Ramvilas Dhakad vs The State Of Madhya Pradesh

Per: Justice Gurpal Singh Ahluwalia

This criminal appeal has been filed, under section 374(2) of the Cr.P.C., against the judgment and sentence dated 22/8/2019 passed by I^st Additional Sessions Judge, Sabalgarh, District Morena in S.T. No. 350/2018, by which appellant has been convicted under section 302 of IPC and has been awarded life imprisonment and fine of Rs.2000/-, with default imprisonment of R.I. for 3 months.

Facts necessary for disposal of present appeal, in short, are that appellant is husband of deceased Mamta and their marriage had taken place about 12-15 years prior to the date of incident. Appellant and the deceased were having two children. On 14/7/2018, at about 6-7 AM, an information was received by villagers that deceased Mamta has expired. Accordingly, villagers went to the house of appellant where dead body of deceased was lying. Parents of deceased also came on the information given by Ramlakhan Dhakad, President of MandiKailaras. Thereafter, Raju Dhakad, brother of deceased gave information to Police Station Kailaras and, accordingly, Merg No. 37/18 (Ex.P/5) was registered. During the course of investigation, Shav Panchnama (Ex.P/2) was prepared, blood stained earth, plain earth and piece of towel stained with blood were recovered. One old gum insaan report No. 36/17 registered at Police Station Karnivihar, Jaipur (Rajasthan) was also seized from the spot. Post mortem of the dead body of deceased was got done and, according to the autopsy surgeon, death of deceased was homicidal which had taken place within 24 hours. The statements of witnesses were recorded. Appellant was arrested and on his disclosure memo one knife and Danda were also seized. The articles were sent to FSL, Gwalior and after receiving FSL report, charge-sheet under Section 302 of IPC was filed.

The trial Court by order dated 2/11/2018 framed the charge under Section 302 of IPC.

Appellant abjured his guilt.

Prosecution examined Banwarilal Dhakad (PW1), Raju Dhakad (PW2), Hari Singh Singh Dhakad (PW3), Dinesh Dhakad (PW4), Babulal Dhakad (PW5), Samant Dhakad (PW6), Urmila (PW7), Ram Lakhan Dhakad (PW8), Hemlata Garg (PW9), Dr. S.R. Mishra (PW10), Ram Prakash Sharma (PW11), Santosh Kumar (PW12) and Jaiantosh Kumar (PW12) and Jaideep Singh Bhadoria (PW13).

Appellant did not examine any witness in his defence.

By the impugned judgment and sentence passed by the learned trial court, appellant was held guilty for offence under section 302 of IPC and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- with default rwith default rigorous imprisonment of three months.

Challenging the judgment and sentence passed by the trial Court, it is submitted by counsel for appellant that in fact the deceased had gone upstairs to answer the call of nature and as she fell down from the roof, therefore, she met with an accidental death. Furthermore, it is submitted that prosecution has failed to prove that it was appellant only who had caused the death of deceased. It is submitted that even if it is found that prosecution has proved that appellant had beaten the deceased prior to the incident, still the beating given by appellant was not the cause of death, but the deceased died because of fall from the roof. In the alternative, it is submitted that appellant had beaten the deceased on account of grave and sudden provocation. The deceased was living an adulterous life and on earlier occasion also she had left the company of appellant. Even according to the evidence of Banwarilal Dhakad (PW1), deceased had left the company of appellant along with somebody else. Even just prior to the date of incident, deceased had left her matrimonial house to join the company of somebody else and since a hot talk took place between appellant and deceased, therefore, out of sudden and grave provocation, appellant lost his self-control and assaulted the deceased. Therefore, it is submitted that even if the entire allegations are accepted, still it would not be an offence under section 302 of IPC and at the most, the offence proved by the prosecution would be under section 304 Part II of IPC. Appellant has already undergone an actual jail sentence of about 7 years and 11 months i.e. approximately 8 years.

