Kamal Singh vs State of M.P.

This appeal has been filed by the accused-appellant challenging the judgment dated 3.11.2007, passed by Additional Sessions Judge, Dindori in

Sessions Trial No.122/2007, whereby the appellant has been convicted for offence under Section 302 of Indian Penal Code and sentenced for life

imprisonment and fine of Rs.200/- with default stipulation.

It is not in dispute that the deceased Gannibai was the wife of the appellant. Both resided together in the house of the appellant. Gannibai was

killed in the house of the appellant.

Brief facts of the prosecution case are that appellant and his wife Gannibai both resided together at Village Devkara in the house of appellant.

Gannibai died an unnatural death in the intervening night of 30th June, 2007 and 1st July, 2007 in the house of appellant. One Sajjan Singh

informed on 1st July, 2007 at about 11.25 PM at Kotwali, Dindori about the death of Gannibai. He informed the police that the appellant killed his

wife by inflicting head injury and other injuries on her. Her dead body was lying in the house of the appellant. Merg was lodged and after

investigation, it was found that the appellant came to his house in drunken condition and when his wife Gannibai (since deceased) had not given

food to him, the appellant took the burning wood from hearth and inflicted several blows on Gannibai. After receiving the injuries Gannibai died.

The appellant locked his house and confessed commission of offence before Sajjan Singh, Titru and others. Hence offence was registered against

appellant under Section 302 of IPC. Charge sheet was filed against him before the concerned court.

The trial Court framed charge for offence under Section 302 of IPC, against the appellant. During the trial, the appellant abjured guilt and

pleaded that he has been falsely implicated by the police. The trial Court found that there is no eye witness to prove the offence against the

appellant, but considering the circumstances and extra-judicial confession of the appellant the trial Court held the appellant is guilty for committing

murder of his wife Gannibai. Hence, he was convicted and sentenced as mentioned above.

The appellant has challenged the impugned judgment on the ground that the trial Court ignored the facts that the main witnesses turned hostile

and other witnesses have not supported the prosecution story. Dr. Gopal Maravi(PW/12) conducted the postmortem of dead body of the

deceased and not found any burn injuries on the body of the deceased. There is a possibility that the deceased could have fell down on the earth

and sustained injuries and due to neurologic shock she died. The trial Court illegally presumed the appellant guilty for committing murder of his

wife, hence, the impugned judgment is liable to be set aside and the appellant be acquitted from the charges levelled against him.

Learned Govt. Advocate has vehemently opposed the submissions of the appellant and contended that the learned trial Court has rightly held

the appellant guilty for committing the offences. Findings of the learned trial Court are based on the evidence on record, hence it cannot be

interfered with.

We have heard learned counsel for the parties at length and perused the record.

The point for determination before us is that :-

whether the trial Court has wrongly convicted the appellant ?

It is not in dispute that Gannibai was the wife of appellant and sister of Sajjan Singh (PW1). She was residing with appellant since long after her

marriage at village Devkara. She died an unnatural death due to the injuries sustained by her in the house of the appellant.

Dr. Gopal Maravi (PW12) conducted autopsy of the deceased on 1.7.2007. He found some hairs of the her head uprooted. There was

swelling below her eyes. Red chilly powder was rubbed on her mouth, face, neck and chest. There were some red impression on her buttocks and

thighs. Dr. Maravi also found some wounds on her head and thigh. Blood was present over the temporal region of head and her ribs were

fractured. According to Dr. Maravi (PW12) the deceased died due to neurologic shock and excessive bleeding as a result of blood filled on her

lungs. He clearly opined that the injuries were homicidal and antemortem in nature.

It is important to mention here that the appellant admitted some facts from the prosecution evidence in his examination of accused under

Section 313 of Cr.P.C. He admitted that the police seized some articles like a rope, broken bangles, half burnt (sarai) wood from the spot. All

these things related with the crime also indicate that the deceased was killed in the house of appellant.

Appellant also admitted that the prosecution witnesses Titru, Mallu, Dallu, etc. tied him with a rope and took him to the house of

Pawan/Village Kotwar thereafter they all went to the house of the appellant.

