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2019 DIGILAW 294 (MP)

Chuttan Kori v. State of Madhya Pradesh

2019-04-05

B.K.SHRIVASTAVA, HULUVADI G.RAMESH

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JUDGMENT : B.K. SHRIVASTAVA, J. 1. This criminal appeal has been filed on 16.01.2008 under Section 374 (2) of Cr.P.C. against the judgment dated 18.12.2007 passed by the Sessions Judge, Raisen in Sessions Trial No. 49/2007. By the impugned judgment, the learned lower Court convicted appellant for the offence under section 302 (double count) of IPC and sentenced to life imprisonment with a fine of Rs. 1000/- for each with default stipulation. 2. As per prosecution case, Kala Bai (PW-4) is the wife of accused. They were married about 19 years back. Two sons namely Dinesh and Nilesh were born out of their wedlock. The accused was having some doubt upon the character of his wife Kala Bai, therefore, they used to quarrel with each other. Because of frequent quarrel, Kala Bai started living separately in Village Udaypura, whereas the appellant was residing in the Village Noniabareli. Sometimes the appellant used to take both the children for few days. The accused brought his children to his home 4 to 5 days back from the date of incident i.e. 30.05.2004. On 25.05.2004 Kala Bai went to the house of the appellant for taking the children back. At that time, the accused asked her to come in the morning. On the next day i.e. 26.05.2004 when Kala Bai went to the house of the appellant, she found that the house was locked. Bateshi Bai mother of Kala Bai who was residing in the neighbourhood of the appellant, noticed on 30.05.2004 that foul smell is coming out from the house of appellant. Bateshi Bai pushed the door and went inside the house where she found that the dead bodies of both children covered by Rajai. She informed Chokidar Meharban Singh who lodged the FIR to the police. 3. Ganesh Prasad Tiwari (PW-10) registered the Marg No. 23/2004 Ex.P-1 and Ex.P-14 Marg No. 24/2004. Upon the information given by the Chokidar, he reached on the spot and prepared spot map Ex.P-2. Thereafter, he issued the notices Ex.P-3 and P-4 to the witnesses. In the presence of witnesses, he prepared the inquest Panchnama Ex.P-5 and P-6. Thereafter, dead bodies were sent for postmortem with the applications Ex.P-15 and P-16. Dr. K.K. Silvat (PW-8) conducted the postmortem and gave post-mortem reports Ex.P-11 and P-12 and the detailed Postmortem reports Ex.P-9 and P-10. 4. Thereafter, he issued the notices Ex.P-3 and P-4 to the witnesses. In the presence of witnesses, he prepared the inquest Panchnama Ex.P-5 and P-6. Thereafter, dead bodies were sent for postmortem with the applications Ex.P-15 and P-16. Dr. K.K. Silvat (PW-8) conducted the postmortem and gave post-mortem reports Ex.P-11 and P-12 and the detailed Postmortem reports Ex.P-9 and P-10. 4. Bhartendu Sharma (PW-11) registered the Crime No. 135/2004 on 02.06.2004 upon the basis of inquiry reports of Marg Nos. 23/2004 and 24/2004. Thereafter, police recorded the statements of various witnesses and came to the conclusion that the accused himself committed the murder of his both sons aged about 11 and 8 years. 5. After investigation, the police filed the Challan No. 255/04 under section 302 of IPC against the accused before the JMFC Udaypura, District Raisen. On 29.12.2004 the Magistrate registered Case No. 439/2004. The accused was absconded, therefore, the Magistrate issued the arrest warrant. On 06.05.2005, the Magistrate declared the accused as absconded accused. When the accused arrested, the Court called original case from the record room on 12.01.2007. On the said date, the accused was not produced. On 08.02.2007, the Magistrate committed the case to the Court of Session. 6. On 22.02.2007, the Sessions Judge, Raisen registered the ST No. 49/2007. Thereafter, on 25.04.2007, the Court provided advocate from legal aid to the accused. On 14.06.2007 the Court framed charges under Section 302 of IPC against the accused. 7. The accused denied the charges and demanded for trial. Thereafter, the prosecution examined as many as 11 witnesses in support of its case. Accused did not produce any witness in his defence and thereafter, the trial court passed the impugned judgment on 18.12.2007 and convicted the accused for the offence under Section 302 (double count) of IPC and passed the sentence as stated in para-1 of this judgment. 8. It is submitted by the appellant that the trial court did not appreciate the evidence properly. The evidence of Kala Bai (PW-4) was not reliable. No any eye-witness was available in this case. The accused was not present at the time of incident. He was falsely implicated. Trial Court committed mistake by convicting the present appellant. Therefore, the appeal should be allowed and the appellant is entitled to get the order of acquittal. 