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Judgment
This appeal has been filed by the appellants, being aggrieved by the judgment dated 20.12.2006, passed by Additional Sessions Judge, Burhanpur in S.T. No.236/2005, whereby the appellants have been found guilty for the offence under Sections 498-A, 302, 201 / 34 of the Indian Penal Code and have been sentenced to rigorous imprisonment for 2 years and fine of Rs.500/- under Section 498-A of the I.P.C. with a stipulation for 1 year rigorous imprisonment in case of default, life imprisonment and fine of Rs.1,000/- under Section 302 of the I.P.C. with a stipulation for 3 years rigorous imprisonment in case of default and rigorous imprisonment for 3 years and fine of Rs.500/- under Section 201 / 34 of the I.P.C. with a stipulation for 1 year rigorous imprisonment in case of
default.
The prosecution case, in brief, is that, deceased Amedibai was married to the appellant No.1, one year prior to the incident. It is alleged that she was tortured and beaten by the appellants. On 04.07.2005, appellant No.1 committed the murder of Amedibai by throttling her and thereafter to make it look like suicide, the appellants removed the dead body from the crime scene and destroyed the
evidence.
As per prosecution, on 04.07.2005, Ananda Rao (P.W.-18), father of the deceased lodged a report at 6.45 P.M. at P.S. Sikharpura, wherein he has stated that he lives at village Badathanda and had got his daughter married a year back to Nandu, appellant No.1 of village Nandkheda. On 04.07.2005, Karan, appellant No.2 came to him, while he was working in the field but went away without saying anything. Thereafter, his son called him home, where he was informed him that
his daughter is serious and asked to go to see her.
According to Anand Rao (P.W.-18), he went to Nandkeda with Kailsah, where he found his daughter
dead.
On the basis of the information, merg (Ex.P16-C) was recorded at merg No.28/05 under Section 174 of the Cr.P.C. On the basis of merg intimation, FIR was recorded at Crime No.160/2005 and criminal law was sent into motion. Spot inspection was made and the statement of witnesses were recorded. Body of the deceased was sent for postmortem. The postmortem of the deceased person was conducted by a team of doctors. The postmortem
report (Ex.P-2) reflects :-
(1) Upper part of the body above breast, neck and face alongwith upper limbs are whole swollen and bluish red in colour. These colour changes are distinguished from that of the rest of the body.
Palpable crepitation
(2) Bloody frothy secretions oozing from nostrils.
(3) External genitalia healthy.
(4) Injuries :- (a) Thumb shaped swelling on left supraclavicular region, 1 1/2" x 1/2" bluish black in colour. (b) Abrasion below chin 1"x 1/2" bluish black in region. (c) Abrasion below chin below injury (B) 2"x 1/2" bluish black in colour. (d) Subcutaneous palpable crepitations found infront of chest. (e) Swelling on lower region of chest on left side on posterior aspect 3 1/2"x 1/2" bluish black in colour. (f) Swelling on right side of chest in postero inferior region 2"x2"bluish black in colour. (g) Swelling on antero lateral aspect of chest on right side, bluish black in colour 3"x 1/2" (h) Swelling on both pelvic region, bluish black in colour.
All the injuries described are antemortem and are of less than twenty four hours duration at the time of death. They all have been caused by hard and blunt object.
(i) 9th right rib fractured in front lateral to cardio corneal junction and 10th right rib fractured on anterero lateral aspect. Congested. Trachea not fractured.
In the opinion of Dr. Vandana Chouksey (P.W.-2) and Dr. Tarun Kumar Chouksey (P.W.-9), the death of Amedibai was homicidal and occurred within 12 to 48 hours of the postmortem, the cause of death was asphyxia due to cessation of respiration leading to cardio-respiratory failure and death. The cessation of respiration is due to external pressure exerted by
throttling.
After completion of the investigation, the appellants were put to trial. The prosecution examined 19 witnesses. The accused persons refuted the allegations and stated that they had been falsely implicated. The defence in support of their plea, examined two witnesses, who were primarily produced to establish that the deceased had committed suicide by hanging herself and that the appellants were not
present in the house, when the incident took place.
The trial Court relying on the statement of Kalibai (P.W.-5), Mamraj (P.W.-15), Ananda Rao (P.W.-18) and Bhagwat Singh Birde (P.W.-12) and the medical evidence on record, has come to the conclusion that the deceased has not committed suicide, but she was harassed for dowry and killed by throttling. The trial Court has recorded a finding of guilt against the appellants and convicted and sentenced them as aforesaid.
Having heard the learned counsel for the parties and on perusal of the record, it is observed that present is the case, where no witnesses are produced.
The prosecution has based its case on circumstantial evidence. The law regarding basis of conviction by the Courts on circumstantial evidence is well settled.
In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 1 SCC 681 the Supreme Court held :-
"12. In the case in hand there is no eye- witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."
In State of U.P. Vs. Satish, (2005) 3 SCC 114, the Supreme Court has reiterated that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touch stone of law relating to circumstantial evidence.
Following was laid down in paragraphs 14, 15 and 16:
"14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back in 1952.
In Hanumant Govind Nargundkar v. State of M.P., AIR (1952) SC 343 it was observed thus;
"It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1994) SC 1622. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are:
(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."
