RAHUL GUPTA vs STATE OF M P AND ANOTHER

In the instant appeal preferred under Section 374(2) of

the Code of Criminal Procedure [for brevity `the Code''] challenge

has been made to the judgment of conviction and sentence dated 13-

02-2009 passed by the learned Sessions Judge, Bhopal in S.T.

No.294/2006 whereby the accused-appellant has been convicted

under Section 302 of the Indian Penal Code [for short `the IPC ''] and

sentenced to undergo imprisonment for life with fine of Rs.5000/-,

in default, to suffer further rigorous imprisonment for one year.

The prosecution case, briefly stated, are that the

deceased is Dr. Sugandha, who was married to the present appellant

about 18 years prior to her death which is alleged to have taken

place in the intervening night of 8/9-7-2006 at Bhopal. As alleged,

the accused-appellant made a telephonic call to the police informing

that when he came to his residence he found that his wife - the

deceased was lying in a pool of blood. The police reached to the

spot and prepared `panchnama'' of the dead-body and referred the

same for postmortem examination.

An FIR was registered on 9-7-2006 at about 07:05 AM.

The accused-appellant is also said to have informed his brother-in-

law, Shambhu Singh Gahlot (PW-2) on telephone, who informed the

mother of the deceased, Tarabai (PW-4). They reached Bhopal from

Hingoli (Maharashtra). When the appellant was suspected by the

police he was interrogated. He tried to mislead the investigation and

at his instance three 0.22 gun was recovered along with an empty

cartridge from the house of father of the appellant. During autopsy

a led was recovered from the body of the deceased. The report

reveals that she died as a result of gunshot injury. The gun so

recovered was sent for forensic analysis and ballistic report

(Ex.P/24) was obtained by the prosecution.

The accused-appellant was charged under Section 302

of the IPC and under sections 25 and 27 of the Arms Act, 1959.

Other co-accused were also charged in respect of offence punishable

under section 30 of the Arms Act.

The prosecution examined as many as 15 witnesses and

defence also chose to examine two defence witnesses.

Appreciating the evidence brought on record, the

learned trial Court acquitted other co-accused persons, namely,

Ravindra Singh (A-2) and Shashi Bhushan Singh (A-3) of the

charges framed against them and the present appellant has also been

acquitted of the charge under Sections 25 and 27 of the Arms Act,

however, convicted and sentenced him under Section 302 of the IPC

as mentioned above.

Per contra, learned counsel for the State supported the

order of conviction and submitted that the circumstantial evidence

available in the present case has established the case against the

appellant beyond any reasonable doubt and further that the

appellant has tried to mislead the investigation by getting three .22

rifles recovered .

To appreciate the rival contentions raised at the Bar, we

consider it appropriate to first consider the testimony of PW-1, Arti

Asthana, PW-2, Shambhu Singh Gahlot, PW-3 Arti Sinde and PW-

4 Tara Bai. Arti Asthana(PW-1) is a counsellor in Family

Consultation Centre, T.T. Nagar, Bhopal. She has proved that the

deceased had come to her office for the consultation and has

narrated that her husband used to quarrel with her and he was having

extramarital relations with other woman. From her cross

examination, there is nothing to suggest that there was any reason to

falsely implicate the present appellant. PW-2 Shambhu Singh Gahlot

is brother of the deceased, who has deposed that the appellant used

to quarrel with the deceased, as the deceased was not having any

issue. He has also stated that on 08-07-2006 the accused called him

and informed that his sister was lying in a pool of blood. He has

informed the same to his mother. PW-4 Tara Bai is mother of the

deceased. She has also stated that the relations between the deceased

and the appellant were bitter and the appellant used to quarrel with

her daughter, as it was informed by the deceased that the appellant

was having extra marital relation with the other woman. Another

independent witness PW-3 Arti Shinde, who was posted as Sub

Inspector in Police Station T.T.Nagar Bhopal was examined by the

prosecution to prove that the deceased had submitted a complaint

before her regarding the harassment being caused by her husband

and brother-in-law Ravindra Singh. These witnesses have proved the

fact that the relations between the appellant and the deceased were

bitter and not cordial and the appellant used to quarrel with the

deceased because of his extra-marital relations with the other ladies.

R.S. Ghuraiya (PW-14) the Investigating Officer has deposed that he

received telephonic call from the appellant and when he had gone to

the spot, the appellant was present there. He had prepared the

panchnama Ex.P-14 and the other map etc. He has also carried out

the seizure of rifle and one empty cartridge vide Ex.P-6 from the

house of the father of the appellant on his disclosure statement. On

the basis of the disclosure statement of the appellant, other rifles

were also seized. He has sent these seized weapons for chemical

examination. The FSL report with ballistic opinion has been filed as

Ex.P-24. The .22 bore gun with Magazine No.03310037 was seized

on which it was written "Sporting Rifle in English". The said

recovery was made on the disclosure statement of the appellant

from the house of his father Jitendra Singh from a hidden place.

