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2011 DIGILAW 231 (CHH)

GENDKUNWAR BAI v. STATE OF M. P.

2011-07-13

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Radhe Shyam Sharma, J. :- 1. This appeal is directed against the judgment dated 30-1-1995 passed by the 5th Additional Session Judge, Durg in Session Trial No.238/94. By the impugned judgment, the appellant has been convicted under Sections 302 and 201 of the Indian Penal code and sentenced to undergo imprisonment for life and rigorous imprisonment for seven years. The sentences are directed to run concurrently. 2. Case of the prosecution, in brief, is as under: Deceased Gautar Gond was husband of appellant Smt. Gendkunwar Bai. The deceased and the appellant along with their two minor children were residing in the house of one Firangi as tenant. One Barsan, who was Kotwar of Village Kondekasa, gave an information in the Police Station Rajahara that the deceased was seen alive in the village till morning of 17-5-1994 and thereafter he was not seen in the village. He further informed that the appellant had also gone to her maternal village on 17-5-1994 and since then house of Firangi, where the deceased and the appellant were residing together, was locked and some foul smell is coming out of that house. This information was entered in Rojnamcha Sanha vide Ex.P-13. Thereafter, police went to the house of Firangi and prepared a Panchnama of inspection of place of occurrence vide Ex.P20. During investigation, it revealed that the deceased used to suspect character of the appellant and they used to quarrel with each other on this count. On 17 -5-1994, the appellant assaulted the deceased on the right side of his neck with an axe and committed his murder and thereafter buried the body of the deceased inside the house after digging a pit in the room and left for her maternal village after locking the house from outside. The dead body of the deceased was taken out from the pit where it was buried. The investigating officer gave notice to the Panchas (Ex.P-18 and P-19) and prepared inquest (Ex.P-4) on the body of the deceased. The dead body of the deceased was sent for post mortem examination to Primary Health Centre Chikhlakasa vide Ex.P-15A, where post mortem examination was conducted by Dr. H.KJoshi (PW-15); who prepared post mortem report vide Ex.P-15. Dr. The investigating officer gave notice to the Panchas (Ex.P-18 and P-19) and prepared inquest (Ex.P-4) on the body of the deceased. The dead body of the deceased was sent for post mortem examination to Primary Health Centre Chikhlakasa vide Ex.P-15A, where post mortem examination was conducted by Dr. H.KJoshi (PW-15); who prepared post mortem report vide Ex.P-15. Dr. H.KJoshi (PW -15) noticed one incised wound over right side of neck oblique, upper end reaching just behind right ear; size of wound was 3 inches long, 'i4 inch wide; the vessels, muscles including the vertebral column at level of cervical second and third being cut. He opined that mode of death was coma, on account of incised wound at the level of C2 C3 cutting apart vertebral column in two pieces. The time elapsed between death and post mortem was 72 hours to 144 hours. In further investigation, memorandum statement of the appellant was recorded on 24-5-1994 vide EX.P-6 and at the instance of the appellant Kudali and Axe were seized vide EX.P-7. Saree and petticoat were also seized from the appellant vide EX.P-2 and one Key was also seized vide Ex.P-8. After investigation, Dehati Nalisi (Ex.P-16) was recorded by Inspector R.K.Sharma (PW -17) and thereafter Dehati Merg (Ex.P-17) was recorded and regular First Information Report was also recorded in Police Station Rajahara on 21-5-1994. Seized articles were sent for chemical examination to the Director, Forensic Science Laboratory, Raipur and a report (Ex.P-22) was received. In FSL report (Ex.P-22), it was reported that articles A and B, i.e., blood stained soil, article O, i.e., bricks, article F, i.e., Kudali, article G, i.e., petticoat, article J1, i.e., T-Shirt and article J2, i.e., Pant, article 13, i.e., Underwear were stained with blood. After completion of the investigation, a charge-sheet was filed in the Court of Judicial Magistrate First Class, Balod, who, in turn, committed the case to the Court of Session, from where it was received on transfer by the Additional Session Judge, Durg, who conducted the trial and convicted and sentenced the appellant as aforementioned. 3. Shri F.S.Khare, learned counsel appearing for the appellant argued that the finding of guilt recorded on the basis of evidence of last seen together is unreasonable. It was not proved beyond reasonable doubt. 