Nirandar @ Narendra Singh vs State Of Madhya Pradesh

Sanjay Yadav, J

This appeal is directed against the judgment dated 06.01.2000 passed by the Additional Sessions Judge, Sheopurkalan (M.P.) in ST No.77/97 whereby

the appellant has been convicted and sentenced for life with Rs.500/- fine for an offence of causing murder of his wife Sukhwindar Kaur and

daughter Nikki aged 6-7 months under Section 302 of IPC and 02 years' RI with a fine of Rs.200/- for the offence of destroying evidence under

Section 201 IPC with default stipulations.

(2) The prosecution was set in motion with Swarn Singh (PW-2) of informing the Police at Police Station Manpur, Morena on 23.11.1996 at 04:05 pm

at village Chak Bamudia that his sister Sukhwindar Kaur (the deceased) was married to Nirandar @ Narendra Singh of village Chak Bamudia 3-1/2

years ago and had two children from the marriage; one 2-1/2 and another 6-7 months. About eight days ago his son Jaspal Singh and daughter

Jasvinder Kaur were sent to village Chak Bamudia to fetch barley seeds from Nirandar @ Narendra Singh where they noticed the absence of

Sukhwindar Kaur. On enquiry since they did not get proper information from Nirandar @ Narendra Singh, they went to Harjinder Singh (DW-3), son-

in-law of complainant (PW-2), who informed that it is a rumour in village that she had gone to her mother's house. On being informed, being suspicious

he (PW-2) went to Nirandar @ Narendra Singh (present appellant), who informed that about 15 days ago Sukhwinder Kaur who was having Rs.900/-

, and after borrowing Rs.100/- from him (the accused) had gone to her mother's house. Being not satisfied with the answer, he (PW-2) went to the

house of (DW-3) and requested him to collect correct information about entire facts. Whereon Nirandar @ Narendra Singh told Harjinder Singh that

he has killed Sukhwinder Kaur and as the child was crying he killed her also and threw the bodies in the canal. Next day when complainant (PW-2)

with Gurnam Singh (DW-2) went to the house of Nirandar @ Narendra Singh, his house was found locked; suspecting of his having fled, they (PW-2

and DW-3) came to Jaura where they apprehended Nirandar @ Narendra Singh, his mother and daughter from former wife and his niece who were

on train. They were taken to Jaura Police where they were told by the Officer-Incharge of Police Outpost that the captives will be sent to police

station by the police. It was also stated that at Police Station Jaura, Narendra Singh confessed of having killed Sukhwindar Kaur and her daughter

being thrown in the canal.

(3) On the complaint, Dehati Nalisi (Ex.P-2) was recorded by the Station House Officer, Manpur Camp at Chak Bamudia Shri H.S. Rawat (PW-7)

and the prosecution was set in motion. The dead bodies were not found nor clothes nor any other article relating to the deceased. The prosecution

after completing investigation filed the charge-sheet for the charge of murder of Sukhwindar Kaur, causing disappearance of evidence and giving false

information against the appellant and his mother under Section 201 IPC. Be it noted that the prosecution failed to establish the charge of causing

disappearance of evidence against the mother who has been acquitted of the said charge whereagainst the State has not preferred an appeal.

(4) As there was no eyewitness and the entire case being based on circumstantial evidence, the prosecution examined Heerabai (PW-1), Major Singh

(PW-3) and Murari (PW-5) to establish the story of Sukhwindar Kaur being beaten by the accused Nirandar @ Narendra Singh and of her

disappearing thereafter. The prosecution then examined Swarn Singh (PW-2) to establish the story as to extra-judicial confession. The prosecution

also led to establish the guilt with the aid of Section 106 of Evidence Act.

(5) The Trial Court found that the prosecution succeeded in establishing the charge of murder and of causing disappearance of the evidence by the

accused/appellant Nirandar @ Narendra Singh. But did not find any credible evidence against accused No.2 Surjeet Kaur of the charge of causing

disappearance of evidence, accordingly, acquitted her from the said charge.

