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2014 DIGILAW 423 (CHH)

Cheeniram v. State of M. P.

2014-11-26

MANINDRA MOHAN SHRIVASTAVA, NAVIN SINHA

body2014
JUDGMENT 1. This appellant stands convicted under Section 302, I.P.C. to life imprisonment with fine of Rs.500/- as also under Section 201, I.P.C. to two years rigorous imprisonment with fine of Rs.500/-. In the event of failure to pay fine, he was required to undergo further rigorous imprisonment of six months each. The sentences have been directed to run concurrently. Merg intimation (Exh. P-3) was lodged by appellant on 25-6-1999 at about 8.55 a.m. stating that the previous evening he had gone to the market. His mother and other family members were also not at home. Ramesh told him in the market that his wife was not well. He returned about 7.00 p.m. His brother Narayan told him that the deceased committed suicide at 5.30 in the evening inside the house by pouring kerosene oil on herself. His son Vinod aged 5 years and daughter Guddi aged 1 year had gone out to play. He was married 15 years ago to the deceased. His wife was mentally unstable and for which she was under treatment. F.I.R. (Exh. P-9) was registered on 26-6-1999 on the basis of the same. The post-mortem report (Exh. P-7) conducted by Dr. V.P. Jayaswal (P.W. 6) found abrasions and contusions on left forehead, 3 x 3 c.m. Contusion on right middle side of neck, 2 x 1 c.m. and on left side 2 x 1 c.m. Contusion was also found on right auxiliaries and left auxiliaries measuring 3 x 2 c.m. and 2 x 2 c.m. The doctor opined that death was asphyxia due to strangulation and the burn injuries on the body were post-mortem in nature. 2. Learned Senior Counsel for the appellant submitted that there is no eye-witness to the occurrence. The evidence against the appellant is circumstantial in nature. All links in the chain must be conclusively proved leading to the only hypothesis pointing towards the guilt of the appellant. If there is any break in this chain and a reasonable doubt arises about any other possibility for the manner in which the occurrence might have taken place, the appellant is entitled to acquittal on benefit of doubt. 3. It was submitted the appellant was alleged to be having an extra marital affair with Sunita, the wife of his step brother. Sunita also alleged teased and humiliated the deceased regularly as she was dark complexioned. 3. It was submitted the appellant was alleged to be having an extra marital affair with Sunita, the wife of his step brother. Sunita also alleged teased and humiliated the deceased regularly as she was dark complexioned. The Doctor (P.W. 6) during cross-examination, considering the marks on the neck and armpits of the deceased had opined that the assailant could be more than one person. It is possible that Sunita and her husband had committed the offence or any other. Trilochan (P.W. 7) before whom the appellant is alleged to have made an extra-judicial confession has turned hostile. The appellant had raised a plea of alibi and led evidence of Ram Avatar (D.W. 2) that at the time of occurrence he was in the market and went home on information. The prosecution has not disputed that the information regarding death was given to the family of the deceased by the family members of the appellant. His conduct in lodging the merg himself and staying home overnight with the dead body is not compatible with his being the assailant. If he had committed the crime considering normal human conduct he would have absconded and not risked exposing himself to arrest and prosecution. The deceased was mentally unstable as deposed by Loodhak Ram (D.W. 1). There is no evidence that when she went to her parental home the children accompanied her. It is suggestive of her mental instability because of which the children did not accompany her. D.W. 2 has not been cross-examined with regard to the appellants plea of alibi. On the basis of the aforesaid, it was contended that the present being a case of circumstantial evidence. The mere fact that the deceased had died at home was sufficient in a case of circumstantial evidence to hold the appellant guilty merely because he was the husband of the deceased. Reliance was also placed on Sohel Mehabbob Sheikh Vs. State of Maharashtra, (2009) 12 SCC 588 . 4. Learned Counsel for the State submitted that no explanation has been given by the appellant for lodging the merg next morning if he was innocent and not reporting the matter to the police immediately after the incident. The motive existed because the deceased did not approve his illicit relations with Sunita. The appellant did not deny illicit relations with Sunita. Learned Counsel for the State submitted that no explanation has been given by the appellant for lodging the merg next morning if he was innocent and not reporting the matter to the police immediately after the incident. The motive existed because the deceased did not approve his illicit relations with Sunita. The appellant did not deny illicit relations with Sunita. The deceased had to leave the home time and again because of his conduct. The question of the child aged one year being alone outside the house playing is too unreasonable and fanciful for acceptance especially when there were no other family members at home. 5. We have considered the submissions on behalf of the parties and also perused the evidence on record. The deceased was the wife of the appellant. She has died in her matrimonial home. The appellant had illicit relations with the wife of his own step-brother. The appellant's wife was dark complexioned while Sunita was fair. The deceased had see both in a compromising position at times. Because of the appellants behavior time and again she left the matrimonial home to stay with her parents. The appellant had brought her back home a week previous to the incident. Ghanshyam (P.W. 1), Gendram (P.W. 2), Gauribai (P.W. 3) and Chamru Ram (P.W. 4), relatives of the deceased have all deposed that she had told them about the illicit relation of the appellant with his sister-in-law. The deceased probably did not tell anyone else about the illicit relation of the appellant and was suffering in silence lest the appellant practiced retribution upon her in one form or another and which he ultimately did. An additional reason for her silence could have been her two minor children because of whom she was unable to leave the matrimonial home also. 6. The conduct of a person accused of an offence immediately after the occurrence is an important factor but cannot be an absolute factor to arrive at a finding of innocence only on basis of the same. There is always a possibility that the person committing the crime would deliberately act in a manner to mislead the investigation by not suspecting him because of his conduct after the crime. It would, therefore, depend on the facts of each case to what extent the conduct of the accused was a relevant factor. There is always a possibility that the person committing the crime would deliberately act in a manner to mislead the investigation by not suspecting him because of his conduct after the crime. It would, therefore, depend on the facts of each case to what extent the conduct of the accused was a relevant factor. Conduct by itself cannot be the basis for conviction or acquittal but has to be judged along with a host of other facts and circumstances. 