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2015 DIGILAW 1002 (MP)

CHANDRAMANI TRIPATHI v. STATE OF M. P.

2015-09-21

N.K.GUPTA, SHANTANU KEMKAR

body2015
JUDGMENT : N. K. GUPTA, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 24-2-2010 passed by the Special Judge and Additional Sessions Judge, Sidhi in Sessions Trial No. 162/2007 whereby the appellant has been convicted of the offence under section 302 of the Indian Penal Code and sentenced to Life Imprisonment with fine of Rs. 1000/-, R.I. for one month in default of payment of fine. 2. The prosecution's case, in short, is that on the night of 27-6-2007 at about 11:00 P.M. Lalita, the wife of the appellant shouted that a thief had entered in her locality at village Lehechua (Police Station Rampur Naikin, District Sidhi). When neighbours of the locality gathered, she told them that her husband had entered in the house of deceased Shyamwati. She also told them that she had locked the only door of the house of Shyamwati from outside. Thereafter, she opened the lock before the crowd, which was gathered, but the door was closed from inside and it could not be opened. Entire crowd stayed there till the morning. At about 6:00 A.M. in the morning, Sarpanch Gajendra Singh (PW-11) was called, on who's telling the appellant to come out, the appellant came out of the house and tried to escape but he was held by the crowd gathered at the spot. When some of the persons went inside the house of deceased Shyamwati, it was found that she was dead and her body was lying in the room. Ram Gopal Sahu (PW-3) immediately went to Police Station Rampur Naikin and gave a merg intimation Ex.P-4 to the Police Station. The Police has also registered a crime by the FIR Ex.P-5. The body of deceased Shyamwati was sent for the post-mortem. Dr. Sandeep Bhalla (PW-1) performed the post-mortem on the body of deceased Shyamwati with a team of Doctors and gave a report Ex.P-1. He found that deceased Shyamwati died due to throttling and nail marks were also found on her neck. During investigation the appellant was arrested, his nails were also cut for forensic examination. In the Forensic Science Laboratory's report Ex.P-16, sperms and semen particles were found on vaginal swab and petticoat of deceased Shyamwati. He found that deceased Shyamwati died due to throttling and nail marks were also found on her neck. During investigation the appellant was arrested, his nails were also cut for forensic examination. In the Forensic Science Laboratory's report Ex.P-16, sperms and semen particles were found on vaginal swab and petticoat of deceased Shyamwati. After due investigation, the charge-sheet was filed before JMFC, Churhat, who committed the case to the Court of Session and ultimately it was transferred to the Additional Sessions Judge and the Special Judge under SC/ST (Prevention of Atrocities) Act, Sidhi. 3. The appellant abjured his guilt, he did not take any specific plea in the case and, therefore, no defence evidence has been adduced. 4. The trial Court after considering the prosecution evidence acquitted the appellant from the charge under section 449, 376 of the Indian Penal Code but convicted him for the offence under section 302 of the Indian Penal Code. 5. Since Hon'ble the Apex Court vide order dated 1-5-2015 in SLP (Criminal) No. 3405/2015 has requested this Court to finally decide the appeal within 6 months, we have heard the matter out of turn. 6. We have heard the learned counsel for the parties at length. 7. The present case is dependent upon the circumstantial evidence. There is no ocular evidence in the case. There is nobody who has stated that he saw the appellant killing deceased Shyamwati by throttling, hence each and every circumstance shall be considered one by one. The first circumstance in the case is the nature of death of deceased Shyamwati. In this context, Dr. Sandeep Bhalla (PW-1) has proved his post-mortem report Ex.P-1 in which he had mentioned that there were some abrasions and nail marks on the neck of the deceased. Her tongue was slightly out from her teeth. The blood was oozing from her nose and on opening, thick blood was found in the lungs, hence he opined that the deceased died due to throttling. Again some Court questions were asked to this witness, in which he has replied that death of deceased Shyamwati was homicidal in nature because the deceased could not commit throttling on her own. The offence of throttling is possible if it is done by someone else. After considering the evidence of Dr. Sandeep Bhalla (PW-1), his opinion is acceptable. Again some Court questions were asked to this witness, in which he has replied that death of deceased Shyamwati was homicidal in nature because the deceased could not commit throttling on her own. The offence of throttling is possible if it is done by someone else. After considering the evidence of Dr. Sandeep Bhalla (PW-1), his opinion is acceptable. There is nothing against that opinion to disbelieve it, hence the trial Court has rightly found that the death of the deceased was homicidal in nature. 