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2008 DIGILAW 477 (MP)

Santosh Kumar Gond v. State of M. P.

2008-03-27

ARUN MISHRA, S.S.DWIVEDI

body2008
JUDGMENT : ARUN MISHRA, J. 1. The appeals have been preferred by accused Santosh Kumar and Rasida Bi aggrieved by the judgment dated 5-3-1993 delivered by 8th Additional Sessions Judge, Jabalpur in S.T. No. 211/1991 thereby convicting them for commission of offence under section 302, Indian Penal Code and sentence to undergo rigorous life imprisonment for committing murder of Chhote Khan. 2. Chhote Khan, husband of Rasida Bi was murdered in the intervening night of 10th/11th April, 1991. Accused Santosh Kumar and Rasida Bi were charged with commission of offence under sections 302 and 201 of Indian Penal Code for committing murder of Chhote Khan by throttling his neck with the help of Chunari and Sari. 3. The prosecution case briefly stated is that prior to three months of the incident Rasida Bi used to work in Bungalow No. 20, West Land, Khamaria of A.K. Banerjee (PW-7) and Nomita Banerjee (PW-8) and used to reside in servant quarter along with her husband Chhote Khan, Chhote Khan used to ply tempo, Santosh Kumar was employee of Ordnance Factory, Khamaria, he used to work as Gardener in the bungalow of A.K. Banerjee and Nomita Banerjee, Rasida Bi was turned out from the servant quarter and thereafter she started living in the Bada of Achhe Miyan. Husband of Rasida Bi, namely, Chhote Khan used to consume liquor, he died due to strangulation in the intervening night of 10th/11th April, 1991, his dead body was found at about 15-20 fits away from the house where he was residing, there were ligature marks on his neck, report (P/16) of the incident was lodged at 7.45 AM by accused Rasida Bi on 11-4-1991 at PS, Ghamapur which was recorded by Shri MBS Jaggi (PW-12), Inspector of Police. It was mentioned by accused Rasida Bi in the report that she had served the food to Chhote Khan in the night at about 11 PM, two unknown persons came and took him towards the liquor shop, thereafter up to 3 AM her husband did not come back to the house which fact she informed to Jahoor and mother of Babu and made enquiry about whereabouts of her husband, his dead body was found nearby the house, he was done away with by causing strangulation by unknown persons. The inquest of the dead body was prepared by Shri MBS Jaggi (PW-12), body was sent for autopsy thereafter it was handed over to Sattar Ali for last rites. After 4.30 PM on 10-4-1991 accused Santosh did not report on the duty, accused persons were arrested and seizure was made, investigation was done, it was found that offence was committed by the accused persons, Santosh Kumar furnished the information memo (P/3) under section 27 of Evidence Act and disclosed that deceased was strangulated with the help of Chunari and Sari which were seized as per seizure memo (P/4) from the house of Rasida Bi. The statements of witnesses were recorded, it was found that both the accused were having illicit relationship for the last one year, on that Rasida Bi was turned out from the servant quarter of A.K. Banerjee and Nomita Banerjee, thereafter accused Rasida Bi and Chhote Khan started living in Achhe Miyan Ka Bada at Ghamapur. The accused Santosh continued to visit them and used to stay over night in the house of Rasida Bi. There used to be quarrel between Chhote Khan and Rasida Bi because of aforesaid illicit relationship. Thus, in order to remove Chhote Khan from the way murder of Chhote Khan was committed by accused persons in the intervening night of 10th/11th April, 1991 and a false report was lodged by Rasida Bi in the police station to the effect that two unknown persons had taken deceased Chhote Khan from the house in the night. Ligature marks could be caused by Chunari and Sari which were seized at the instance of accused Santosh Kumar. Opinion of Forensic Science Expert was also obtained, it was opined as per report (P/23) that in the Sari and Shirt of Chhote Khan there was presence of blood. Chunari and Sari were also examined and it was opined that strangulation could be caused by Chunary and Sari which were seized, weight of 80 kgs. could be carried with the aforesaid clothes. 4. The accused abjured the guilt and contended that they have been falsely implicated, they are innocent, they were not known to each other. Santosh Kumar was not visiting Rasida Bi and on 10-4-1991 at 4.30 P.M. he obtained payment and went to Shahpura-Bhitoni and came back on 12th April, 1991, thereafter he was arrested by the police. 5. 4. The accused abjured the guilt and contended that they have been falsely implicated, they are innocent, they were not known to each other. Santosh Kumar was not visiting Rasida Bi and on 10-4-1991 at 4.30 P.M. he obtained payment and went to Shahpura-Bhitoni and came back on 12th April, 1991, thereafter he was arrested by the police. 5. The Court below has convicted the accused-appellants for commission of offence under section 302 of Indian Penal Code and sentenced them to undergo rigorous life imprisonment, aggrieved thereby the appeals have been preferred by the appellants. 