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2017 DIGILAW 743 (MP)

LOKMAN s/o SILLU RAIKWAR v. STATE OF M. P.

2017-06-19

C.V.SIRPURKAR, RAJENDRA MAHAJAN

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JUDGMENT : C. V. SIRPURKAR, J. 1. This Criminal Appeal against conviction under section 374(2) of the Code of Criminal Procedure, 1973 filed on behalf of appellant/accused Lokman is directed against the judgment dated 17-8-2013 passed by the Court of Sessions Judge, Damoh in Sessions Trial No. 330/2012; whereby accused/appellant Lokman was convicted of the offence punishable under section 302 of the Indian Penal Code for committing murder of his wife Gayabai and was sentenced to undergo life imprisonment and pay a fine in the sum of Rs. 5000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of five months. 2. (a). Briefly stated, the prosecution case before the trial Court, was that accused Lokman had married deceased Gayabai about 20 years before the date of the incident. The couple had no issues. Due to childlessness, the accused used to persistently harass the deceased. Consequently, deceased Gayabai had left her matrimonial home at village Pajnari and had shifted to her maternal home at village Ghugra, where she lived with her brother Lattu (PW-5). However, after sometime, accused Lokman also shifted to Gayabai’s maternal home and started to live with her. (b). About 4 days before the date of the incident, i.e. on 3-11-2007, Lattu had gone to his sister Jhingobai’s place at village Kishunganj. He had left accused Lokman and deceased Gayabai behind at his home. Babulal Raikwar (PW-3) had met accused Lokman and Gayabai at their home on the eve of the incident, i.e. on 2-11-2007. At night, Babulal (PW-3) had gone to Lokman’s place to borrow a torch. He had also gone to return the torch the same night. Witness Khuman Singh (PW-7) had seen the accused running away from his house during the night intervening 2nd and 3rd of November, 2007. At about 11:00 a.m. on 3-11-2007, Laxmi Bai (PW-2), who worked in a school as cook along with Gayabai, had gone to her place to call her; however, Gayabai was found dead at her home. Her mouth was stuffed with a part of a yellow sweater. Laxmi Bai informed about the incident to the villagers. Khuman Singh (PW-7) informed Kotwar Umrao Singh, who lodged marg intimation (Ex.P/10) at police out-post Kerbana. Subsequently, first information report was lodged in P.S. Bathiagarh, District-Damoh. During post-mortem examination, 7 abrasions was found on the throat of the deceased. Her mouth was stuffed with a part of a yellow sweater. Laxmi Bai informed about the incident to the villagers. Khuman Singh (PW-7) informed Kotwar Umrao Singh, who lodged marg intimation (Ex.P/10) at police out-post Kerbana. Subsequently, first information report was lodged in P.S. Bathiagarh, District-Damoh. During post-mortem examination, 7 abrasions was found on the throat of the deceased. The doctor conducting post-mortem examination concluded that the deceased was throttled to death. After the incident, the accused went missing and could be arrested only 5 years later. He was produced before the trial Court from Sub-Jail Banda on 24-9-2012. 3. Learned Sessions Judge framed a charge under section 302 of the Indian Penal Code against accused Lokman. He abjured the guilt and claimed to be tried. In his examination under section 313 of the Code of Criminal Procedure, he took the defence that he was innocent. A day before the date of the incident, there was a dispute between himself and his wife and he got annoyed; therefore, he had left her matrimonial home and went away. 4. On the basis of circumstantial evidence, the trial Court held that the deceased was throttled to death in the intervening night between 2nd and 3rd of November, 2007 at her maternal home. On the eve of the incident, the accused and the deceased, who were husband and wife, were together at her maternal home. Thereafter, the dead body of the deceased was found lying in her maternal home at about 11:00 a.m. on 3-11-2007. The accused went missing since the incident and could be arrested only 5 years later. In these circumstances, the burden had shifted upon the accused to explain the circumstances in which his wife had died. However, he failed to discharge that burden. Therefore, on the basis of circumstantial evidence, he was convicted for committing murder of his wife. 5. Learned counsel for the appellant has challenged the findings recorded by the trial Court mainly on the grounds that the trial Court has failed to properly appreciate the circumstantial evidence on record and had erred in holding that the burden was upon the appellant to explain the circumstances of the death of his wife. 5. Learned counsel for the appellant has challenged the findings recorded by the trial Court mainly on the grounds that the