Smt.Jaita Bai vs The State of Madhya Pradesh

The appellants have filed these appeals against the judgment dated 06.11.2001 passed in Sessions Trial No.162/2001, whereby the appellant

Smt.Jaita Bai has been convicted under sections 302 and 201 of IPC and sentenced to undergo imprisonment for life and imprisonment of R.I for

5 years respectively and appellant Avinash has been convicted under section 201 of the IPC and sentenced to undergo R.I. for 5 years.

The prosecution story in brief is that the deceased Shanker Gond was living with appellant Smt. Jaita Bai as husband and wife since 10 years at

Itarsi. About 6 - 7 months prior to incident Jaita Bai was working in the hotel of Narendra Kumar (PW-6) where she had developed illicit relations

with appellant Avinash who was also working there. When deceased Shanker came to know about the affairs of Jaita Bai and Avinash he

objected to it and used to quarrel with Jaita Bai. About two months prior to the incident Jaita Bai ran away with Avinash and lived with him. Two

days before the incident she returned home and was again living with deceased Shanker. As per prosecution it is alleged that in the intervening night

of 9 and 10 March, 2001 the appellants had committed murder of deceased Shanker Lal by strangulation in his house. Thereafter, they kept the

dead body in a metal drum, closed the lid and locked it. Thereafter, they hired the Autorikshaw of Suraj Pal for transporting the drum to Budhni.

As per instruction of appellants, Auto driver Suraj Pal and his friend Sunil Jain came to the house of Jaita Bai, where appellants loaded the drum in

Autorikshaw and proceeded for Budhni. On the way when they reached near Galla Mandi the fuel of Auto got exhausted and Auto was stopped.

Seeing the Auto in suspicious condition, Nepal Singh, Sub Inspector and L.D. Vaishnav, ASI of Police Station, City Kotwali, Itarsi who were on

regular patrolling duty, came there and inquired about the drum. The appellant Jaita Bai gave them the key of lock, the drum was opened and the

dead body of deceased Shanker Lal was recovered. Thereafter, Nepal Singh and L.D. Vaishnav took the drum in Autorikshaw to Jan Sewa

Hospital, where doctor examined the body of Shanker and declared him dead. Appellants were brought to Police Station, City Kotwali, Itarsi

where L.D. Vaishnav recorded the Marg intimation (Ex.P/12). Later on, B.S. Markam (PW-12) SHO, conducted the inquest, prepared the

panchanama (Ex.P/2) of dead body and sent the body for postmortem. In postmortem it is found that the deceased was killed by strangulation.

The police recorded FIR (Ex.P/12) and registered the offence under Sections 302, 201, 34 of IPC against the appellants and initiated the

investigation. The spot map was prepared and broken pieces of bangle of Jaita Bai were seized from the spot. The statement of witnesses were

recorded and after usual investigation the charge-sheet has been filed before the Court.

The trial Court has framed charge of offence under Sections 302/34 and 201/34 of IPC. The appellants abjured guilt and pleaded their

innocence. The prosecution has examined 12 witnesses whereas the appellants has adduced no evidence in their defence.

The trial Court on appreciation of evidence arrived at the conclusion that appellant Jaita Bai has committed murder of deceased Shanker Lal

and with the help of Avinash she was trying to dispose off the dead body in order to destroy the evidence of murder. The trial Court convicted the

appellant Jaita Bai under Sections 302 and 201 of IPC and appellant Avinash under Section 201 of IPC and sentenced them as mentioned

hereinabove.

It is argued by the learned counsel for the appellant that there is no eye witness to the incident. The case of the prosecution rest upon

circumstantial evidence. The recovery of dead body from possession of appellants not proved beyond reasonable doubt. When co-accused

Avinash was acquitted of charge of 302 of IPC than Jaita Bai cannot be convicted for the same offence. The trial Court on erroneous appreciation

of evidence has recorded the findings of guilt against the appellants under Sections 302 and 201 of IPC.

Heard arguments and perused the record.

