State Of Chhattisgarh vs Jagdish

Ramesh Sinha, CJ

This acquittal appeal under Sections 378(1) of the Code of Criminal Procedure, 1973 (hereinafter called as “CrPC”) is directed against the judgment of acquittal dated 05.07.2017 passed by the learned Sessions Judge, Janjgir-Champa (C.G.) in Sessions Trial No. 21/2017, whereby the respondents have been acquitted of the offence under Sections 498A/34 & 306/34 in alternative Sections 302/34 & 201 of the Indian Penal Code (hereinafter called as ‘IPC’).

Case of the prosecution, in brief, is that on the basis of information given by respondent No.1-Jagdish regarding death of his wife Shyamabai Gond on 29.01.2017 in the morning at about 6 A.M., the police of Police Station Mulmula lodged a morgue intimation vide Ex. P/10 and started morgue inquiry in the matter and prepared a Nazri Naksha of the place of incident vide Ex. P/8 and after completing necessary legal formalities, the dead body of the deceased was sent for postmortem at Community Health Centre, Pamgarh, District-Janjgir-Champa (C.G.) where Dr. K.K. Dahire (PW-8) conducted postmortem vide Ex. P/11 and opined that the death was caused due to cardio respiratory arrest due to pressure on cricoid cartilage. For nature of death co-relate with circumstance as “ligature is not found” over neck”.

During the said morgue inquiry, the complainant Lachchiram (father of the deceased) made a written report regarding commission of murder of the deceased by the present respondents and on the basis of the same, an FIR (Ex.P/6) has been registered against the present respondents by the police of Police Station Mulmula, District-Janjgir-Champa (C.G.) and after recording the statements of the complainant and other witnesses and collecting the evidence, the prosecution has filed charge sheet against the present respondents before the court of learned Judicial Magistrate First Class, Pamgarh for offences punishable under Sections 306, 201 and 498A/34 of the IPC and later on, the case was committed over to the Court of Session for trial.

The prosecution in order to bring home the offence examined as many as 08 witnesses and exhibited 16 documents Exhibits P-1 to P-16. However, no document has been exhibited on behalf of the respondents. Statements of the respondents were recorded under Section 313 of the CrPC in which they abjured the guilt and pleaded innocence.

The trial Court after completion of trial and after appreciating oral and documentary evidence available on record, by the impugned judgment dated 05.07.2017 acquitted the respondents for offences under Sections 498A/34 & 306/34 in alternative Sections 302/34 & 201 of the IPC. Against which, this acquittal has been preferred.

Mr.Avinash K. Mishra, learned Government Advocate appearing for the appellant/State submits that the learned trial Court passed the impugned judgment of acquittal in a cryptic and laconic manner without appreciating the material available on record. The learned trial Court erred in disbelieving the statement of the complainant Lachchi Ram (PW-2) (father of the deceased), whereby he has categorically stated that marriage of his daughter was solemnized with Jagdish and just after the said marriage, the deceased was subjected to torture and cruelty by the present respondents. Even in cross-examination, he has stated the same version, but the learned trial Court has given weightage to minor contradictions and omissions and passed the impugned judgment which is bad in law and liable to be dismissed. He further submits that the learned trial Court further erred in not appreciating the statements given by Darashbai (PW-4) and Ramprasad Gond (PW-6), whereby they have stated that there was a mark on the neck of the deceased. The learned trial Court overlooked the case of the prosecution and evidence against the respondents / accused by which the case of the prosecution is fully established against them beyond any reasonable doubt, but the learned trial Court has overlooked this aspect and passed an order in mechanical manner which is bad in law and liable to be dismissed. He also submits that the learned trial Court while passing the impugned judgment overlooked the case of the prosecution and evidence collected against the respondents and passed an order in a mechanical manner which is bad in law and liable to be set aside. As such, the acquittal appeal deserves to be allowed and the impugned judgment of acquittal deserves to be set aside.

On the other hand, Dr.Sudeep Agrawal, Mr.Vivek Kumar Agrawal and Mr.Hemant Kesharwani, learned counsel appearing for the respondents support the impugned judgment and submit that the trial Court after considering the material available on record and evidence of the prosecution witnesses acquitted the respondents, in which no interference is called for by this Court.