trial Court has failed to properly appreciate the circumstantial evidence on record and had erred in holding that the burden was upon the appellant to explain the circumstances of the death of his wife. Learned counsel for the appellant has invited particular attention to the fact that a panchnama (Ex.P/11) was prepared by the Investigating Officer on 6-12-2007, wherein it had been recorded that the appellant had been absconding from his village for 2 months next before the date of preparation of panchnama. The trial Court had ignored the effect of that panchnama. It has also been contended that on the date of the offence, the appellant was in jail; therefore, he could not have committed the alleged offence. In aforesaid circumstances, it has been prayed that the impugned judgment be set aside and the appellant be acquitted of the charge under section 302 of the Indian Penal Code. 6. Learned panel lawyer for the respondent/State on the other hand has supported the impugned judgment. 7. On perusal of the record and due consideration of rival contentions, we are of the view that this appeal against conviction must fail for the reasons hereinafter stated: 8. The statement of Dr. K. L. Adarsh (PW-1) reveales that during the post-mortem examination, he had found seven abrasions upon the throat and neck of the deceased and in his opinion, the deceased had died of asphyxia as a result of having been throttled. This opinion has not been challenged by way of cross-examination before the trial Court. No serious challenge has been mounted in respect of this finding during the course of arguments before this Court either. In these circumstances, there is no reason to disbelieve the fact that deceased Gayabai had died a homicidal death due to strangulation. 9. Now the question that remains for consideration is whether the prosecution has succeeded in proving beyond reasonable doubt on the basis of circumstantial evidence that it was the appellant, who had throttled his wife in aforesaid manner? 10. There is no direct evidence in the case. The prosecution case is based entirely upon the circumstantial evidence. Jhingo Bai (PW-4), who is younger sister of deceased Gayabai, has stated that the appellant was husband of deceased Gayabai Bai. 10. There is no direct evidence in the case. The prosecution case is based entirely upon the circumstantial evidence. Jhingo Bai (PW-4), who is younger sister of deceased Gayabai, has stated that the appellant was husband of deceased Gayabai Bai. He had married her about 20 years ago but they had no issues. On account of infertility of the deceased, the appellant used to beat her and threatened to abandon her. As a result, deceased Gayabai had started living with her brother Lattu Raikwar (PW-5). Corroborating the statement of Jhingo Bai (PW-4), Lattu Raikwar (PW-5) has stated that deceased Gayabai lived with her. Sometime after Gayabai had rejoined him, appellant Lokman had also started to live with her at her maternal home. A day before the date of the incident, he had gone to Kishanganj to meet his elder sister Jhingo Bai. He had left appellant Lokman and deceased Gayabai behind at his home. Babulal Raikwar (PW-3) has stated that a day before the date on which Gayabai’s dead body was found, he had met appellant Lokman and his wife deceased Gayabai at their home. 11. As per his statement under section 161 of the Code of Criminal Procedure, Babulal had borrowed a torch from appellant Lokman at night and had gone towards the water tank. Thereafter, he had returned the torch to appellant Lokman. However, he had denied this fact before the trial Court. Likewise Lattu Raikwar (PW-5) has stated that he had gone to his sister’s place a day before the date of the incident, whereas in his statement under section 161 of the Code of Criminal Procedure, he has stated that he had gone to his sister’s place four days before the date of the incident. In the same manner, Khuman Singh (PW-7) has not stated before the Court that he had seen the appellant running away from Lattu Raikwar’s house on the night of the incident; however, none of the aforesaid facts goes to the root of the matter or shake the foundation of the prosecution story. Therefore, the trial Court has not rightly given much importance to these discrepancies. 12. Laxmi Bai (PW-2) has stated that she and Gayabai used to work as cooks in the school. Next morning, she had gone to Gayabai’s house to call her; however, she found that Gayabai did not respond. Other people gathered on the spot. Therefore, the trial Court has not rightly given much importance to these discrepancies. 12. Laxmi Bai (PW-2) has stated that she and Gayabai used to work as cooks in the school. Next morning, she had gone to Gayabai’s house to call her; however, she found that Gayabai did not respond. Other people gathered on the spot. When they went inside, they found that Gayabai was lying on the floor. She was dead and a sweater was partly stuffed in her mouth. 