From the statement of witnesses L.D. Vaishnav A.S.I. (PW-9) and Nepal Singh Sub-Inspector City Kotwali Itarsi (PW-3), it appears that on

10.03.2001 during patrolling duty at around 2 O''clock in the night, they found the appellants carrying the dead body of deceased Shankar Lal

kept in a drum by auto rickshaw. This fact is also verified by auto driver Suraj Pal (PW-2) and Sunil Jain (PW-1). The dead body was brought to

police station where PW-9 recorded the marg intimation and initiated the inquest and sent the dead body for post-mortem.

Dr. R.K. Damle (PW-10) deposed that on 10.03.2001 at Jan Sewa Hospital Itarsi, he had conducted the postmortem of dead body of

deceased Shanker Lal and found as under :-

(i) The rigor-mortis was present in upper limbs and lower limbs.

(ii) Ligature marks present front of neck which extend in between both sternomastaid muscle.

(iii) Swelling around left eye (black eye), contusion over chest, bleeding from left side of nose and left side of angle of mouth.

It is opined by the doctor that the death of Shanker Lal was occurred due to asphyxia as a result of strangulation. The death is caused within 24

hours. The statement of doctor is duly corroborated postmortem report Ex.P-11 given by the doctor. In cross-examination he has not made any

contradictory statement. Thus, relying upon the statement of the doctor and post-mortem report, the trial Court has rightly arrived at the finding that

the death of deceased was caused due to strangulation which is homicidal death.

Now the question arises whether the appellants have committed murder of the deceased? There is no witness to the incident. The case of

prosecution rests upon the circumstantial evidence. It is now well settled that the circumstance 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 a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt

of the accused and totally inconsistent with this innocence.

In the present case the prosecution has suggested following circumstances against the appellant:-

(i) The appellants were having illicit relationship and when the deceased raised objection against this relationship, the appellants conspired to kill the

deceased.

(ii) The deceased was killed by strangulation.

(iii) The appellants had concealed the dead body in a drum.

(iv) The appellants were taking the dead body concealed in a drum to destroy it which was recovered from their possession.

(v) The appellants were last seen with the deceased.

(vi) Appellants had not given any explanation regarding death of the deceased.

Keeping in view the above circumstances, considering the evidence adduced by the prosecution, we found that the witness Kannu Lal (PW-4)

deposed that deceased Shanker Lal was his nephew. Shanker Lal was living with Jaita Bai as husband and wife since 10 years. The defence has

not controverted this fact in cross-examination of the witness. Kodu (PW-5) who is the brother of Shanker Lal also verifies this fact that Shanker

Lal was living with Jaita Bai as husband and wife since 10 years in Itarsi. Narendra Kumar (PW-6) deposed that he is the owner of hotel

Dharamraj situated at station road Itarsi. Jaita Bai and Avinash were working in his hotel prior to incident. Jaita Bai was living at Patti Bazar, Itarsi.

This fact is also corroborated by witness Ramesh (PW- 8) who deposed that Jaita Bai was living with deceased Shanker in front of his house at

Patti Bazar, Itarsi. In view of aforesaid evidence it is rightly found proved by the trial Court that at the time of incident appellant Jaita Bai was living

with deceased Shanker as his wife in the house situated at Patti Bazar, Itarsi.

Suraj Pal (PW-2) deposed that he is an Autorikshaw driver. In the night of the incident at about 11:30 pm he was waiting for passengers

infront of railway station. His friend Sunil Jain was also present there. Appellants Jaita Bai and Avinash came there and hired the Autorikshaw for

carrying a drum to Budhni. Thereafter, Suraj Pal and Sunil went to the house of Jaita Bai situated at Patti Bazar where the appellants brought a

drum from the house, which was locked and loaded it in the Autorikshaw thereafter, they proceeded for Budhni. When they reached near Galla

Mandi the Autorkishaw stopped due to some fault. When Suraj Pal was checking the fault a police vehicle came there and inquired about the drum

and its contents. Thereafter, Jaita Bai provided the key of lock and the drum was opened and the dead body of deceased was recovered. The

police took the dead body and drum in Autorikshaw to Hospital where doctor examined the deceased. The police prepared the panchayat nama

of the dead body (Ex.P/2) and also came to the house of Jaita Bai where spot map (Ex.P/3) was prepared. In crossexamination this witness has

not made any contradictory statement and his statement is corroborated by Sunil Jain (PW-1).