Another .22 bore rifle with telescope on which in English TASCO 3-

9 x 40 was written, the same was recovered on the disclosure

statement of the appellant from the house of Chandan Singh Yadav.

Another rifle .22 bore was got recovered from the house of one

Rishi Kumar Singh, which was said to be in the name of father of

the appellant Jitendra Singh. The same was recovered vide Ex. P-

He has sent these seized weapons for chemical examination. The

gun .22 bore in which it was mentioned " Make-Indian"

No.033100327 was marked as Ex.A-1 was sent for chemical

examination. The rifle seized with telescope was marked as Rx.A-2

and rifle in which it was mentioned made in ''England'' was

marked as Ex.A-3. The empty cartridge Article-F was marked as

Ex.EG. The ballistic expert had mentioned in his report that all the

three weapons, Ex.A-1, Ex.A-2 and Ex.A-3 have been found to be

in working condition. He further opined that by use of these guns,

fatal injury could have been caused. After examining empty bullet

as there was marks of firing pin, he opined that the empty

cartridge could have been fired by the rifle Ex.A-2 and also

opined that the led EB-1 was fired with the rifle, Ex.A-1.

Thus, though the seizure of the weapons has not been

supported by the independent witnesses but was supported by PW-

14 R.S. Ghuraiya, the Investigating Officer and the ballistic expert

report made it clear that the led which was recovered from the dead

body has been found to be fired by A-1 .22 bore rifle. The recovery

of the empty cartridge has not been recovered from the spot but

from the house of the father of the appellant. The led was

recovered from the dead body of the deceased and has been found

to be fired by A-1 .22 bore rifle. As per the postmortem report and

the testimony of PW-9 Dr.C.S.Jain, it was found that there was

wound surrounded by blackening which proves that the fire was

made from a short distance. Thus, the story of the defence that the

deceased used to play with the cats on the terrace of the house

and the possibility was that somebody fired from the outside

cannot be plausible in view of the specific postmortem report as

the bullet was fired from a close distance. Admittedly, the incident

had taken place in the house of the appellant and there is no

evidence to establish that there was not possibility of the access of

a third person at the spot.

On scanning of the entire facts, circumstances and the

evidence, the following circumstances are established against the

appellant:-

(i) The witnesses PW-1 Arti Asthana, PW-2

Shambhu Singh Gahlot, PW-3 Arti Shinde and PW-4

Tara Bai had established that the relations between

the appellant and the deceased were bitter and she

had made a complaint to the Counsellor PW-1 Arti

Asthana and PW-3 Arti Shinde, Sub Inspector about

the harassment and beating by her husband because

of this extra-marital relations with other ladies.

(ii) The incident had taken place in the house of

the appellant, which is a strong fact against him. It has

come out from the evidence that on the ground floor,

there was a restaurant and the residence of the

appellant was on the first floor. The appellant was also

found present near the dead body of the deceased. He

had made a mobile call to the Investigating Officer

and when he reached at the spot, he was present there.

In the cross examination of all the witnesses or in the

defence, nothing has been proved that there was any

access to the residence of the appellant by any third

party.

(iii) The death of the wife deceased had taken place

in the house of the appellant and the strong

presumption was against him but no plausible

explanation regarding the death of his wife has been

offered by him.

In this regard, 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 and 19 :-

"16. Way back in Shambhu Nath Mehra v. State of Ajmer [2] 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."

In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra [3] 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."

Reliance was placed by this Court on Ganeshlal v. State of Maharashtra [4] 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 [5] 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."

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 the 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 the 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.

(iv) The defence that the bullet was fired was made

from the outside of the house can also not be accepted

in view of the medical evidence as there was blackening

near the injury on the body of the deceased, which

proves that the bullet was fired from a close distance.

(v) In addition to this, the report of the ballistic expert

that the led recovered from the dead body was found to

be fired by gun Ex.A-1, which was recovered on the

disclosure statement of the appellant. PW-9, Dr. C.S.Jain

has stated that there was a firearm injury on the chest of

the deceased which was in oval shape and there was

blackening around the wound. He has further stated in

para-5 that he has recovered a bullet from the dead body

of the deceased and his report is Ex.P-8.

Thus, on the evaluation of the entire facts,

circumstances and the evidence, we find that the prosecution has

successfully proved its case beyond any doubt and the chain of

circumstance as discussed herein above, is complete. The evidence

of the prosecution is trustworthy and inspires confidence in the mind

of this court and there is no material to believe that the appellant

has been falsely implicated in the present case, in absence of

plausible explanation regarding the death of the wife in his house.

Accordingly, we do not find any merit in the appeal. Hence

the appeal sans merit and is hereby dismissed.