3. Shri F.S.Khare, learned counsel appearing for the appellant argued that the finding of guilt recorded on the basis of evidence of last seen together is unreasonable. It was not proved beyond reasonable doubt. Even if the circumstances are taken on their face value, it cannot be said that it was the appellant who committed murder of the deceased. Learned counsel also argued that the memorandum and recovery were not proved by the prosecution. The FSL report Ex.P-22 does not show that the seized articles contained human blood. He further argued that it is well settled that strong suspicion is no substitute - for a proof. The prosecution has utterly failed to prove its close beyond reasonable doubt. Therefore, the appellant is entitled for acquittal of the charges framed against her. 4. On the contrary, Shri Ravindra Agrawal, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, argued that the prosecution witnesses are natural witnesses. Their testimonies are wholly reliable and the prosecution has proved the circumstantial evidence of last seen together by cogent and reliable evidence. 5. We have heard learned counsel appearing for the parties and perused the impugned judgment as also the evidence available on record. Admittedly, there is no eye-witness to the incident and the case of the prosecution' is based on the circumstantial evidence. Main circumstances, which the learned Additional Session Judge appear to have taken note of are thus: (i) this is a house-murder where the deceased and the appellant were residing together; (ii) the deceased and the appellant were last seen together; (iii) the appellant had locked the house on 17-5-1994 in between 12 Noon and 1 P.M. and had gone to her maternal village; (iv) the dead body of the deceased was recovered from the pit in the room of the house where the deceased and the appellant were residing together; and (v) on the basis of the memorandum statement of the appellant, Kudali was seized which contained blood. 6. It is well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. 6. It is well settled that with a view to base a conviction on circumstantial evidence the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt is to be drawn should be fully established. It is also well settled that suspicion, howsoever grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. 7. In State of Uttar Pradesh VS. Ram Balak and another], the Hon'ble Supreme Court has held thus: "11. "9. it has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused o.~ the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of UP. v. Sukhbasi, 1985 Supp SCC 79, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1, and Ashok Kumar Chatterjee v. State of MP., 1989 Supp (1) SCC 560) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to. be closely connected with the principal fact sought to be inferred from those circumstances.' In Bhagat Ram v. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193, wherein it has been observed thus: (SCC pp. 206-07, para 21) 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 206-07, para 21) 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 8. In Padala Veera Reddy Vs. State of Andhra Pradesh and other, the Hon'ble Supreme Court has held thus: "10. ......... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ..........." 9. In Ramreddy Rajesh Khanna Reddy and another Vs. State of A.P., the Hon'ble Supreme Court has held thus: “27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration." (See also Inspector of Police, Tamil Nadu Vs. John David and State of UP. Vs. Satish). 10. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to SCC whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 11. John David and State of UP. Vs. Satish). 10. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and to SCC whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles. 11. So far as the question regarding circumstance that this is a house murder and that too where the appellant and the deceased were residing together is concerned, it is not disputed that the appellant and her husband Gautar Gond (the deceased) were residing together in the house of Firangi (PW-2) as a tenant. It is not disputed that the death of the deceased was homicidal in nature. 12. Shakunbai (PW-4) has stated in para 1 that on Tuesday, about 89 A.M., she had gone to the house of the appellant for taking vegetables, and when she had asked the appellant about what vegetables she had cooked, the appellant had told her that she had cooked pulse (Dal). At that time, the appellant was sitting on a cot. This witness has further stated that on the same day, at about 12 Noon - 1 P.M.? the appellant had locked her house, enquired about bus from Firangi (PW-2) and thereafter had left the house. 