Ramdas vs State Of M.P.
2021 Latest Caselaw 3878 MP

                                        1                             CRA-148-2009

               HIGH COURT OF MADHYA PRADESH
                      BENCH GWALIOR

                       DB : Justice G.S. Ahluwalia
                                    &
                    Justice Rajeev Kumar Shrivastava


                      Criminal Appeal No. 148/2009

                                    Ramdas
                                     Vs.
                           State of Madhya Pradesh


------------------------------------------------------------------------------------
Shri D.S. Tomar, Counsel for the appellant.
Shri C.P. Singh, Counsel for the State.
------------------------------------------------------------------------------------

Date of hearing                              : 29.07.2021
Date of judgment                             : 03.08.2021
Whether approved for reporting               : .......


                             JUDGMENT

(Passed on 03/08/2021)

Per Justice G.S. Ahluwalia

This criminal appeal under Section 374 of Cr.P.C. has

been filed against the judgment and sentence dated 06.01.2009 passed

by Additional Sessions Judge, Picchore District Shivpuri in S.T.

No.251/2008, by which the appellant has been convicted under

Section 302 of IPC and has been sentenced to undergo life

imprisonment with a fine of Rs.100/- with default imprisonment of

rigorous imprisonment of six months.

(2)    According to the prosecution case, on 07.08.2008 at about
                                  2                         CRA-148-2009

04:00 AM, complainant Murarilal Khangar, Chowkidar along with

Devendra, minor son of the appellant lodged a report that at about

04:00 AM, when he woke up to answer the call of nature, he heard the

screaming of Jashoda Bai. When he reached there, he found that the

appellant was assaulting his wife by means of an axe and she was

screaming and Devendra, son of the appellant was crying. Hemraj,

Ramesh and Dro Bai also reached on the spot. After noticing that the

witnesses have come, the appellant ran away along with the axe. They

also tried to chase him, but they could not apprehend him. It was also

alleged that the deceased Jashoda Bai has expired on the spot itself.

The police prepared the spot map. Naksha Panchnama was prepared.

The dead body was sent for postmortem. Blood stained earth and

plain earth was seized from the spot. The appellant was arrested on

07.08.2008 itself at 03:00 PM. The blood stained axe was seized from

the possession of the appellant. Blood stained clothes of the appellant

were also seized. After recording the statement of the witnesses, the

police filed charge-sheet for offence under Section 302 of IPC.

(3) The Trial Court by order dated 29.11.2008 framed the charge

under Section 302 of IPC.

(4) The appellant abjured his guilt and pleaded not guilty.

(5) The prosecution in order to prove its case examined Murarilal

(PW-1), Devendra (PW-2), Ramesh (PW-3), Hemraj (PW-4), Rachna

(PW-5), Dro Bai (PW-6), Bhagwan Das (PW-7), Bhaiyalal (PW-8),

Barelal (PW-9), Dilla (PW-10), Dr. Virendra Uchadiya (PW-11), 3 CRA-148-2009

Magua (PW-12), O.P. Sharma (PW-13) and Pradeep Rajoriya (PW-

14).

(6) The appellant did not examine any witness in his defence.

(7) The Trial Court after considering the evidence of the parties

convicted the appellant for offence under Section 302 of IPC by

judgment and sentence dated 06.01.2009 and sentenced him to

undergo life imprisonment and a fine of Rs.100/- with default

imprisonment of rigorous imprisonment of six months.

(8) Challenging the judgment and sentence passed by the Court

below, it is submitted by the counsel for the appellant that the Court

below has committed material illegality by relying upon the evidence

of Devendra (PW-2). The other witnesses who have earlier projected

themselves as eyewitnesses have not supported the prosecution case.

They have specifically stated that when they reached on the spot, they

found that the deceased was lying in a dead condition whereas the

appellant was not there.