P.W.-5 Kalibai and P.W.-18 Ananda Rao, the mother and father of the deceased, who had been informed by appellant No.2 Karan about the serious condition of the deceased, went to the house of the deceased and found her dead. Body of deceased was covered with blanket (gudhadi) and had bluish black marks on her face and neck. It was specifically stated by these witnesses that her face was swollen and chest was sunk inside and blood was oozing out from the nose. The statement of these witnesses find due corroboration with the postmortem report, which is very clear and precise that the death was as a result of throttling.
Having gone through the postmortem report, the testimony of P.W.-2 Dr. Vandana Choukesy and P.W.-9 Tarun Kumar Chouksey, it is clear that death of Amedibai was not due to strangulation or suicidal in nature. In this regard, reasoning of trial Court cannot be found fault with. But the question is, whether the appellants could be authors of the crime.
The body of the deceased was found in the room of appellant No.1 Nandlal. The marriage of deceased was one year old. Under the circumstances, the statutory provisions under Section 498-A of the IP.C. would arise. However, the story put up by P.W.-5 Kalibai and P.W.-18 Ananda Rao about dowry and harassment is not reliable as admittedly, prior to the incident they had never made any complaint regarding dowry demand and harassment nor told anybody about it.
According to defence witnesses, D.W.-1 Jitesh and D.W.-2 Bhimsingh, appellant No.1 came at 11-12 O'Clock in the afternoon and asked them whether they had seen his wife. He then found the pooja room locked from inside and asked DW-1 Jitesh to look inside the pooja room from the roof. D.W.-1 Jitesh then informed the appellant that Amedibai was hanging inside the pooja room. According to this witness, he then jumped inside the pooja room and opened the door, which was bolted from inside. They took down the body of the deceased and brought it to appellant No.1's room. This version by D.W.-1 Jitesh and D.W.-2 Bhimsingh is of no help to the appellants, as they had taken no such plea in their 313 Cr.P.C . statements nor any such suggestion was put to the prosecution witnesses during cross-examination. On the contrary, it establishes the presence of appellant No.1 at the relevant time. D.W.-1 Jitesh and D.W.-2 Bhimsingh had also stated that people from the village had gathered at the place of occurrence and took down the body of Amedibai. But no independent or other witness has been examined by the prosecution or defence, who had seen the deceased hanging in the pooja room.
The body of the deceased was found in the room of appellant No.1 Nandlal covered with blanket (Gudhadi). The statement of P.W.12 Bhagat Singh Birde that he recorded the case diary statement of appellant No.3 Paramdev Bai and appellant No.1 Nandlal and of P.W.-8 R.D. Goyal, who prepared the spot map on the information of appellant No.2 Karan proves that the appellants were all present in the village.
The postmortem report shows various injuries on the chest of the deceased and her face was congested and swollen. There was no ligature marks found on the neck by the doctors. She died in the house of the appellants and the body was found covered with blanket. Therefore, it was expected of the appellants to furnish some explanation in their statements under Section 313 Cr.P.C. as to the cause of her death. Moreover, there was no complaint by the appellant No.1 regarding the death of his wife. Once, the said plea of suicide is ruled out, then it will be for the appellants to show as to who else was responsible for killing of the deceased. It is well settled that in a case of circumstantial evidence, when the accused offers an explanation and the explanation is found to be untrue, then the same offers an additional link to chain of circumstances to complete the chain.
In (2007) 12 SCC 288 Swamy Shdaddananda alias Murali Manohar Mishra Vs.
State of Karnataka, the Supreme Court has observed that if it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.
Similarly in (2007) 10 SCC 433 Raj Kumar Prasad Tamrakar Vs. State of Bihar and another the Supreme Court has held :
The autopsy report shows that "a blackening and charring" existed so far as Injury No. (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over grabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not in the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.
This legal position would appear from a decision of this court in Nika Ram v. The State of Himachal Pradesh [AIR 1972 SC 2077] wherein it was held:
"It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram school teacher (PW 16). According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt."
In the instant case, there is no direct evidence to prove the involvement of the appellant No.1 in the crime, but in view of the series of facts mainly that the death was homicidal and not suicidal, that the deceased was staying together in the house of husband and her body was found in their room, that there was no complaint by the husband with regard to death of his wife despite the fact that as per defence version he discovered the body at 11.00 A.M. and the postmortem report and specific evidence of doctors, only points an accusing finger towards appellant No.1.
As discussed in para 12 above, it has not been found proved that the deceased was killed for the reason of demand of dowry nor the prosecution has been able to prove that body of deceased was removed from pooja room and placed in the room of Nandu, appellant No.1. Under the facts and circumstances, the conviction and sentence under Sections 498-A and 201 of the I.P.C. is not sustainable and deserves to be set aside.
There is absolutely no evidence regarding involvement of appellants No.2 and 3 in the incident.
Ananda Rao (P.W.-18), father of deceased has admitted that appellants No.2 and 3 lived in separate houses and it was appellant No.2, who came to inform him about the serious condition of his daughter.
In view of the facts and circumstances of the case, we are of the considered opinion that the appeal deserves to be partly allowed. The conviction of appellants No.2 and 3 under Sections 302, 498-A and 201 / 34 of the I.P.C. is set aside and they are acquitted of the charges. The conviction of appellant No.1 under Section 498-A and 201 / 34 of the I.P.C. is set aside,
whereas under Section 302 of the I.P.C. is maintained and upheld.
It is informed that the appellants No.2 and 3 are on bail. Their bail bonds shall stand discharged, whereas the appellant No.1 shall remain incarcerated to serve out his remaining part of jail sentence.