Per contra, appeal is vehemently opposed by counsel for the State. It is submitted that although Banwarilal Dhakad (PW1) had stated in his examination-inin-chief that earlier appellant had informed that his wife had left him, but there is nothing on record to suggest that deceased was living an adulterous life. Furthermore, it is submitted that appellant, in his statement under section 313 of Cr.P.C, has also denied the fact that his wife had ever left his company. It is further submitted that even otherwise, it is clear from the evidence of Banwarilal Dhakad (PW1) that deceased was living in her parental home, from where appellant brought the deceased to his house and about 15 days thereafter, deceased again went away and on the date of incident, appellant had brought her back to her matrimonial house. Merely because deceased was living in her parental home, would not mean that she was living an adulterous life. It is further submitted that admittedly on the date of incident, deceased was in the company of appellant and in view of section 106 of Evidence Act, burden is on the appellant to prove that under what circumstances deceased had suffered the homicidal death. So far as defence of accidental death is concerned, it is is belied by postmortem report. It is is further submitted that the defence of appellant that deceased had gone upstairs to answer the call of nature is false because there is nothing on record to suggest that there was any bathroom on the roof of the house of appellant.

Heard, learned counsel for the parties.

The moot questions for determination are as under:-

Dr. S.R. Mishra (PW10) is the autopsy surgeon who had conducted the postmortem of the dead body of deceased. According to the postmortem report, following injuries were found:-

All injuries were caused by hard and blunt object and were ante-mortem in nature.

On internal examination, fracture of occipital bone with subdural hematoma was found present in occipital region. According to the autopsy surgeon, the cause of death was head injury and multiple injuries over body and mode of death was homicidal. The postmortem report is Ex.P/27.

Dr. S.R. Mishra (PW10) was cross-examined in short. He stated that dead body was brought at about 2:40 p.m. and the postmortem report is in his handwriting. No injury by a sharp-edged weapon was found. It was admitted that in case if somebody falls on his head, then he may sustain the injury found on the body of the deceased and it was also stated that in case if a lady fell down while climbing a staircase, then she can sustain the injuries which are found on the dead body of deceased.

Dr. S.R. Mishra (PW10) had specifically stated in his postmortem report (Ex.P/27) that nature of death was homicidal. No attempt was made by appellant to challenge the said finding. No question in that regard was put to the autopsy surgeon. The only suggestion which was given was that deceased can sustain an injury if she falls from a height. However, the number of injuries which were sustained by deceased clearly indicates that they cannot be caused by a fall. According to postmortem report (Ex.P/27), multiple abrasions were found over left hand and left forearm with fracture of proximal phalanx of left little finger. However, at the time of recording of evidence, Dr. S.R. Mishra expressed that deceased had suffered a contusion over left hand and left forearm. The public prosecutor did not declare Dr. S.R. Mishra (PW10) hostile on his not disclosing that multiple abrasions were found on the left hand and left forearm of the deceased. Similarly, in injury No.3, as mentioned in the postmortem report (Ex.P/27), multiple contusions were found over right and left leg, foot, both buttocks and thigh, but Dr. S.R. Mishra (PW10) did not disclose in his evidence that multiple contusions were also found on both the buttocks of the deceased. Still public prosecutor did not declare this witness hostile to get clarification with regard to the presence of multiple contusions on the buttocks of the deceased. Thus, it is clear that Dr. S.R. Mishra was trying to help out the appellant and the public prosecutor also did not discharge his duties with high efficiency which is expected from a public prosecutor. Since the postmortem report has been exhibited as Ex.P/27 without any reservations and no questions were put to Dr. S.R. Mishra (PW10) in the cross-examination that no multiple contusions were found on both the buttocks as well as on the left hand and forearm of the deceased, therefore, this Court is of considered opinion that entire postmortem report has been proved. Thus, multiple contusions on both the buttocks of deceased and multiple contusions on the left hand and forearm of the deceased were also found. The number of injuries which were sustained by deceased cannot be caused by a fall from a single-storied house. Since the opinion formed by Dr. S.R. Mishra (PW10) was that deceased had died on account of multiple injuries caused to her and her death was homicidal in nature, therefore, it is held that the deceased died a homicidal death and the defence of appellant that she met with an accidental death is hereby rejected.