We have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumstances.

The question for consideration would be, whether death of deceased Shyamabai was due to breaking of cricoid cartilage ?

As per postmortem report, ligature mark (bruise) found over neck extending from left side mastoid process to anterior aspect of neck running obliquely upto right side base of neck occipital region. No mark found absent ligature mark at back. The doctor has opined that death is due to asphyxia shock and sudden cardio respiratory arrest as a result of ante-mortem compression of trachea, fracture of cricoid cartilage within 24 hours when postmortem starts. For nature of death co-relate with circumstance as “ligature is not found” over neck.

On the date of incident, accused / respondent No.1-Jagdish states that he was in his factory and was not present with his wife. This defence of accused cannot be admitted as he had not adduced any substantial proof of his presence in the factory. Therefore, his plea of alibi under Section 11 of the Indian Evidence Act, cannot be taken as the accused fails to answer the questions put forth by the Court regarding the distance of his house from the factory. Further the Court also questioned the accused regarding any witness favouring his defence of being present in factory on the alleged date and time of the incident. All these queries were remained unanswered by the accused. Therefore, he was unable to prove his defence of alibi under Section 11 of the Indian Evidence Act.

The Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 has clearly laid down the factors to be taken into account in adjudication of cases of circumstantial evidence, which states as under :-

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned “must” or “should” and not “may be” established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The Supreme Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 has held that when the death had occurred in his (the appellant therein) custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. It was observed as under:-

“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. In Nika Ram v. State of H.P. (1972) 2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. 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 CrPC. The mere 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 is a prime accused in the commission of murder of his wife....”

Similarly, the Supreme Court in the matter of State of Rajasthan v. Thakur Singh (2014) 12 SCC 211 relying upon the decision of the Supreme Court in Shambhu Nath Mehra v. State of Ajmer AIR 1956 SC 404 has held as under:-

“16. Way back in Shambhu Nath Mehra v. State of Ajmer 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.”

The Supreme Court in the matter of Vikramjit Singh alias Vicky v. State of Punjab (2006) 12 SCC 306 has held that Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. It was observed as under:-

“14. Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute.”

The next question for consideration would be, whether all the accused to be charged under the same offences read with Section 34 of the IPC ?

The trial Court in para-42 of its judgment has recorded the following finding:-

From perusal of para-42 of the impugned judgment, it appears that there is no evidence regarding accused Ramnath and accused Rajkumari. Similarly, there is no evidence in the case as to where the deceased committed suicide and who brought her body from the place where she committed suicide and kept in the cot. Apart from this, both accused Ramnath and accused Rajkumari do not reside in the house of the deceased. Thus, it is clear that respondents No.2 and 3 namely Ramnath and Smt.Rajkumari were not present in the house at the time of incident and they were residing in another place. As such, the trial Court has rightly acquitted them from the charge under Sections 498A/34 & 306/34 in alternative Sections 302/34 & 201 of the IPC. We affirm the said finding.

In the present case, accused / respondent No.1-Jagdish has taken the plea of alibi as contained in Section 11 of the Evidence Act that he was not present in the house with his wife and was present in his factory on the date of offence. This defence of accused Jagdish cannot be admitted as he had not adduced any substantial proof of his presence in the factory. Therefore, his plea of alibi under Section 11 of the Evidence Act cannot be taken as the accused fails to answer the questions put forth by the Court regarding the distance of his house from the factory. Further the Court also questioned accused Jagdish regarding any witness favouring his defence of being present in factory on the alleged date and time. All these queries were remained unanswered by accused Jagdish.

The Supreme Court in the matter of Raj Kumar Singh alias Raju alias Batya v. State of Rajasthan AIR 2013 SC 3150 while highlighting the object and purpose of examining the accused person under Section 313 CrPC has held as under:-

“25. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.”

The Supreme Court in the matter of Vikramjit Singh (supra) has held that the circumstances which according to the prosecution lead to proof of the guilt against the accused must be put to him in his examination under Section 313 of the Code of Criminal Procedure.