8. Ram Gopal (PW-3), Ram Kumar (PW-4), Shiv Prasad (PW-5), Ram Rahish (PW-6) and Tejilal (PW-12) have stated that at about 11:00 P.M., the wife of the appellant shouted about the entry of a thief and when these witnesses went to the spot, she told them that her husband entered in the house of deceased Shyamwati with whom he had illicit relations, therefore, to catch him red handed, she locked the only door of that house from outside. Thereafter, the witnesses called the appellant to open the door but he did not open the door. Out of the various persons gathered at the spot, many went back to their houses but Ram Gopal, Ram Kumar and Shiv Prasad stayed there for the entire night. Shiv Prasad went to Rewa at about 6:00 A.M. in the morning to call Ram Kripal, the husband of deceased Shyamwati, who was working at Rewa. When Sarpanch Gajendra Singh (PW-11) was called in the morning and he told the appellant to open the door, then the appellant opened the door and came out of the house of Shyamwati and tried to run away towards his house but was detained by the crowd. 9. Learned counsel for the appellant submits that all the witnesses are the relatives of deceased Shyamwati and they are telling a falsehood whereas Sarpanch Gajendra Singh did not corroborate the testimony of these witnesses. Gajendra Singh (PW-11) has stated that when he went to the spot, the door of the house was already open and there was nobody in the house but the dead body of deceased Shyamwati was found in the house and the appellant was also standing as a witness in the crowd. Gajendra Singh (PW-11) has stated that when he went to the spot, the door of the house was already open and there was nobody in the house but the dead body of deceased Shyamwati was found in the house and the appellant was also standing as a witness in the crowd. Hence learned counsel for the appellant has submitted that the appellant was falsely implicated in the matter and Lalita, the wife of the appellant was the most important witness but she was not examined before the trial Court. 10. If the entire evidence adduced by the prosecution is considered, it appears that initially Lalita, the wife of the appellant, made a noise that a thief was there inside the house of Shyamwati and when the various persons from the neighbourhood have gathered at the spot, she told about the entry of her husband/appellant Chandramani Tripathi in the house. The conduct of Lalita, the wife of the appellant that she appended a lock on the only door of the house of Shyamwati, indicates that Lalita wanted to expose her husband and deceased Shyamwati so that in future her husband may not visit the house of Shyamwati again. It is also apparent that for entire night when the appellant did not open the door, Lalita unlocked the house of Shyamwati and in the morning when the door was opened, she was not present in front of the house of deceased Shyamwati, hence the possibility cannot be ruled out that initially Lalita wanted to expose her husband but when she found that deceased Shyamwati was killed and the matter became grave, then she had no option except to save her husband and, therefore, the prosecutor might have thought not to examine witness Lalita before the trial Court, hence due to non-examination of Lalita, the wife of the appellant, no adverse inference can be drawn against the prosecution. 11. However, according to the witnesses, there was an allegation against the appellant that he had illicit relations with deceased Shyamwati and hence in the late night he entered in the house of Shyamwati. Dr. Sandeep Bhalla (PW-1) has also stated that he procured two slides of vaginal swab of deceased Shyamwati and also a petticoat, found on her body. 11. However, according to the witnesses, there was an allegation against the appellant that he had illicit relations with deceased Shyamwati and hence in the late night he entered in the house of Shyamwati. Dr. Sandeep Bhalla (PW-1) has also stated that he procured two slides of vaginal swab of deceased Shyamwati and also a petticoat, found on her body. Forensic Science Laboratory's report Ex.P-16 clearly indicates that sperms and semen particles were found on petticoat as well as slides of vaginal swab of deceased Shyamwati, which indicates that intercourse was done with deceased Shyamwati soon before her death. This is also one of the circumstance, which goes against the appellant. 