The undisputed facts are that place of incident is the courtyard of the house of appellant and at the time of incident, deceased was in the company of appellant. Further, the dead body was found in the courtyard of the house of appellant.

Banwarilal Dhakad (PW1), has stated in paragraph 2 of his examination-in-chief that at about 10:00 p.m., appellant had brouchief that at about 10:00 p.m., appellant had brought back the deceased and thereafter both of them had dinner. After that, fight took place between them. After hearing the noise, they went to the house of appellant where he scolded the appellant as to why he is fighting. Then it was replied by appellant that the deceased is his wife and it is his personal matter, and therefore, the villagers should not interfere. Accordingly, Banwarilal Dhakad came back to his house and on the next morning, he came to know that the deceased had expired. Thereafter, this witness and the parents of the deceased went to the house of appellant, where they found that the dead body of the deceased was lying on the ground, and the appellant was not in the house. The information regarding the death of deceased was given to the Police by Ram Lakhan Dhakad in the morning, and thereafter the police came there. The police issued a Safina form (Ex.P/1) for preparation of Lash Panchnama, and thereafter inquest report (Ex.P/2) was prepared which was also signed by this witness. Since this witness had not supported the prosecution case in toto, therefore, he was partially declared hostile by the public prosecutor. Further, in cross-examination by the public prosecutor, he admitted that after hearing the noise, this witness and Babulal had gone to the house of deceased and appellant. However, he denied the fact that appellant was assaulting the deceased. He admitted that when he tried to pacify and convince the appellant, then he had replied that the deceased is in the habit of leaving his company. However, he denied that appellant had also replied that since she frequently leaves his company which has maligned his image in the society, therefore he will assault her. He denied the part of his statement (Ex.P/3) that the appellant was assaulting the deceased. He also denied certain other parts of his statement (Ex.P/3). He admitted that appellant is a member of his family who is the son of his Baba, but denied the suggestion that in order to save the appellant, he is not disclosing the entire correct facts. This witness was cross-examined and only one question was put to this witness which was to the effect that appellant Ramvilas resides resides separa separately from his brothers Raju and Hakim. No question was put to this witness with regard to the allegations made by him in the examination-in-chief. Therefore, it is clear that according to this witness, the deceased was in the company of appellant and a fight was going on between the deceased and the appellant and after hearing the noise, this witness also went to the house of appellant, but the appellant refused to listen to this witness and had simply replied that it is his personal matter.

Raju Dhakad (PW2) was examined in absence of appellant. A note has been appended by the trial Court at the beginning of the evidence that the accused is not present but it was expressed by his counsel that he is ready to cross-examine the witness in the absence of aexamine the witness in the absence of appellant. Raju Dhakad (PW2) is the brother-in-law (Sala) of appellant. He had stated that relationship of appellant with deceased was cordial. They received an information that deceased has died on account of her fall from roof. They went to the house of deceased and found that dead body of deceased was lying in the house. She had sustained injuries on account of her fall. The villagers had told him that the deceased had fallen down from the roof and as a result she had sustained injuries. Accordingly, he gave information to the police (Ex.P/5) and Merg No. 37/18 was registered. The Safina form (Ex.P/1) was issued by the police and inquest report (Ex.P/2) was prepared. The spot map (Ex.P/8) was prepared on the basis of information given by this witness. Since this witness had turned hostile, therefore, he was cross-examined by the public prosecutor, but the public prosecutor could not extract anything from his cross-examination which may support the prosecution case. Therefore, whether the recording of evidence of this witness in the absence of the appellant has in any manner caused prejudice to the appellant, and whether recording of such evidence is contrary to the provisions of section 233 of the Cr.P.C, is not required to be considered as this witness had turned hostile.

