Smt. Mamta Singh vs Arun Singh Thakur

This criminal appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the Cr.P.C. in short) against the judgment dated 15.03.2013 passed by the 1st Additional Sessions Judge, Manendragarh, Place Baikunthpur, Dist.

Korea in Sessions Trial No. 107/2012 whereby the appellant has been convicted for having committed an offence punishable under Section 302 of the

Indian Penal Code (for brevity, the IPC) and sentenced to life imprisonment with fine amount of Rs.1,000/- and, in default of payment of fine amount,

he has to undergo additional rigorous imprisonment for three months.

Briefly stated, case of the prosecution is that on 08.08.2012, the appellant Ramsundar went to his agricultural field along with his mother

Phuleshwari Bai, wife Jayakumari, son Vinod Kumar and some other labourers, for transplanting seedlings of paddy and returned home in the evening

at about 5 0' clock after doing their work in the field. In the night at about 09.00 PM some cries for help of appellant's wife came all of a sudden from

the appellant's room. Upon hearing so, the appellant's uncle Samrath rushed towards there along with his wife Rajo Bai, sister-in-law Phuleshwari Bai

and others and tried to open the door but it was not opened by the appellant and instead he shouted at them to go away. They returned to their

respective rooms when the appellant declined to open the door despite several efforts being made. It is alleged further by the prosecution that on the

next day morning at about 3 0' clock family members of the appellant again went to the room of the appellant and saw the dead body of the deceased

Jayakumari lying on the floor and the appellant was not found in the room.

Based upon the aforesaid incident, F.I.R. (Ex.P.13) was lodged by the appellant's uncle Samrath Ram on 09.08.2012 at 12.10 PM narrating the

aforesaid incident in detail. Merg intimation was thereafter lodged by him vide Ex.P. 14. Inquest of the dead body was conducted vide Ex.P.3. After

inquest, the dead body of the deceased Jayakumari was sent for autopsy to Community Health Center, Patna, District Korea where Dr. S.H.Shende

(P.W.13) conducted post-mortem examination of the deceased and submitted its report vide Ex.P.15 noticing several injuries, including injuries on vital

part, of her body and opined that the deceased died of severe haemorrhagic shock occurred due to injuries on vital organs of her body resulting in

ruptures of her both lungs. Disclosure statement (Ex P.8) of the appellant led to the recovery of bloodstained undergarments like vest (baniyan) and

Chadda from him vide seizure memo (Ex.P. 9)

After usual investigation of the matter as such, the offence punishable under Section 302 IPC has been registered against the appellant by the

Station House Officer, Patna, Dist. Korea, who submitted its final report before the Chief Judicial Magistrate, Baikunthpur and the matter was

thereafter committed to the 1st Additional Sessions Judge, Manendragarh, place Baikunthpur for its trial.

After considering the prima facie materials available on record, charge under Section 302 of IPC has been framed against the appellant on

09.11.2012, who in turn, pleaded not guilty and, claimed to be tried.

In order to bring home the guilt of the appellant, the prosecution examined as many as 16 witnesses while none was examined by the appellant in his

defence.

After considering the evidence led by the prosecution, the trial Court, vide its impugned judgment, has convicted the appellant and sentenced him as

aforesaid.

Being aggrieved, the appellant has preferred this appeal. Shri Ajay Mishra, learned counsel for the appellant submits that the judgment under appeal

as passed by the trial Court is apparently contrary to law as the same has been passed without considering the evidence in its proper perspective. He

submits that there is no eyewitness account to the incident, all the material prosecution witnesses have turned hostile, Doctor who conducted the post-

mortem examination has not stated about the death to be homicidal in nature and based upon such weak circumstantial evidence, the trial Court ought

not to have convicted the appellant in connection with the offence punishable under Section 302 IPC.

On the other hand, Shri Satish Gupta, learned counsel for the State has supported the impugned judgment by submitting that the appellant and his

wife both were found together in their room and in absence of probable and plausible explanation offered by the appellant, the trial Court has rightly

convicted him.

We have heard learned counsel for the parties and perused the entire record carefully.

Samrath (P.W.1) is the uncle of the appellant and is stated to have lodged F.I.R. (Ex.P.13) and merg intimation (Ex.P.14), however, has turned

hostile without supporting the prosecution case. Roopsai (P.W.2) is also the uncle of the appellant and he has also been declared hostile. Phulmath

(P.W.3) is the mother of the deceased but she has also turned hostile without supporting the prosecution story. Phuleshwari (P.W.15) is the mother of

the appellant and has turned hostile without assisting the prosecuting case. Likewise, Rajobai (P.W.16), aunt of the appellant has also turned hostile.

Shriram (P.W.4) is the brother of the deceased and was the witness to the inquest (Ex.P.3) and has stated in his evidence that he came to know from

the police officials that the appellant has killed his sister.