12. Shiv Prasad (PW-5) has stated that at about 6:00 A.M. he was sent to call Ram Kripal, the husband of deceased Shyamwati from Rewa. Ram Gopal (PW-3) has stated that his brother Ram Kripal was selling ice-cream at Rewa and deceased Shyamwati was residing in the house with one child, hence it is also proved that the husband of deceased Shyamwati was not residing with her in that house in those days when the incident took place. This is also a circumstance against the appellant. 13. Ram Gopal (PW-3), Ram Kumar (PW-4), Shiv Prasad (PW-5), Ram Rahish (PW-6) and Tejilal (PW-12) have stated about the overt act of Lalita, the wife of the appellant that she collected the witnesses by shouting that some thief has entered in the house and thereafter when various persons of the locality gathered, she informed that her husband had illicit relations with deceased Shyamwati and he is inside the house. Some of the witnesses have turned hostile. Ram Rahish (PW-6) has partly turned hostile. He has stated that after few hours he went to his house and he did not remain present at the spot till the morning, however, he has accepted that his house was adjacent to Shyamwati's house and when he was taking bath in the morning, he saw the appellant running from the house of deceased Shyamwati. 14. It is true that witnesses Ram Gopal (PW-3), Ram Kumar (PW-4), Shiv Prasad (PW-5), Ram Rahish (PW-6) are the relatives of deceased Shyamwati but no enmity of these witnesses is established with the appellant. They had no reason to give statement against the appellant without any basis. 14. It is true that witnesses Ram Gopal (PW-3), Ram Kumar (PW-4), Shiv Prasad (PW-5), Ram Rahish (PW-6) are the relatives of deceased Shyamwati but no enmity of these witnesses is established with the appellant. They had no reason to give statement against the appellant without any basis. Tejilal (PW-12) has stated that the mother of the appellant came to the spot and requested to open the door. She also told the appellant to seek apology from his wife, however, such statement of Tejilal was not corroborated by other witnesses and such fact was not mentioned by him in his case diary statement Ex.D-2. 15. Witness Ram Kumar (PW-4) has stated that initially a lock was appended by the wife of the appellant but when she opened the lock, the crowd requested the appellant to open the door and come out but the appellant did not come out from that house in the night then the lock was appended by one Daddi. However, other witnesses did not corroborate the statement of Ram Kumar to the fact that a lock was also appended by Daddi but it appears that statement of Ram Kumar is natural unless Lalita, the wife of the appellant would have unlocked the door, the crowd could not request the appellant to come out. When the lock was removed by Lalita then the persons present have found that the door was also closed from inside, hence it was natural for witness Daddi to lock the door from front side otherwise the culprit would have left the house of deceased Shyamwati in the absence of any person in front of the house. When the lock was removed by Lalita then the persons present have found that the door was also closed from inside, hence it was natural for witness Daddi to lock the door from front side otherwise the culprit would have left the house of deceased Shyamwati in the absence of any person in front of the house. It is also stated by all the witnesses that in the morning the lock was opened in presence of Sarpanch Gajendra Singh and thereafter Gajendra Singh requested the appellant to come out and then he came out and ran towards his house, hence it is apparent from the statement of these witnesses that Lalita, the wife of the appellant removed the lock when the crowd was gathered but when the appellant did not come out side the house again lock was opened in the morning in front of Sarpanch Gajendra Singh, hence the statement of witness Ram Kumar appears to be correct that after sometime in the night when the appellant did not come out of the house, Daddi appended a lock so that the appellant may not go out in absence of any person in front of the house. 16. Witness Ram Gopal (PW-3) has also proved the spot map Ex.P-6 prepared by ASI Ram Chhabile Mishra (PW-10). According to the spot map, in the house of deceased Shyamwati there were only two rooms and only one door to exit, hence there was no possibility that anybody else could have entered in the house to commit any crime. 