Koushal Kishore vs State Of Madhya Pradesh

This criminal appeal against conviction filed under Section 374 (2) of the Code of Criminal Procedure by accused/appellant Koushal Kishore Choudhary is directed against the judgment dated 08.05.2009 passed by the Court of learned Sessions Judge, Rewa in Sessions Trial No. 343/2008; whereby, accused Koushal Kishore Choudhary was convicted under Section 302 of the Indian Penal Code for committing murder of his wife Kiran and was sentenced to undergo rigorous imprisonment for life and fine in the sum of Rs.100/-. In default of payment of payment of fine, he was directed to undergo simple imprisonment for a further period of one month.

The prosecution case before the trial Court may briefly be stated thus: Deceased Kiran was wife of accused Koushal Kishore Choudhary. They had two sons and a daughter. The accused had married the deceased about 6-7 years before the date of the incident. He used to harass and beat up the deceased; therefore, deceased Kiran had left her matrimonial home at village-Bhattiya and had started to live in a rented accommodation near her maternal home in Nagariya neighborhood of City of Rewa. About 7-8 days before the date of the incident, Kiran had gone to her matrimonial home at Bhattiya to look up her elder son, who was ill. On 28.09.2008, Kiran returned along with her husband Koushal Kishore to Rewa and had started to live with him. In the night intervening 2nd and 3rd of October, 2008, the accused, the deceased and their 5 years old daughter Khushi (PW-1) were in the rented accommodation of deceased Kiran. During night, the accused struck the deceased on head and face with a piece of brick and; thereafter, strangulated her with the string of her petticoat. The first information report of the incident was lodged at about 8:00 a.m. on 03.10.2008 in P.S. City Kotwali, Rewa. On the disclosure statement made by accused Koushal Kishore during investigation, two pieces of brick stained with blood and blood stained shirt belonging to the accused were seized. After investigation, the charge sheet was filed.

The trial Court framed a charge under Section 302 of the Indian Penal Code against the accused. The accused abjured the guilt and claimed to be tried. During his examination under Section 313 of the Code of Criminal Procedure, he stated that he wanted to keep his wife and children with him; however, the brothers of the deceased wanted to usurp the money belonging to his wife; therefore, they had beaten up the accused and his brothers in the year 2006. At the time of the offence, he was at Bhattiya. He used to pay maintenance allowance to his wife. He has been falsely implicated by the brothers of the deceased.

After the trial, the trial Court held that the prosecution had, on the basis of the statements of Khushi (PW-1), witnesses Kunal @ Vikki (PW-2) and Vijay Kumar (PW-3), had succeeded in proving beyond reasonable doubt that a few days before the date of the incident, the accused had come to Rewa to live with his wife Kiran in the accommodation rented by her. In the night of the offence, the accused and the deceased had slept in the rented accommodation along with their daughter Khushi (PW-1). At night, the accused had beaten the deceased with pieces of brick and had; thereafter, strangulated her with the string of her petticoat. As a result, she had died. Their daughter Khushi (PW-1) witnessed the incident. It was further held that in any case, it has been proved that in the night of the incident, the accused was with the deceased along with their daughter Khushi. The next morning, the dead body of the deceased was found in the house and the accused was missing; therefore, the burden was upon the accused to explain the circumstances in which his wife had died. The accused had failed to offer any explanation for the same; therefore, he was held guilty of the offence punishable under Section 302 of the Indian Penal Code and sentenced as hereinabove stated.

Learned counsel for the appellant has assailed the impugned judgment mainly on the ground that the prosecution case is based heavily upon the uncorroborated testimony of 5 years old child witness, who has categorically admitted that she was tutored by the maternal relatives of the deceased, yet the trial Court had placed reliance upon her statement. It has further been submitted that the prosecution had failed to prove beyond reasonable doubt that in the night of the offence, the appellant was present in the rented accommodation; wherein, the dead body of deceased was discovered the next morning. Learned counsel for the appellant has placed reliance upon the judgment rendered by a coordinate bench of this Court in the case of Jagannath Vs. State of Madhya Pradesh, 2004(3) MPHT 249.

Learned Government Advocate for the respondent/State on the other hand, has supported the impugned judgment.