7. The appellant claims to have been in the market with D.W. 2. The witness has stated that the appellant was with him when Ramesh and Tithara of Kapadha came and informed that his wife was unwell. Both of them have not been examined and there is no explanation why they were not examined as defence witnesses. Likewise, the appellant in the merg statement said that his brother Narayan told him that the deceased had committed suicide. Narayan again has not been examined as defence witness with no explanation why he was not examined. Alibi of being away from the place at the time of occurrence is a weak defence. But failure to prove alibi will not be a circumstance to prove guilt unless the prosecution has otherwise proved the allegation showing the links in the chain of circumstances. Once that is done the accused must prove alibi by cogent evidence in absence of which it may become an incriminating factor against him pointing to his guilt. 8. The appellant in the merg stated that his wife had poured kerosene and committed suicide. The burn injuries were post-mortem and the Doctor (P.W. 6) has deposed that there was no soot in the lungs of the deceased. On the contrary, the post-mortem report is that death has been caused by strangulation. It can safely be inferred that the appellant was at home at the time of occurrence and deliberately cooked up a false story of death by burning which he well knew was false only to mislead the investigation. He came home the same evening on the date of occurrence but did not go to the police station to lodge F.I.R. for the death of his wife and waited till the next morning when he lodged the report at 8.55 a.m. In State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598 , it was observed:-- "16. He came home the same evening on the date of occurrence but did not go to the police station to lodge F.I.R. for the death of his wife and waited till the next morning when he lodged the report at 8.55 a.m. In State of U.P. Vs. Hari Mohan, (2000) 8 SCC 598 , it was observed:-- "16. The false assertion by the respondent-Hari Mohan that the deceased had died due to cholera on 15-3-1977 is such an important circumstance as would leave no doubt in the mind of the Court that the death was neither natural nor suicidal but in fact, homicidal. Making of contradictory statement on a fact which the accused knew well that it is a wrong statement on a very vital aspect concerning the death of the deceased can also be counted, among other circumstances, as a link in the chain of circumstances to connect the accused with the commission......". 9. The appellant also raised a plea of mental instability of the deceased and led evidence of D.W. 1, Loodak Ram in support. But the quack who was allegedly treating her was not produced to depose in defence. No explanation has been given for not examining him. This becomes important because Gauribai (P.W. 3), mother of the deceased had denied in cross-examination that her daughter suffered from any kind of illness. Not a single incident of unreasonable behavior as that of mentally unstable person has been led in defence. His sending his own relative to inform the family members of the deceased was but only a part of his effort to deflect the whole investigation. 10. The appellant had a motive to do away with the deceased as she was objecting to his illicit relations with Sunita. There would have been no occasion for Sunita and her husband to kill the deceased. The husband of Sunita could not have been a conspirator to facilitate illicit relations of his wife with Sunita. The theory is completely improbable for acceptance. The Doctor (P.W. 6) did not conclusively say that two persons were involved in the assault for throttling because of the injuries under the arms pits. He certainly did not say that such injuries were not possible if the throttling was done by one person. The theory is completely improbable for acceptance. The Doctor (P.W. 6) did not conclusively say that two persons were involved in the assault for throttling because of the injuries under the arms pits. He certainly did not say that such injuries were not possible if the throttling was done by one person. Any expression of opinion by the doctor cannot be conclusive to hold that there was more than one person who committed the assault to detract from the fact that the deceased was throttled to death for which the appellant knowingly was furnishing a false explanation. 11. The appellant made a bald denial regarding illicit relations under Section 313, Cr.P.C. He furnished no explanation how the deceased suffered injuries on the head if she had committed suicide by burning herself. 12. The present was a case of circumstantial evidence with no eye-witness to the occurrence. The chain of evidence shows that for considerable time the appellant was having illicit relations with his sister-in-law to which the deceased was objecting. She would leave the matrimonial house at times in frustration for that reason. Prior to the occurrence also she had left the matrimonial house for the same reason and had been brought back by the appellant barely a week ago. Marks of throttling were visible on the neck and there was injury mark on the forehead of the deceased also. Notwithstanding all of this the appellant furnished false explanation for her death. He did not consider it necessary to go to the police station immediately after coming home from the market and lodged merg only the next day. No evidence was led either of Ramesh, Tithara or Narayan. In the facts and circumstances of the case, the weak unsubstantiated defence of alibi sought to be raised becomes an additional incriminating factor against him. 13. Sohel Mehabbob Sheikh (supra) was decided on its own facts with the Court opining that the conclusions of the High Court was based on surmises and conjectures. Such is not the case presently. The appeal is dismissed.