(9) Per contra, the appeal is vehemently opposed by the counsel

for the State. It is submitted that Devendra (PW-2) is a minor son of

the appellant aged about 7 years and undisputedly was residing along

with the appellant and the deceased. It is clear from the FIR Ex.P-2

that the complainant Murarilal had gone to the police station along

with Devendra Dhobhi, minor son of the appellant. The witnesses

have stated that at about 04:00 in the morning, they were informed by

Devendra about the fact that the appellant has killed Jashoda Bai and 4 CRA-148-2009

on his information, when they went to the house of the appellant, then

they found that the deceased was lying in a dead condition and the

appellant not present. It is further submitted that when the deceased

and Devendra (PW-2) were living along with the appellant, then the

burden is on the appellant to explain as to how his wife met with

homicidal death. Furthermore, immediately after the incident, the

appellant ran away from his house which clearly indicates his guilty

mind. The appellant was arrested from the bus stand and his clothes

were having blood stains and on the information given by the

appellant, blood stained axe was also seized.

(10) Heard the learned counsel for the parties.

(11) Before considering the evidence against the appellant, this

Court thinks it apposite to consider as to whether the deceased

Jashoda had died homicidal death or not ?

(12) Dr. Virendra Uchadiya (PW-11) has conducted the postmortem

of the dead body of the deceased Jashoda and found following

injuries:-

(1) An incised wound size 11cmx4cmx4cm present over left

side neck extending from chin to angle of left mandible.

(2) An incised wound size 10cmx3.5cmx4cm over left side

neck horizontal in direction extending from medial head of right

clavical running front to back left side neck wound cutting of trachea

and major blood vessels. Wound No. (1) is also cutting major blood

vessels.

5 CRA-148-2009

Postmortem report is Ex.P-9.

(13) This witness was cross-examined and he has accepted that in

the postmortem report, it has not been mentioned that clothes of the

deceased were given in a sealed cover to the constable. He further

denied that it is not necessary that when a person is assaulted by

another, then he must sustain other injuries also. He further denied

that it is not necessary that by single weapon, all the injuries caused

should be of same dimensions. He further accepted that the weapon

used in commission of offence was not sent to him for his perusal.

(14) Thus, it is clear that the deceased Jashoda died a homicidal

death.

(15) The next question for consideration is that whether the

appellant is the perpetrator of the crime or not ?

(16) Before considering the facts of the case, this Court would like

to consider the law relating to appreciation of evidence of Child

witness, as the present case is based on solitary eye witness who is a

child of 7 years.

(17) The Supreme Court in the case of Panchhi Vs. State of U.P.

reported in (1998) 7 SCC 177 has held as under :

11. Shri R.K. Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW 1, he being a child witness. According to the learned counsel, the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child 6 CRA-148-2009

witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.

(18) This case is based on direct as well as circumstantial evidence.

Devendra (PW-2) is aged about 7 years and is son of the appellant. It

is not out of place to mention here that in reply to question No. 20

asked in statement under Section 313 of CrPC, the appellant had

accepted that Devendra and his wife Jashoda Bai were residing with

him. Question No. 20 of statement recorded under Section 313 of

CrPC and its answer reads as under:-

^^izz'u 20& blh lk{kh dk dguk gS fd nsosUnz vius ekrk firk ds

lkFk vkids vkSj e``rd tlksnk ds lkFk jgrk FkkA D;k dguk gS \

mRrj % lgh gSA^^

Thus, the presence of Devendra, minor boy aged about 7

years in the house of the appellant is natural. Devendra (PW-2) has

stated that the appellant is his father. Her mother was killed by the

appellant by means of an axe. On his own, this witness further

clarifies that the appellant had assaulted on the neck of his mother.

When the appellant was assaulting his mother, by that time, Hemraj,

Ramesh and others had come on the spot. It was further clarified by

this witness that as the appellant is in habit of consuming liquor,

therefore, he used to pick up quarrel frequently with his mother. He

further stated that his mother was killed by his father at 04:00 in the

morning and after the incident he went to the police station. A very 7 CRA-148-2009

short cross-examination was done. This witness denied a suggestion

that the mother deceased was not killed by the appellant in his

presence. He further denied the suggestion that he was not present on

the spot. He further denied that today he has wrongly deposed on the

instructions of his elder brother Ashok. He further denied that he was

not sleeping by the side of his mother. He further denied that his

parents did not use to quarrel with each other. However, this witness

on his own stated that his father was in habit of consuming liquor. He

also denied the suggestion that he did not see that his mother was

assaulted on her neck by his father.

