Santosh Singh @ Ballu vs State of C.G.

Radhe Shyam Sharma, J.—This appeal is directed against judgment dated 31-7-2006 passed by Additional Sessions Judge, Bemetara, Durg in Sessions Trial No. 4/2006. By the impugned judgment, accused/appellant Santosh Singh @ Ballu has been convicted and sentenced in the following manner with a direction to run the sentences concurrently:-

Case of the prosecution, in brief, is as under:

Deceased Ramkunwar @ Heerabai was wife of the appellant. Their marriage was performed 12-13 years prior to the date of incident. After the marriage, the appellant used to harass and commit marpeet with the deceased. On this, the deceased went to the house of Bharat Singh Rajput (PW-5). Khedu Singh is father of the appellant who was residing at Rajnandgaon. Bharat Singh Rajput (PW-5) sent intimation to Khedu Singh. Khedu Singh took the deceased to her paternal house. The appellant went to the paternal house of the deceased to take the deceased back. On refusal of the deceased to come back, he threatened that he will kill their children. The deceased came back to her matrimonial house along with the appellant. On 1-10-2005, the appellant committed marpeet with the deceased. The appellant killed the deceased by throttling and in order to conceal, he subjected the dead body of the deceased to electrocution. Lakhan Singh (PW-2) lodged Merg Intimation (Ex. P-3) in Police Station Saja. The Investigating Officer reached the place of occurrence, gave notice (Ex. P-1) to Panchas and prepared inquest (Ex. P-2) on the dead body of the deceased. The dead body was sent to Community Health Centre, Saja for post mortem examination. Dr. Smt. Savita Minj conducted post mortem examination on the dead body of the deceased and gave her report (Ex. P-22), in which, she found-

(i) Bruise, 2X1 cm just below the angle of mandible on right side of the neck,

(ii) Bruise, 1.5 X 0.5 cm on mid line below the thyroid cartilage,

(iii) Bruise, 1.8 X 1 cm, 2 cms lateral to the injury No. (ii),

(iv) Bruise, 1.5 X 1 cm, 1 cm below the injury No. (iii),

(v) Bruise, 1.5 X 1 cm, 1 cm below the injury No. (iv),

Injuries No. (iii), (iv) and (v) situated obliquely downward and outward and one below the other these marks were looking brown parchment like above described.

(vi) Bruise 1 X 0.2 cm, below the left clavicle caused by hard and blunt object,

(vii) Bruise, 3 X 1 cm on left arm on outer surface caused by hard and blunt object,

(viii) Bruise, 2 X 2 cms, 1 cm above the left elbow,

(ix) Bruise, 0.5 X 0.2 cm, 1 cm medial to injury No. (viii) caused by hard and blunt object.

Post mortem burn injuries-

(i) 1 X 0. 5 cm on the right finger on medial surface,

(ii) 1 X 0. 5 cm on right ring finger on palmer aspect,

(iii) 1 X 0. 5 cm on the right thumb on dorsal surface on first phalanges,

(iv) 1 X 0. 5 cm on left little finger on medial surface,

(v) 1 X 3. 3 cm on left index finger on palmer surface and

(vi) 0.5 X 0. 5 cm on the base of left thumb.

She opined that mode of death was asphyxia due to throttling and the death was homicidal in nature. The appellant was also sent to Community Health Centre, Saja for medical examination. Dr. Sunil Singh (PW-12) examined him and gave his report (Ex. P-16), in which, he found 2 abrasions on left forearm joint and abrasion on neck. The injuries were simple in nature and caused by hard and blunt object. Duration of the injuries was within 24 to 36 hours.

In further investigation, memorandum statement (Ex. P-5) of the appellant was recorded u/s 27 of the Evidence Act and at his instance, rope and polyester Saree were seized vide Ex. P-6. Steel Tiffin-Box and Glass were seized vide Ex. P-13. Torn shirt, solution of flour and soil stained with solution of flour were seized vide Ex. P-14. Site-Map (Ex. P-11) was prepared by the Investigating Officer. Another site-map (Ex. P-12) was prepared by Patwari Suresh Chandra Yadav (PW-10). Regular FIR (Ex. P-17) and Regular Merg (Ex. P-18) were recorded in Police Station Saja.

After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bemetara, who, in turn, committed the case to the Court of Session, Durg, from where, it was received on transfer by Additional Sessions Judge, Bemetara, District Durg, who conducted the trial and convicted and sentenced the appellant as mentioned above.

Smt. Savita Tiwari, learned counsel for the appellant argued that the finding of guilt recorded on the basis of evidence of last seen together is not reasonable. She further argued that the appellant was not present in the house at the time of incident, therefore, he is not responsible for the death of the deceased. She further argued that the circumstantial evidence is not conclusive and it is well settled law that a strong suspicion is no substitute for a proof, therefore, the finding recorded by the learned Additional Sessions Judge is not sustainable and the appellant deserves to be acquitted.

Shri Rajendra Tripathi, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court.