Harisingh Dhakad (PW3) was also examined in the absence of appellant and a note has been appended that the accused was not produced from the jail, but it was expressed by his counsel that he is ready to cross-examine the witness even in the absence of appellant. Hari Singh Dhakad is also the brother-in--law (Sala) of appellant. He has also not supported the prosecution case. He has also stated that after receiving information that deceased had expired, they went to her matrimonial house, and they found that the deceased was lying in a dead condition in the house. It was told by the villagers that she had fallen from the roof.

Dinesh Dhakad (PW4) is also the brother-in-law (Sala) of the deceased. He too was examined in the absence of the accused and an assurance was given by the counsel for the appellant that he is ready to cross-examine this witness even in the absence of the accused. This witness has also turned hostile and he has also stated in the line of the evidence given by Raju Dhakad (PW2) and Harisingh Dhakad (PW3). Since Raju Dhakad (PW2) and Hari Singh Dhakad (PW3) have turned hostile and have not stated anything against the appellant, therefore, whether the recording of evidence of these witnesses was contrary to the provisions of section 233 of the Cr.P.C or not is not required to be considered, as no prejudice was caused to the appellant on account of recording of the evidence of these three witnesses i.e. Raju Dhakad (PW2), Hari Singh Dhakad (PW3), and Dinesh Dhakad (PW4).

Babulal Dhakad (PW5) has also turned hostile and he has not supported the prosecution case. He has disowned the allegations of visiting the house of the appellant after hearing the noise. He has also disowned his statement that the deceased had eloped with somebody else.

Samant Dhakad (PW6) has also turned hostile and has not supported the prosecution case.

Urmila (PW7) has also not supported the prosecution case, except that Safina form (Ex.P/1) was issued by the police and Lash Panchnama (Ex.P/2) was prepared which also bears her thumb impression. The cross-examination by public prosecutor could not elicit anything which may support the prosecution case.

Ram Lakhan Dhakad (PW8) is a witness of arrest of the appellant. The arrest memo is Ex.P/19. However, this witness turned hostile with regard to the recording of confessional statement (Ex.P/24) of the appellant as well as seizure memo (Ex.P/20). However, this witness has accepted the issuance of Safina form (Ex.P/1) and the inquest report/Lash Panchnama (Ex.P/2). This witness was declared hostile and was cross-examined in detail by the public prosecutor, but could not elicit anything which may support the prosecution case.

Hemlata Garg (PW9) is the Investigating Officer and had issued the Safina form (Ex.P/1) and had also prepared the Naksha Panchayatnama (Ex.P/2). She gave an application for conducting the postmortem (Ex.P/25). On 14/07/2018 itself, she seized the blood-stained earth, plain earth, a piece of towel stained with blood, and a copy of a gum insaan report which was lodged at police station at police station Karnivihar, Jaipur, Rajasthan on 25/09/2017. During Merg enquiry, she had recorded statements of Babulal (Ex.P/14), Samant Dhakad (Ex.P/16), Banwari Dhakad (Ex.P/4), Urmila Dhakad (Ex.P/18), Hari Singh (Ex.P/10), Ramlakhan (Ex.P/23), Dinesh Singh (Ex.P/12), and Raju Dhakad (Ex.P/7). After Merg enquiry, FIR No. 276/18 (Ex.P/26) was registered for offence under section 302 of IPC and information was also given to the concerning Court. In cross-examination, she admitted that although Safina form (Ex.P/1) was prepared by her, but by mistake she forgot to put her signatures on the same. She denied that the seizure memo (Ex.P/21) was falsely prepared and nothing was seized.

Ram Prakash Sharma (PW11) is the witness of seizure of blood-stained earth, a piece of towel stained with blood, and a copy of gum insaan report No. 36 of 2017 registered at police station Karnivihar, Jaipur, Rajasthan. In cross-examination, he denied that nothing, as mentioned in seizure memo (Ex.P/21) was seized.