(19) Ramesh (PW-3), Hemraj (PW-4), Dro Bai (PW-6) have stated

that at about 04:00 in the morning, Devendra came to their house and

he was crying and he informed that the appellant has killed his mother

and thereafter they went to the house of the appellant and saw that

dead body of the deceased was lying in the house. Since these

witnesses had earlier projected themselves as eyewitnesses of assault

and as they had resiled from the said aspect, therefore, they were

declared hostile and they denied that they have given any statement

regarding witnessing the incident.

(20) Rachna (PW-5) is a witness to whom Devendra (PW-2) had

informed the incident. It has been stated by Rachna that Devendra

(PW-2) is her brother. On the date of incident, she had gone to village

Malavani in the house of her Foofa. She has also stated that her

parents used to quarrel with each other. However, she could not 8 CRA-148-2009

explain the reason for the same. In the house of her Foofa, Ramesh

came there to inform the incident and thereafter she came back to her

house and found that her mother was lying in a dead condition and

there was an injury of her neck and the appellant was not there. In

cross-examination, she denied that she was not informed by Devendra

about the incident. She further denied that somebody else might have

killed her mother. She further denied that Ramesh had not come to the

house of her Foofa to inform the incident. She further denied that she

is giving a false evidence at the behest of her elder brother.

(21) Bhagwan Das (PW-7) has stated that he was told by Devendra

(PW-2) that the appellant has killed the deceased. He has also stated

that since the appellant was in habit of consuming liquor, therefore,

on this issue, the appellant as well as the deceased used to quarrel

with each other. He further stated that the appellant was suspecting

the character of the deceased and he used to allege that the deceased

is of easy virtue. In cross-examination, he denied the suggestion that

he was never informed by the deceased about the suspicion of the

appellant on the character of the deceased. He further denied that the

appellant was not in habit of consuming the liquor. He further

clarified that he was informed by his nephew that the appellant has

killed the deceased.

(22) Bhaiyalal (PW-8) is the witness of seizure and he has turned

hostile. However, he accepted that seizure memo bears his thumb

impression. However, the seizure of axe or the blood stained clothes 9 CRA-148-2009

or making of confessional statement by the appellant was denied.

(23) Barelal (PW-9) has denied that the appellant was arrested in his

presence. He further denied that anything was seized from the

possession of the appellant. In cross-examination, he stated that the

police persons were sitting in front of house of Ramdas, where he was

called. The police has informed him that the document is a

Panchnama, therefore, he should sign it. He further stated that he had

seen dead body of the deceased in her house in a pool of blood. In the

cross-examination by the defence, he denied the suggestion that he

had not seen the dead body. He further denied that he had put his

signatures on the lash panchnama at the instance of the police.

(24) Dilla (PW-10) has admitted that blood stained earth as well as

plain earth was seized from the spot. He denied a suggestion that the

police had not seized the earth.

(25) Magua (PW-12) is the witness of lash panchnama (Ex. P-10)

and he has admitted that he had seen dead body of the deceased

Jashoda, however, he stated that nothing was seized from the house of

the appellant. However, he clarified that seizure memo (Ex. P-11), by

which the blood stained and plain earth was seized, bears his

signatures. In cross-examination by the Public Prosecutor, he

admitted that the police had seized the plain and blood stained earth

from the house of the appellant. However, he denied the fact that he

had seen two injuries on the neck of the deceased. However, he stated

that as he was frightened, therefore, did not enter inside the house of 10 CRA-148-2009

the appellant.

(26) O.P. Sharma (PW-13) is the Investigating Officer who has

stated that safina form (Ex. P-12) was prepared by him. He had

recorded the statement of witnesses. Lash Panchnama (Ex. P-10) was

prepared by him. Dead body along with the requisition (Ex. P-9) was

sent for postmortem. On the information given by the complainant

Murarilal he had prepared the spot map (Ex. P-4). The blood stained

and plain earth from the spot was seized vide Ex. P-11. The appellant

was searched and he was taken into custody and on the disclosure

made by the appellant in his memorandum (Ex. P-13), one axe was

seized from the possession of the appellant vide seizure memo (Ex. P-

15). At the time of arrest, the clothes which the appellant were

bearing blood stains, therefore, they were seized vide seizure memo

(Ex. P-15) and the appellant was arrested vide arrest memo (Ex. P-

16). In cross-examination, he denied that no Panch had gone inside

the house and he further denied that safina form was prepared outside

the house and signatures of Panch were obtained thereafter. He

further denied that the witnesses had not given any statement to him.

