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2008 DIGILAW 514 (MP)

Beni Prasad v. State of M. P.

2008-04-01

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT : ARUN MISHRA, J. 1. The appeal has been preferred by the accused/appellant aggrieved by judgment dated 5-2-1993 delivered by Addl. Sessions Judge, Panna in S.T. No. 65/1991 thereby convicting the appellant for commission of offence under section 302, Indian Penal Code sentencing him for rigorous life imprisonment and under section 201 of Indian Penal Code sentencing him for 7 years' rigorous imprisonment. 2. As per the prosecution case the accused Beni Prasad committed murder of his wife Smt. Badi Bahu @ Kumma @ Kammu Bai. After the death was caused due to asphyxia, dead-body was set to fire in order to remove evidence of commission of murder. Prosecution has submitted that accused entertained a doubt that his wife was having illicit relationship with tenant Baladeen Kushwaha. The dead-body was found 10 steps away from the room of the deceased. Paramlal Dahayat (PW-2) grandfather of the accused submitted a first information report which was registered as marg intimation in which it was mentioned that he along with accused Beni Prasad had gone to see Ram Leela at village Khamtara. Deceased was alone in the house, they came back around 12 O'clock in the night, he went to sleep in the room and accused Beni Prasad also went to the room of the deceased and slept. At about 6.00 a.m. in the morning when Paramlal came back after answering the call of nature, he called Beni Prasad for giving water and inquired about where-about of the deceased, he was informed that she was not on the bed. When he went inside, he found that deceased was lying dead in the room. Her age was 19 years. He was not aware how she caught fire. Investigation was initiated, inquest (P-3) and spot map (P-4) were prepared, Patwari also prepared spot map (P-5), soil containing Kerosene Oil, control soil, burnt clothes of the deceased and Kerosene lamp were seized from the spot as per memo (P-7). The statements of witnesses were recorded. Pursuant to the information furnished by the accused Beni Prasad, rope by which he had strangulated the deceased and match box were seized as per seizure memo (P-11). The accused was arrested as per memo (P-12). The autopsy report (P-14A) was submitted, broken pieces of bangles, ring and burnt hair were handed over to the police, death was found to be due to asphyxia. The accused was arrested as per memo (P-12). The autopsy report (P-14A) was submitted, broken pieces of bangles, ring and burnt hair were handed over to the police, death was found to be due to asphyxia. Due to burn, cause of asphyxia could not be ascertained, further clarification was sought from the Doctor, as per query memo (P-15) the Doctor opined that Badi Bahu was set to fire after she was dead, presence of carbon particles were not found in the trachea, cause of asphyxia could not be opined, due to burn, asphyxia was caused either due to throttling or strangulation. 3. The accused abjured the guilt and contended that he has been falsely implicated in the case. 4. The prosecution in all examined 17 witnesses. The accused has been convicted by the trial Court for commission of offence under sections 302 and 201 of Indian Penal Code. Dissatisfied with the conviction and sentence imposed, the appeal has been preferred. 5. Ms. Rukhsana, learned counsel for the appellant has submitted that it appears to be a case where suicide was committed by the deceased. Asphyxia could have been caused by inhaling of gaseous substance due to burning of body and clothes. The accused was not in the house at the time when deceased set herself ablaze. The report was lodged by grandfather in the morning. The evidence falls short of proving that offence was committed by the appellant. Alternatively learned counsel has submitted that in case it is a case of commission of murder, it was done by someone else in the absence of the accused when he had gone to see Ram Leela at a different place. When dead-body was found, report was lodged. 6. Shri Sudesh Verma, learned Govt. Advocate appearing on behalf of State has submitted that no case for interference in the appeal is made out. In the marg intimation it was mentioned that dead-body was found in the morning, the dead-body of the deceased was lying in the burnt condition in the room itself. Accused has stated that deceased was not in the room when he came back in the night itself at about 12 O'clock. Paramlal in the Court has admitted that he came to know in the night itself that Badi Bahu was burnt. Accused has stated that deceased was not in the room when he came back in the night itself at about 12 O'clock. Paramlal in the Court has admitted that he came to know in the night itself that Badi Bahu was burnt. In fact accused has committed murder of the deceased due to throttling or strangulation that was cause of asphyxia and after committing murder dead-body was set ablaze as apparent from medical opinion and statement of Doctor D.K. Gupta (PW-8). 