6. Shri H.S. Dubey, learned counsel appearing with Shri Abhinav Dubey, for appellants has submitted that the evidence fall short of proving the guilt of accused persons, the deceased was taken away in the night at about 11 PM by two unknown persons, thereafter his dead body was found lying near the house, accused were not responsible for commission of offence, merely on the basis of evidence of last seen furnished by Mallu Shah (PW-2) that accused Santosh accompanied the deceased to his house was not enough to base the conviction, accused were not having illicit relationship, thus, there was no motive for them to commit the offence. The conduct of Rasida Bi was beyond suspicion, she would not have lodged the report at P.S. Ghamapur in case she was a culprit. The evidence fall short of completing the chain of circumstances so as to fasten the guilt upon the appellants, consequently the appellants deserve to be acquitted. 7. First we consider the question whether both the accused persons were having illicit relationship or not. Mallu Shah (PW-2) has stated that accused Santosh used to visit the house of Rasida Bi at Achhe Miyan Ka Bada, Mallu Shah, Watchman used to sleep at Kamania Gate in Achhe Miyan Ka Bada appears to be a truthful witness. Babu Khan (PW-3) has also stated that accused used to visit the house of Chhote Khan and Rasida Bi. A.K. Banerjee (PW-7) has also stated that he has made the police statement to the effect that Santosh used to visit the house of Rasida Bi, Santosh was working as a Gardener, duty of Santosh was changed and the witness also turned out Rasida Bi from the servant quarter as she was not working properly. A.K. Banerjee (PW-7) has also stated that he has made the police statement to the effect that Santosh used to visit the house of Rasida Bi, Santosh was working as a Gardener, duty of Santosh was changed and the witness also turned out Rasida Bi from the servant quarter as she was not working properly. Though he has expressed that he was not aware as to the kind of relationship between the accused persons, but his cross-examination indicates that he was aware of the illicit relationship between the accused persons Rasida Bi and Santosh. Nomita Banerjee (PW-8) has also admitted the aforesaid fact. She has also stated that Santosh used to visit the servant quarter even during the duty hours in which Rasida Bi used to reside, she was turned out as she was not working properly, she has expressed her ignorance as to the kind of relationship between the accused, thereafter she was declared hostile and subjected to cross-examination, in the cross-examination she has stated that Santosh used to visit the servant quarter, she has also admitted that there used to be quarrel in the house of Rasida Bi, she did not try to find out what was the reason of altercation between the husband and wife. Laxmi (PW-9) has stated that she knew accused Rasida Bi and was residing nearby, she also knew accused Santosh, accused Santosh used to visit Rasida Bi's house, once altercation took place between Santosh and Chhote Khan, thereafter Rasida Bi had run away from the house, Chhote Khan used to consume liquor. It is apparent from the aforesaid statements that Santosh used to frequently visit the servant quarter and there was altercation, Rasida Bi and Chhote Khan were turned out from the servant quarter and thereafter they started living in the Bada of Achhe Miyan at Ghamapur. It appears that both the accused persons were having illicit relationship. There used to be altercation obviously as Chhote Khan appears to have objected to the relationship, but still Santosh Kumar continued to visit the house of Rasida Bi and Chhote Khan. 8. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. The contents of the FIR and the conduct of accused Rasida Bi indicates that she was trying to cover up and concoct the story that offence was committed by some unknown persons. 8. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. The contents of the FIR and the conduct of accused Rasida Bi indicates that she was trying to cover up and concoct the story that offence was committed by some unknown persons. When we consider the FIR (P/16), it was mentioned by Rasida Bi that she was serving the food to her husband Chhote Khan at about 11 P.M., at that time two unknown persons came and asked Chhote Khan to accompany to the liquor shop, on that she asked why they were taking her husband, she was told that they would come back soon. One of the person was putting white pant and shirt and other person was wearing brown colour shirt and bluish fullpant. She asked their names, they did not disclose their names and stated that they had to recover Rs. 200/- her husband left served food and went with aforesaid two unknown persons towards the liquor shop. When her husband did not come back by 3 A.M. she went out of the house to Jahoor and disclosed the fact to Jahoor and mother of Babu and made search of the deceased. At that time Chhotu disclosed that somebody was lying when she went there, found her husband lying dead, there were two ligature marks on his neck, the unknown persons who came to the house have committed the murder by strangulation, then she went to her mother in the Victoria Hospital where her brother-in-law was admitted, thereafter she went to the house of mother and they went to Katanga to her sister and brother in law and thereafter came back to the house and went to the police station to lodge the report. 