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2019 DIGILAW 749 (MP)

CHAMAR SINGH v. STATE OF M. P.

2019-11-01

V.P.S.CHAUHAN, VIJAY KUMAR SHUKLA

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JUDGMENT : 1. The instant appeal is filed under section 374(2) of the Code of Criminal Procedure, challenging the order of conviction and sentence dated 18-8-2009, passed by learned Sessions Judge, Balaghat in Sessions Trial No. 75/2009, whereby the appellant has been convicted under section 302 of Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. It is an admitted fact that the appellant is the husband of the deceased Rambati Bai and Radheshyam (PW-2) is the father of the accused/appellant. It is also not in dispute that the appellant was arrested on 4-7-2009 by Ghudanlal Ahirwar (PW-7) vide arrest memorandum Ex.P-9. 3. The case of the prosecution, in brief, is that on 3-4-2009 at about 09:00 A.M., the appellant assaulted his wife Rambati Bai (deceased) in his house with the help of a ‘Lathi’ (bamboo stick). The said incident was seen by the wife of Chhedu Singh and she informed it to Chhedu Singh (PW-1) who immediately rushed to the house of the appellant. It is alleged that the other persons, namely, Radhelal, Asurabai and Geetabai etc. also reached at the spot and saw the deceased in a wounded condition and she was unconscious. It is further alleged that the accused used to assault and quarrel with the deceased as he was suspecting that she was having illicit relationship. The incident was reported by Chhedu Singh (PW-1) at the Police Chowki Sonewani and thereafter, the deceased was taken to the District Hospital, Balaghat, where she was declared brought dead. A merg was registered by Mohan Lal (PW-4) Head Constable Police Station, Kotwali Balaghat vide Ex.P-11. He prepared the dead body Panchnama (Ex.P-7) and sent the same for post-mortem. 4. The criminal case was set in motion. The investigation was carried out by ASI Ghudanlal Ahirwar (PW-7), who visited the spot and prepared the site plan and also took the earth and blood stained soil sample. The accused was arrested on 4-4-2009 vide arrest memorandum (Ex.P-7) and on his disclosure statement, the weapon used for commission of offence i.e. ‘lathi’ was seized from Parchi (shed) of the house, vide Ex. P-8. The clothes of the deceased were sent to the hospital in a sealed envelope. Statements of witnesses under section 161, Criminal Procedure Code were recorded. The report was registered vide Ex.P-19 by Head Constable Laxmi Chand (PW-8) at Police Station Rupjahr. 5. P-8. The clothes of the deceased were sent to the hospital in a sealed envelope. Statements of witnesses under section 161, Criminal Procedure Code were recorded. The report was registered vide Ex.P-19 by Head Constable Laxmi Chand (PW-8) at Police Station Rupjahr. 5. After the investigation charge-sheet was filed before the competent Court of law which registered the criminal case and committed the matter to the Court of Sessions for trial. Learned Sessions Judge framed charges against the accused/appellant for the offence punishable under section 302 of Indian Penal Code. The appellant abjured his guilt and pleaded that he is innocent and plea of alibi was raised that at the time of incident he was not at home but had gone to forest to cut trees. 6. The trial Court after consideration of the facts and evidence, convicted the accused under section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life by the impugned judgment, which is assailed in the present appeal. 7. Learned Counsel for the appellant assailed the impugned judgment mainly on the ground that the eye witness Chhedu Singh (PW-1) and others have not supported the case of the prosecution and were declared hostile. The other witnesses namely Radhelal (PW-2) father of the appellant and Balram (PW-3) have also not supported the prosecution case. He further argued that the seizure of the weapon has also not been supported by the seizure witness Chhedu Singh (PW-1) and Balram (PW-3). Thus, there is no direct evidence against the present appellant to connect him with commission of the alleged crime. The next argument is raised that the prosecution has failed to examine the wife of Chhedu Singh who is said to be an eyewitness of the incident and another witness namely Asulabai has also not been examined by the prosecution. Learned counsel for the appellant further submitted that the prosecution has failed to produce the weapon ‘lathi’ before the Court which is said to have been used for committing murder of Rambati Bai by the appellant. On these grounds, it is submitted that the order of conviction and sentence is not based on sufficient material and is liable to be set aside. 