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Judgment
The present appeal under Section 378(3) of Cr.P.C. has been preferred by appellant/State against the judgment dated 25.01.1995 passed by
Sessions Judge, Khandwa (M.P.) in Sessions Trial No.106/1994, whereby the respondents have been acquitted of the charge of offence
punishable under section 302 r/w Section 201/34 of IPC.
The case of prosecution in brief is that deceased Basanti Bai was wife of respondent/accused Girwar Singh. Marriage was solemnized about 6
years before the incident. After marriage Basanti Bai was living in her marital home at village Shivna with her husband and father-in-law Bhim
Singh. It is alleged that the deceased was subjected to cruelty and harassment for demand of dowry by her husband and father-in-law.
Respondents used to make demand of ornaments colour T.V. and Godrej Almirah. In the year 1990, her father-in-law Bhim Singh had poured
kerosine oil on her and tried to set her ablaze. She had informed her parents about the incident and also lodged report at Police Station Jawar.
Thereafter, Basanti Bai came to her parental house and filed a petition for grant of maintenance against her husband and obtained order of Court in
this regard under Section 125 of Cr.P.C. When her husband Girwar Singh failed to pay maintenance for one year she filed recovery proceedings
and her husband was sent to jail in lieu of recovery of maintenance. Thereafter a compromise had taken place between the parties wherein Girwar
Singh promised to give 2 1/2 acres of his land to Basanti Bai in lieu of maintenance. Thereafter Basanti Bai came to her marital home and started
living with the respondents. About 2 ? 3 months prior to the incident she delivered birth to a girl child.
As per prosecution due to above dispute and maintenance proceedings respondents were keeping enmity with Basanti Bai and intending do
away her. On 11.01.1994 respondent Girwar Singh and Bhim Singh came to Khandwa with Basanti Bai and her infant daughter for purchasing
some ornaments for the girl. After purchasing ornaments they were returning to village Shivna by Bullock-cart. On the way when they reached near
Masania Nala on instigation of Bhim Singh, respondent Girwar Singh killed Basanti Bai by throttling her and thereafter killed her newly born girl
child. Thereafter the respondents brought the dead body of Basanti Bai and girl child to Government Hospital Khandawa and informed that she
had sustained injury due to accident by wheel of Bullockcart. The doctor examined Basanti Bai and her newly born daughter and found them dead.
An intimation of incident was sent to Police Station Moghat Road, Khandawa by the doctor. The police initiated the inquest, prepared panchnama
of dead body and sent the bodies for postmortem. Respondent Girwar Singh had also sustained some injuries and he was medically examined. In
postmortem it was found that the death of Basanti Bai was homicidal. On the basis of inquest, FIR was got recorded on 13.01.1994 and offence
under Sections 302, 201 of IPC registered against the respondents. The spot map was prepared. The broken pieces of bangles and silver
ornament of girl were seized from the spot and statement of witnesses were recorded. After completion of investigation charge-sheet has been filed
against the respondents and co-accused Dhan Singh.
The respondents have been charged under Sections 302/34 and 201/34 of IPC. They abjured guilt and pleaded innocence.
The prosecution has examined 14 witnesses whereas the respondents have not examined any witnesses in their defence.
The trial Court on appreciation of evidence found the case of prosecution not proved beyond reasonable doubt and acquitted the respondents,
against this the State has preferred the present appeal.
It is argued by learned counsel for the appellant/State that the respondents had inimical terms with the deceased. The eyewitness Sunil (PW-5)
had categorically deposed against the respondents. He had seen the respondent Girwar Singh throttling and killing Basanti Bai and her daughter.
The trial Court had disbelieved this witness without any cogent reasons. The postmortem report reveals that the deceased died due to throttling.
The respondents had concocted a false story stating the cause of death as accident. The trial Court on erroneous appreciation of evidence wrongly
acquitted the respondents.
