Bhaiyaram Yadav vs State Of Madhya Pradesh

This appeal has been preferred by the appellant against the judgment dated 16.02.2009 in Session Trial No. 121/2008 by the learned IInd Additional

Sessions Judge, Chhatarpur. Whereby, the appellant was held guilty for commission of offence punishable under Section 302 of the I.P.C. and

convicted and sentenced him to undergo life imprisonment with fine of Rs. 500/- in default of fine further six months R.I.

The fatual matrix giving rise to this appeal in short is that on 06.02.2009, at 7 O’clock in the evening, Sanjay Dixit (PW-3) was going to his

farm. When he reached. In front of appellant’s house at that time Santu, the son of appellant aged about 4-5 years, told him that his father is

beating her mother by babool stick and she has fallen down on the ground. Sanjay Dixit (PW-3) reached in side the house of the appellant and saw

that appellant was beating deceased (Mamta) with babool stick. Sanjay Dixit (PW-3) tried to restrain the appellant but he did not. Sanjay Dixit (PW-3)

came out the house of appellant and shouted to call some persons. Then Pappu @ Ramdeen (PW-9), Kalyan (PW-10) and Ramautar Yadav (PW-11)

reached the spot while appellant poured kerosin oil over the body of the deceased and burnt her due to which she had died. On the information

received from Sanjay Dixit (PW-3), Investigation Officer Sub Inspector-Satish Singh (PW-13) had lodged the FIR Ex.P-5, Marg intimation Ex.P-6

and prepared Naksha Panchnama Ex. P-14. He issued notice Ex.13 under Section 175 of Cr.P.C. to witnesses to remain present in Shav

Panchanama Karyawahi. Dead body of the deceased was then sent to the Hospital for postmortem vide Ex. P-11. Dr. S.P. Shakyawar (PW-6) had

performed the postmortem of deceased Ex. P-11. The babool wooden stick and appellant’s trouser was seized vide seizure memo Ex. P-2 and

Ex. P-3. Statements of witnesses had been recorded, seized articles were sent to Forensic Sicence Laboratories vide memo Ex. P-2 and FSL report

Ex. P-21 was received. After investigation challan had been filed under Section 302 of IPC against the appellant.

The trial Court framed the charge against the appellant under Section 302 of the IPC. Appellant abjured his guilt. According to him, he was falsely

implicated in this case. He was not in the house at the time of incident. Thereafter appellant was tried and prosecution examined 13 witnesses.

Defence did not produce any witness on its behalf.

After hearing both the parties, the trial Courtfound the appellant guilty for offence under Section 302 of the IPC for which it convicted and

sentenced him. We have heard both the parties and gone through the entire record carefully. Learned counsel for the appellant submits that all the

witnesses turned hostile. Their statement did not corroborate the prosecution story. So, the findings and judgment of trial Court is not proper.

Counsel for the State has supported the judgment and submitted that the prosecution has proved her case beyond reasonable doubt. It is not

disputed that main witnesses of this case Raju (PW-1), Kamlesh Shrivas (PW-2), Sanjay Dixit (PW-3), Raja Yadav (PW-5), Pappu @Ramdeen

(PW-9), Kalyan (PW-10) and Ramautar (PW11) have turned hostile but it cannot be ignored that even when witnesses are declared hostile, their

testimonies are acceptable to the extent of material point in cross examination. There is no ground to reject the testimony in its totality.

The Hon’ble Apex Court in the case of Attar Singh Vs. State of Maharashtra reported in (2013) 11 SCC 719 has held as under:-

“14. We have meticulously considered the arguments advanced on this vital aspect of the matter on which the conviction and sentence imposed on

the appellant is based. This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness

who has been declared hostile could be relied upon for recording conviction of the accused-appellant. But it was difficult to overlook the relevance and

value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the

prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-

examination, there is no ground to reject his testimony in toto as it is well-settled by a catena of decisions that the Court is not precluded from taking

into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some

portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the

view expressed by this court in Syed Akbar vs. State of Karnataka (198) 1 SCC 3 whereby the learned Judges of the Supreme Court reversed the

judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety.