9. On the other side, the State strongly opposed the appeal. No any eye-witness was available in this case. The accused was not present at the time of incident. He was falsely implicated. Trial Court committed mistake by convicting the present appellant. Therefore, the appeal should be allowed and the appellant is entitled to get the order of acquittal. 9. On the other side, the State strongly opposed the appeal. It is submitted by the State that the prosecution has proved its case beyond reasonable doubt. The evidence of Kala Bai (PW-4) was totally reliable. No any reason is found for false implication of accused. The accused did not produce any evidence to prove the plea of alibi taken by him. Children were last seen with the accused in the night. Thereafter in the evening, the house was found locked. After 4 to 5 days, when the foul smell came out then dead bodies were recovered from the house of the accused. The accused remain absconded for a long time. Even challan was also filed in his absence by showing him as absconded accused. The permanent arrest warrant was issued by the Magistrate. Thereafter, accused arrested by the police in 2007. His conduct also showed that he committed the aforesaid crime. Therefore, the trial court did not commit any mistake by convicting the appellant. The appeal, having no force, is liable to be dismissed. 10. Dr. K.K. Silvat (PW-8) is the Medical Officer posted at PHC Dewari, who conducted the post-mortem of both the dead bodies on 31.05.2004. He proved the reports Ex.P-9 and P-10. The Doctor said that he conducted the post-mortem of dead body of Dinesh aged about 8 years on 31.05.2004 at about 12:30 p.m. As per his statement, the dead body was highly decomposed. Maggots of various size present upon all over the body. Hair and nails were loose and easily peeled off. Brain matter was liquefy. Eyes, nose and tongue were eaten by Maggots. Bones started to separated from their joints and Muscles. There was ligature around the neck made by cotton handkerchief and two simple knots were present. The knots were tight towards the left side of neck. Ligature mark was transversely circular continuous around the neck in the size of 1.5 inch deep. Petechial Haemorrhage were found below the ligature mark. Ligature mark was upon the middle of the neck by which the respiratory tube was compressed. Hyde bone and thyroid cartilages were broken. The knots were tight towards the left side of neck. Ligature mark was transversely circular continuous around the neck in the size of 1.5 inch deep. Petechial Haemorrhage were found below the ligature mark. Ligature mark was upon the middle of the neck by which the respiratory tube was compressed. Hyde bone and thyroid cartilages were broken. Muscles of the neck were ruptured. The Doctor gave the opinion that the cause of death was Asphyxia due to strangulation. Period of death was approximately 4 to 7 days before. The death was Homicidal in nature. 11. The doctor also said that the postmortem of Nilesh, aged about 11 years was conducted by him at about 10:30 a.m. on the same day. The position of the dead body was same to Dinesh. As per doctor, the dead body was in deteriorated condition having the Maggots of various size. A cut wound was also found upon the neck of the dead body having size 5 inch x 1.5 inch x skin deep. Facial bone and great bone vessels, carotid artery veins and muscles were cut up to fourth cervical vertebra. Doctor gave opinion that the cause of death was shock due to haemorrhage from the wounds present over face and neck. Death was homicidal in nature. 12. Therefore, upon the basis of evidence of doctor it can be said that the death of Nilesh and Dinesh were homicidal in nature. It is not disputed that dead bodies were found in the house of the accused. 13. Kala Bai (PW-4) wife of the accused deposed that she got married with the accused since 18 to 19 years back. Two children namely Dinesh and Nilesh were born from their wedlock. The accused was having doubt upon the character of the witness and used to say that he is not the father of both children. As per the witness, the accused was not doing any work and was a habitual drinker. Sometimes they compromised but the position was not improved, therefore, she left the house of the accused and started living separately at Udaypura with her children. The children were studying in Udaypura. It is not in dispute that the brother and mother of the witness were residing in the neighbour of the accused in the village Naunia Bareli. Sometimes they compromised but the position was not improved, therefore, she left the house of the accused and started living separately at Udaypura with her children. The children were studying in Udaypura. It is not in dispute