On perusal of record and due consideration of the rival contentions, the Court is of the view that this Criminal Appeal against conviction must fail for the reasons hereinafter stated:

The prosecution case is based mainly upon the eyewitness account of child witness Khushi (PW-1), the statements of Kunal @ Vikki (PW-2), who was son of the couple and Vijay Kumar (PW-3), who was brother of the deceased. The statement of Khushi (PW-1) is corroborated by the medical witness Dr. S.K. Pathak (PW-7) and the circumstance that on the date of the offence, the appellant was with his wife in the rented accommodation along with their 5 years old daughter Khushi. The next morning, deceased Kiran was found dead with crushed injuries on face and head and strangulation marks and the appellant was absconding. Even during the trial, the appellant failed to offer any explanation for the death of his wife.

Khushi (PW-1) has stated in her deposition that appellant Koushal Kishore is her father and Kiran was her mother. Her mother had died at home; however, she does not know as to how Kiran died. Thereafter, she has stated that at the time of her mother's death, she was with her. Her mother was killed by her father. Her father had killed her mother Kiran with a brick. The brick had hit her mother on the head; thereafter, her father had strangulated her mother with thread. After that, he had again hit her mother with brick.

Kunal @ Vikki (PW-2) has stated that accused Koushal Kishore is his father. The name of his mother was Kiran Choudhary. She had died on 02.10.2008. He further stated that he, his mother and his younger sister lived in Nagariya neighborhood. Their father lived at Bhattiya. About 4 days before the date of the incident, his father had gone to their house at Nagariya. His father was asking his mother to handover the custody of their children to him; whereon, his mother had asked his father to go back and had stated that she would raise the children. He further stated that the relationship between his father and mother were strained and quarrels used to take place. His father used to often beat his mother. Kunal @ Vikki (PW-2) has further stated that on the date of the offence, both of his brothers, his maternal uncle etc., were sleeping in the house of his maternal grandmother. Khushi was with his father and mother in their house. The house of his mother was situated next to the house of his maternal grandmother. At about 7-8:00 a.m. the next morning, his maternal aunt went to fetch milk. At that time, she saw that a crowd had gathered outside his mother's house. He returned and alerted others. When they went to the house of his mother, he saw that the forehead of his mother was crushed and she was bleeding. There was noose of the string of petticoat in her neck. By that time, his mother had died. At that time, his father was missing. His sister Khushi (PW-1) had told him that she was being beaten by his father by a brick and he had thereafter strangulated his mother with string of petticoat.

Vijay Kumar (PW-3) has stated that he is brother of deceased Kiran, who had married appellant Koushal Kishore in the year 1996. They had three children. Appellant Koushal Kishore used to harass and starve deceased Kiran; therefore, she had left her matrimonial home and had gone to her maternal home to live. She had taken a separate room on rent and used to work as a labourer to maintain herself and her children. Vijay Kumar (PW-3) has further stated that appellant Koushal Kishore had gone to live with his sister about 3 or 4 days before the date of the incident. At about 7:30 a.m. following the night of the incident, his nephew Vikki @ Kunal (PW-2) had told him that his mother was lying dead and police had arrived. In the night of the incident, only her husband Koushal Kishore and her daughter Khushi were present with the deceased. Appellant Koushal Kishore had sent Vikki @ Kunal to sleep in his grandmother's house. Thereafter, he had gone to the house of his sister along with his wife, mother and younger brother. They saw that Kiran was bleeding from head. There was a string of petticoat around her neck. She had already died and Koushal Kishore was not present there. Thereafter, his niece Khushi (PW-1) had told him that her father had assaulted the deceased with brick and had; thereafter, strangulated her with the string. Vijay Kumar (PW-3) has further stated that after that he had gone to City Kotwali, Rewa to lodge first information report (Ex.P/1).

Learned counsel for the appellant has invited attention of the Court to the fact that Khushi (PW-1), the sole eyewitness is only 5 years old and Kunal @ Vikki (PW-2) was only 11 years old. Both of these witnesses were highly susceptible to tutoring. In fact, Khushi (PW-1) has clearly stated in the introductory paragraph of her deposition that she did not know as to how her mother Kiran had died. In the cross-examination, she has admitted that she had gone to the Court along with her maternal grandmother. It was her maternal grandmother, who had told her that her mother was killed by her father. She also admitted that her maternal grandmother had told her that her father had beaten her mother with a brick and had then tied string of petticoat in her throat. She also admitted that her maternal grandmother had told her as to what was to be stated in the Court. He further submitted that Khushi (PW-1) has admitted that when her father was killing her mother she was sleeping there. In these circumstances, it has been argued that the testimony of the sole eye-witness, who is barely 5 years old child is utterly unreliable and the trial Court has grievously erred in placing reliance upon the uncorroborated testimony of this child witness.

