plausible in view of the specific postmortem report as the bullet was fired from a close distance. Admittedly, the incident had taken place in the house of the appellant and there is no evidence to establish that there was not possibility of the access of a third person at the spot.

On scanning of the entire facts, circumstances and the evidence, the following circumstances are established against the appellant:-

(i) The witnesses PW-1 Arti Asthana, PW-2 Shambhu Singh Gahlot, PW-3 Arti Shinde and PW-4 Tara Bai had established that the relations between the appellant and the deceased were bitter and she had made a complaint to the Counsellor PW-1 Arti Asthana and PW-3 Arti Shinde, Sub Inspector about the harassment and beating by her husband because of this extra-marital relations with other ladies.

(ii) The incident had taken place in the house of the appellant, which is a strong fact against him. It has come out from the evidence that on the ground floor, there was a restaurant and the residence of the appellant was on the first floor. The appellant was also found present near the dead body of the deceased. He had made a mobile call to the Investigating Officer and when he reached at the spot, he was present there.

In the cross examination of all the witnesses or in the defence, nothing has been proved that there was any access to the residence of the appellant by any third party.

(iii) The death of the wife deceased had taken place in the house of the appellant and the strong presumption was against him but no plausible explanation regarding the death of his wife has been offered by him.

In this regard, the Apex Court in the case of State of Rajasthan Vs. Thakur Singh (2014)12 SCC 211 has dealt with in paras 16, 17,18 and 19 :-

"16. Way back in Shambhu Nath Mehra v. State of Ajmer [2] this Court dealt with the interpretation of Section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said (AIR P. 406, para 11)

"11. This [ Section 101 ] 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. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra [3] this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC P 694, Para 22)

"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."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra [4] in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

Similarly, in Dnyaneshwar v. State of Maharashtra [5] this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife."

Following the aforesaid ratio, the Apex Court in the case of State of Rajasthan Vs. Thakur Singh, (2014) 12 SCC 211 reiterated that in the case of unnatural death of wife of the accused in a room occupied only by both of them and no evidence of anybody else entering the room has been established and facts relevant to cause of death being only known to the accused, has not been explained by him, strong presumption that accused murdered

his wife will apply following the principle under Section 106 of the Evidence Act.

(iv) The defence that the bullet was fired was made from the outside of the house can also not be accepted in view of the medical evidence as there was blackening near the injury on the body of the deceased, which proves that the bullet was fired from a close distance.

(v) In addition to this, the report of the ballistic expert that the led recovered from the dead body was found to be fired by gun Ex.A-1, which was recovered on the disclosure statement of the appellant. PW-9, Dr. C.S.Jain has stated that there was a firearm injury on the chest of the deceased which was in oval shape and there was blackening around the wound. He has further stated in para-5 that he has recovered a bullet from the dead body of the deceased and his report is Ex.P-8.

Thus, on the evaluation of the entire facts, circumstances and the evidence, we find that the prosecution has successfully proved its case beyond any doubt and the chain of circumstance as discussed herein above, is complete. The evidence of the prosecution is trustworthy and inspires confidence in the mind of this court and there is no material to believe that the appellant has been falsely implicated in the present case, in absence of plausible explanation regarding the death of the wife in his house.

Accordingly, we do not find any merit in the appeal. Hence the appeal sans merit and is hereby dismissed.