Santosh Kumar (PW12) is a constable. He has stated that Sub Inspector Jaideep Singh Bhadoria had arrested the appellant from the bus stand of Village Sujarma and the arrest memo (Ex.P/19) also bears his signatures. He has also proved the memorandum of appellant (Ex.P/28) and has also proved the seizure of a Danda and a knife on the disclosure made by the appellant vide seizure memo (Ex.P/20).

Jaideep Singh Bhadoria (PW13) is the Investigating Officer. He has stated that on 15/07/2018, he had arrested the appellant from the bus stand of Sujarma vide arrest memo (Ex.P/19). The disclosure statement of appellant was recorded in which he had disclosed that on account of an illicit relationship, he had assaulted the deceased by Danda and fist blows, and had also burnt her scalp hair with the help of a hot knife, and the Dandaand knife has been kept by him under the bed. The memorandum (Ex.P/28) was registered and on disclosure made by appellant, one wooden Danda and a knife were seized vide seizure memo (Ex.P/20). The seized articles were sealed on the spot itself. The statement of accused and complainant Raju Dhakad (Ex. P/6) were recorded. The statements of the prosecution witnesses Babulal Dhakad vide Ex.P/13, Banwari Lal Dhakad vide Ex.P/3, Urmila Dhakad vide Ex.P/17, Ramlakha Dhakad vide Ex.P/12, Hari Singh Dhakad vide Ex.P/9, and Dinesh Dhakad vide Ex.P/11 were also recorded. The seized articles were sent to FSL Gwalior and the FSL report is Ex. P/29. This witness was cross-examined, but the defence could not elicit anything which may make the evidence of this witness unreliable or untrustworthy. The Danda which was seized from the possession of appellant was marked as Article A-1 and the knife which was1 and the knife which was seized from appellant was marked as Article A-2. Both the articles were produced before the trial Court in a sealed cover. Three more sealed packets were received by the trial Court, allegedly containing the blood-stained earth, plain earth, and a bloodstained earth, plain earth, and a blood-stained piece of towel, but the trial Court was of the view that it is not necessary to open them, therefore a note to that effect was appended in paragraph 13 of the deposition sheet of this witness. In cross-examination, it was accepted by this witness that the seized Danda (Article A-1) and the Knife (Article A-2) are common weapons which are easily available. However, he denied the suggestion that the formalities were done in Police Station.

Thus, it is clear that evidence of Banwari Lal Dhakad (PW1), who has stated that immediately prior to the incident, the deceased was in the house and a fight was going on between the appellant and deceased, and this witness had also tried to pacify the appellant, has remained unchallenged. Furthermore, appellant in his statement under section 313 of Cr.P.C has also admitted that dead body of deceased was found in his house. He has also admitted that Banwari Lal (PW1) is his neighbor. However, he denied the suggestion that deceased had earlier left his company. He also denied that at about 10:00 p.m. he came back to his house along with the deceased. He also denied the other circumstances which are found proved against him. It was his defence that deceased had gone upstairs to answer the call of nature and she fell down and expired. Thus, it is clear that the factum that dead body of deceased was found in the house has remained unchallenged.

Under these circumstances, when appellant has not challenged the evidence of Banwari Lal Dhakad (PW1) that deceased was in the company of appellant and a fight was going on between appellant and deceased, and Banwari Lal Dhakad (PW1) had gone to the house of appellant to pacify him and the appellant had simply replied that it is his personal matter therefore this witness should not speak in the matter, coupled with the fact that appellant himself has admitted in his statement under section 313 of Cr.P.C that Banwari Lal Dhakad (PW1) is his neighbor, coupled with the fact that dead body of deceased was found in the courtyard/house ofrd/house of appellant, then this Court is of considered opinion that circumstance that appellant was in the company of deceased and the deceased died a homicidal death is established. Therefore, in the facts and circumstances of the case, this Court is of considered opinion that prosecution has proved the circumstance that appellant was in the company of deceased and she died a homicidal death in her matrimonial house. Therefore, the prosecution has discharged its initial burden. Under these circumstances, the burden has shifted on the appellant to prove that under what circumstances the deceased had died a homicidal death.