In support of his contention, he has invited attention of the Court to the judgment rendered by a co-ordinate bench of this Court in the case of Jaganath (supra). It may be noted in this regard that Khushi (PW-1) is an innocent child witness. It is true that in the opening paragraph of her testimony stated that she did not know as to how her mother Kiran had died; however, this answer could have been result of nerves or failure to comprehend the question because immediately thereafter, she gave a graphic description of how her mother had been killed by her father. Likewise, it is natural that the incident must have been discussed over and over again in the household of innocent child, so she frankly admitted that her maternal grandmother had told her that her mother was killed by her father; however, when she was asked point blank that she had not seen her father killing her mother, she clearly replied that she had seen her father killing her mother. In the same manner, her statement that she was sleeping there when her father was killing her mother cannot be taken at its face value. It is quite natural for a 5 years old child to fail to distinguish between sleeping and lying. By sleeping she definitely meant that she was lying there and had witnessed the incident. Thus, in the opinion of this Court, the trial Court had committed no error in placing reliance upon the testimony of this child witness. In view of the distinguishable facts and circumstances, the judgment rendered by the coordinate bench of this Court in the case of Jagannath (supra) will not come to the aid of the appellant in this case.

Moreover, it has been amply proved by the statements of Kunal @ Vikki (PW-2) and Vijay Kumar (PW-3) that on the fateful night, only the appellant and his 5 years old daughter was with the deceased in the rented accommodation in which the deceased lived. The next morning the deceased was found dead in that accommodation and the appellant was found to be missing. No challenge had been mounted in the cross-examination of witnesses Vikki @ Kunal (PW-2) and Vijay Kumar (PW-3) that the appellant was not present in the same room along with his wife on the fateful night. Thus, in view of Section 106 of the Evidence Act there was heavy burden upon the appellant to explain the circumstances in which the deceased had died. He has failed to do the same. It may further be noted that no robbery had taken place in the house so there is no explanation available for the death of the deceased, even otherwise.

With regard to the burden of proof in the case, where only husband and wife were present in the house while the wife was murdered, the Supreme Court has held in the case of Raj Kumar Prasad Tamarkar vs State Of Bihar, 2007(3) SCC Cri 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 offence committed within four walls of the house, the Supreme Court has held in the case of Trimukh Maroti Kirkan vs State Of Maharashtra, 2006(10) SCC 681 as hereunder:

"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.

Likewise, in the case of Shambu Nath Mehra vs The State of Ajmer, AIR 1956 SC 404, it has been held that:

"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."

In the light of aforesaid legal position, it is absolutely clear that though initial burden of proving the offence of an accused beyond reasonable doubt lies upon the prosecution, the link in the chain of circumstances having been duly proved by the prosecution, onus of proving as to what actually transpired at the scene of the occurrence, shifts upon the defence. In the instant case, the relationships between the appellant and the deceased were strained. The incident occurred at about 12:00 a.m. in the room where appellant and the deceased were present along with their 5 years old daughter. The next morning, the dead body of the deceased was recovered from the room, she had rented. The husband was found missing; therefore, the onus had clearly shifted upon the appellant to explain the circumstances in which his wife had died. He singularly failed to discharge that burden. It was highly unlikely that someone else would commit trespass in the house of a deserted woman with three children and kill her. No sign of house-breaking was also present. In these circumstances, the conclusion is inescapable that it was the appellant who had killed the deceased.

In aforesaid view of the matter, in the opinion of this Court, the trial Court committed no error in relying upon the testimony of child witness Khushi and also upon the circumstances that the murder was committed within four walls of the house at night and the appellant had failed to explain the circumstances of the death of his wife.

In view of the foregoing discussion, there is no substance in this appeal.

Consequently, this appeal against conviction fails. The conviction and sentence of appellant is hereby affirmed.