8. On these grounds, it is submitted that the order of conviction and sentence is not based on sufficient material and is liable to be set aside. 8. Per contra, learned counsel for the State supported the order of conviction and sentence and argued that there is no perversity in the order of conviction and sentence and the same is based on consideration of all relevant facts and evidence and therefore, the same does not warrant any interference in the appeal. 9. We have heard, learned counsel for the parties. 10. In order to appreciate the first submission made by learned counsel for the appellant, that Chhedusingh (PW-1) and Radhelal (PW-2) have turned hostile, therefore, there is no evidence to connect the appellant with commission of the offence. We consider it to apposite to refer the testimony of these witnesses. Chhedu Singh (PW-1) deposed that at about 08:00 a.m. in the morning when he was at his house, he heard shouting from the house of the appellant. Then he rushed to the house of the appellant, the appellant had made his wife to sleep after beating her. He further stated that he had not seen Rambatibai because he did not enter inside the house of the appellant. He also did not know that for what reason, the accused had beaten his wife. He also stated that he had lodged the report at Police Chowki Sonawani and the said report was read over by him and he had fixed his thumb impression on the said report which is Ex.P-1. He also stated that the earth sample and the blood stained soil were seized and on the Panchnamas, he had put his thumb impression. He had also admitted his thumb impression on all the panchnamas prepared by the Police. In the cross-examination, he had denied certain portion of the statement recorded by the Police under section 161, Criminal Procedure Code but he admitted the fact that the accused had stated in his presence to the Police Officers that he had concealed the ‘lathi’ on roof (Chhapri/Parchi) of his house and he had also gone to the house of the accused alongwith Police and the same was recovered in his presence. Learned counsel for the appellant referred para-11 of his statement where he has stated that he was at a distance of about 7-8 hands from the police and stated that the accused had not brought ‘lathi’ before him from the house. In para 6 of his cross-examination he stated that the said weapon was recovered from the house of the appellant. In para-7 he stated that the accused is his brother-in-law in relation and as small kids, therefore, he also wants that the accused should be released. He made categorical statement that he was not threatened or forced by the police to put the thumb impression on the documents. 11. On consideration of the entire testimony of Chhedu Singh (PW-1) it is correct that though he has not supported the entire prosecution case but he stated that after hearing the shouting from the house of the appellant, when he reached at the spot, the appellant was present in the house and the deceased was lying in a wounded condition. He also admitted his thumb impression on the seizure panchnama. 12. Another witness Radhelal (PW-2) is the father of the accused though he did not support the prosecution case in entirety, but in para-1 of his statement, stated that in the morning when he was out side the house, heard the shouting and when he rushed to the house, he saw that Rambati was lying in a wounded condition. He also stated that the accused was present in the house. Though he denied the fact that, he does not know whether the accused had beaten the deceased or not. In para-1 of his statement, he made categorical statement that the accused used to beat and harass the deceased in his absence because he was suspecting her chastity. It is correct that he did not support the prosecution case to the effect that he had seen the accused beating the deceased but he proved the fact that the accused was present at the time of incident at his home and also the fact that when he reached at the spot after hearing the shouting, the deceased was lying in a wounded condition. 13. 13. Balram (PW-3) is neighbour, who stated that in the morning Asulabai and others informed him that the accused has killed his wife then he went to the house of the accused and saw that Rambati Bai was lying in a pool of blood. He has stated that he along with Chhedusingh (PW-1) had gone to the Police Chowki Sonewani to lodge the report. He has admitted his signatures on the notice (Ex.P-3), dead body Panchnama (Ex.P-4) and map Ex.P-5. He also stated that the accused had disclosed about the ‘lathi’ kept in roof (parachi) and the same was recovered vide Ex.P-8. He also admitted his signatures on other seizures Ex.P-8, Ex.P-9 and Ex.P-10. In the cross-examination, he denied about the seizure of ‘lathi’ but admitted his