Santu (PW9) is an important witness. His testimony remained unchallenged and unshaken. He deposed that after the incident at about 7.00

am, the appellant came to his house and told him that ""he killed his wife"". Saraswati wife of Santu abused the appellant and asked him ""why you

killed your wife""; hearing this the appellant ran away. Santu narrated the incident to Baisakhia Bai.

Baisakhia Bai (PW6) corroborated the testimony of Santu. She informed the incident to her maternal uncle Titru. She has stated that Dallu,

Mannu and Titru ran after the appellant to catch him. She saw that Dallu, Mallu and Titru caught the appellant. They tied him with a rope and took

him to the house of Kotwar. The said evidence was admitted by the appellant in his accused statement.

Bhanwar Singh (PW5) corroborated the testimony of Santu. He informed the incident to her maternal uncle Titru. He stated that Dallu, Mallu

and Titru ran after the appellant to catch him. He saw Dallu, Mallu and Titru caught the appellant, tied him with a rope and took him to the house of

Kotwar. This has been admitted by the appellant in his accused statement. Bhanwar Singh (PW5) witnessed that Titru, Gannu and Mannu took the

appellant to the house of Kotwar Pawan Kumar. In their presence the appellant confessed committing the crime. Later they went to the house of

the appellant.

Pawan Kumar (PW4) Village Kotwar also supported the testimony of Bhanwar Singh (PW5). Smilarly Titru (PW2) and Sajjan Singh (PW1)

corroborated the evidence of each other and without any inconsistency. All the witnesses deposed that, when they reached the appellant''s house

they found the door of the house locked from out side. It was opened by the appellant by using the key, which was kept in his pocket. After

opening the door by the appellant, they found the dead body of the deceased incised the house. This is a very strong incriminating circumstance

against the appellant, which indicates that after causing the death of Gannibai, appellant locked his house. Santu (PW2) and Dumra (PW3) are

important witnesses. The appellant voluntarily confessed his crime before them. In their cross-examination it is established that they had no enmity

or any previous dispute with the appellant. Both the witnesses impartially deposed with regard to extra-judicial confession of the appellant. In the

case of Kumar Vs. State of Tamil Nadu [2013 (1) 12 SCC 699] Supreme Court has held as under :-

The law is well settled as to what extent extrajudicial confession can be relied on. If the same is voluntary and made in a fit state of mind, it can be

relied upon along with other materials. It is true that the extra-judicial confession is a weak type of evidence and depends upon the nature of

circumstances like the time when the confession was made and the credibility of the witnesses who speak to such a confession.

After considering the facts of this case, there is no possibility that the neighbours of the appellant have falsely deposed against appellant. It is

also not found that appellant was under any compulsion or threat to confess his crime. He was caught hold by Titru, Mallu and Dallu. He confessed

the commission of crime before Dumra and Santu. After the information from Santu, Baisakhia informed about the incident to Titru, Sajjan Singh,

Mannu and others. Therefore, the extra-judicial confession of the appellant can be relied upon for the conviction of the appellant.

The other witnesses have stated that when the appellant was caught by other witnesses, the appellant took the witnesses to his house. His

house was locked from outside. When the lock was opened by the appellant, dead body of Gannibai was found inside the house. Therefore,

burden lies on the appellant to explain how the house was locked from outside and the key of the lock was found in the possession of appellant

and dead body of his wife was inside the house. Why did he lock the door from outside the house. In such circumstances, it can be presumed that

he knew about the incident with his wife and without providing her medical aid the appellant locked his house and confessed the commission of

crime to his neighbours. Hence, the trial court has rightly held guilty the appellant for committing murder of his wife.

In his accused statement under Section 313 of Cr.P.C. or otherwise the appellant had not set up a case that offence was committed by

somebody else or that there was a possibility of an outsider committing the offence. In such circumstances reliance can be placed on ""Dhaneshwar

Vs. State of Maharashtra"" [ (2007) SCC 445] in which it is held that, ""it is for the husband to explain the grounds for the unnatural death of his

wife"".