13. Firangi (PW-2) has stated that deceased Gautar was residing in his house as a tenant since last one month. Gautar had met him on Monday at about 9 A.M., thereafter, he did not meet him. He has further stated that on Tuesday, at about 12 Noon, when he was standing below a mango-tree, he saw that the appellant was putting a lock on the door of the house and was going along with her children. He asked the appellant about where was she going. The appellant did not reply him and went away. The appellant has admitted this fact in her statement under Section 313 of the Code of Criminal Procedure. 14. Nakulram (PW-3) has stated that on Tuesday, Gautar (the deceased) had come to work in the Nursery in the morning and thereafter he never met him. The appellant did not reply him and went away. The appellant has admitted this fact in her statement under Section 313 of the Code of Criminal Procedure. 14. Nakulram (PW-3) has stated that on Tuesday, Gautar (the deceased) had come to work in the Nursery in the morning and thereafter he never met him. From the statements of Shakunbai (PW-4), Firangi (PW-2) and Nakulram (PW-3), it is evident that deceased Gautar was last seen alive on 17-5-1994 before 9 A.M. It is also evident that the appellant had locked and left the house on 17-5-1994 at about 12 Noon- 1 P.M. 15. Firangi (PW-2) has deposed in para 3 that on Thursday, foul smell' was coming out of the tenanted premises where the deceased and the appellant were residing together. He thought that rat would have died. On Friday, when excessive foul smell started coming out of the house, he peeped inside the room of the house and found that soil-floor of the room was tried to be made plane after its digging and felt the foul smell was coming out of the room. He has further stated that he narrated what he saw to Barsan, the village Kotwar (PW1). 16. Barsan (PW-1) has stated that Firangi (PW-2) had come to his house and narrated him what had he seen, and thereafter he had reported the matter to the police station. The police reached the place of occurrence next day and opened the lock put on the door of the house of the deceased. They had taken out the dead body of the deceased digging the pit made in the room. Statement of Firangi (PW-2) is similar to that of Barsan (PW-1). 17. Inspector R.K.Sharma (PW -17) has stated that he reached the place of occurrence along with Tahsildar, Doctor, Sub-Inspector Singh, Assistant Sub-Inspector Khan and he prepared Panchnama and thereafter he got the Kunda of the door broken. The dead body was taken out from the pit and it was identified by Firangi (PW-2), Ishwahal Taram (PW-8) and some employees of Forest Department. 18. The dead body was taken out from the pit and it was identified by Firangi (PW-2), Ishwahal Taram (PW-8) and some employees of Forest Department. 18. From the statements of the above prosecution witnesses, it is crystal clear that the dead body of the deceased was taken out of the room of the house where the deceased and the appellant were residing together and that too the dead body was taken out from the pit made in the room where it was buried. From the statements of Shakunbai (PW-4) and Nakulram (PW-3), it is evident that the deceased was last seen alive in the company of the appellant on 17-5-1994 at about 9 A.M. 19. Kondibai (PW-5) has stated that her house was adjacent to the house of Firangi (PW -2). At about 11 A.M. - 12 Noon, the appellant had collected soil in her house. Sanwali Bai (PW-6) has also stated that on Tuesday, the appellant had collected soil in her house. She has also stated that on Friday, the dead body of the deceased was taken out of the house of the deceased. 20. From the above statements of the prosecution witnesses, it is evident that the appellant had collected soil in her house and it is also evident that the pit, where the deceased was buried, was tried to be made plane. 