7. First we consider the First Information report lodged by Paramlal in the instant case in which it was mentioned that he along with the his grand son/accused Beni Prasad had gone to village Khamtari to see Ram Leela. Wife of Beni Prasad was in the house, they came back together at about 12 O'clock in the night, Beni Prasad went to his room and slept in the room. At about 6 a.m. in the morning he made enquiry about the deceased and came to know that she was not in the house then her search was made, she was found dead in the room. Intimation report has been signed by Param Lal in portion A to A. In the deposition made in the Court Param Lal (PW-2) has stated that dead-body of the deceased was found at 12-1 O'clock in the night, he has seen the dead-body in the Badi which was according to the witness, 10 steps away from the room where deceased was sleeping. He has stated that after seeing the deceased in the aforesaid condition he became unconscious and gained consciousness at about 3 a.m. then called the villagers. Param Lal was admittedly residing along with the deceased Kammu as well as accused Beni Prasad. He has contradicted the material fact mentioned in the marg intimation report. Post-mortem report indicates that death was not due to the burn injuries, death was caused due to asphyxia and it is not a case where asphyxia was caused due to burn injuries or due to suffocation caused by gaseous substance by burning of body and clothes, no carbon particles were found in the trachea of the deceased, it was not a case of house burning, only the dead-body of the deceased was found burnt. It was also mentioned in the post-mortem report (Ex.P-14) that there was third degree extensive post-mortem burn all over the body. It was also mentioned in the post-mortem report (Ex.P-14) that there was third degree extensive post-mortem burn all over the body. Post-mortem report has been proved by Dr. D.K. Gupta (PW-8), further clarification was sought as per clarification memo (P-15). The Doctor has opined that burn injuries were post-mortem not ante mortem, no carbon particles were found in the trachea. There was no sign of pressure or breaking of trachea. Cause of asphyxia could not be opined clearly, it was either due to throttling or strangulation. There were no other injuries on the body except burn injuries. As death was caused due to asphyxia, it appears that it was caused by throttling or strangulation and thereafter the dead-body was set ablaze in order to remove the evidence of commission of murder. False report was lodged by grandfather of the deceased that it was a case of death by burn injuries and not a case of death by throttling or strangulation resulting into asphyxia. Thus clearly an attempt was made to screen the offence and offender. Wrong explanation was offered by inmates of the house. It was incumbent upon the accused to explain the conduct. In case facts mentioned in the marg intimation are assumed to be correct why for the accused slept in the night and grandfather made enquiry in the morning in case deceased was not in the room in the night itself, the hue and cry should have been raised by the accused about the missing of the deceased Kammu. Later on while deposing in the Court it was stated by Param Lal grandfather (PW-2) of the accused that dead-body was found in the night itself at about 12-1 O'clock, it was lying in burnt condition, he became unconscious and remained unconscious till 3 a.m., thereafter he called the villagers. The case set up by Param Lal is ex facie incorrect. It appears that he was aware right from the beginning how death of deceased was caused, that is why he has changed the version from the marg intimation to what he has deposed in the Court, he has tried to cover up the offence and save the accused, that's why made different versions at different stages. It appears that he was aware right from the beginning how death of deceased was caused, that is why he has changed the version from the marg intimation to what he has deposed in the Court, he has tried to cover up the offence and save the accused, that's why made different versions at different stages. Accused in his statement also recorded under section 313, Criminal Procedure Code has stated that he went to sleep in his room, he did not find Kammu in the room, thereafter he made search of Kammu. He has also admitted that from the door of the room which was occupied by the accused, the Badi where dead-body was lying was situated at a distance of 10 steps. Place where body was found has also been changed, as per marg intimation it was lying in the room whereas as per statement made in the Court the body was lying near the Badi. As per the spot map Ex.P-4 body was found at Point No. 1, body was burnt with the help of Kerosene oil, place where room of the husband of the deceased was located was nearby. It is apparent from the spot map (P-4) that offence was committed in the house, same is the position in the spot map (P-5) prepared by Patwari Hazari Lal on 26-2-1991. It is apparent that deceased was in the company of her husband and she has met homicidal death. It was incumbent upon the husband to offer explanation about his conduct and the conduct of inmates of house is also relevant. The accused has failed