Similarly, other High Courts in Gulshan Kumar vs.State 1993 Crl.L.J. 1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J. 3421 as also Haneefa

vs. State (1993) Crl.L.J. 2125 have held that it is not necessary to discard the evidence of the hostile witness in toto and can be relied upon partly. So

also, in State of U.P. vs. Chet Ram 1989 2SCC 425, it was held that if some portion of the statement of the hostile witness inspires confidence it can

be relied upon and the witness cannot be termed as wholly unreliable. It was further categorically held in Shatrughan vs. State of M.P. 1993 Crl.L.J.

120 that hostile witness is not necessarily a false witness. Granting of a permission by the Court to cross-examine his own witness does not amount to

adjudication by the Court as to the veracity of a witness. It only means a declaration that the witness is adverse or unfriendly to the party calling him

and not that the witness is untruthful. This was the view expressed by this Court in Sat Paul vs. Delhi Administration (1976 )1 SCC 727.

Thus, merely because a witness becomes hostile itwould not result in throwing out the prosecution case, but the Court must see the relative effect

of his testimony. If the evidence of a hostile witness is corroborated by other evidence, there is no legal bar to convict the accused. Thus testimony of

a hostile witness is acceptable to the extent it is corroborated by that of a reliable witness. It is, therefore, open to the Court to consider the evidence

and there is no objection to a part of that evidence being made use of in support of the prosecution or in support of the accused.â€​

In view of the aforesaid decision of Hon’ble Apex Court testimonies of hostile witnesses cannot be discarded in toto in the present case. As the

prosecution witnesses have denied to have seen the incident, the prosecution case is based upon circumstantial evidence.

It is settled principle of law that the prosecution has to satisfy certain conditions to convict the accused on the basis of circumstantial evidence. The

circumstances from which conclusion of his guilt is to be drawn should be fully established.

The Apex Court in the case of Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116 has held as under in regard to conviction on

the basis of circumstantial evidence:-

“The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence: (1) the

circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,

(2) the facts so established should be consistentonly with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any

other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.â€​

The Hon'ble Apex Court has further considered the aforesaid judgment in the case of Nathiya vs State Represented Through Inspector of Police,

Bagayam, (2016) 10 SCC 208 and has held as under:-

“26. The classic enunciation of the lawpertaining to circumstantial evidence, its relevanceand decisiveness, as a proof of charge of a criminal

offence, is amongst others traceable to the decisionof this Court inSharad Birdhichand Sardavs. Stateof Maharashtra(1984) 4 SCC116. The relevant

excerpts from paragraph 153 of the decision is assuredly apposite:

“153...(2) The facts so established should beconsistent only with the hypothesis of the guilt of the accused...they should not be explainable on

anyother hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

 * * *

(5) there must be a chain of evidence socomplete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.â€​

As recently as in Sujit Biswas vs. State ofAssam(2013) 12 SCC 406 andRaja @ Rajendra vs.State of Haryaya(2015) 11 SCC 43, it has been

propounded that in scrutinizing the circumstantial evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and

completely to rule out any reasonable likelihood of innocence of the accused. It was underlined that whether the chain is complete or not would

depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. That in judging the culpability of

the accused, the circumstances adduced when collectively considered, must lead only to the irresistible conclusion that the accused alone is the

perpetrator of the crime alleged. That the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of

the accused, was emphatically propounded.â€​

It is not disputed that deceased (Mamta) was the wife of the appellant. According to prosecution, first circumstance of this case is homicidal death of

deceased.

10 Dr. S.P. Shakyawar (PW-6) performed postmortem of the deceased. He deposed that I noticed following injuries on the person of body of the

deceased:-

ckg~; ijh{k.k& 'ko ijh{k.k Vsfcy ij fpRr ysVk;k x;k Fkk] e`rdk ds gkFk] iSj eqM+s gq;s Fks] gkFk dh vaxqfy;ka Hkh eqM+h gqbZ Fkh 'ko ls feV~Vh

rsy dh xa/k vk jgh FkhA thHk ckgj fudyh gq;h Fkh] psgjs ij [kwu tek Fkk] flj ds cky tys gq;s rFkk dqN >qyls Fks] [kwu Hkh ckyksa esa ekStwn FkkA

e`rdk ds 'kjhj ij fuEu pksVsa ikbZ Fkha&

¼1½QVk gqvk ?kko 10x6x4 lsaeh0] flj esa nkfgus rjQ ihNs dh vksj vkDlhfiVy gMMh ds Åij ekStwn Fkha] ftldk vkdkj vfu;fer rFkk fdukjs

vfu;fer Fks] tek gqvk [kwu ekStwn Fkk] vkDlhfiVy gM~Mh esa vfLFkHkax Fkk rFkk cszu eVsfj;y ?kko ls ckgj fudy jgk FkkA