The Supreme Court in the case of Rajinder Singh v. State of Haryana, reported in (2013) 15 SCC 245 has held as under :

The Supreme Court in the case of Nagendra Sah vs. State of Bihar reported in (2021) 10 SCC 725 has held as under:-

The Supreme Court in the case of Ram Gulam Chaudhary & Ors. v. State of Bihar reported in (2001) 8 SCC 311has held as under:-

Further, in the case of State of W.B. vs. Mir Mohammad Omarreported in (2000)8 SCC 382, the Hon'ble Apex Court in Para 37 has observed that the section is not intended to relive the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.

In Tulshiram Sahadu Suryawanshi & Anr. V. State of Maharasthra reported in(2012)10 SCC 373, while dealing with Section 106 of the of the Evidence Act, the Supreme Court observed as under:

Under these circumstances, this Court is of considered opinion that the burden was on the appellant to prove that how his wife had met with homicidal death. Apart from that, human blood was found on the knife, Danda, as well as, the piece of towel which was seized on the disclosure made by appellant as per FSL report (Ex.P/29)

Now, the only question for consideration is that whether appellant has proved his defence that deceased had fallen down from the roof or not ?

Before considering the defence of appellant, this Court would like to clarify that the burden on the accused to prove his defence is not as heavy as it is on the prosecution to prove its case. The accused can prove his defence by showing preponderance of probabilities. Therefore, the defence of appellant that deceased had died on account of fall from roof shall be considered by applying the principle of preponderance of probabilities.

The spot map is Ex.P/8. No washroom/bathroom/toilet has been shown on the first floor/roof of the house. Even appellant has not given any suggestion to any witness that there was any toilet/washroom on the roof of the house. Under these circumstances, unless and until appellant establishes the possibility of deceased going to the roof in order to ease herself, it will be difficult for this Court to accept the defence of the appellant that she fell down from the stairs. Undisputed fact is that appellant was in his house when the death took place. If somebody falls from the roof, then it must have been noticed by the appellant due to noise of fall. Furthermore, conduct of appellant immediately after the incident also becomes necessary. Had it been a case of accident, then it was always expected from the appellant to take the deceased to hospital for treatment or to inform the Police in the matter, but nothing was done by the appellant. Banwarilal Dhakad (PW1), in paragraph 4 of his examination-in-chief, has stated that when they went to the house of appellant to they found that deceased Mamta was lying on the ground and appellant was not in the house. The information of death was given to Police by Raju which is evident from registration of unnatural death under section 174 of Cr.P.C. (Ex.P/5). Appellant has not challenged the evidence of Banwarilal Dhakad (PW1) that when they reached the house of appellant, appellant was not in the house. It is true that absconsion after incident cannot be a conclusive evidence to show the guilty mind of the appellant, but if absconsion after incident is considered along with other factors, then it will provide additional chain of circumstances to indicate the guild of appellant.

The Supreme Court in the case of Kundula Bala Subrahmanyam v. State of A.P.reported in (1993) 2 SCC 684 has held as under:-

From the record, it is clear that appellant was arrested on the next day. Counsel for appellant could not point out any document to show that in fact appellant was present at the place of occurrence. Appellant did not inform the police about the death of his wife. Even at the time of preparation of Naksha Panchayatnama (Ex.P/2), appellant was not there and, therefore, he did not participate in the said proceedings. Even spot map (Ex.P/8) was prepared on the instructions of Raju Dhakad, brother of deceased. From the arrest memo (Ex.P/19), it is clear that appellant was arrested on 15/7/2018 at 14.00 hours near busrrested on 15/7/2018 at 14.00 hours near bus-stand of Village Sujarma. From the seizure memo of incriminatingincriminating articles from spot (Ex.P/21), it is clear that appellant was not there and the seizure from spot was effected in presence of other witnesses. Post mortem was conducted on 14/7/2018 and even then appellant had not gone to identify the dead body of deceased. Thus, it is clear that appellant absconded from the place of occurrence and was arrested only on the next day and did not participate in any of the proceedings which were conducted by the Police. Therefore, the immediate absconsion of appellant after the incident also corroborates the other pieces of evidence. Thus, it is clear that it is the appellant only who has caused the death of his wife by mercilessly beating her and has failed to prove that how his wife met with a homicidal death.