Vinod Kumar (P.W.5) is the son of the appellant, though turned hostile but has stated in his evidence that a day prior to the death of his mother, he

went to the field along with his father (appellant), mother (deceased) and grandmother for sowing seedlings in the agricultural field and has stated

further that after returning from the field he had gone for wandering and returned home in the night at bout 9.00 PM and at that time his father and

mother both were present in their room. This witness has, however, in his cross-examination stated that his father was not present at home on the date

of incident but when he was confronted from his earlier statement by the Court, he kept silent and did not reply to the Court's query. It appears that he

is trying to protect his father else he would have replied.

Mangal Singh (P.W.6) and Devnarayan (P.W.7) have turned hostile without supporting the prosecution case. C.K.Paikra (P.W.8) is Patwari, who

prepared the spot map (Najri Naksha) vide Ex.P.5. Laajar Kumar (P.W.9) is a Constable who took the dead body for its post-mortem examination.

Naresh Lakda (P.W.10) is also Constable, who deposited the seized articles in the Forensic Science Laboratory for its examination. Om Prakash

Singh (P.W.7) and Thobiyus Kumar (P.W.14) are also Constables and are formal witnesses. K.P. Gupta (P.W.12) is an Investigating Officer and has

assisted the prosecution case.

S.H.Shende (P.W.13) has conducted post-mortem examination of the dead body of deceased and noticed the following injuries :-

“e`rdk ds 'kjhj ds fupys fgLls esa iSjkekfVZl ekStwn Fks A mldh nksuksa ukfldkvksa esa jDr nzO; ekStwn Fka A mlds eqag ds vklikl jDr yxk gqvk

Fkk A mldh nksuksa vka[sk can Fkh A eqag vkf'kd :i ls [kqyk gqvk FkkA nksuks vkW[kksa dh dkfuZ;k /kqfey Fkh ,oa iqrfy;kW Qsyh gqbZ FkhA

cka;s rjQ dh VsEiksjy] esaMhoqyk] eSDLkfy;u vfufer {ks= es ,d ls vf/kd ysljs'ku tks cka;h dku ds ckgjh rjQ rd Qsyh Fkh] tgkW dku ds Hkhrj jDr

L=ko gks jgk FkkA mijksDr pksV 12 x 9 ls-eh- ds {ks= ,oa peMh dh xgjkbZ rd Fks A Nkrh dh vxys Hkkx esa mlds mijh rjQ esa nksuksa Lruksa ds

{ks= esa rFkk nkfguh rjQ ds Ldsiqyk ,fj;k ds mij Hkkx esa daV;wtu Fkk A e`rdk ds I;wfcd ,fj;k rFkk mlds mijh fgLls rd ds nksuks rjQ daV~;wtu

ekStwn Fks] daV~;wtu vkMh FkhA flj ds mij [kksiMh ds ck;h rjQ es gM~Mh vanj dh vksj /kalk gqvk FkkA mijksDr lHkh pksVsa jDr ls Hkjh gqbZ

Fkh rFkk e`R;w iwoZ dh FkhA ckgj ls ns[kus ij mijksDr pksaVs 'kjhj es ik;h xbZ FkhA

3- vkarfjd ijh{k.k djus ij & cka;k VsEiksjy VqVdj vanj /klk gqvk FkkA [kksiMh ds vanj VqqVs gq, Hkkx rFkk vklikl es [kqu dk tek gqvk FkDdk

ekStwn FkkA efLr""d dh f>fYy;kW rksMus ij cka;as rjQ ds lsjsczy ,fj;k es tek gqvk jDr dk FkDdk FkkA efLr""d ds lHkh f>fYy;kW jDr ls luh gqbZ

FkhA Nkrh ij ckgjh ijh{k.k es pksaV ik;k x;k FkkA blds vykok nksuks rjQ dh ilfy;kW dzaekad&3 ls 8 rd dh VqVh gqbZ ik;h xbZ FkhA QqlQql

LokLFk FkkA 'okluyh] daB LokLFk vkSj [kkyh FkkA nksuks QsQMs QVs gq, FksA dSosfV es jDr tek gqvk FkkA nksukas g`n; [kkyh Fkk] isV dk

inkZ [kkyh vkSj LokLFk FkkA vkarks dh f>Yyh datsLVsM FkhA ,CMkfeuy dSfoVh es jDr tek gqvk FkkA eqag rFkk xzkluyh LokLFk FksA LVed

dSfcVh LoLFk FksA Hkhrjh inkZ datsLVsM FkkA NksVh vkar es nzO; inkFkZ ,oa xSl Hkjk gqvk FkkA cM+h vkar es ey rFkk xSl Hkjk gqvk FkkA

cMh vkar esa ey rFkk xSl Hkjk gqvk Fkk A yhoj Liyhu rFkk xqnkZ gYds ihykiu fy, gq, FkkA ew=kl; [kkyh FkkA Hkhrjh vkSj ckgjh tuusfUnz;kW

