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Madhya Pradesh High Court · body

2010 DIGILAW 9 (MP)

BHAGWANLAL v. STATE OF MP.

2010-01-05

S.K.SETH, S.L.KOCHAR

body2010
Judgment S.L.Kochar, J. ( 1. ) The appellant has filed this appeal against the judgment and order of conviction and sentence passed by the learned IInd Additional Sessions Judge, Mandsaur in Sessions Trial No.115/2000 by which the appellant stands convicted under Section 302 and 201 of the IPC and sentenced to undergo life imprisonment with fine of Rs.500/- with defaulting clause of imprisonment of six months RI and three years RI respectively ( 2. ) According to the prosecution case, Pooralal (PW/5), Choukidar of village Dhandi, police station Suwasara had given information to concerned police station on 18 04.2000 in the morning at 06.00 A.M that he was informed by his brother in the night that wife of the appellant had died and appellant alone took her dead body to the cremation ground and cremated. On the basis of this report, Marg report 7/2000 (Ex.P/3) was recorded. The Station House Officer of the police station Shri Anand Kumar Yadav (PW/8) had gone to the village and after recording the statements of the witnesses prepared Dehati Nalisi Ex.P/13 as well as spot map Ex.P/14. Appellant was arrested and in presence of the witnesses interrogated by Shri Yadav. Appellant gave statement for recovery of axe and the same was recovered at his instance through seizure memo Ex.P/7. Ex.P/5 is his memorandum of statement. Appellant made extra judicial confession before Gamersingh (PW/1) and Bapulal (PW/2) saw the appellant while beating his wife in the evening preceding the evening of lodging of Dehati Nalisi. The Station House Officer has also seized the ash and bones through memorandum of statement Ex.P/6 and seizure memo Ex.P/9. From inside the house blood stained and controlled earth were also seized. Blood stained shirt of the appellant was also seized by the investigating officer. Exs.P/15 and P/16 are the photographs of the house of the appellant and cremation ground of the village. All seized articles were sent to the Forensic Science Laboratory and its report is Ex.P/17. On due investigation, appellant was charge sheeted for commission of offence under Sections 302 and 201 of the IPC. ( 3. ) Appellant refuted the charges and pleaded innocence. He examined Ramesh (DW/1), his brother, in his defence. All seized articles were sent to the Forensic Science Laboratory and its report is Ex.P/17. On due investigation, appellant was charge sheeted for commission of offence under Sections 302 and 201 of the IPC. ( 3. ) Appellant refuted the charges and pleaded innocence. He examined Ramesh (DW/1), his brother, in his defence. According to Ramesh, he was informed by the villager when he reached in the village that wife of the appellant had committed suicide by consuming poisonous substance (Choohe Ki Dawa) and the cremation was performed by the villagers. Learned trial Court found the prosecution case proved against the appellant; convicted and sentenced him as indicated herein above. ( 4. ) We have heard learned counsel for the parties and also perused the entire record thoroughly. Learned counsel for the appellant has submitted that prosecution has failed to prove its case beyond reasonable doubt and learned trial Court without any positive evidence gave finding in paragraph-21 of the impugned judgment regarding proof of circumstantial evidence that appellant was having doubt on the character of his wife, prior to her death they were having verbal altercation and appellant gave beating to her, appellant cremated the body without any intimation to the police or any other responsible authority and recovery of blood stained axe, soil and shirt at the instance of the appellant. ( 5. ) On the other hand learned counsel for the State has supported the impugned judgment and finding of the learned trial Court. ( 6. ) It is clear from the record that prosecution case was based on circumstantial evidence and the first circumstance which was found proved by the learned trial Court that appellant was having doubt on the chastity of his wife is not proved at all by the prosecution. There is not an iota of evidence in this regard but there is positive evidence on record that appellant was seen lastly in the company of his wife in his house and he was beating her. This has been established from the statement of Bapulal (PW/2), who gave information in this regard to his brother. In cross examination of this witness nothing substantial has come to corod his testimony. ( 7. This has been established from the statement of Bapulal (PW/2), who gave information in this regard to his brother. In cross examination of this witness nothing substantial has come to corod his testimony. ( 7. ) Learned trial Court sought corroboration to the circumstantial evidence as found proved mentioned in para-21 from the evidence of Gamersingh (PW/1) regarding