It is submitted by counsel for appellant that since the deceased was in a habit of leaving the company of appellant and as she was living an adulterous life, therefore, on the date of incident a hot talk had taken place and under grave and sudden provocation, appellant must have lost his self control resulting in giving beating to deceased which resulted in her death. It is submitted that cause of death of deceased is head injury and if a person has acted after losing his self control, then the said act will not fall within the purview of murder but it will be culpable homicide not amounting to murder.

Per contra the aforesaid submission made by counsel for appellant is vehemently opposed by counsel for the State.

ExceptionsExceptions to S.300 of IPC reads as under:-

Thus, it is clear that Exception 1 and 4 of Section 300 of IPC can be bifurcated in three parts i.e. (i) That provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; (ii) culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and (ii(iii) the offender must not have taken undue advantage or acted in a cruel or unusual manner.

So far as the question of sudden and grave provocation is concerned, counsel for appellant has drawn attention of this Court towards the evidence of Banwarilal Dhakad (PW1), who had stated that appellant along with his family was residing in Jaipur and when he came back to village then he informed that his wife had eloped with somebody along with her children. 5-6 months thereafter deceased came back to her parental house. Appellant took her back to her matrimonial house where she stayed with the appellant for 15 days and again left the company of appellant. Appellant again brought back the deceased and at about 10 pm they both had dinner and thereafter there was a fight between them. When Banwarilal Dhakad (PW1) went to the house of appellant and tried to pacify the appellant, then it was replied by the appellant that it is his personal matter and he is fighting with his wife, therefore, he should not intervene. This witness has not stated anything to the effect that deceased was living an adulterous life. However, Police has seized one Gum Insaan report from the spot which was lodged by the appellant at Police Station Karnivihar, Jaipur (Rajasthan) about missing of deceased. Said missing person report which was registered as Crime No.36/17 at Police Station Karnivihar, Jaipur (Rajasthan) was also filed by prosecution along with chargesheet. Said Gum Insaan report has remained unexhibited.

Now the only question for consideration is as to whether this unexhibited Gum Insaan report can be considered by this Court in favour of appellant or not ?

Any document of prosecution, which might have remained unexhibited but is in favour of accused, can always be looked into in favour of accused.

From thisGum Insaan report, it is clear that appellant had made a report to Police that his wife along with his children has gone missing and he has suspicion on one Naga Gurjar with whom his wife used to talk. It was also mentioned that Naga Gurjar is residing in close vicinity. Thus, it is clear that on 12/9/2017, deceased had gone missing and the appellant had expressed his apprehension on one Naga Gurjar, by lodging Gum Insaan report No. 36/17. Thus, the evidence of Banwarilal Dhakad (PW1) that he was informed by appellant thathe was informed by appellant that deceased/wife of appellant had gone missing while appellant was staying in Jaipur is fully corroborated by unexhibited Gum Insaan report. It is true that appellant in his statement under section 313 of Cr.P.C. has denied the allegation regarding previous conduct of his wife.

Now the next question for consideration is as to whether the fact that deceased had left the company of appellant in the year 2017 can be said to be a sudden and grave provocation to the appellant to commit murder ?

From the Gum Insaan report (unexhibited document), it is clear that deceased had left the company of appellant on 25/9/2017 whereas the offence in question took place on 14/7/2018 i.e. approximatelyely 10 months after lodging of Gum Insaan report (unexhibited document). In order to show that accused had lost his self control on account of sudden and grave provocation, accused is also required to prove that he had no coolingat he had no cooling-off period and he had no time to regain his coolness and composure.