LoLFk FksA

After noticing aforesaid injuries, Dr. S.H.Shende (P.W.13) submitted its report vide Ex.P.15 giving opinion regarding death of deceased, which

reads as under:-

4- esjs erkuqlkj e`rd dh e`R;w nksuks QsQMs QVus ds dkj.k vR;f/kd jDr L=ko gkus ls flfo;j gsejsftd 'kkWd ls gqbZ FkhA e`frdk dh e`R;w dh vof/k 30

ls 36 ?kaVs ds Hkhrj FkhA esjh fjiksVZ iz0ih0 15 gS] ftlds c ls c ,oa n ls n Hkkx ij esjs gLrk{kj gSA

Upon close scrutiny of the entire evidence adduced by the prosecution, it is evident that on the date of incident, i.e., 08.08.2012, the appellant and

his wife Jayakumari (deceased) both were present in their room in the night. There is no eyewitness to the incident, as reflected from perusal of the

evidence and all the material witnesses including family members of the appellant and deceased have turned hostile, but, nonetheless, it cannot be held

that the appellant and his deceased wife were not together in their room when the alleged incident took place. The prosecution has proved this fact

that both the husband and wife were at home. The plea of the appellant, as reflected from his statement recorded under Section 313 Cr.P.C. that he

was not at home on the date of incident and has been implicated falsely, is required to be established by him, as the said fact was well within his

knowledge. However, he failed to produce any evidence, whatsoever, in order to prove the same, though the burden was heavily upon him, as per the

provisions prescribed under Section 106 of the Indian Evidence Act, 1872.

Furthermore, the prosecution has established the fact through the examination of body of the deceased, as evidenced by the post-mortem report

(Ex.P.15), that Jayakumari died of severe haemmorhagic shock occurred due to several injuries including the injuries sustained on vital parts of her

body which led to ruptures of both of her lungs. It is true that the Doctor, who conducted post-mortem examination of the dead body, has not stated in

his report (Ex.P.15) that it is homicidal in nature, but looking to the injuries including injuries on vital part of the dead body coupled with his evidence

would lead to an irresistible conclusion that death of Jayakumari was unnatural. In such an eventuality and particularly with regard to the fact that the

appellant alone was in the company of his deceased wife, he (appellant) was, therefore, required to explain the facts as to how his wife Jayakumari

had died at the time when it was not possible to be known to anyone else. Having failed so, the appellant cannot be held to be acquitted from the

charge so framed against him.

The Supreme Court, while considering the theory of last seen together in the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in

(2006) 10 SCC 681 has explained the same at paragraph 22 of its judgment as under:-

 “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. In Nika Ram v. State of H.P., (1972)

2 SCC 80 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri†and

the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal

v. State of Maharashtra, (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was

observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death

in his statement under Section 313 CrPC. The mere 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 is a prime accused in the commission of murder of

his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal, (1992) 3 SCC 300, the medical evidence disclosed that the wife died of strangulation during

late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed

suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated

her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of

circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the

judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of T.N. v. Rajendran (1999) 8 SCC 679 the

wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00

p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire

which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation

and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who

was the perpetrator of the crime.â€​

Yet, in the matter of State of Rajasthan v. Kashi Ram reported in AIR 2007 Supreme Court 144, the Supreme Court in such circumstances, has

held at para-23 as under:-

 “23. ……..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 special 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..........â€​

Likewise, in the matter of State of Rajasthan v Parthu reported in AIR 2008 Supreme Court 10, where the deceased and her husband were

together in their home at the time when the incident has taken place in the night, the Supreme Court has held at para-12 as under:-

 “12. …….Apart from the fact, as noticed hereinbefore, that the homicidal nature of death was not disputed by the respondent herein and

furthermore as he in his statement under Section 313 had raised a positive defence that she died of an accident, we are of the opinion the High Court

adopted a wrong approach. It is not disputed that the deceased and the appellant were living separately from their family. It has also not been disputed

that at the time when the incident occurred, the respondent was in his house together with the deceased. It is furthermore not in dispute that after the

incident took place, the respondent was not to be found. He was arrested only on 20.06.1995. If the deceased and the respondent were together in

their house at the time when the incident took place which was at about 10 O' clock in the night, it was for the respondent to show as to how the death

of the deceased took place.â€​

In view of the aforesaid principles and in absence of any explanation offered by the appellant, it is difficult to hold that the appellant was innocent

with regard to the commission of the alleged crime occurred on the said date. The judgment under appeal as passed by the trial Court convicting and

sentencing the appellant for the offence punishable under Section 302 IPC is hereby affirmed.

Consequently, we do not find any substance in this appeal. The appeal is accordingly dismissed.