Rampratap Kumhar, vs The State of Madhya Pradesh

This appeal has been filed by the appellant, being aggrieved by the judgment dated 19.09.2007, passed by Third Additional Sessions Judge,

Fast Track Court, Shahdol in S.T. No. 305/2006, whereby appellant has been found guilty for the offence punishable under Sections 302 of the

Indian Penal Code and has been sentenced to imprisonment for life and fine of Rs.500/-, with a stipulation for three months simple imprisonment in

case of default.

The prosecution story, in brief, is that, on 25.07.2006 in the evening, accused had beaten up his wife deceased Phagunibai and inserted a

wooden stick in her private part, on account of which she sustained internal injuries and died.

According to the prosecution, accused Rampratap lived alone with his wife Phagunibai, separated from his only son Shobhalal. On 25.07.2006,

he beated his wife and caused injuries to her private parts by inserting a wooden stick in such a manner that she bleeded profusely. On coming to

know this, their son Shobhalal (P.W.-2) went to inform his maternal uncle Sudarshan Prajapati (P.W.-18), living at village Meduka. As per

prosecution, Phagunibai died at 6 A.M. on the next day, i.e., 26.07.2006. Thereafter at 7.00 A.M., Dhukku, elder brother of the accused

informed Tularam (P.W.-1), regarding the death of Phagunibai, who then lodged a report to this effect (Ex.P-2) at 11.30 in the morning at Police

Station Jaithari, wherein he has stated that on 26.07.2006 at 7.00 A.M. in the morning, Dhukku informed him that accused has killed his wife. On

enquiring from accused Rampratap in the presence of Ramlal and Nemshay, he confessed that he had seen deceased in compromising position

with Bindershwari Pandit, as a result, a fight ensued between them and he pushed a wooden stick inside her private part, which resulted into her

death.

On the basis of FIR (Ex.P-2), a case under Section 302 of the I.P.C. was registered at crime No. 181/2006. Statement of the witnesses were

recorded. Body of the deceased was sent for postmortem. The accused was arrested and on his direction, blood stained saree and wooden stick

were recovered from his house.

Dr. Preeti Sharma (P.W.-14), who conducted the autopsy found the following injuries on the body of the deceased :-

P/v bleeding present on separation of labia oedema and laceration in labia majora, minora and vaginal wall.

Ruptured and teared left lateral wall of cervix and lateral cervix. Massive amount of blood filled in pelvic and abdominal cavity.

Apart from this, no other injury was found on the body of the deceased. In the opinion of the doctor, the cause of death was rupture of lateral wall

of cervix-pelvic internal organs leading to massive internal bleeding leading to shock and resulting to cardio-respiratory failure.

After completion of the investigation, charge sheet was submitted against the accused. To substantiate the charge, on behalf of the prosecution,

total 19 witnesses were examined. The accused abjured his guilt and pleaded false implication. His stand was that the deceased fell down over the

stick , used to tie the cattles and received injuries in her private parts, alternatively it was stated that she fell down over the wooden handle of

''chakki'' used for grinding atta.

The trial Court after detailed scrutiny of the evidence of record, found the appellant guilty as charged and convicted and sentenced him as

aforesaid.

Shri Jai Singh Thakur and Shri Siddharth Sharma, learned counsel appearing for the appellant have assailed the judgment contending that it was

a case of circumstantial evidence and there were no eye witnesses. It is urged that there is material omission and contradiction in the FIR, case

diary statements and the court statement of the witnesses, which render their evidence untrustworthy. It is further submitted that P.W.-1 Tularam,

P.W.-2 Shobhalal, P.W.-3 Ashok Kumar, P.W.-4 Nemshay, P.W.-6 Radhelal and P.W.-8 Dhaniram have not supported the prosecution story

and were declared hostile and under such circumstances, the appellant could not have been convicted as aforesaid.

Shri Sudeep Deb, learned Govt. Advocate appearing for the State, on the other hand, has made submissions in support of the impugned

judgment contending that the view taken by the trial Court was reasonable, having regard to the evidence on record.