The Supreme Court in the case of B.D. Khunte v. Union of Indiareported in (2015) 1 SCC 286 has held as under:-

If the act of deceased of leaving the company of appellant in the month of September, 2017 is considered, then, by no stretch of imagination, it can be said that the said act continued to provoke the appellant to lose his self control. Furthermore, it is clear from the evidence of Banwarilal Dhakad (PW1) that deceased was residing in her parental home from where appellant brought her back to her matrimonial home and thereafter the deceased resided with the appellant for 15 days and again left the company of appellant. It is also the case of Banwarilal Dhakad (PW1) that on the date of occurrence, appellant brought the deceased back at about 10 PM and after having their dinner, they started having a fight with each other. There is nothing on record to suggest as to what provoked the appellant to fight with the deceased. If deceased was residing in her parental house, then by no stretch of imagination, it can provide sudden and grave provocation to appellant. Furthermore, when appellant himself had brought the deceased to her matrimonial house, then it cannot be said that the said act had provided sudden and that the said act had provided sudden and grave provocation to the appellant. On the contrary, factum of leaving the company of appellant had converted into motive for appellant to kill the deceased. The appellant could have examined his children who were in the house at the time of incident, to prove the actual cause of fight between them, but he did not do that. Furthermore, when Banwarilal Dhakad (PW1) tried to intervene in the matter, then he was scolded by the appellant by alleging that he should not interfere in the personal matter of the appellant. Since there is no close proximity between the act of appellant and any incident which could result in sudden and result in sudden and grave provocation, therefore, it is held that even otherwise, appellant has failed to prove that he had lost his self control on account of sudden and grave provocation.

It is next contended by counsel for appellant that in case where a person loses his self control on account of sudden and grave provocation, then even multiple injuries caused by him to deceased will bring his case within the purview of S.304 Part II of IPC and relied upon the judgments passed by Supreme Court in the case of K. Ravi Kumar Vs. State of Karnataka reported in (2015)2 SCC 638, State of M.P. Vs. Abdul Latif reported in (2018)5 SCC 456, Bagdi Ram Vs. State of M.P. reported in (2004)12 SCC 302 and Adu Ram Vs. Mukna reported in (2005)10 SCC 597.

Considered the submissions made by counsel for appellant.

This Court has already held that appellant has failed to prove that he had lost his self control on account of sudden and grave provocation. On the contrary, the act of appellant in bringing his wife back at 10 in the night and thereafter beating her mercilessly where multiple contusions were found on her both buttocks, thigh, both legs, as well as, multiple abrasions were found on her left hand, left forearm with fracture of proximal phalanx of left little finger and 4th metacarpal, as well as, swelling over occipital region of head with fracture of occipital bone with subdural hematoma and contusion and swelling over right elbow joint with fracture of right humerus bone and blister of 1 x 1 cm over right cheek with some bunt scalp hair, shows that appellant had mercilessly beaten the deceased with an intention and knowledge of killing her. Thus, it is clear that even otherwise, the appellant had acted in a cruel manner and had taken undue advantage of the situation. In fact, appellant had committppellant had committed the offence with an intention of causing bodily injuries knowing fully well that they will cause death of his wife and the nature of injuries caused to her are sufficient in the ordinary course of nature to cause death. Repeated blows on almost all over the body of his wife were known to appellant that they are so imminently dangerous that they will, in all probability, cause death or such injuries are likely to cause death.

Under these circumstances, contention of counsel for appellant that act of appellant would fall within the purview of section 304 Part II of IPC cannot be accepted. On the contrary, it is held that appellant is guilty of committing murder of his wife,

For the reasons mentioned above, the finding of guilt recorded by the trial Court for holding that appellant is guilty of committing murder of his wife, is hereby upheld and conviction of appellant under section 302 of IPC is hereby affirmed.