17. Though, witnesses Ram Gopal (PW-3), Ram Kumar (PW-4), Shiv Prasad (PW-5), Ram Rahish (PW-6) etc. were the relatives of deceased Shyamwati but there was no reason for them to blame the appellant that he had illicit relations with their sister-in-law deceased Shyamwati. Such blame could not be made by them upon their sister-in-law for fear of defamation of their own family. It is true that Sarpanch Gajendra Singh (PW-11) has turned hostile, however, he has accepted that he was called by the crowd in the morning, he went to the house and saw the dead body of deceased Shyamwati and he directed witness Ram Gopal to lodge the FIR at Police Station and Ram Gopal had immediately lodged the merg intimation Ex.P-4 and the FIR Ex.P-5. The door was opened at about 6 to 7 A.M. in the morning thereafter Sarpanch as well as other witnesses saw the dead body of deceased Shyamwati and thereafter Ram Gopal went to the Police Station on foot. The Police Station was 8 Kms away according to document Ex.P-5 and he had lodged the FIR at 9:45 A.M. 18. Looking to the circumstances of the case, it appears that some time was required by Ram Gopal to get the door opened, thereafter, visit inside the house and then ultimately, to visit the Police Station on foot, hence it cannot be said that the FIR was lodged with delay or it was a concocted FIR. The testimony of witnesses Ram Gopal, Ram Kumar, Shiv Prasad etc. is also duly corroborated by timely lodged FIR Ex.P-5. In these circumstances, if Sarpanch Gajendra Singh has turned hostile, the testimony of other witnesses cannot be discarded. Their testimony is duly proved by timely lodged FIR Ex.P-5. Their version is also corroborated by the post-mortem report Ex.P-1 and FSL report Ex.P-16 that found that cohabitation was done with the deceased soon before the incident, hence it is proved beyond doubt that on shouting by Lalita that her husband was inside the house, the door was locked from outside and when the door was opened in the morning, no one except the appellant came out of the house of deceased Shyamwati and deceased Shyamwati was found dead. 19. The evidence of these witnesses shall be considered under section 6 of the Evidence Act. They have given the circumstances soon before the incident and soon after the incident. There was nobody except the appellant in that house along with deceased Shyamwati for the entire night. Dr. Sandeep Bhalla in his post-mortem report has clearly opined that the deceased died within 24 hours of the date and time of the post-mortem. He performed the post-mortem on 28-6-2007 at about 3:00 P.M. and, therefore, according to duration of death of deceased Shyamwati as opined by Dr. Sandeep Bhalla, the deceased would have died in the night when the appellant was inside the house with the deceased. 20. He performed the post-mortem on 28-6-2007 at about 3:00 P.M. and, therefore, according to duration of death of deceased Shyamwati as opined by Dr. Sandeep Bhalla, the deceased would have died in the night when the appellant was inside the house with the deceased. 20. On the basis of the aforesaid discussion, it is proved that the appellant was the person who was with deceased Shyamwati in that night and it was found in the post-mortem report and the FSL report that cohabitation was done with deceased Shyamwati in that night and, therefore, due to sole presence of the appellant in that house, it shall be presumed that it was done by the appellant. These circumstances indicate that the appellant had illicit relations with deceased Shyamwati and, therefore, he went inside the house in prosecution of such relations. 21. If Shyamwati was already dead when the appellant entered in the house, then he would have immediately come out of the house and there was no possibility that his wife could append a lock on the only exit door of the house of Shyamwati from outside, hence it is also a circumstance proved against the appellant that he had illicit relations with deceased Shyamwati and when he entered in the house, Shyamwati was alive. 22. As discussed above, it is proved by the witnesses that in the morning when Sarpanch Gajendra Singh directed the appellant to come out, he came out by opening the door and started running towards his house. There was nobody except the appellant in the house and Shyamwati was found dead. It is also discussed above that death of deceased was homicidal in nature and, therefore, in view of section 106 of the Evidence Act, it shall be presumed that the appellant was the person who killed deceased Shyamwati. In this connection, judgment passed by Hon'ble the Apex Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 may be referred. In this connection, judgment passed by Hon'ble the Apex Court in Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 may be referred. Though it is a matter relating to other inmates of the house if dead body of the wife is found in the house, but on same analogy when