9. The story as put-forth by accused Rasida Bi in the report (P/16) is ex facie flimsy and incorrect. The dead body was found about 15 fits distance from the house and it is not natural that she did not raise any hue and cry when two unknown persons had taken her husband without disclosing their names when she has asked their names from them, they wanted to recover Rs. The dead body was found about 15 fits distance from the house and it is not natural that she did not raise any hue and cry when two unknown persons had taken her husband without disclosing their names when she has asked their names from them, they wanted to recover Rs. 200 from her husband, there was no reason to keep quiet in the night and in case husband was strangulated just 15 fits away, husband would have definitely resisted and raised hue and cry, that obviously could have been heard by accused Rasida Bi. It also appears that she has mentioned that there were two ligature marks and death was caused due to strangulation, how she could notice the aforesaid fact and mentioned with precision that death was due to strangulation is not clear, in case she went out at about 3 A.M. she would have been the first person who could look at the body of deceased which was lying in open 15 fits away from the house. It appears that she has come up with a totally false case in FIR, deceased was done away in the house by both the accused persons as apparent from other evidence on record. The accused Santosh had accompanied Chhote Khan to the house as stated by Mallu Shah (PW-2). He has stated in para 4 of his deposition that Chhote Khan and accused Santosh came to the house together at about quarter to ten or 10 P.M. they were carrying some eatables in the hand in packet, he had seen them going to the house of Chhote Khan. The evidence discloses that accused Santosh Kumar had accompanied deceased Chhote Khan to the house at about 10 P.M. which fact has been suppressed by Rasida Bi in the FIR. It appears that offence has taken place within the house, thus, it was incumbent upon accused Rasida Bi to furnish the explanation who has committed the offence. The Apex Court in State of U.P. vs. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 , has laid down in the backdrop of the fact that death of wife took place in the house, circumstances required explanation from the husband how homicidal death took place. The Apex Court in State of U.P. vs. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 , has laid down in the backdrop of the fact that death of wife took place in the house, circumstances required explanation from the husband how homicidal death took place. In Shri Kishan vs. State of Haryana, AIR 1994 SC 1597 , the Apex Court has laid down in the backdrop of the fact that accused was present in the house on the fateful night, medical evidence assumes importance in the case to ascertain cause of death. Medical evidence indicated that death was due to asphyxia as a result of strangulation around the neck. It was not the case of accused that he brought down the dead body and placed it on the cot, which corroborated the prosecution version that the death was due to strangulation and accused was responsible for that. In Sheikh Abdul Hamid and Another vs. State of M.P. AIR 1998 SC 942 , it was considered whether there was possibility of an outsider to have committed the offence, there was no such possibility found as such accused was convicted. In Trimukh Maroti Kirkan vs. State of Maharashtra, JT 2006 (9) SC 50, the Apex Court has considered that when an offence takes place inside the privacy of a house, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon by the Courts. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. In view of section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. In State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 382 , the Apex Court has observed that once prima facie circumstances are proved by the prosecution, Court has to presume existence of certain facts which it thinks likely to have happened. In State of West Bengal vs. Mir Mohammad Omar, (2000) 8 SCC 382 , the Apex Court has observed that once prima facie circumstances are proved by the prosecution, Court has to presume existence of certain facts which it thinks likely to have happened. In State of Tamil Nadu vs. Rajendran, (1999) 8 SCC 679 , State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 , State of Maharashtra vs. Suresh, (2000) 1 SCC 471 , Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 and Gulab Chand vs. State of M.P. (1995) 3 SCC 574 , the Apex Court has observed that in a case based on circumstantial evidence where no eye-witness account is available, the principle is that when an incriminating circumstance is put to the accused and the accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. In Nika Ram vs. State of Himachal Pradesh, 1973 (1) SCR 428 , the Apex Court has observed that wife was murdered with a sharp edged weapon, when the accused alone was with his wife in the house and the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. 