The counsel for respondents supported the findings recorded by trial Court and submitted that there is no eyewitness to the incident. The
eyewitness Sunil (PW-5) is a chance witness who had not disclosed to anyone for long time about witnessing the incident. There are material
discrepancies occurred in testimonies of PW-5 and other prosecution witnesses. It is doubtful whether the deceased died due to throttling. The trial
Court had rightly considered the facts and circumstances of the case and found the case of prosecution not proved beyond reasonable doubt and
acquitted the respondents.
Heard arguments and perused the record.
It is not disputed that deceased Basanti Bai was the wife of respondent Girwar Singh. She was brought dead along with her newly born
daughter at District Hospital Khandwa by respondents Bhim Singh and Girwar Singh. Girwar Singh had also sustained some injuries and he was
admitted in the hospital. These facts are verified by head constable Govind Prasad Mishra (PW-7), Keshav Prasad Ojha ASI (PW-8), Bag Singh
(PW-9) and Dr. Madhukar Shrimali (CW-1). Govind Prasad Mishra (PW-7) deposed that on 12.01.1994 at about 8:35 p.m. he received a
telephonic message at Police Station Jawar from Police Station Moghat Road, wherein it was informed that Girwar Singh, his wife Basanti Bai and
daughter had received injuries in a Bullockcart accident. Basanti Bai and her daughter died and Girwar Singh was admitted in the hospital. On this
information, a Roznamcha-Sanha Ex.P-4 was recorded. Keshav Prasad Ojha (PW-8) deposed that he had conducted the inquest, prepared
panchnamas Ex.P-7 and Ex.P-8, dead bodies of Basanti Bai and her daughter Guddi were sent for postmortem. Dr. Madhukar Shrimali deposed
that on 12.01.1994 at about 5:50 a.m. in the morning at main hospital Khandwa, he had examined Girwar Singh and found scratches on his palm
and he was admitted in the hospital. His statement is corroborated by MLC report Ex.C-2.
Dr. Rajesh Tiwari (PW-13) deposed that on 12.01.1994 at main hospital Khandwa he had performed the autopsy of Smt. Basanti Bai and
found following injuries:- ""VERNACULAR MATTER OMITTED"" The statement of doctor is duly corroborated by the postmortem report Ex.P-
6 given by him. Thus, it is clearly opined by the doctor that the cause of death of deceased was asphyxia as a result of strangulation. Thus, relying
upon the postmortem report it is rightly found proved by the trial Court that the deceased died due to asphyxia as a result of strangulation. The
death was homicidal.
The postmortem of newly born girl child was conducted by Dr. Rajan Sinha (PW-14). He deposed that on 12.01.1994 at main hospital
Khandwa he had performed postmortem of dead body of Guddi aged about two months. He has not found any internal or external injuries on
person of body of the deceased. He is unable to give any opinion regarding cause of death. He preserved Visra and referred it for chemical
examination. The statement of doctor is corroborated by postmortem report Ex.P-16. The prosecution has not produced the FSL report of
examination of Visra. Therefore, it is not proved that the death of newly born child Guddi was homicidal.
Now the question arises whether the respondents had committed the murder of deceased Basanti Bai ?
It is not disputed that Basanti Bai was the wife of respondent Girwar Singh. The marriage was solemnized about six years prior to incident.
From the testimonies of father of Basanti Bai namely Jaswant Singh (PW-1) and other relatives uncle Ram Singh (PW-2), Narain Singh (PW-3)
and cousin brother Dileep Singh (PW-4), it appears that the relations of Basanti Bai with her husband and father-in-law, after marriage were not
good and cordial. The deceased used to make complaint in respect of cruelty and harassment meted out to her by the respondents for demand of
dowry. The deceased had instituted a proceeding in the court for grant of maintenance against her husband and obtained an order in her favour.