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

It is settled law that evidence of hostile witnesses can be relied upon to the extent to which it supports the prosecution version.

In (1980) 1 SCC 30 Syad Akbar Vs. State of Karnataka the Supreme Court has held:

As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale,

merely on the ground that the prosecution had dubbed him ''hostile'' and had cross- examined him. We need say no more than reiterate what this

Court said on this point in Sat Paul v. Delhi Administration (1):

Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his

evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a

result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his

testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the

evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony

which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the

witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.

The Supreme Court in State of U.P. Vs. Ramesh Mishra and another AIR 1996 SC 2766 has held that:

It is equally settled law that the evidence of hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but

it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be

accepted. In K. Anbazhagan v. Superintendent of Police and Anr., (AIR 2004 SC 524), this Court held that if a court finds that in the process the

credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due

caution, accept, in the light of the evidence on the record that part of his testimony which it finds to be creditworthy and act upon it. This is exactly

what was done in the instant case by both the trial court and the High Court and they found the accused guilty.

Shobhalal (P.W.-2), son of the deceased, though had been declared hostile, as he had stated that he was in the field at the time of incident and

has no knowledge about the dispute between his parents, but in his cross-examination has admitted that at the time of his mother''s death, only his

father was present in the house. He has further admitted that his parents used to quarrel and fight a lot on account of the fact that his mother had

illicit relations with Bindeshwar Pandit. He has further stated that at 6.30 A.M. in the evening, he found his mother lying down and on asking, she

has told him that accused has beaten her. He has further stated that he asked his father to call the doctor, on which the accused has called Sitaram

(P.W.-11), who suggested that Phagunibai be taken to the hospital. He has further stated that on her mother''s asking, he went to call his maternal

uncle Sudarshan Prajapati (P.W.-18), where he came to know that his mother had already died.

Testimony of P.W.-2 Shobhalal finds corroboration from the statement of P.W.-11 Sitaram, who had clearly stated that the accused came to

call him to treat his elder brother Dhukku, where he found the deceased sitting in a pool of blood and advised Shobhalal to take her to the

Hospital, on which P.W.-2 Shobhalal has replied that ""VERNACULAR MATTER OMITTED""Sitaram has further stated that on the very next

day he came to know about the death of Phagunibai.

Sudarshan Prajapati (P.W.-18), brother of deceased has corroborated that Shobhalal (P.W.-2) came to his house and informed him about the

incident and the condition of his mother, but by the time they reached on the next day, Phagunibai had already died. He has further confirmed the

fact that the accused and deceased were living alone. According to him, deceased had earlier informed him that the accused used to fight with her,

as he had suspicion about her having illicit relationship with others. This witness has further stated that 10-12 days prior to the incident, the accused

had made a compromise with the deceased and had written a note (Ex.P-20) that he would not fight with his wife.

P.W.-1 Tularam, who has lodged the FIR has also been declared hostile. However, in his crossexamination, he has stated that the accused

confessed before him, in presence of Ramlal that he has committed the crime as alleged. However, Ramlal (P.W.-10) denied going to the house of

accused. However, Tularam has proved Ex.P-6, i.e., the seizure of blood stained dhoti and wooden stick, which were recovered at the instance of

the accused.

In the instant case, the statements of the hostile witnesses cannot be discredited altogether. The evidence of Shobhalal (P.W.-2), Suradshan

Prajapati (P.W.-18) that accused and deceased were living alone and she was found injured in the house a day prior to the date of her death was

corroborated and established by Sitaram (P.W.-11) and Dhaniram (P.W.-8). We find that the same is creditworthy and can be relied upon.

The law regarding basis of conviction by the Courts on circumstantial evidence is well settled. In Sharad Birdhichand Sarda Vs. State of

Maharashtra AIR 1994 SC 1622, while dealing with circumstantial evidence, the Supreme Court has held that :-

The onus was 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:

(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 theinnocence of the accused and must show that in

all human probability the act must have been done by the accused.