to explain how homicidal death of Kammu was caused. Similar is the position of Param Lal. It is not their case that someone outsider has committed the offence. In case murder was committed by some outsider, they would have been the first persons to take action but they tried to draw the curtain on the offence including the method and manner in which it was committed. This Court has considered various decisions of Apex Court in Cr. Appeal No. 86/99 decided on 11-9-2007 laying down that it is the bounden duty of the accused to explain the conduct. This Court has considered various decisions of Apex Court in Cr. Appeal No. 86/99 decided on 11-9-2007 laying down that it is the bounden duty of the accused to explain the conduct. In case no explanation is offered or the explanation offered is found to be false, that provides additional link in the chain of circumstances so as to fasten the guilt of the accused thus:- “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. In the instant case husband was in the company of wife, thus it was necessary for him to explain the circumstances how homicidal death took place, it was not the case of death by drowning. 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, the Apex Court held, 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, in the instant case husband and wife were in the company, it is held that in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, 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. Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It has been further observed that where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. 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. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. In view of the aforesaid principles of law laid down by the Apex Court and facts projected in the instant case, it is apparent that in the night when deceased was done away with, no hue and cry was raised till morning. The accused as well as family members maintained silence, false report was lodged as to the cause of death that it was due to burn injuries, whereas burns were post-mortem, cause of death was asphyxia, it was not due to burn injuries, dead-body was set ablaze with the help of Kerosene Oil. The case set up that accused had gone to see Ram Leela has not been established. Statement of Paramlal cannot be said to be reliable. He has contradicted his initial version that he came to know of death in morning, he has also changed place where he saw dead-body.” 8. The case set up that accused had gone to see Ram Leela has not been established. Statement of Paramlal cannot be said to be reliable. He has contradicted his initial version that he came to know of death in morning, he has also changed place where he saw dead-body.” 8. We also find on record statement of Baladeen Kushwaha (PW-1), though he was declared hostile, but he has stated that he has vacated the house of accused in which he was residing as tenant. Paramlal (PW-2) has stated that there used to be altercations between the deceased and the accused. Lalan (PW-3) has stated that Param Lal came to him about 6.30 a.m. and informed that his daughter in law has died by setting herself ablaze, that was false information given as to the cause of death. Param Lal was aware at the night itself and he waited till morning. 9. Hazari Lal Patwari (PW-7) has proved the spot map (P-5) prepared by him. Dr. D.K. Gupta has proved the post-mortem report and answered to the query and opined that Kumma @ Badi Bahu was set to fire after she was dead, presence of carbon particles were not found in the trachea, cause of asphyxia could not be opined, due to burn, asphyxia was caused either due to throttling or strangulation. 10. Noni Bai (PW-9), mother of the deceased, Chunni Bai (PW-10), Bal Swarup (PW-14) brother of the deceased, Narbada Prasad (PW-15) father of the deceased and Bakhat Singh (PW-16) cousin of the deceased have stated that deceased used to consume liquor and used to level false allegation on the deceased that she was having illicit relations with the tenant Baladeen Kushwaha. The accused used to beat the deceased and wanted to perform re-marriage, thus there is evidence of strained relationship adduced on behalf of prosecution. 11. In the facts and circumstances of the case it is apparent that accused committed the offence, caused death of the deceased Kamnu Bai and thereafter set ablaze the body as found by the Court below thus made effort to remove the evidence of commission of offence of murder. He has been rightly found guilty of offence under sections 302 and 201 of Indian Penal Code and sentence imposed is also found to be proper. No case for interference in the appeal is made out. Appeal is hereby dismissed. He has been rightly found guilty of offence under sections 302 and 201 of Indian Penal Code and sentence imposed is also found to be proper. No case for interference in the appeal is made out. Appeal is hereby dismissed. Conviction and sentence imposed on the accused/appellant is hereby affirmed. Appellant is on bail, his bail bond is cancelled, he is directed to surrender forthwith failing which police to nab the accused.