13. The main contention of learned counsel for the appellant is that : (i) Assistant Sub Inspector K. S. Raikwar (PW-10) had prepared absconding memo (Ex.P/11) on 6-12-2007, wherein it has been recorded that appellant Lokman had been absconding from the village for past 2 years, that is to say, he was not in the village since the year 2005. Therefore, he could not have committed the alleged offence in the intervening night between 2nd and 3rd of November, 2007. However, a perusal of memorandum (Ex.P/11) reveals that this argument is fallacious. The panchnama was prepared in village Pajnari, the place where deceased Gayabai’s matrimonial home was. It is prosecution case that the appellant had left village Pajnari and had started to live with the deceased at village Ghugra. As such, two years prior to the date of the incident he was not at Pajnari but was at Ghugra. The offence was committed at Ghugra; therefore, the panchnama to the effect that the appellant had been missing from village Pajnari since the year 2005, does not help the case of the defence in any manner. 14. The second ground that has been raised by learned counsel for the appellant is that on the date of the offence, the appellant was in jail. It may be noted in this regard that the offence was committed in the intervening night between 2nd and 3rd of November, 2007. The accused absconded immediately after the incident. On 10-10-2008, a charge-sheet was filed in the Court of JMFC Hatta, showing the appellant as absconding. As a result, the JMFC issued an arrest warrant against the appellant. Since, the arrest warrant could not be executed, on 27-12-2008, the Executing Officer, Head Constable Balwan Singh appeared before the trial Court and submitted a report that the appellant had been absconding and was unlikely to be traced in near future. As a result, the JMFC issued an arrest warrant against the appellant. Since, the arrest warrant could not be executed, on 27-12-2008, the Executing Officer, Head Constable Balwan Singh appeared before the trial Court and submitted a report that the appellant had been absconding and was unlikely to be traced in near future. On the basis of aforesaid submission, a perpetual warrant of arrest was issued against the appellant. On 11-9-2012, the police filed an application before JMFC Hatta, to the effect that the appellant had been incarcerated in Sub-Jail Banda, District Sagar in connection with some other case. Therefore, a production warrant to procure his presence before J.M.F.C. Hatta was issued. In execution of the aforesaid production warrant, the appellant was produced before J.M.F.C. Hatta on 24-9-2012 and he was sent to judicial custody in the instant case as well. Thereafter, on 10-10-2012, supplementary charge-sheet was filed against the appellant and on 24-11-2012 the case was committed to the Sessions Court. 15. There is nothing in the documents appended to the record of the Court to suggest that on the date of the offence, the appellant was in jail. In his examination under section 313 of the Code of Criminal Procedure also, he has clearly stated that a day before the date of the incident, he had had a quarrel with his wife deceased Gayabai and had left her matrimonial home. No evidence has been adduced on behalf of the appellant to prove the fact that he was in jail in the intervening night between 2nd and 3rd of November, 2007. If the appellant had indeed been in jail on the date of the incident in connection with any criminal case, this fact could easily have been proved on the basis of the jail record; however, the appellant has failed to do so. In these circumstances, the trial Court has committed no error in placing reliance upon the statements of prosecution witnesses. 16. On the strength of aforesaid evidence, following links in the chain of circumstances were established beyond reasonable doubt : (i) the appellant was husband of the deceased. In these circumstances, the trial Court has committed no error in placing reliance upon the statements of prosecution witnesses. 