In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 1 SCC 681 the Supreme Court held :-

In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The

normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be

drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards

the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the

conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on

any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

In the instant case, though there is no direct evidence against the appellant, but the facts and circumstances of the case clearly established the

involvement of the appellant in the crime. The series of facts that the accused and the deceased were living alone in the house and at the time of

incident, that the accused was alone in the room with the deceased, that deceased admittedly suffered injuries in the house a day prior to her death,

which is also established from the evidence of Shobhalal (P.W.-2), Sitaram (P.W.-11) and Dhaniram (P.W.-8) and the fact that despite advised

by Sitaram (P.W.-11), she was not taken to the hospital, clearly points towards the guilt of the accused. If the deceased had injured herself by

falling on the wooden stick , the natural course of conduct of the husband would be to take her immediately to the hospital, but in the present case,

as evident from record, the deceased was left untreated, uncared for to suffer the injuries. Apart from this fact, if the deceased had fallen on the

wooden stick and injured herself, in that situation her dhoti/saree would have been torn but the same is not found so in the present case. It is

pertinent to note that Anil Kumar Shukla (P.W.-19), who conducted the investigation has found blood only in the room, where body of deceased

was found. The spot map (Ex.P-10), as well as the statement of I.O., does not mention anything about any ''khuta'' being found in the house. The

I.O. has stated that the wooden stick and dhoti were recovered at the direction of accused vide Ex.P-6 and the same was proved by Tularam

(P.W.-1).

Moreover, from the postmortem report, which clear mentions that p/v bleeding was present on separation of labia oedema and laceration in

labia majora, minora and vaginal wall. The left lateral wall of cervix and lateral cervix were ruptured and teared. Massive amount of blood filled in

pelvic and abdominal cavity. Therefore, it is clear that such deep internal injuries received by the deceased could not have been the result of fall, as

no other injury was found on the body of the deceased. Once the prosecution has been able to show that at the relevant time, the room was in

exclusive occupation of the couple, the burden of proof lay upon the appellant to show under what circumstances death was caused to his wife.

The onus was on him. He failed to discharge the same.

In (2007) 12 SCC 288 Swamy Shdaddananda alias Murali Manohar Mishra Vs. State of Karnataka, the Supreme Court has observed that if

it is proved that the deceased died in an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires

the husband to offer an explanation in this behalf, however, do not intend to lay down a general law in this behalf as much would depend upon the

facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance

against the accused.

In Nika Ram Vs. The State of Himachal Pradesh AIR 1972 Sc 2077, the Supreme Court has held:

It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the

statements of Mani Ram (PW 8), who is the uncle of the accused, and Bhagat Ram school teacher (PW 16). According to Bhagat Ram, he saw

the accused and the deceased together at their house on the day of occurrence. Mani Ram (PW 8) saw the accused at his house at 3 p.m., while

Poshu Ram, (PW 7) saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does not deny

that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, consists of one residential

room one other small room and a varandah. The correctness of that plan is proved by A. R. Verma overseer (PW 5). The fact that the accused

alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the

deceased, as would be shown hereafter, were strained would, in the absence of any cogent explanation by him, point to his guilt.

From the aforesaid analysis of material on record and the preposition of law laid down by the Apex Court, it is apparent that the prosecution

has firmly established the chain of evidence leading to the guilt of the appellant. The commission of the offence by the accused person has been

clearly established and the trial Court has rightly considered the statements of the witnesses and the documents on record, in recording a finding of

guilt against the appellant. Therefore, we do not find any illegality or perversity in the finding of guilt recorded by the trial Court.

Accordingly, the appeal filed by the appellant, being devoid of merit is accordingly dismissed. The conviction of the appellant under Section

302 of the I.P.C. is affirmed and upheld. Appellant Rampratap, who is in jail shall remain incarcerated to undergo the remaining part of their jail

sentence