(6) The conviction is being challenged on the ground that the trial court has erred in believing the prosecution story.

(7) It is contended on behalf of the appellant that the prosecution story is full of concoction and even if the entire evidence is read as they are

presented, does not lead to establish the offence alleged to be committed by the appellant. It is urged that there being no explanation for delayed

lodging of FIR further establishes that the entire prosecution story is concocted. Leading us through entire evidence, oral and documentary, it is

contended that since circumstances put forth by the prosecution are not interconnected, the conviction based on such evidence must fail.

(8) State, on its turn, justifies the conviction being based on cogent, material evidence on record.

(9) Considered the rival submissions. Perused the record.

(10) The question is whether in the given facts the prosecution succeeded in knitting the web of circumstances in establishing that the appellant

committed the offence.

(11) It is well settled that when the case rests on circumstantial evidence, such evidence must satisfy three tests:

(i) the circumstances from which inference of guilt sought to be drawn must be cogently and firmly established;

(ii) these circumstances should be definite and unerringly pointing towards the guilt of the accused; and

(iii) the circumstances taken cumulatively should form a complete chain leading to the conclusion that the crime was committed by the accused and

none else.

(12) In “Hanumant Govind Nargundkar and another Vs. State of Madhya Pradesh [AIR 1952 SC 343]â€​, it is held:

“10......It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt

is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt

of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but

the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done

by the accused. ......â€​

(13) In “State of U.P. Vs. Satish [(2005) 3 SCC 114]â€​, it is held:

“14 There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to

circumstantial evidence laid down by this Court as far back as in 1952.

A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, AIR (1994) SC 1622. Therein, while dealing

with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in the

prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on

circumstantial evidence must be fully established. They are: (SCC p.185, para 153)

(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and

not may be established;

(2) The facts so established should be consistent only 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€​

(14) In the case at hand, evidently, the body of the deceased Sukhwindar Kaur and her daughter is not recovered. However, trite it is that in a trial for

murder, it is not absolutely necessary to establish corpus delicti.

(15) In “Sevaka Perumal and another Vs. State of Tamil Nadu [(1991) 3 SCC 471]â€​, it is held:

“5. ......In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased

must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder

was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If

recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead

body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is

proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the

offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body

may not be traced. ......â€​

(16) Major Singh (PW-3), Murari (PW-5) and Heerabai (PW-1) witnessed the beating and disappearance of Sukhwindar Kaur and her daughter. It is

Murari (PW-5) whose Khalihan (barn) is at a distance of 50 mts from the house of accused he heard noise at 10-11 pm when was approached by

accused mother who informed that the accused is bearing his wife and he Murari (PW-5) may come and save her. Whereon he (PW-5) immediately

went to call Major Singh (PW-3) who went to pacify them which he saw from standing at Nallah. After said incident he said he did not see

Sukhwindar Kaur and her daughter. In cross-examination, he admits that he did not go alongwith Major Singh to the house of the accused, as the

accused was drunk. In further cross-examination, he admits that the Major Singh (PW- 3) and the accused were related. Murari (PW-5) who also

states that next day he informed Sardar Surta Singh and some other persons in the village and also asked the accused who informed that Sukhwindar

Kaur had gone to her maternal home with the child. Though it is contended on behalf of the appellant that this witness did not inform the police about

the missing of the deceased. It is, however, normal for a person living in the close vicinity of having witnessed a maarpeet in a house by husband and

then believing such person who informed that the wife had left for her maternal home, thus, giving a quietus to entire episode. Thus, it is not unnatural

on the part of Murari (PW-5) of not informing police. It was only when he comes to know about the elimination of a person he informs about the

happening which helps the police to connect the circumstances. Similar fact is borne out from the testimony of Major Singh (PW-3) who had rushed to

the house of accused on being informed by Murari (PW-5). The suggestion that this witnesses Major Singh (PW-3) bore enmity with the family of the

accused, is of no consequence. Had that been Major Singh (PW-3) could have encashed the situation by involving the accused by lodging a complaint

to the police. But (PW-3) after pacifying the accused went home. There is nothing unnatural about the conduct of these two witnesses. Harishankar

(PW-4) is a person who had seen a dead body floating in the canal. He could not acknowledge the same and reported the matter to village chowkidar.

