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2014 DIGILAW 375 (CHH)

Dular Singh v. State of M. P.

2014-10-30

NAVIN SINHA, PRITINKER DIWAKER

body2014
JUDGMENT : Navin Sinha, Actg. C.J. 1. The Appellant stands convicted under Section 302 I.P.C. to life imprisonment by judgment dated 29.06.2000 of the Additional Sessions Judge (Special Court), Jagdalpur in Sessions Trial No. 392 of 1999. Exhibit P/1, Merg statement of PW 1, Puni, wife of the deceased Lacchinder, was recorded on 27.06.1999 at 7.00 P.M. She stated that the boundary of their house was common with that of the Appellant. The Appellant would regularly fight with regard to the same. On that date itself at about 10.00 A.M., the Appellant took the deceased to his house on the pretext of having drinks together. PW 1 followed her husband to the house of the Appellant. When they reached the courtyard of the Appellant, he stated that he would not leave the deceased alive because he was obstructing construction of boundary wall and thrust arrow in the neck of the deceased causing his death on the spot. The FIR Exhibit P/2 was lodged by PW 1 on the same day on basis of the Merg statement. The postmortem of the deceased Exhibit P/16 was conducted by one Dr. H.L. Thakur, who has not been examined. The report found punctured wounds on the left axilla, the left chest, the right chest and also two punctured wounds on the left neck just above the collar bone. On the latter two wounds, a foreign body like bamboo sticks were stuck, which were taken out and handed over to the Constable. The cause of death was opined due to excessive hemorrhage because of the injury. The confession of the Appellant was marked Exhibit P/4 leading to seizure of the other broken part of arrows from his house marked Exhibit P/5. Blood stained earth collected from the place of occurrence was marked Exhibit P/6. The crime spot report Exhibit P/13 reveals that the body of the deceased was found inside the house of the Appellant. The forensic report of the broken pieces of arrows, Exhibit P/12, recovered from the body of the deceased during postmortem and that recovered on confession of the Appellant were found to tally as a piece. 2. Learned counsel for the Appellant assailing the conviction submitted that there was no previous animosity or enmity between the parties as otherwise the deceased would never have gone to the house of a person with whom he was on inimical terms. 2. Learned counsel for the Appellant assailing the conviction submitted that there was no previous animosity or enmity between the parties as otherwise the deceased would never have gone to the house of a person with whom he was on inimical terms. Even if the deceased had been called to his house by the Appellant, given the allegation of a boundary dispute, the assault was the result of grave and sudden provocation. The postmortem report was marked Exhibit P/16 by the Court itself but has not been formally proved as the author has not been examined. Section294 Cr.P.C. could not have been invoked by the Trial Court to look at the report especially when the author of the report failed to appear despite bailable warrants. Reliance was placed on Jagdeo Singh and others v. State (Allahabad) 1979 Cri.L.J. 236. 3. Learned counsel for the State submitted that the conviction requires no interference. The question of any grave and sudden provocation does not arise. It was premeditated murder after enticing the deceased with the lure of liquor. The broken piece of arrows found in the body of the deceased, and the other broken pieces recovered from the house of the Appellant on his confession have been forensically proved to be part of the same piece. In the facts of the case, it is hardly relevant that the Doctor who authored the postmortem report has not been examined. The accusation is conclusively proved by an eyewitness whose testimony remains completely trustworthy. 4. We have considered the submission made on behalf of the parties and also examined the evidence on record. 5. PW 1 wife of the deceased in her deposition reiterated that the Appellant lured the deceased to his house for liquor and that she witnessed the assault made by him on her husband, after which she informed others. She asserted that the Appellant had killed her husband because of the boundary dispute. The suggestion that there was no boundary dispute between them in cross-examination was specifically denied. Nothing has been elicited in cross examination to doubt the credit worthiness of the eyewitness as not speaking the truth or that the manner of occurrence was different than deposed. PW 2, Nanda, was the uncle of the deceased, who proved the inquest report Exhibit P/3 and also the confession of the Appellant and recovery pursuant thereto of the other broken piece of arrows. PW 2, Nanda, was the uncle of the deceased, who proved the inquest report Exhibit P/3 and also the confession of the Appellant and recovery pursuant thereto of the other broken piece of arrows. In his cross-examination, he attempted to go hostile with regard to the recovery even though he did not deny his signature on the seizure memo. PW 4, Narayan Oti, the Investigating Officer proved Exhibit P/1 and Exhibit P/2 as recorded by him and also Exhibit P/3 along with Exhibits P/4 and P/5. 6. The deceased and the Appellant were neighbors. There existed a boundary dispute between them. The Appellant invited the deceased to his house on the lure of liquor and then assaulted him inside his own house. The defence of grave and sudden provocation does not arise for consideration for what was otherwise a premeditated assault. 7. Apparently, the interaction between them was not a sudden event, but a well planned course of action with a premeditated design to fatally assault the deceased. PW 1 was an eyewitness to the assault. She specifically stated of assault by arrow on the neck and that a part of it was stuck to the body of the deceased. The seizure and recovery of the remaining part of arrows is from the house of the appellant. The forensic report confirmed that the two pieces are part of a common arrow stick. The nature of assault and the manner of death is not in controversy. Had there been any conflict between medical and ocular evidence, the postmortem report may have assumed importance. In the present case, the medical evidence and ocular evidence are not at conflict with each other. The doctor failed to appear despite bailable warrants having been issued. 8. Section 294(3) provides that a document may be admitted in evidence if it is not disputed by the other side. The post mortem report was marked as Exhibit on admission by the Appellant. Jagdev Singh 1979 Cri.L.J. 236 (supra) relied on behalf of the Appellant itself states that it is not a substantive piece of evidence but only corroborates. It relies on Section 32(2) of the Indian Evidence Act to make the report admissible in evidence if the Doctor is dead or otherwise not available for evidence. 9. The dead body of the deceased was found inside the house of the Appellant. It relies on Section 32(2) of the Indian Evidence Act to make the report admissible in evidence if the Doctor is dead or otherwise not available for evidence. 9. The dead body of the deceased was found inside the house of the Appellant. The Appellant does not deny that the deceased had been invited to his house and was in his custody. It is for the Appellant to explain in the circumstances as to how the deceased died inside his house. It is not the case of the Appellant that an intruder came and assaulted. The manner and reason for the death of the deceased inside the house of the Appellant was a fact in the specific knowledge of the appellant under 106 of the Indian Evidence Act. He offers no explanation whatsoever to the same in defence. Quite naturally, there will-be no independent eyewitnesses for the occurrence inside his house. We find no reason to disbelieve PW 1 merely because she is the wife of the deceased, as an eyewitness. On the contrary, it is too far fetched a theory that she would save the real assailant of her husband only in an attempt to falsely implicate the appellant because her husband had a boundary dispute with him. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 on death taking place inside the house invoking Section 106 of the Indian Evidence Act it was observed:-- "14. If an offence takes place inside the privacy of a house and 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, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh.) 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. Both are public duties. (See Stirland v. Director of Public Prosecutions -- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh.) 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. Here it is necessary to keep in mind 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. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: "(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him." 15. 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." 10. We therefore find no reason to interfere with the conviction. 11. The Appellant is on bail. His bail bonds are cancelled and he is directed to surrender forthwith and be taken into custody immediately to serve the remaining period of conviction. The Appeal is dismissed. Appeal dismissed