10. When we consider the explanation given by the accused in the instant case, in the light of principles laid down in the aforesaid cases, their explanation is found to be false. Accused Santosh Kumar has stated that he had left for a different place Shahpura-Bhitoni at 4.30 P.M. on 10-4-1991, that is found to be incorrect explanation, he was very much at Jabalpur itself and went to the house of deceased Chhote Khan in the night at about 10 P.M. as deposed by Mallu Shah (PW-2), after commission of offence he absconded till 12th April, 1991, he was present in the night in the house and was in the company of deceased when he was done away with. The conduct of other co-accused Rasida Bi is also unnatural and dubious, the FIR lodged by her was obviously incorrect document and full of falsity. The conduct of other co-accused Rasida Bi is also unnatural and dubious, the FIR lodged by her was obviously incorrect document and full of falsity. Body was lying so much near the house that in case any outsider has committed the offence the wife would be the first person to know it, but she was trying to cover up and concoct the story in the night. It appears that after deceased was strangulated, body was placed 15 fts. outside the house, that is how the conduct of the accused can be explained that she made no effort in the night in case any outsider had taken her husband and on being asked by her, they did not disclose the names and wanted to recover Rs. 200 she should have been the first person to object in case her husband was taken in such suspicious circumstances and to call for the help. It is not the case that deceased was taken forcibly outside, it was not natural for the deceased to leave at 11 P.M. without eating the food which was already served to him. Thus, case set up by Rasida Bi that two unknown persons came in the night is clearly concocted version. As per her version, even after dead body was found by Chhotu lying near the house, Rasida Bi did not go to the police station immediately. First she went to the Victoria Hospital to the mother and took her mother to the mother's house and then went to the sister's house and to Katanga, called brother-in-law and thereafter went to the police station at about 7.45 A.M. only to lodge the ex facie incorrect report. She has suppressed that accused Santosh also accompanied her husband to the house, she was obviously trying to cover up the guilt of accused Santosh Kumar also. How she came to know that death was due to strangulation is not understandable in case she has not witnessed the incident it was not possible to give precise opinion as to cause of death of her husband which she had given. How she came to know that death was due to strangulation is not understandable in case she has not witnessed the incident it was not possible to give precise opinion as to cause of death of her husband which she had given. It appears that she was guilty mind and was trying to save her skin, thus, emphasized that murder was committed by strangulation by two unknown persons, her entire conduct indicates that she was making deliberations and consultations and thereafter lodged incorrect report suppressing the truth after committing murder of the husband along with accused Santosh. 11. Deceased used to consume liquor. He was in the company of accused Santosh Kumar and they had also consumed liquor, thereafter there was no reason for her husband to go to the “liquor shop” again at 11 P.M. when he was having the food which was also served as per version of Rasida Bi. Thus, circumstances unerringly point out that Chhote Khan was done away with by causing strangulation with the help of Chunari and Sari, the Chunary and Sari were found stretched as apparent from seizure memo (P/4) and these articles were seized on the basis of information memo furnished by accused Santosh Kumar. There is opinion that strangulation could be caused with the help of Chunari and Sari as opined by Forensic Science Expert in the report dated 28-10-1991 and also by Dr. D.K. Sakle (PW-13) in Para 6 of his deposition. From the contents of FIR, it is apparent that deceased was well aware of the fact that how death of Chhote Khan was caused. It was possible only for an eye witness to mention the facts as mentioned in the report or for a person who has committed the offence. There was illicit relationship between both the accused persons. The accused Santosh has failed to prove that he went to Shahpura-Bhitoni, no evidence to that effect has been adduced, thus, he has failed to prove his absence after 4.30 P.M. he was not on duty on 11th and 12th April, 1991 which indicates that he was guilty. He was clearly absconding after commission of offence. 12. In the circumstances, the accused persons have been rightly convicted for commission of offence under section 302, Indian Penal Code and the sentence imposed upon them is also found to be proper. 13. He was clearly absconding after commission of offence. 12. In the circumstances, the accused persons have been rightly convicted for commission of offence under section 302, Indian Penal Code and the sentence imposed upon them is also found to be proper. 13. Resultantly, the appeals are found to be meritless, same are dismissed. The appellants are on bail, their bail bonds are cancelled. They are directed to surrender, failing which the police to arrest them forthwith.