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2009 DIGILAW 457 (MP)

BABULAL ALIAS BABBU v. STATE OF MADHYA PRADESH

2009-04-09

ARUN MISHRA, S.A.NAQVI

body2009
Judgment ( 1. ) THE accused have come in the appeal assailing legality of their conviction under Sections 302/34 and 201 of the IPC and sentence to undergo imprisonment for life and seven years rigorous imprisonment respectively for committing the murder of Janak bai, wife of accused Babulal. ( 2. ) THE prosecution case, in brief, is that on 25. 6. 1991 premlal, cousin of accused, lodged report at Police Station, shahnagar at merg No. 12/91. It is mentioned in merg intimation report that at about 15:30 hours, he had gone to panchayat held with respect to the land situated at Urmalian tola convened by Jagdish and Rajaram. When he was attending the Panchayat, he was informed by Om Prakash that wife of his brother Babulal had died due to fire. He reached in the house and found Janak Bai dead. She was having stomach pain. Investigation was initiated on the basis of merg intimation report. Sub-Inspector D. P. Pandey reached the spot and prepared spot map (Ex. P/2 ). Statement of witnesses were recorded. Inquest memo (Ex. P/3) of dead body was prepared. On 26. 6. 1991, semi burnt clothes of the deceased and ashes of rope of the cot were seized as per seizure memo (Ex. P/4 ). Spot map (Ex. P/8) was prepared by patwari. The accused was arrested on 15. 7. 1991. Information memos Exs. P/9 and P/10 were prepared. On the basis of information furnished by accused Babulal, one nylon rope was seized as per seizure memo (Ex. P/12 ). One matchbox was seized at the instance of accused Hakki @ ramkishore as per seizure memo (Ex. P/11 ). Autopsy report (Ex. P/20) was submitted by Dr. M. L. Choudhary (PW-13 ). After investigation, the accused persons were charge sheeted. ( 3. ) THE accused persons abjured the guilt and contended that they have been falsely implicated in the case. Prosecution examined 17 witnesses. One witness i. e. Baldev prasad (DW-1) has been examined in defence. The trial court has convicted the accused persons for commission of offence under Sections 302/34 and 201 of the IPC. Being aggrieved by the impugned judgment the appellants have preferred the instant appeal. ( 4. Prosecution examined 17 witnesses. One witness i. e. Baldev prasad (DW-1) has been examined in defence. The trial court has convicted the accused persons for commission of offence under Sections 302/34 and 201 of the IPC. Being aggrieved by the impugned judgment the appellants have preferred the instant appeal. ( 4. ) SHRI S. C. Datt, learned senior counsel with Shri siddharth Datt, Advocate for the appellant submitted that it is apparent from the medical evidence in the instant case that death was homicidal, but the evidence falls short to prove that accused persons were responsible to cause death of janak Bai, the accused persons were not present in the house at the time of incident. Recovery of matchbox and nylon rope was made after 20 days of the incident, which could not be said to be a cogent circumstance against accused persons particularly when seizure of articles has not been supported by independent witnesses, thus appellants are entitled for acquittal. He has relied upon the decision of the Apex Court in Mulak Raj and ors. Vs. State of Haryana, 1996 Cr. L. R. (S. C.) 72. ( 5. ) SHRI R. S. Patel, Additional Advocate General appearing for the respondent/state supported the impugned judgment and contended that in such cases, when death has taken place in the house burden is on the accused persons to explain the circumstances how the death of Janak Bai took place. In the instant case, both accused persons have failed to explain the circumstances in which homicidal death of janak Bai took place. Even from the defence evidence, it is apparent that both the accused persons were residing in the same house and one of the accused i. e. Babulal is husband of deceased Janak Bai. It is established by the medical evidence that the death was also due to asphyxia caused by strangulation and ligature mark was found around the neck. After death by asphyxia, her body was set ablaze and burn injuries were found to be postmortem. Thus, it is apparent that after death of Janak Bai, in order to remove the evidence of commission of offence of murder, the body of deceased was set ablaze. The accused persons have failed to establish that they were not present in the house at the time of incident and false report was lodged by cousin of the accused babulal. Thus, it is apparent that after death of Janak Bai, in order to remove the evidence of commission of offence of murder, the body of deceased was set ablaze. The accused persons have failed to establish that they were not present in the house at the time of incident and false report was lodged by cousin of the accused babulal. In the merg intimation, it was mentioned that deceased Janak Bai has committed suicide, which was apparently false and concocted. The conduct of the accused persons in such cases, assumes importance where incident took place inside the house. The accused persons and deceased were living together, it was not possible for outsider to see the incident, it is for the accused to explain. He has relied upon the decision of the Apex Court in trimukh Maroti Kirkan Vs. State of Maharashtra, (2006), 10 SCC 681. He has also submitted that with respect of recovery of articles of the offence i. e. matchbox and nylon rope, the statement of Investigating Officer is enough, it was not necessary to be corroborated by other evidence. Other witnesses have turned hostile. ( 6. ) IT is apparent from the postmortem report and deposition of Dr. M. L. Choudhary (PW-13) that death was homicidal, it was caused due to asphyxia, and not due to burn injuries. Blood was coming out from both nostrils and mouth. Smell of kerosene oil was coming out from the body. Body was 100% burnt. There was injury found around the neck, which was ante mortem in nature. It is apparent that death was homicidal not suicidal one as projected in the merg intimation report. Death was caused due to asphyxia, not by burn injuries, after committing murder her body was set ablaze. Thus it has not been rightly disputed that death of janak Bai was homicidal in nature. ( 7. ) COMING to the main question that who was responsible to cause death of Janak Bai, admittedly, the accused persons were residing alongwith the deceased. Even defence witness baldev Prasad (DW-1) has stated aforesaid fact. The witnesses examined in the instant case, including some relatives of the deceased have turned hostile. We are left with the circumstantial evidence and conduct of the accused persons on the basis of which guilt has been fastened by the trial Court. ( 8. Even defence witness baldev Prasad (DW-1) has stated aforesaid fact. The witnesses examined in the instant case, including some relatives of the deceased have turned hostile. We are left with the circumstantial evidence and conduct of the accused persons on the basis of which guilt has been fastened by the trial Court. ( 8. ) IN the instant case, admittedly the dead body of the deceased was found in the house, in which the accused persons were residing alongwith deceased, how the homicidal death took place was supposed to be in the knowledge of the accused persons, as they were residing in the said house. They have tried to save themselves by stating that when deceased Janak Bai had set herself ablaze, they were not present in the house, but their explanation is found to be incorrect. Apart from that, they have failed to establish that they were at different place at the time of incident. In defence, they examined only single witness who has not stated that they were at different place and not in the house. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. ( 9. ) IN State of U. P. Vs. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300 , the Apex Court has held that false plea of alibi was taken by accused persons instead of giving any plausible explanation for the death. The accused has deliberately feigned ignorance and incredibly denied their complicity was held to be the circumstance against the accused. In Shiv Kishan Vs. State of Haryana, AIR 1994 SC 1597 , the Apex Court has laid down that when the accused was present in the house where deceased lived. The medical evidence assumes importance to ascertain the cause of death. Medical evidence shows that death was due to asphyxia as a result of strangulation around the neck. It was not the case of the accused that he brought down the dead body and placed it on the cot. The fact that the dead body was found lying on the cot also corroborates the prosecution version that the death was due to strangulation and accused was responsible for that. In Sheikh Abdul Hamid and another Vs. It was not the case of the accused that he brought down the dead body and placed it on the cot. The fact that the dead body was found lying on the cot also corroborates 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 Madhya Pradesh, AIR 1998 SC 942 , it was laid down by the Apex Court that accused were living with the deceased. In the facts and circumstances, it was concluded that there was no possibility of outsider committing offence. In Trimukh Maroti Kirkan (Supra)relied upon by Shri R. S. Patel, Addl. Advocate General, the apex Court has laid down that 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. 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 a 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. ( 10. ) IN Collector of Customs, Madras and Others Vs. D. Bhooramull, 1974 (3) SCR 833, the Apex Court has observed that legal proof is not necessarily perfect proof; often it is nothing more than a prudent mans estimate as to the probabilities of the case. The burden of proof is on the prosecution to prove that the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The burden of proof is on the prosecution to prove that the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. When the prosecution succeeded in establishing the particular circumstances, the court has to presume the existence of certain facts, which it thinks likely to have happened. Similar is the view propounded by the Apex Court in State of Tamil Nadu Vs. Rajendran, (1999) 8 SCC 679 , State of Maharashtra VS. Suresh, (2000) 1 SCC 471 , Ganesh Lal Vs. State of rajasthan, (2002) 1 SCC 731 , Gulab Chand Vs. State of m. P. , (1995) 3 SCC 574 and Nika Ram Vs. State of himachal Pradesh, 1973 (1) SCR 428 . ( 11. ) IN Ganeshlal Vs. State of Maharashtra, (1992) 3 SCC 106 , the Apex Court observed that when the appellant was prosecuted for the murder of his wife inside his house, 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 of cr. P. C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prima accused in the commission of murder of his wife. ( 12. ) IN the instant case, it is apparent from the evidence that both the accused persons were living together with deceased. The death was homicidal in nature and the accused persons have failed to explain, who was responsible for homicidal death and thereafter who set her ablaze or that they were at different place at the time of incident. Admittedly they were residing together, thus we are satisfied that accused persons were responsible for commission of offence of murder and thereafter they set ablaze the body of deceased Janak Bai in order to remove the evidence of commission of offence of murder. ( 13. Admittedly they were residing together, thus we are satisfied that accused persons were responsible for commission of offence of murder and thereafter they set ablaze the body of deceased Janak Bai in order to remove the evidence of commission of offence of murder. ( 13. ) SHRI S. C. Datt, learned senior counsel has relied upon the decision of the Apex Court in Mulak Raj and ors. (Supra) in which question came to be considered by their Lordships who was responsible to cause death of Krishna Kumari. The death was caused by suffocation. It is difficult to appreciate how accused NO. 3 a minor girl aged sixteen and a half years being sister-in-law of the deceased had shared the common intention if at all there was any. The prosecution case became lame from the very beginning and, therefore, it was not cloud of a strong suspicion, it could not take the place of proof. In the instant case, we are of the opinion that there is enough evidence against the accused persons on facts aforesaid decision is distinguishable. Thus, the conviction imposed by learned trial Court is found to be proper. ( 14. ) RESULTANTLY, we find no merit in this appeal. Conviction of the appellants under Sections 302/34 and 201 of the IPC and the sentenced imposed are hereby affirmed. Appeal being devoid of merits is hereby dismissed. The appellants are on bail, their bail bonds stand cancelled and they are directed to surrender forthwith to undergo remaining part of jail sentence.