¼2½ uhyxw fu'kku 10x6 lsaeh0 ck;h iSjkbVy gM~Mh ds mij fljs esa ekStwn Fkk uhyxw fu'kku dks dkVus ij mlds uhps [kwu tek Fkk rFkk cka;h

iSjkbVy gM~Mh VwVh FkhA nksuksa pksVsa Bksl ,oa eksFkyh oLrq ls vkuk izrhr gks jgh Fkh rFkk e`R;q iwoZ dh FkhaA

¼3½ e`rdk ds 'kjhj esa tyus ds fu'kku Fks iwjk pgs jk dkyk Fkk] xnZu nkfgus rjQ Nkrh esa] nkfgus rjQ vk/ks isV esa] nkfguh Vkax esa chp esa]

ckg~; tuukaxtys Fks] cPpknkuh ckgj fudyh FkhA cka;h tka?k esa ckgj dh vksj tys ds fu'kku Fks] cka;k dwYgk rFkk ihB esa Nkrh ds ihNs tyus ds

fu'kku FksA tyus ds fu'kku eqR;q ds ckn ds FksA tys rFkk fcuk tys ds chp esa jsMykbZu ekStwn ugha FkkA e`rdk lkekU; dn dkBh dh efgyk FkhA

vkarfjd ijh{k.k&[kksiM+h] diky] d'ks:dk esa] vkDlhfiVy rFkk cka;h iSjkbZVy gM~Mh VwVh FkhA inkZ] ilyh] lkekU; FksA nkfguk] ck;k QQsa M+k

datLVsM Fkk] g`n; esa nkfgus izdks""B esa [kwu Hkjk Fkk cka;k [kkyh FkkA o`gn okfgdk [kwu ls Hkjh FkhA isV esa vanj HkksT; inkFkZ ekStwn

FkhA NksVh vkar esa v/kipk Hkkstu rFkk xSl Fkh] cM+h vkar esa ey inkFkZ ,oa xSl FkhA ;d`r] Iyhgk] xqnkZ datLVsM FksA ew=k'k; [kkyh FkkA

'ks""k vax lkekU; FksA e`rdk ds flj ds cky] tys lkM+h ds VqdM+s tIr dj lhy dj lhycan dj lEcaf/kr vkj{kd dks ns fn;s FksA

vfHker &esjs erkuqlkj e`rdk dh e`R;q lnek] tks cszugsejst flj esa pksV yxus ls gq;h FkhA esjs ijh{k.k ls e`R;q dh vof/k 24 ?k.Vs ds vanj dh FkhA 'ko

ijh{k.k fjiksVZ iz0ih01 gS] ftl ij v ls v Hkkx ij esjs gLrk0 gSaA

At the outset, it may be noted that the cause of death was shock due to brain hemorrhage and serious injuries were found on her head. Doctor also

opined that the burn marks were of period after her death. Thus it is crystal clear, the nature of death is homicidal. So the findings on this point is

proper.

According to prosecution, second circumstance in this case that the death of deceased occurred in the house of appellant. Sanjay Dixit (PW-3)

deposed in the Court that the dead body was found in burnt condition in the house of appellant. Appellant did not challenge this facts in cross

examination.

Raja Yadav (PW-5) who is father of the appellant deposed the same fact and the said fact has also been narrated by Pappu @ Ramdeen (PW-9),

Kalyan (PW-11), Bhairam Arakh (PW-8). Further there is noting in the cross examination of the above-mentioned witnesses, which would imply that

they are not trustworthy. So it is proved that the homicidal death of deceased occurred in the house of appellant.

As per prosecution, third circumstance of the case is that, at the time of incident, appellant was present in his house.

Raja Yadav (PW-5) deposed that when he reached the house of appellant, he saw, that deceased was lying dead in the appellant’s house.