This is appeal against the judgment of acquittal filed by the State under Section 378(1) of the Cr.P.C. in exercising the appellate jurisdiction under Section 378(1) or under Section 378 of the Cr.P.C. The appellate Courts are required to keep in mind that the trial Court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box and also required to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonably person would honestly and conscientiously entertain as to the guilt of the accused.

The Supreme Court in the matter of C.Antony v. Raghavan Nair AIR 2003 SC 182 has held that unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective.

The Supreme Court in the matter of Ramanand Yadav v. Prabhunath Jha AIR 2004 SC 1053 has held that the appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

The scope of interference in appeals against acquittal is well settled. In the matter of Tota Singh and another v. State of Punjab AIR 1987 SC 1083, the Supreme Court has held in para 6 as under:-

“……….the mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere within an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous.”

While exercising the appellate jurisdiction against judgment of acquittal the High Courts or the appellate Courts are fully empowered to appreciate and reappreciate the evidence adduced on behalf of the parties while reversing the judgment of the trial Court. The appellate Court is required to discuss the grounds given by the trial Court to acquit the accused and then to dispel those reasons.

In the light of aforesaid dictum and proposition of law, we have examined the evidence adduced on behalf of the prosecution. Lachhi Ram (PW2) is father of the deceased. In para 1 of his evidence he has stated that after six months of marriage, he had sent his daughter to the house of the accused by Gauna. His daughter was good for two-four months after sending her to Gauna. After that, the accused used to abuse his daughter saying that she cannot do any work, she sleeps all day long. After that this witness told his daughter that she will get better after a few days, go and stay at her in-laws house. In para 2, he has stated that about one and a half years later, accused Jagdish called him and told that his daughter has died. Then he asked on the phone itself how she died, then accused Jagdish told that she died while sleeping in the cot. Then he and all the family members went to the accused’s house in Mulmula and saw a round mark on the front of his daughter’s neck, which made him suspect that she has been strangled to death. Ramprasad Gond (PW-6) has stated in para-2 of his evidence that on the date of incident, he received a call from accused Ramnath (father-in-law of deceased Shyamabai that Shyamabai had died, then all of them went to the house of the accused and saw the body of Shyamabai and found black mark in a vertical circle in front of neck of Shyamabai. In para 5 of his cross-examination, he has stated that it is incorrect that when deceased Shyamabai came to her maternal house, she was not told about the torture committed by the accused. It is also incorrect that when he asked, Shyamabai had informed him about the torture caused by the accused.

Evidence adduced on behalf of the prosecution is sufficient for arriving at a finding that respondent No.1-Jagdish has committed murder of the deceased as on the date of incident accused Jagdish states that he was in his factory and was not present with his wife. His defence cannot be admitted as he had not adduced any substantial evidence that he was not present in the house on that day and was present in the factory. Therefore, his plea of alibi cannot be taken as accused Jagdish fails to answer the questions put forth by the Court regarding the distance of his house from the factory. Accused Jagdish has not offered any plausible explanation under Section 313 CrPC that he was not present in the house and was present in the factory. Evidence adduced on behalf of the prosecution is sufficient for drawing an inference that respondent No.1-Jagdish has committed murder of his wife Shyamabai. As such, the impugned judgment relating to acquittal of respondent No.1-Jagdish is clearly unreasonable and and bad in law. By acquitting respondent No.1-Jagdish the trial Court has committed manifest illegality resulted into injustice. Therefore, as held by the Supreme Court in C.Antony, Ramanand Yadav and Tota Singh (supra), interference is called to cause justice.

Consequently, the acquittal appeal is partly allowed. Acquittal of respondents No.2 and 3 namely Ramnath and Smt.Rajkumari by the trial Court is hereby affirmed. However, acquittal of respondent No.1-Jagdish for commission of murder of his wife Shyamabai Bai is hereby set aside. He is convicted for committing murder of his wife Shyamabai under Section 302 of the IPC and sentenced to undergo imprisonment for life and fine of Rs.1000/-, in default of payment of fine to further undergo RI for six months. Respondents No.2 and 3 are in jail, they be set at liberty, if no longer required in any other criminal case. Respondent No.1-Jagdish is in jail, he shall serve out the sentence as ordered by this Court.

Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.