The law is quite well settled that the burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to

a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts needs to be explained by the

accused. [See also Gyanchand Vs. State of Haryana [ (2013) 14 SCC 420] and State of Rajasthan Vs. Thakur Singh [(2014) 12 SCC 211],

Shambhu Nath Mehra Vs. State of Ajmer [ AIR 1956 SC 404], Trimukh Maroti Kirkan Vs. State of Maharashtra [ (2006) 10 SCC 681].

Section 24 of the Evidence Act places the heaviest responsibility on the Court. Under the latter part of the section, the Court has to form an

opinion that the inducement, threat or promise by the person in authority is sufficient to give the accused person grounds which would appear to

him reasonable for supposing that, by making it, he would gain any advantage. The responsibility of the Court would be great because the Court

must relegate itself to the position of the accused and see whether the inducement, threat or promise given to the accused would appear reasonable

to make the accused feel that he would gain an advantage with reference to the charge against him.

The Court should carefully examine the confession and compare it with, the rest of the evidence, in the light of the surrounding circumstances

and probabilities of the case.

In case of Krishnandan Prasad Verman vs. State AIR 1958 Patna 166; after considering the case of Queen vs. Thompson (1983) 2 QB 12 it

was held by the Patna High Court that the aforesaid principle is also applicable in our country also. In case of Queen vs. Thompson (1983) 2 QB

12, a test is laid down for the admissibility of a confession which is as follows:-

It was preceded by any inducement to make a statement held out by a person in authority. If it is proved to be free and voluntary, and it was not

made in consequence of an inducement, threat or promise by a person in authority, it can be taken into consideration.

The Supreme Court in case of Shankaria vs. State of Rajasthan, AIR 1978 SC 1248, observed:

it is well settled that a confession, if voluntarily and trustfully made, is an efficacious proof of guilt. Therefore, when in a capital case the

prosecution demands a conviction of the accused primarily on the basis of his confession recorded under Section 164 of Cr.P.C., the Court must

apply a double test:

(i) Whether the confession was perfectly voluntary ?

(ii) If so, whether it was true and trustworthy ?

In case of Jaya Balan Vs. Union Territory of Pondicherry [(2010) 1 SCC 199] in similar circumstances of the fact, it was held that if the

accused failed to inform about his injured wife to the persons gathered out side his house and he subsequently offered unsatisfactory explanation,

presumption against the accused get strengthened. In this respect under Section 140 of Evidence Act that he is responsible for the crime.

In the present case in the examination of accused under Section 313 of Cr.P.C. he had taken the defence that there was a dispute between his

wife and Sajjan Singh the brother of the deceased for property. Chain Singh committed rape of his wife. Therefore, he lodged FIR against him.

Mansingh and Chain Singh were annoyed with the appellant therefore, he has been falsely implicated by them. With regard to this defence of the

appellant, we do not find any suggestion given to the main prosecution witnesses from the appellant side. We are not inclined to accept the defence

taken by the appellant. In our opinion, the appellant has tried to take a false defence to save himself from the criminal liability of committing murder

of his wife.

Dr. Gopal Maravi (PW12) found head injury on temporal region and injuries on thighs of the deceased. His opinion that that due to the injuries

and bleeding caused to the deceased she died because of neurological shock, was found unchallenged. The death of the deceased was homicidal

and injuries were antemortem in nature. On the above discussions and in view of the incriminating circumstance, the appellant duly established that

appellant killed his wife. Some hair were uprooted from the head of deceased and rubbing the red chilly power over her body (face, mouth, neck

and chest) to created pain on her body.

In the light of the above discussions and the principles laid down by the Apex Court in the aforesaid cases, we find that the learned trial Court

has rightly held the appellant guilty for committing the murder of Gannibai. After considering the entire evidence on record, we are inclined to

accept the findings of learned trial Court against the appellant. This appeal therefore, deserves to be dismissed. Hence, is dismissed.

A copy of this judgment be sent to the trial Court for information and compliance alongwith the record immediately.