The body was decomposed. In cross-examination, he states that chowkidar had prevented him to take out the body which was pushed back in the

canal by the chowkidar. (PW-1), Heerabai, a domestic help having gone at the house of the accused on the day of Diwali also noticed that the

accused wife was not at home and when she asked Surjeet Kaur (co-accused since acquitted) she informed that the daughter in law had gone to her

maternal uncle.

(17) Since the deceased was last seen in the company of the accused at his house. In the statement under Section 313 Cr.P.C. the accused when

asked about as to whether he has to say anything about the said deceased, it is stated by him:

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(18) It is held in “State of W.B. Vs. Mir Mohammad Omar and others [(2000) SCC (Cri.) 1516]â€​ that:

“33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is

disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When

inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the

most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It

empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the

common course of natural events, human conduct etc. in relation to the facts of the case.

In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: ""When any fact is

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

The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section

would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence

of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the

court to draw a different inference.

Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible

for the prosecution to establish certain facts which are particularly within the knowledge of the accused. In Shambu Nath Mehra vs. The State of

Ajme r(1956 SCR 199) the learned Judge has stated the legal principle thus: ""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 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.

(19) In the present case, it was only after 15 days when the deceased as per accused version had left to her maternal house along with the infant that

the children of the complainant (PW-2) who had gone to the deceased noticed that their aunt (the deceased) is not seen. It was on further enquiry and

catching hold of the accused at a railway station, he confessed of having killed Sukhwindar Kaur and 7-8 months' daughter was taken to Jaura Police

Station whereon he was told that they will inform the police. On next day morning informed the police at Durgapuri Police outpost. At this stage, this

witness is declared hostile and was confronted with the dehati nalisi (Ex.P/2) whereon he admits that said report is recorded on his statement and that

at Durgapuri outpost no complaint was recorded. The complainant had done whatever he could after apprehending the culprit and it was the

investigating agency who were to respond. This rules out the contention as to delayed lodging of an FIR. In “Manoj Kumar Sharma and others Vs.

State of Chhattisgarh and another [2017(1) MPLJ (Cri.) SC 246]â€​ it is held:

“19. Whether an offence has been disclosed or not, must necessarily depend on the facts and circumstances of each case. If on consideration of

the relevant materials, the Court is satisfied that an offence is disclosed, it will normally not interfere with the investigation into the offence and will

generally allow the investigation into the offence to be completed in order to collect materials for proving the offence.â€​

(20) In case of any minor discrepancy as argued on behalf of the accused as regard to recording of the complaint will not in our considered opinion

lead to disbelieve the witnesses whereon the circumstantial chain is completed. In Mir Mohammad Omar and others (supra), it is observed:

“41. .....In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or

absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury

criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice

becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in

mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of

respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting

investigation in almost every case. ....â€​

(21) In the case at hand the prosecution having established that the deceased is missing for over 15 days past and that when last noticed was seen

beaten by the accused, the burden was on the accused to have explained the whereabouts. The accused, however, failed to discharge the onus as is

evident from his statement under Section 313 Cr.P.C. Thus, even if the extra-judicial confession, which by its very nature, is a weak piece of

evidence, is ignored, the prosecution succeeded in knitting the web of circumstances in bringing home the charges of murder and of destroying of

evidence.

(22) Having, thus, considered, we do not perceive any discrepancy in the prosecution establishing the charges and the trial court having meticulously

dwelt upon the same, the impugned conviction and sentence thereof cannot be faulted with, as would warrant any interference.

(23) Consequently, appeal fails and is dismissed. Appellant's bail bonds are cancelled and he is directed to forthwith surrender before the trial court to

undergo remaining sentence. Let the copy of this Judgment be sent to the trial court for information and necessary compliance.