16. On the strength of aforesaid evidence, following links in the chain of circumstances were established beyond reasonable doubt : (i) the appellant was husband of the deceased. They had married about 20 years ago and had no children; (ii) on account of childlessness, the appellant used to beat the deceased and used to harass her; (iii) as a result, the deceased had shifted to her maternal home at village Ghugra and was living with her brother Lattu; (iv) after sometime, the appellant had also followed the deceased and at the time of the incident, he was living at his brother-in-law Lattu’s house with the deceased; (v) on the date of the offence, Lattu had gone to village Kishanganj to visit his sister Jinggo Bai. As such, on the date of the offence, the appellant was alone with the deceased at her maternal home; (vi) Babulal Raikwar had met the appellant and the deceased together at their home on the eve of the incident; (vii) at about 10-11 a.m. on 3-11-2007, deceased Gayabai was found dead in her maternal home. A part of the a sweater was stuffed into her mouth; (viii) in the post-mortem examination, she was found to have been throttled to death; (ix) the appellant had absconded after the incident and could be arrested only after 5 years; (x) the appellant has not adduced any evidence to prove as to where he had been on the night of the incident; — therefore, on the basis of aforesaid circumstances, it could presumed that at the time of the incident, he was with his wife. No explanation has been given by the appellant as to why he had absconded since the date of the offence. 17. No explanation has been given by the appellant as to why he had absconded since the date of the offence. 17. With regard to the burden of proof in respect of offence committed within four walls of the house, the Supreme Court has held in the case of Rajkumar Prasad Tamrakar vs. State of Bihar, (2007) 3 SCC (Cr.) 716 that : “When at the time of the 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 another person, the burden lies on the accused husband to explain as to how his wife died.” Likewise, in the case of Trimukh Maroti Kirak vs. State of Maharashtra, (2006) 10 SCC 681 it has been held that : “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." Moreover, in the case of Shambhunath Mehra vs. Ajmer State, AIR 1956 SC 404 the Supreme Court has observed in paragraph No. 11 the apex Court has observed as hereunder : 11. “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word ‘especially’ stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.” 18. In the light of aforesaid legal position it is absolutely clear that thought the primary onus of proving the guilt of the accused is upon the prosecution but the prosecution satisfactorily establishes all links in the chain of circumstances, the burden shifts upon the defence to explain exactly what happened at the time of the incident. However, the appellant has miserably failed to discharge that burden. 19. With regard to subsequent conduct including escape of the accused immediately after the incident, the Supreme Court in the case of Matru @ Girish Chandra vs. State of U.P., 1971 SC 1050 has held as follows : “The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend upon the circumstances of each case. Generally the Courts consider it to be a very small item in evidence for sustaining the conviction. It cannot certainly be held as a determining link in completing the chain of circumstantial evidence consistent only with the hypothesis of the guilt of the accused." 20. In the instant case though, the fact that the appellant had absconded immediately after the incident is not the sole determining factor; yet it highly significant because the victim was his wife, with whom he was living in the same house on the date of the incident. No matter where the accused had gone, it is inconceivable that he would not have learnt about the murder of his wife. Still he failed to return. Ultimately, he could be arrested after a long period of five years and that too in connection with some other crime. This unexplainable conduct of the accused greatly strengthens the presumption that it was accused and the accused alone, who had committed murder of the deceased. 21. Still he failed to return. Ultimately, he could be arrested after a long period of five years and that too in connection with some other crime. This unexplainable conduct of the accused greatly strengthens the presumption that it was accused and the accused alone, who had committed murder of the deceased. 21. In the light of aforesaid legal position, we are of the view that the prosecution has succeeded in proving circumstances which had shifted the burden upon the appellant to prove as to under what circumstances his wife was murdered. The appellant has adduced no evidence which offers any explanation in this regard. Therefore, the trial Court was right in concluding that it was the accused, who had committed murder to the deceased by throttling her. The presumption is fortified by the aggravating circumstance that immediately after the incident the appellant absconded without any explanation. Thus, the trial Court was perfectly justified in convicting the appellant of the offence under section 302 of the Indian Penal Code for committing murder of his wife Gayabai. The appellant has failed to make out any ground to convince the Court to intervene in the impugned judgment. 22. Consequently, this criminal appeal against conviction is dismissed. The conviction and sentence of the appellant Lokman is affirmed.