We have heard learned counsel for the parties at length and have perused the record of Sessions Trial No. 4/2006. Admittedly, there is no eye-witness to the incident and the case of the prosecution is based on the circumstantial evidence.

It is a settled principle of law that in a case based on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances from which the conclusion of guilt has to be drawn, should be fully established. It is also well settled that suspicion, however grave it may be, cannot be substitute for a proof and the Court should take utmost precaution in finding the accused guilty on the basis of circumstantial evidence.

In Jagroop Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:

In Sharad Birdhichand Sarda Vs. State of Maharashtra, a three-Judge Bench has laid down five golden principles which constitute the "Panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, it was opined that it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that 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; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , this Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied: (SCC pp. 710-11, para 10)

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) 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 none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

The similar view has been reiterated in Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh,

In Balwinder Singh Vs. State of Punjab, it has been laid down that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof.

In Harishchandra Ladaku Thange Vs. State of Maharashtra, while dealing with the validity of inferences to be drawn from circumstantial evidence, it has been emphasised that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person and further the circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.

In State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SCW 640], emphasis has been laid that it is the duty of the Court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.

In Ram Singh Vs. Sonia and Others, , while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by Court. It has been stated therein that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.

In Ujjagar Singh Vs. State of Punjab, after referring to the aforesaid principles pertaining to the evaluation of circumstantial evidence, this Court stated that it must nonetheless be emphasized that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.

Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the appellant and shall see whether the prosecution has been able to prove the offence against the appellant in conformity with the above principles.

So far as the question regarding the circumstance that this is a house murder is concerned, it is not disputed that the dead body of the deceased was found in the flour-mill (house) of the appellant. Dr. Sarita Minj (PW-14), who conducted post mortem examination on the dead body of the deceased, deposed that near about 8 injuries were found on the dead body of the deceased. She further deposed that bruise injuries were present on thyroid cartilage, right side on mandible. She further deposed that injuries No. 3, 4 and 5 were appearing to be caused by fingers. She further deposed that post mortem burn injuries were present on the dead body of the deceased. Looking to the evidence of Dr. Sarita Minj (PW-14), it is established that the death of the deceased was homicidal in nature.

Lakhan Singh (PW-2), Tilak (PW-3), Darbar Singh (PW-4), Bharat Satnami (PW-6) and Laxman (PW-9) deposed that the deceased was the wife of the appellant. They further deposed that the deceased was lying dead in the flour mill of the appellant (situated in the house of the appellant). Laxman (PW-9) deposed that an electrical wire was wrapped in the hand of the deceased. Tilak (PW-3) deposed that bowl and glass were lying on the roof of the house of the appellant in which some white solution was lying whose water had dried.

Bharat Singh Rajput (PW-5) deposed that quarrels took place between the appellant and the deceased many times and the appellant used to commit marpeet with the deceased. 1 month prior to the date of the incident, the appellant committed marpeet With the deceased. The deceased had come to his house, whom he had taken to the house of Darbar Singh (PW-4). Darbar Singh (PW-4) deposed that the deceased had come to his house and said that she will go to her maternal house. He informed Khedu Singh, father of the appellant, who was residing in Rajnandgaon. He further deposed that Khedu Singh had come to his house and Khedu Singh had taken the deceased to her maternal house.

Arjun Singh (PW-7) deposed that the deceased was his daughter. 4 years prior (to the date of his deposition), the appellant had come to his house along with the deceased and had demanded partition of property. He further deposed that he told the appellant that he had 4 sons and 7 daughters and he had not given any share to any one in the property. Therefore, he was unable to give him any share in the property. He further deposed that in the month of Bhado, Khedu Singh, father of the appellant had taken the deceased to his house. He further deposed that the appellant had come to take back the deceased but he had refused. He further deposed that the appellant again came to take back the deceased after few days, but he again refused. On this, the appellant threatened that if the deceased will not go back to her matrimonial house, he will kill his children by giving them poison. Thereafter, the deceased had gone to the house of the appellant along with him. After 8 days of going the deceased to the house of the appellant, he received intimation of death of the deceased. He further deposed that he had seen the dead body of the deceased. A mark was present on the neck of the deceased and marks of electrocution were present on both the palms.

Patwari Suresh Chandra Yadav (PW-10) deposed that he prepared site-map (Ex. P-12). From perusal of Ex. P-12, it appears that the place of occurrence was the flour mill of the appellant which was situated in the house of the appellant. A.S.I. Shivshankar Singh (PW-13) deposed that he also prepared site-map (Ex. P-11). From perusal of Ex. P-11 also, it appears that the place of occurrence was the flour mill of the appellant which was situated in the house of the appellant. In inquest (Ex. P-2) also, it is mentioned that the dead body of the deceased was lying in the mill of the appellant.

In Trimukh Maroti Kirkan Vs. State of Maharashtra, , the Hon''ble Supreme Court observed as follows:

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions 1--quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2.) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

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 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.

In State of Rajasthan Vs. Kashi Ram, the Hon''ble Supreme Court observed as follows:

19... whether an inference ought to be drawn u/s 106 Evidence Act is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.