21. From the evidence of all the above-said witnesses, it is also clear that the deceased was last seen alive in the company of the appellant on 17-5-1994 at about 9 A.M. and it is also clear that on the same day between 12 Noon - 1 P.M., the appellant had left her house and thereafter no one had seen the deceased alive and the dead body of the deceased was taken out of the pit made in the room where the deceased and the appellant were residing together. It is also evident that the time-gap between 9 A.M. and 12 Noon P.M. is small. Moreover, the appellant, in her statement under Section 313 of the Code of Criminal Procedure, has admitted enquiring about bus from Firangi (PW-2), locking the door of her house and going away and sending key of the lock put on the door through her brother Sayala Usare to her brother-inlaw Ishwarlal Taram (her husband's brother) (PW-8). Moreover, the appellant, in her statement under Section 313 of the Code of Criminal Procedure, has admitted enquiring about bus from Firangi (PW-2), locking the door of her house and going away and sending key of the lock put on the door through her brother Sayala Usare to her brother-inlaw Ishwarlal Taram (her husband's brother) (PW-8). Ishwarlal Taram (PW8) has also deposed in para 4 that the appellant's brother Sayala Usare had given him the said key of the house and he had handed over the said key to the Inspector. 22. Patwari Aduram (PW -16) has deposed that he had gone to the place of occurrence and prepared spot-map vide EX.P-I. He has further stated that height of every wall of the room was 7-8 feet. None of the walls was broken. Without opening the door, nobody could enter the room. There was small gap in the roof and nobody could enter the room through that gap. One can only peep in the room through the gap. Firangi (PW-2) has denied in his cross-examination that anybody could enter the closed room through or over the walls. 23. Ishwarlal Taram (PW-8) has also deposed in para 4 that the appellant's brother Sayala Usare had given him the key of the house and he had handed over the said key to the Inspector. He has further deposed that another key of the lock was recovered from the appellant which was kept in a box in her house. 24. From the evidence of the above witnesses, it is obvious that nobody could enter the house where the deceased was buried without opening or breaking the lock of the door as the two keys of the lock were in possession of the appellant. The house was in exclusive possession of the appellant and it was surrounded by walls and was inaccessible by anybody else. Therefore, in this situation, it was not possible for anybody to enter the locked house, commit murder of the deceased and bury the dead body inside the house. 25. Inspector R.K.Sharma (PW -17) has stated that on 24-5-1994 he had recorded disclosure statement of the appellant vide Ex.P-6 and thereafter Kudali and Axe were seized at the instance of appellant. Statement of U.S.Crandra (PW-10) is similar to that of Inspector R.K.Sharma (PW-17). 25. Inspector R.K.Sharma (PW -17) has stated that on 24-5-1994 he had recorded disclosure statement of the appellant vide Ex.P-6 and thereafter Kudali and Axe were seized at the instance of appellant. Statement of U.S.Crandra (PW-10) is similar to that of Inspector R.K.Sharma (PW-17). From the evidence of these witnesses, it is apparent that Kudali and Axe were seized vide Ex.P7 and Key was seized vide EX.P-8 at the instance of the appellant. 26. Ishwarlal Taram (PW-8) has stated that Saree and petticoat were seized from the appellant vide EX.P-2. Inspector R.K.Sharma (PW -17) has stated that he had sent the seized articles to Forensic Science Laboratory, Raipur for chemical examination. EX.P-22 is the report of the Forensic Science Laboratory, Raipur. According to the FSL report (Ex.P-22), articles A and B, i.e., blood stained soil, article D, i.e., bricks, article F, i.e., Kudali, article G, i.e., petticoat, article J1, i.e., T-Shirt and article J2, i.e., Pant, article J3, i.e., Underwear were stained with blood. 27. In view of the above facts and circumstances, the contention of learned counsel for the appellant that the report (Ex.P-22) of the Forensic Science Laboratory does not indicate that the blood found on the seized articles was human blood, has no substance. Blood stained Kudali was seized in consequence of disclosure statement made by the appellant and petticoat was also seized from the appellant and the testimonies of the prosecution witnesses were found to be reliable and conclusive. Therefore, non-indication of the blood on the seized articles to be human blood was not fatal for the prosecution. 28. After going through the entire evidence available on record, we are of the view that there is enough circumstantial evidence that it is none else but the appellant who caused murder of the deceased. In our considered opinion, the prosecution has established its case on the basis of strong and cogent circumstantial evidence and on the basis of the circumstances proved, there cannot be any other possible or plausible view favouring the appellant. 29. For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be and is accordingly dismissed. Appeal Dismissed.