Sunil Jain (PW-1) has verified the fact that at the night of incident he was present with his friend Suraj Pal (PW-2) when appellants came there

and hired the Autorikshaw for going to Budhni. The appellants took them to the house of Jaita Bai where they loaded a drum in the Autorikshaw.

The Autorikshaw run down on the way near Galla Mandi, meanwhile, the police came there and on suspicion police inspected the drum and found

the dead body of deceased in it.

Nepal Singh Sub Inspector, Police Station, City Kotwali (PW-3) and L.D. Vaishnav, ASI (PW-9) also stated that 10.03.2001 they were on

patrolling duty, at about 2 O'' clock in the night an Autorikshaw standing near the road on Hoshangabad - Budhni main road, near Galla Mandi.

The appellants were sitting on back seat of Autorikshaw and one drum was also kept in it. On suspicion they asked about the contents of drum,

Jaita Bai told them that the wheat was kept in it. Thereafter, they asked Jaita Bai to open the drum then Jaita Bai took out a key from her purse

and opened the lock of drum. Inside the drum under some cloths the dead body of deceased was recovered. It is further deposed by the witness

that they brought the dead body and Autorikshaw to Jan Sewa Hospital, Itarsi where doctor examined the body and declared the deceased dead.

The same fact has been narrated by L.D. Vaishnav (PW-9) in his statement. It is further deposed by this witness that he has recorded the Marg

intimation (Ex.P/12) at Police Station, City Kotwali, Itarsi. Nothing has been elicited in cross-examination of witnesses PW-3 and PW-9 to

discredit their testimonies. The Marg intimation (Ex.P/12) corroborates the statement of L.D. Vaishnav.

The witnesses Suraj Pal and Sunil Jain are independent witnesses. They have categorically deposed that the appellants have kept the drum in

Autorikshaw from which the dead body of the deceased Shanker was recovered. The drum was brought from the house of Jaita Bai. The

statement of PW-3 and PW-9 clearly establishes the fact that on search of drum the dead body of deceased was recovered. The testimonies of

PW-1, PW-2, PW-3 and PW-9 appears to be cogent, trustworthy and reliable. Thus, the trial Court on proper appreciation of evidence has

recorded the findings that the appellants have kept the dead body of the deceased in the drum and tried to remove the dead body from the spot.

Now the question arises as to whether the appellant Jaita Bai has committed murder of the deceased. In this regard we find that Jaita Bai was

living with the deceased as husband and wife in his house. The dead body of deceased was brought from the house and kept in the Autorikshaw.

The prosecution witness Shiva (PW-11) has categorically deposed in his statement that at the time of incident, in the night, only the appellant Jaita

Bai was present with the deceased in the house. It is established that the deceased was killed in the house by strangulation. Therefore, Jaita Bai has

to give explanation how deceased had been died.

Section 106 of Evidence Act lays down that

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

Hon''ble Apex Court in case law State of Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 held that :-

The burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to

the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so,

then it is a strong circumstance pointing to his guilt based on those facts.

Appellant Jaita Bai has given no explanation how deceased sustained injuries and how he had been died. Inspite of informing the police or

neighbours about the death of deceased, she was trying to dispose off the dead body with the help of co-accused Avinash. She concealed the

dead body in a drum. These circumstances clearly indicates the involvement of Jaita Bai in commission of murder of Shanker Lal. Thus, the trial

Court on proper appreciation of evidence has held the appellant Jaita Bai guilty for commission of murder of deceased Shanker Lal. It is also

proved that the appellants had concealed the dead body in the drum in order to destroy the evidence and they were trying to dispose off the body.

Thus, it is also proved that the appellants have committed the offence punishable under Section 201 of IPC.

Since there is no evidence of last seen against the appellant Avinash therefore the trial Court has rightly acquitted Avinash of the charge of

Section 302 of IPC. Therefore, acquittal of Avinash does not lead to innocence of main accused Jaita Bai.

In view of aforesaid, we do not find any illegality in conviction and sentence awarded by the trial Court. Hence, it is hereby dismissed. The bail

bonds of appellant Avinash is hereby cancelled and he is directed to surrender before the trial Court to suffer remaining part of sentence.