that the brother and mother of the witness were residing in the neighbour of the accused in the village Naunia Bareli. The witness said that her mother took the children and then accused took both the children from the house of her mother. When the witness came to know that the children took away by the accused then she went to the house of accused. The accused did not hand over the children and said to come in the morning. When in the morning, the witness again went there, she found that the house was locked. Thereafter, witness inquired from the Narbadi Bai who was residing near the house of the accused, she told her that the accused went away from the house at about 4 a.m. in the morning with the rope in his hand. Thereafter, the witness came back to her house. The witness again said that after 5 days, the police informed that her children were murdered and the dead bodies were lying in the house of her husband. The witness cross-examined at length by the defence but no any material omission or contradiction has been found in the entire testimony of the witness. She denied the suggestion that the children themselves reached to the house of the accused. She said that the accused himself took the children. She again said that the accused always used to quarrel with her by saying that he is not the father of both the children. 14. Meharban Singh (PW-1) is the Chokidar of the village who lodged the FIR marg intimation. The witness said that the Panveshwar Chokidar told him that in the house of accused, the dead bodies of Nilesh and Dinesh were lying. The witness went there upon the instigation of Sarpanch. He again said that when he reached to the house of the accused, he found that the house was locked. When he opened the room he found the dead bodies of both the children and the accused was absconded since 5 days back. The foul smell was coming out from the house. Thereafter, he reached to the police station and lodged the FIR. When he opened the room he found the dead bodies of both the children and the accused was absconded since 5 days back. The foul smell was coming out from the house. Thereafter, he reached to the police station and lodged the FIR. In para-7 he said that there were only two rooms in the house of accused and no one was present in the house. The accused was alone residing in that house. 15. Bateshi Bai (PW-2) is the mother of Kala bai. She also supported the evidence of Kala Bai. The witness said that the accused took the children from her house at about 15 days back from the date of incident. Kala Bai had come and inquired about the children. Thereafter, Kalabai went away. After few days, she again came and informed that the dead bodies of both children are lying in the house of accused. The witness again said in Para-4 that both the children came to the house of witness and the accused took them from the house of the witness. This witness also said that accused was doing nothing. He used to quarrel with the Kala Bai, therefore, the Kala Bai decided to live separately from the accused. The accused was having suspicion about the character of Kala Bai. 16. Santosh (PW-3) is the brother of Kala Bai who also supported the fact that the accused was a habitual drinker and was not doing any work. He always used to quarrel with his wife Kala Bai. 17. Babbu Kori (PW-5) is the brother of Kala Bai. This witness also supported the fact that the accused took both the children to his home and on the date of incident children were present in the house of the accused. Rashid Khan (PW-7) also supported the fact that the dead bodies were found in the house of the accused. 18. Section 106 of the Evidence Act 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.” 19. 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.” 19. In Nika Ram vs. State of Himachal Pradesh, AIR 1972 SC 2077 , the accused was alone was with his wife in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, court held guilty and said in para-16: “16........The accused also does not deny that he was with the deceased at his house on the day of occurrence...........The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.” 20. In Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 : 1992 Cri. L.J. 1545 (SC) the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313, Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. 21. In State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 , the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly Supreme Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302, IPC. 22. In State of Tamil Nadu vs. Rajendran, (1999) 8 SCC 679 : AIR 1999 SC 3535 , the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime. 23. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 : 2006 AIR SCW 5300 the court said that where an offence like murder is committed in secrecy inside a house, silence of inmates of house about cause of death would become additional link in chain of circumstances. Case was related to dowry death and court said that in view of S. 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 court said in para-12: “12. Case was related to dowry death and court said that in view of S. 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 court said in para-12: “12. 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............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.” Court again observed:- “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 ties entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” The further explained in para-16:- “16. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. State of Tamil Nadu vs. Rajendran, (1999) 8 SCC 679 : AIR 1999 SC 3535 , State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 , State of Maharashtra vs. Suresh, (2000) 1 SCC 471 : AIR Online 1999 SC 169, Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 : 2002 Cri. L.J. 967 (SC) and Gulab Chand vs. State of M.P. (1995) 3 SCC 574 : AIR 1995 SC 1598 .” 24. In Ravirala Laxmaiah vs. State of A.P. 2013 Cri. L.J. 3147 (SC) Accused-husband and deceased were last seen together and no explanation was given by accused that how death occurred. The defence raised by accused that wife committed suicide by hanging with sari was found false. Accused was doubting fidelity of deceased which was motive to eliminate deceased. The court said that conduct of accused of giving false information to in-laws, living in guest house while dead body of wife was in house and absconding after incident, Clearly point that accused was guilty and conviction of accused cannot be said faulted. In para-15 court said: “15. It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness account is available, the principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. State of U.P. vs. Dr. State of U.P. vs. Dr. Ravindra Prakash Mittal, AIR 1992 SC 2045 : 1992 AIR SCW 2417, Gulab Chand vs. State of M.P. AIR 1995 SC 1598 : 1995 AIR SCW 2504, State of Tamil Nadu vs. Rajendran, AIR 1999 SC 3535 : 1999 AIR SCW 3536, State of Maharashtra vs. Suresh, (2000) 1 SCC 471 : AIR Online 1999 SC 169 and Ganesh Lal vs. State of Rajasthan, (2002) 1 SCC 731 : 2001 AIR SCW 5251.” 25. In Neel Kumar alias Anil Kumar vs. State of Haryana, (2012) 5 SCC 766 : AIR 2012 SC (Cri) 1110 : 2012 AIR SCW 3766, this Court observed: “30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313, Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. Aftab Ahmad Anasari vs. State of Uttaranchal, AIR 2010 SC 773 : 2010 AIR SCW 1008.” 26. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. Nika Ram vs. State of Himachal Pradesh, AIR 1972 SC 2077 , Ganeshlal vs. State of Maharashtra, (1992) 3 SCC 106 : 1992 AIR SCW 1175 and Ponnusamy Case AIR 2008 SC 2110 : 2008 AIR SCW 3184. 27. Therefore, it appears from the entire evidence that the children were present in the house of the accused. The accused was residing alone in his house. No other male member was residing with him. His wife Kala Bai was living in another village. When the Kala Bai came to know that the children were took away by the accused, she went to the house of accused. In the evening, she found that both children were present in the house of the accused. The accused denied to hand over the children and said to Kala Bai that she should come in the morning. On 25.05.2004, when Kala Bai went to the house of the accused, she found that the house was locked. In the evening, she found that both children were present in the house of the accused. The accused denied to hand over the children and said to Kala Bai that she should come in the morning. On 25.05.2004, when Kala Bai went to the house of the accused, she found that the house was locked. After five days on 30.05.2004, dead bodies were recovered from the house of accused in deteriorated condition. The accused did not give any explanation. The accused was present in the evening and found absconded from the morning at about 04:00 a.m. After a long time, he arrested in 2007. Therefore, the conduct of accused also shows that he murdered his both sons in his own house and thereafter he absconded. 28. Therefore, looking to entire evidence, in view of this Court, the trial court did not commit any mistake by convicting the appellant for the offence under section 302 (double count) of IPC. The minimum sentence prescribed for the offence has been awarded. Therefore, no any interference is required in conviction and sentence passed by the lower Court. Hence, this appeal having no force, therefore, dismissed. 29. The appellant is in jail therefore, a copy of this judgment be sent to him through jail authorities.