23... The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his epical knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain....

These principles have been further reiterated in the matter of State of Rajasthan Vs. Parthu,

In the instant case, learned counsel for the appellant has argued that at the time of incident, the appellant was not present at the place of occurrence. He had gone to Village Deokar and he returned at about 8-8:30 P.M. His house was closed from inside. He knocked the door, but it was not opened from inside. He entered his house jumping the wall. He searched for his wife (the deceased), but she was not found. He went to the flour mill, where he saw that the deceased was lying dead.

Darbar Singh (PW-4) deposed that the appellant returned from Deokar at about 8 P.M. The appellant told to Kotwar Laxman (PW-9) that his wife (the deceased) was lying dead in the flour mill. Bharat Singh Rajput (PW-5) also deposed that the appellant returned from Deokar. The appellant shouted at the door of his house that the deceased was lying dead.

Kamta Prasad (DW-1) deposed that on the date of incident, he had gone to Deokar along with the appellant on a motorcycle, from where, they had returned at about 8 P.M. Dinesh Singh (DW-2) deposed that he had seen the appellant and Kamta Prasad (DW-1) near the tank.

Shubham (PW-8), who is son of the appellant and the deceased, deposed that they are 4 brothers and sisters. They had returned from their school at about 4 PM. They went to play and returned their house at about 6 PM. Thereafter, the deceased cooked food for them. They took the dinner and went to bed for sleeping. Looking to the evidence of Shubham (PW-8), it appears that at about 8-8:30 PM., he and his brothers and sisters were at their house. He is aged about 11 years. Had the appellant knocked the door, Shubham (PW-8) would have opened it.

The incriminating circumstances, which point towards the guilt of the appellant, were put to the appellant u/s 313 Cr.P.C.

The defence taken by the appellant in his examination u/s 313 Cr.P.C. is as follows:

The object of recording the statement of accused u/s 313 Cr.P.C. is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses in relation to his involvement or otherwise in the crime.

The defence of the appellant is that he was not present in the house and he had gone to Deokar. Looking to the evidence of Dinesh Singh (DW-2), it appears that the appellant returned from Deokar at about 8 PM. Dr. Sarita Minj (PW-14) deposed that she conducted post mortem examination on the dead body of the deceased on 2-10-2005 at about 4 P.M. She further deposed that she found above ante mortem injuries on the dead body of the deceased. She further deposed that the death was 24 to 30 hours prior to post mortem examination. She further deposed that the deceased sustained post mortem burn injuries.

A.S.I. Shivshankar Singh (P W-13) deposed that he had sent the appellant to CHC, Saja for medical examination. Dr. Sunil Singh (PW-12) deposed that he examined the appellant and gave his report (Ex. P-16), in which, he found 2 abrasions on left forearm joint and abrasion on the neck. The injuries were simple in nature and caused by hard and blunt object. Duration of the injuries was within 24 to 36 hours. The duration of the death of the deceased was 24 to 30 hours prior to post mortem examination and duration of the injuries of the appellant was within 24 to 36 hours. It appears that the time of the death of the deceased and the injuries sustained by the appellant is same. The appellant did not offer any explanation for the injuries sustained by him.

A.S.I. Shivshankar Singh (PW-13) deposed that on 2-10-2005, the inquest (Ex. P-2) was prepared by him in presence of Tahsildar, Saja. He further deposed that he prepared site-map (Ex. P-10).

The death of the deceased was due to throttling (strangulation). The deceased was lying in the flour mill of the appellant. According to the appellant, he knocked the door, but it was not opened from inside. He entered his house jumping the wall. He searched for his wife (the deceased), but she was not found. He went to the flour mill, where he saw that the deceased was lying dead. On appreciation, we find that the defence of alibi taken by the appellant is not reliable and the appellant has not been able to prove his defence of alibi.

Looking to the evidence of Bharat Singh Rajput (PW-5), the appellant committed marpeet with the deceased. Arjun Singh (PW-7) deposed that in the month of Bhado, the appellant committed marpeet with the deceased. Khedu Singh took the deceased to the house of Arjun Singh (PW-7). The appellant had gone to the house of Arjun Singh (PW-7) to take back the deceased and on refusal, he had threatened to kill his children. The relation between the deceased and the appellant was strained. Thus, it appears that the appellant had motive to kill the deceased. The appellant also sustained injuries, but he did not offer any explanation for the injuries sustained by him.

The appellant failed to offer a reasonable explanation and discharge of burden placed on him u/s 106 of the Evidence Act and he did not throw any light upon the facts which were in his knowledge. He has not thrown any light as to how the deceased was killed and how she received injuries and in what circumstances the incident took place in which the deceased died a homicidal death.

In light of the above discussion, we do not find any infirmity in the finding recorded by the learned Additional Sessions Judge that it was the appellant who caused the injuries on the body of the deceased and the deceased died on account of the injuries caused by the appellant. The appeal is devoid of merit; it deserves to be and is hereby dismissed.