When her husband had not paid maintenance for one year, she filed recovery proceedings in the court and her husband was sent to jail by the
court. Thereafter, a compromise was taken place between the parties wherein her husband had given her 2 1/2 acres of land in lieu of
maintenance. This fact is duly corroborated by compromise Ex.P-1 which is not challenged by the respondents. Girwar Singh has admitted this
compromise in his statement recorded under Section 313 Cr.P.C. Although in this compromise, it is not mentioned that deceased was subjected to
cruelty and harassment by respondents for demand of dowry but this compromise shows that the relations between deceased and respondents
were not good.
Jaswant Singh (PW-1) deposed that on the date of incident, the respondents Girwar Singh came with Basanti Bai and her daughter to
Khandwa by Bullock-cart for purchasing silver ornaments for the girl. After purchasing the ornaments they returned to village by Bullock-cart. The
deceased had sustained injuries on the way while she was returning home and died. This fact is not controverted by the respondents. Girwar Singh
in his statement recorded under Section 313 of Cr.P.C. has admitted above facts. The prosecution witness Bag Singh (PW-9) has corroborated
above fact and deposed that on the date of incident at around 11:00 O''clock in the night at village Shivna, he was sleeping in his house, the
respondent Bhim Singh and Jai Ram came to his house and informed him that Girwar Singh had returned from Khandwa. He had sustained injuries
due to fall from Bullock-cart, his wife and daughter were also injured and unconscious. Receiving this information, Bag Singh arrived at the house
of Girwar Singh and saw Girwar Singh, his wife and daughter in injured condition and taken them to main hospital Khandwa for treatment. It was
found that wife of Girwar Singh namely Basanti Bai was dead. The defence has not challenged the testimony of Bag Singh in cross-examination.
Thus, considering the testimony of witness Bag Singh (PW-9) and admission of respondent Girwar Singh in his statement under Section 313 of
Cr.P.C., it is established that on the date of incident Girwar Singh had taken her wife Basanti Bai and daughter Guddi to Khandwa by Bullock-cart
for purchasing ornaments. In the night, he returned home with the dead bodies of Basanti Bai and her daughter. He informed that they had
sustained injuries due to fall from Bullock-cart on the way, while they were returning home.
The prosecution has examined Sunil (PW-5) as eyewitness to the incident. He deposed that on 11.01.1994 at around 6:00 O''clock in the
evening he was present in his field situated at Devjhari. He saw respondent Bhim Singh sitting near his field. He had lit a wood fire. After some
time, Bhim Singh went towards a Nala. Seeing his suspicious conduct, Sunil followed him. He saw Basanti Bai was lying at Nala and Girwar Singh
was throttling her neck. Bhim Singh was telling him to kill her. Seeing the incident, Sunil became frightened and returned to his house. Next day, he
informed Home-guard Constable Kailash at police control room Kahndwa. In cross-examination it appears that this witness is making exaggerated
statement in respect of giving information of incident at Police Station Jawar also, but only on this ground, his testimony which otherwise inspires
confidence cannot be discarded. His version is corroborated by Kailash (PW-6). He deposed that on 11.01.1994 at about 10:00 O''Clock in the
day he was on duty at Police Control Room Khandwa, the witness Sunil came there and informed him that Girwar Singh had killed his wife by
throttling. Bhim Singh was also present there. He had seen the incident. In cross-examination, it appears that due to lapse of time, this witness is
wrongly stating the date 11.01.1994 instead of 12.01.1994 this is minor discrepancy and does not affect the veracity of his statement.
It is argued by learned counsel for respondents that if Sunil would have seen the incident why he had not informed any body on the same day
and why he did not lodge the report ? It is not proved that he had intimated the police at Police Station Jawar. This creates doubt on his testimony.
We are not agree with the contention of counsel for respondents. Sunil is a rustic witness. He was not related with the deceased. Seeing the
incident, he became frightened and perturbed and returned home. Next day he went to Police Control Room and informed Home-guard Kailash.