Pappu @ Ramdeen (PW-9) also deposed the same facts. These facts were not contradicted by appellant in his cross examination. Raja Yadav (PW-

5) and Pappu @ Ramdeen (PW-9) also deposed that they saw that the appellant was tied in his house. Further, these facts were not contradicted in

crossexamination by the appellant. So, it is proved that when witnesses reached the house of the appellant they saw, the appellant as also the dead

body of deceased in the house.

According to prosecution, fourth circumstance was that at the time of incident, it is heard that the appellant was beating his wife.

Pappu @ Ramdeen (PW-9) deposed that

Sanjay shouted that appellant had been killing his wife. He deposed that Kalyan and Ramavtar reached the spot. So it is clear, that at the time of

incident Pappu @ Ramdeen (PW-9) heard that appellant is beating his wife and when they reached on the spot they saw the deceased (Mamta) was

burnt and lying dead. So, this circumstance is also proved.

Satish Singh (PW-13) deposed in the Court that he took the custody of appellant . He also deposed that during custody, the appellant had informed

that he had hidden babool stick in “Chappar†vide memorandum Ex. P-1. Pursuant to this babool stick was seized vide Ex. P-2. He also deposed

that he seized trouser of the appellant vide seizure memo Ex. P-3. These articles were sent for examination to Forensic Science Laboratory, Sagar

vide Ex. P-20. FSL report Ex. P-21 shows human blood on trouser of appellant and on the seized bamboo wooden stick. Although, counsel of

appellant argues on this point that independent witnesses Raju (PW-1) and Kamlesh Shrivas (PW-2) did not support memorandum Ex. P-1 and seizure

memo Ex. P-2 and Ex. P-3. Thus testimony of Satish Singh (PW-13) should not be believed.

The Hon’ble Apex Court in the case of Nathusingh Vs. State of Madhya Pradesh reported in AIR 1967 3 SCC 2783 has held as under:-

“2. Concurrent findings of fact conclude the case against the petitioner so far as his possession of unlicensed cartridges on the date and the time

and place given in the charge are concerned. The fact that the two witnesses called from amongst the members of the public, namely, Raghunathsingh

(P.W. 1) and Gambhirsingh Tomar (P.W. 2), had turned hostile was considered by the High Court and the Courts below. They had held that the two

prosecution witnesses who had turned hostile could not be relied upon. Their evidence could not destroy the prosecution case or make it doubtful. The

prosecution case is fully supported by Mahadevsingh (P.W.-5), and Umashankar (P.W. -6), who are police officers. The mere fact that they are

police officers was not enough to discard their evidence. No reason was shown for their hostility to the appellant.â€​

In this case also there is no reason to dis- believe the evidence of Satish Singh.

For the foregoing reason it is proved that deceased was the wife of the appellant. She died in the house of appellant. Her death is homicidal. At

the time of death, appellant was present in his house. Witness also heard that appellant killed her wife, human blood was found on trouser of appellant

and human blood was also found on bamboo stick, which was seized from appellant. Appellant did not set up any case that some other person entered

his house and caused homicidal death of his wife and tied him. Although appellant stated in his accused statement that he was not present at the time

of incident his house, but this fact is not proved. Thus, it is proved that at the time of incident, he was present in his house. Appellant also did not

explain how human blood came on his trouser and babool sticks. So, inference can be drawn that appellant has committed the present crime.

The Hon’ble Apex Court in the case of State of Rajasthan Vs. Thakur Singh reported in (2014) 12 SCC 211.

“15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia,

that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Way back in Shambhu Nath Mehra V. State of Ajmer AIR 1956 SC 404 this Court dealt with the interpretation of Section 106of 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:

“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.â€​

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra(2006) 10 SCC 681 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:

“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.â€​

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra(1992) 3 SCC 106 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.

Similarly, in Dnyaneshwar v. State of Maharashtra (2007) 10 SCC 445 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.

In Jagdish v. State of Madhya Pradesh(2009) 9 SCC 495 this Court observed as follows:

“22…..It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent

on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt.â€​

Prosecution has proved each of the incriminating pieces of facts satisfactorily by cogent and reliable evidence. Where proved pieces of

circumstantial evidence are taken together. They form such a complete chain where for no inference can be drawn other then the guilt of accused.

For the foregoing reasons the finding of learned trial Court is based upon proper and legal evidence. We are of the opinion that the appeal has no

merit, accordingly this appeal is dismissed. Â