extra judicial confession but in our considered view the statement of this witness on this aspect cannot be accepted upon because in cross examination he has specifically stated that he did not disclose about the extrajudicial confession made to him by the appellant to police or anybody in the village or even to his family members meaning thereby for the first time he had given statement in this regard before the Court, therefore, his testimony is not worthy placing reliance for extra judicial confession made to him by the appellant. It is clear from the statement of Bapulal (PW/2) and Pooralal (PW/5) village Choukidar that deceased was seen lastly in the house of the appellant in his company and there is absolutely no direct or circumstantial evidence showing the fact that wife of the appellant was assaulted by anybody else or taken away by anybody or eloped and not traceable. No such report was lodged by the appellant or his relatives or even village Choukidar. On the contrary there is positive admission of Gamersingh (PW/1) in cross examination (paragraph-5) on suggestion given by defence counsel that on the date of incident wife of the appellant reached at his house from her parents house. ( 8. ) Pooralal (PW/5), village Choukidar, has deposed that after receiving information of death of wife of the appellant and cremation of the dead body by the appellant on cremation ground, he immediately reached the cremation ground and saw burning of one dead body. He immediately went to police station and lodged report Ex.P/3. Thereafter investigating officer Shri Yadav (PW/8) reached the village and recorded the statements of the witnesses as well as interrogated the appellant. ( 9. ) On the basis of the memorandum of statement Ex.P/5 given by appellant regarding hiding of axe inside the house, the axe was seized vide seizure memo Ex.P/7. From inside the house blood stained and controlled earth were also seized vide seizure memo Ex.P/8. ( 9. ) On the basis of the memorandum of statement Ex.P/5 given by appellant regarding hiding of axe inside the house, the axe was seized vide seizure memo Ex.P/7. From inside the house blood stained and controlled earth were also seized vide seizure memo Ex.P/8. All these documents and evidence have been properly proved by Pooralal (PW/5) and investigating officer Shri Yadav (PW/8). On axe, earth and on the shirt of the appellant simple blood was found. The presence of simple blood cannot be used as a conclusive and substantive evidence against the appellant. ( 10. ) The appellant has not taken any positive defence regarding death of his wife and merely suggestion given to the prosecution witness in cross examination that his wife committed suicide would not be sufficient to accept. The Supreme Court in the case of Rajkumar Prasad Tamarkar Vs. State of Bihar and another (2007) 3 SCC (Cri.) 716 has held that "when at the time of occurrence only the wife and the husband were present in the house and when there was homicidal death and there was no possibility of entrance of anybody else in the house and causing of injury to the wife by any other person, the burden lies on the accused husband to explain as to how his wife has died." ( 11. ) In the instant case in accused statement recorded under Section 313 of the Cr.P.C, appellant has not given any explanation and simply denied or expressed his ignorance regarding circumstances appearing against him. Even he has not stated that his wife was alone in the house and he had gone somewhere else. ( 12. ) The statement of defence witness Ramesh (DW/1), brother of the appellant, is not admissible in evidence being hit by law of hearsay evidence as per the provisions under Section 60 of the Evidence Act regarding information received by him from villagers that wife of the appellant committed suicide, therefore, his evidence is of no assistance to the defence of denial of the appellant. ( 13. ) It is well settled legal position that when accused is seen lastly in the company of the deceased and no explanation has been given by the accused regarding the whereabouts of the deceased then reasonable presumption would be that he committed murder of the deceased. ( 13. ) It is well settled legal position that when accused is seen lastly in the company of the deceased and no explanation has been given by the accused regarding the whereabouts of the deceased then reasonable presumption would be that he committed murder of the deceased. In the instant case, appellant has also cremated body of his wife and no reasonable and plausible explanation has been given by him in his accused statement, therefore, the only inference that can be drawn against him is that he committed murder of his wife. In our opinion, prosecution has proved the case beyond reasonable doubt against the appellant on the basis of the above mentioned circumstances. ( 14. ) Thus we do not find any merit in this appeal. The appeal is hereby dismissed. Appeal dismissed.