it is established that there was nobody except the appellant along with deceased Shyamwati for entire night in a closed house of two rooms and deceased Shyamwati was found killed, when the appellant left the house of deceased Shyamwati, then on same analogy, it was for the appellant to explain as to how deceased Shyamwati had died, hence in the light of the judgment passed by the Apex Court in Trimukh Maroti Kirkan (supra), a presumption shall be drawn against the appellant that he killed deceased Shyamwati unless he would have explained the position as to how deceased Shyamwati was killed. The appellant did not take any specific plea in his statement under section 313 of the Criminal Procedure Code. He simply denied all the allegations made against him. He did not give any explanation as to how Shyamwati has died. 23. At this stage, if all the circumstances, which are proved against the appellant, are considered together that death of deceased Shyamwati was homicidal in nature, soon before her death cohabitation was done with her, her husband was not residing with her, the appellant had illicit relationship with her, the appellant entered in the house when Shyamwati was alive and when he came out of the house, she was found dead, he was the only person who remained in the house for the entire night whereas there was only one door in the house, which was surrounded by various witnesses for the entire night, then the only conclusion will be drawn that the appellant had killed the deceased Shyamwati. 24. Learned counsel for the appellant has submitted that if the appellant had illicit relations with deceased Shyamwati and he went inside the house then there was no reason for him to kill the deceased Shyamwati. However, if there was nobody in the house, who could kill deceased Shyamwati and it is for the appellant to explain as to how deceased Shyamwati has died and no explanation is given by the appellant then the submission made by the learned counsel for the appellant cannot be accepted. However, if there was nobody in the house, who could kill deceased Shyamwati and it is for the appellant to explain as to how deceased Shyamwati has died and no explanation is given by the appellant then the submission made by the learned counsel for the appellant cannot be accepted. If Shyamwati had expired during the act of cohabitation or any other reason or the appellant wanted to get the advantage of any exception of section 300 of the Indian Penal Code then it was for him to give explanation. The death of deceased is homicidal and it is established that the appellant was the person who killed her. He did not give any explanation about the circumstances in which she died and, therefore, it cannot be said that the case of the appellant falls in the purview of culpable homicide not amounting to murder. It is a case of murder. The appellant killed deceased Shyamwati by throttling. So far as motive is concerned, it is settled view of the Apex Court that it is not required for the prosecution to prove the motive, if other circumstances are proved beyond doubt and chain of circumstantial evidence is complete then if motive is not proved then it makes no difference. The Apex Court has taken such a view from very beginning and such view has been expressed in various cases. It would be appropriate to refer the judgment passed by the Apex Court in the case of Gurucharan Singh vs. State of Punjab, AIR 1956 SC 460 in which it is mentioned that where the positive evidence against the accused is clear, cogent and reliable, the question of motive is of no importance. 25. On the basis of the aforesaid discussion where the chain of circumstantial evidence is complete and it is proved beyond doubt that the appellant killed deceased Shyamwati, there is no reason to accept the appeal filed by the appellant. The trial Court has rightly convicted the appellant for the offence under section 302 of the Indian Penal Code. So far as sentence is concerned, the trial Court sentenced the appellant to life imprisonment, which is the minimum, therefore, there is no need to discuss anymore on the question of sentence. 26. On the basis of aforesaid discussion, there is no reason to accept the appeal filed by the appellant. Consequently, the appeal is hereby dismissed. 27. So far as sentence is concerned, the trial Court sentenced the appellant to life imprisonment, which is the minimum, therefore, there is no need to discuss anymore on the question of sentence. 26. On the basis of aforesaid discussion, there is no reason to accept the appeal filed by the appellant. Consequently, the appeal is hereby dismissed. 27. A copy of the judgment be sent to the trial Court along with its record for information.