An ordinary villager could not make difference between Home-guard Constable and Police Constable. Therefore, we cannot disbelieve the
testimony of Sunil on this ground that he had not informed anybody about the incident. Although his police statement under Section 161 of Cr.P.C.
has been recorded after a delay of one month but no questions has been asked from the investigating officer in this regard by the defence. Thus, on
this ground also the testimony of Sunil cannot be disbelieved. In view of aforesaid discussion, it appears that Sunil had witnessed the incident and
saw Girwar Singh throttling and killing his wife Basanti Bai. As far as participation of Bhim Singh is concerned, there is omission in 161 Cr.P.C.
Statement of Sunil regarding Bhim Singh who has instigated Girwar Singh to kill the deceased. Therefore, the testimony of Sunil in respect of Bhim
Singh cannot be believed beyond reasonable doubt.
Thus, from the evidence on record it is found that Girwar Singh was all alone present with his wife Basanti Bai and newly born child while they
were returning home from Khandwa by Bullock-cart. Girwar Singh brought dead body of deceased at home and informed that the deceased had
sustained injuries due to fall from Bullock-cart. But, in postmortem report it is found that the deceased was killed by throttling. Girwar Singh has to
give explanation how his wife died. His explanation of accident is belied from postmortem report. If the neck of the deceased Basanti Bai have
been crushed under the wheels of Bullock-cart, then the crush injuries and mark of wheel on the neck would have been noticed in postmortem
report. Normally the bones and tissues of the neck would have been fractured if the neck was crushed under the heavy wheel of Bullock-cart, but
no such injuries as described above have been found in postmortem. Therefore, it cannot be believed that the deceased died in the accident. This
means that the respondent Girwar Singh is giving false explanation regarding death of the deceased. This is a strong circumstance against him
indicating his involvement in commission of crime.
Section 106 of Evidence Act lays down that
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Hon''ble Apex Court in case law State of Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 held that:-
The burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to
the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, -
11- Cr.A No.83/1996 then it is a strong circumstance pointing to his guilt based on those facts.
Thus, from above discussions it is proved that due to family dispute and maintenance case under Section 125 of Cr.PC., the respondent
Girwar Singh was not keeping good relation with his wife Basanti Bai. The compromise Ex.P-1 shows that he had given some land to deceased in
lieu of maintenance. After the marriage, deceased was being ill-treated and harassed by the respondents. There was enmity between them and
Girwar Singh was intending to do away deceased. On the day of incident, Girwar Singh took the deceased to Khandwa for shopping and while
returning home, he killed her by throttling. The incident was witnessed by Sunil (PW-5). Thus, it is proved that Girwar Singh has committed murder
of his wife Basanti Bai. The trial Court on erroneous appreciation of evidence disbelieved the statement of Sunil and other circumstantial evidence
led by prosecution and acquitted the respondent Girwar Singh. The trial Court failed to appreciate the fact that at the time of incident, Girwar Singh
alone was present with the deceased, therefore, he has to explain how deceased died. Thus, it is proved that Girwar Singh has committed murder
of his wife Basanti Bai. The trial Court has wrongly disbelieved the statement of Sunil (PW-5). Thus, relying upon circumstantial evidence and the
statement of PW-5, it is proved that respondent Girwar Singh has killed his wife Basanti Bai.
Thus, the appeal is partly allowed. As far as acquittal of Bhim Singh by trial Court is concerned, it is maintained and affirmed.
The judgment of acquittal passed by trial Court in respect of Girwar Singh is set aside. Girwar Singh is held guilty for commission of murder of
his wife Basanti Bai and causing disappearance of evidence, punishable under Sections 302 and 201 of IPC and is hereby sentenced to undergo
R.I. for life and fine of Rs.5000/- and in case of default shall undergo imprisonment for six months and for offence under Section 201 of IPC he
shall suffer rigorous imprisonment for two years. His bailbonds stand cancelled, he be taken into custody and be sent to jail to serve out his
sentence.