signatures on Ex.P-7 and Ex.P-8. In para-9 of his deposition he stated that it is not incorrect to say that the accused had not stated before him about the object which was recovered. He also denied that, because the police forced him to sign the documents, therefore, he signed the Panchnama. Thus in other words he did not completely disown the prosecution case. 14. That, on assimilation of testimony of these witnesses, the arguments of learned counsel for the appellant has no force and substance that the prosecution case is false or the appellant has been falsely implicated. These witnesses have clearly established presence of the accused at the spot in his house and also admitted their thumb impressions and signatures on the recovery memo. There is no material contradiction or omission to accept the argument that merely because they have been declared hostile by the prosecution in respect of some portion of their statements, their entire testimony has to be disbelieved. There is no law that the entire testimony of a hostile witness has to be disbelieved. The Apex Court in the cases of Rameshbhai Mohanbhai Koli and ors. vs. State of Gujarat, (2011)1 SCC 111 and Bhajju @ Karan Singh vs. State of M.P., (2012)4 SCC 327 ruled that the testimony of hostile witness to the extent he supports the prosecution case can be believed. Further, if one part of statement was disbelieved, the entire statement of witnesses could not have been discarded. vs. State of Gujarat, (2011)1 SCC 111 and Bhajju @ Karan Singh vs. State of M.P., (2012)4 SCC 327 ruled that the testimony of hostile witness to the extent he supports the prosecution case can be believed. Further, if one part of statement was disbelieved, the entire statement of witnesses could not have been discarded. In the case of Sucha Singh and another vs. State of Punjab, (2003)7 SCC 643 , the Apex Court observed that the dictum - falsus in uno falsus in omnibus - is not a sound rule merely because some part of testimony of witness is found false, it would not be proper to discard his entire statement. 15. Apart from the testimony of these witnesses, S.I. Ghudanlal Ahirwar (PW-7) who is the Investigating Officer of the case, stated that the F.I.R was registered by him vide Ex.P-1 and in regard to recovery of the weapon also he stated that on the discovery statement of the accused, the weapon ‘lathi’ was recovered from the Chhapari of the house of the appellant vide Ex.P-7 and stated that his signature is marked ‘B’ to ‘B’ on the same. He proved the recovery of the said ‘lathi’ and also stated that the same was sent to the District Hospital for a querry that whether the injuries received by the victim should have been caused by the seized weapon. The seized weapon was also sent for chemical examination. There is nothing in his cross-examination to suggest that his testimony is false, therefore, deserves to be discarded. In the case of Modan Singh vs. State of Rajasthan, (1978)4 SCC 435 , and Anter Singh vs. State of Rajasthan, (2004)15 SCC 657 the Apex Court held that if the evidence of an Investigating Officer (I.O.) who recorded the recovery of the concerned material object if convincing the evidence as the recovery not to be rejected only on the ground that the seizure witnesses have not supported the same. 16. In view of the aforesaid consideration of facts and evidence, we find that the prosecution has successfully established the presence of the accused in his house at the time of incident and recovery of the used weapon. 16. In view of the aforesaid consideration of facts and evidence, we find that the prosecution has successfully established the presence of the accused in his house at the time of incident and recovery of the used weapon. In the facts of the present case, it has been established by the witnesses namely Chhedu Singh (PW-1), Radhelal (PW-2) and Balram (PW-3) that the incident had taken place in the house of the appellant and the appellant was present in his house at the time of incident and they saw the deceased laying in wounded condition at the spot immediately after the incidence. Since undisputedly the incident had taken place in the house of the appellant where he was residing with his wife, a strong presumption is against the appellant regarding the incident. The Apex Court in the case of State of Rajasthan vs. Thakur Singh, (2014)12 SCC 211 has dealt with in paras 16, 17, 18 : “16. Way back in Shambhu Nath Mehra v. State of Ajmer this Court dealt with the interpretation of section 106 of the Evidence Act and held that the section is not intended to shift the burden of proof (in respect of a crime) on the accused but to take care of a situation where a fact is known only to the accused and it is well nigh impossible or extremely difficult for the prosecution to prove that fact. It was said (AIR P. 406, para 11) “11.This section 101 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 be 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. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” 17. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.” 17. In a specific instance in Trimukh Maroti Kirkan vs. State of Maharashtra, this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said : (SCC P 694, Para 22) “22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime.” 18. Reliance was placed by this Court on Ganeshlal vs. State of Maharashtra in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife. 19. Similarly, in Dnyaneshwar vs. State of Maharashtra this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.” 17. Following the aforesaid ratio, the Apex Court in the case of State of Rajasthan vs. Thakur Singh, (2014) 12 SCC 211 reiterated that in the case of unnatural death of wife of accused in a room occupied only by both of them and no evidence of anybody else entering the room has been established and facts relevant to cause of death being only known to accused, has not been explained by him, strong presumption that accused murdered his wife will apply following the principle under section 106 of the Evidence Act. 18. The next argument of learned counsel for the appellant that since the prosecution has not produced the certain material witnesses and also the seized weapon before the court, therefore, prosecution case fails. We are unable to accept the said argument. In the case of State of U.P. vs. Hari Mohan and ors., AIR 2001 SC 142 and State of U.P. vs. Jagdeo and others, AIR 2003 SC 660 , the Apex Court has held that every lapse/lacuna in the investigation itself is not a ground for acquittal if other evidence is available. In regard to non-production of seized weapon before the court or non-recovery of weapon of assault, the Apex Court in a recent Judgment in the case of Prabhash Kumar Singh vs. State of Bihar, CRA No. 935/2011 decided on 12-9-2019 held that the mere fact that the weapon of assault was not recovered cannot demolish the prosecution case. In the present case as we have discussed there is sufficient evidences to co-relate the appellant with commission of the offence. 19. In the last, it is apt to discuss the defence of the accused. In his statement recorded under section 313, Criminal Procedure Code he stated that at the time of incident he was not in his house and he had gone to cut the trees, the defence of alibi was taken but the defence has completely failed to discharge its onus specially when the prosecution has established his presence in the house at the time of incident. In the plea of alibi, prosecution has to discharge initial burden to establish the presence of the accused at the scene of occurrence. In the plea of alibi, prosecution has to discharge initial burden to establish the presence of the accused at the scene of occurrence. Once the presence is established satisfactorily, the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened In the facts of the present case and the evidence of eye witnesses, the prosecution has satisfactorily established the presence of the accused at the scene and his participation in the crime. The appellant could not discharge his burden to prove the plea of alibi taken before the trial court. Our view gets fortified by the judgment passed by the Apex Court in the case of Moniruddin Ahmed alias Lalu Dealer and others vs. State of West Bengal, (2010)12 SCC 238 and Darshan Singh vs. State of Punjab, (2016) 3 SCC 37 . 20. In view of the aforesaid assimilation of facts and evidence, we are of the view that the prosecution has proved its case beyond any doubt that there was a quarrel in the house of the appellant, in which the appellant had assaulted the deceased. She died in dwelling house of the appellant as a result of the injuries. There were four lacerated wounds on her head and her wrist was also fractured. The said fact is proved by the post-mortem report Ex.P-13 and from the testimony of Dr. Suresh Kawde, M.O. (PW-5). The injuries caused to the deceased have been found to be fatal in nature and the injuries No. 1 to 4 were caused on the vital part i.e. on head by hard and blunt object and she died due to these injuries as per the post-mortem report. The injuries on the head is sufficient to prove that the deceased was subjected to repeated blows by the appellant, therefore, he had intention to kill his wife. 21. In view of the assimilation of facts and evidence as discussed herein above we do not find any illegality in the impugned order of conviction and sentence so as to warranting any interference of this Court. Accordingly the appeal is dismissed.