He also denied that Devendra had not given any statement to him.

(27) Pradeep Rajoriya (PW-14) is the SHO, Police Station Pichhore

District Shivpuri. This witness has recorded FIR No. 244/2008 on the

information given by Murarilal (Ex. P-2). Counter copy of FIR (Ex.

P-2) was sent to the concerned Magistrate on 06.08.2008 Ex. P-17(c)

which was received by the concerned Doctor by acknowledgment Ex.

11 CRA-148-2009

P-18. In cross-examination, this witness has stated that after the

incident, he went to the spot. He denied the suggestion that Murarilal

had lodged a report at the spot itself. He further denied that Murarilal

had given an information about the commission of offence on mobile.

He further denied that Murarilal had never come to the police station.

He further denied that the signatures of Murarilal were obtained on

the spot. He further stated that since he handed over the investigation

to ASI, therefore, he did not record the statement of Murarilal.

(28) Before recording the evidence of Devendra, the Trial Court had

verified as to whether he is in a position to understand the

proceedings or not and only after getting satisfied that the witness is

able to understand the question and its answer properly, then the

statement was recorded without administering oath. Devendra (PW-2)

has not been cross-examined in detail except by giving few stray

suggestions. There is no reason to disbelieve Devendra (PW-2).

Further, Devendra had also informed his sister Rachna (PW-5) and his

maternal uncle Bhagwan Das (PW-7). This natural conduct of the

prosecution witness Devendra clearly corroborates the evidence that

he had witnessed the incident. Even otherwise, the presence of

Devendra (P.W.2) in the house is a natural presence and cannot be

disbelieved.

(29) The prosecution has also examined Ramesh (PW-3), Hemraj

(PW-4) and Dro Bai (PW-6). Earlier they were projected as

eyewitnesses, but they resiled from their statement of watching the 12 CRA-148-2009

incident and claimed that when they reached on the spot, they found

that dead body was lying in the house and the appellant was not there.

From the spot map (Ex. P-4), it is also clear that dead body of the

deceased was lying inside the house of the appellant and the appellant

was not there and he was missing.

(30) Further, it is an admitted position that the appellant was living

along with his wife as well as Devendra (PW-2). Undisputedly, the

deceased Jashoda Bai has died homicidal death with two incised

wound on her neck. An axe has also been seized from the possession

of the appellant. Immediately, after the incident, the appellant ran

away from his house, which also indicates his guilty mind. "To

abscond" means to secretly or to hurriedly escape in order to avoid

arrest. It is true that it cannot be said that whenever an accused

abscond after the incident, then it would necessarily provide an

additional link of circumstance, because on some occasions, even an

innocent person, under an apprehension of false implication may be

abscond, but where the appellant was living with the deceased and his

wife had met a homicidal death, inside the house, then abscondence

of appellant even for few hours would assume importance, otherwise,

if some one else had committed the offence, then it was expected

from him not only to remain on the spot, but to the inform the police

immediately., Further, when the appellant was residing along with the

deceased and the deceased has met with homicidal death, then in the

light of Section 106 of Evidence Act, the burden is on the appellant to 13 CRA-148-2009

explain as to how, the deceased has died homicidal death. The

appellant has miserably failed in giving any explanation with regard

to the homicidal death of his wife.

(31) The Supreme Court in the case of State of J&K v. Vijay

Kumar, reported in (2018) 13 SCC 655 has held as under :

13. It is obvious from the medical evidence that the death was homicidal and the body was thrown in the nallah after killing. The body had torture marks including the burn marks. This is further established on record that immediately before the death, the deceased was living with her husband. In the light of evidence on record, it could be held that the burden would be on the husband under Section 106 of the Evidence Act to explain the circumstances in which the deceased living with him was killed and her body was thrown in the nallah.

(32) The Supreme Court in the case of Ravirala Laxmaiah v. State

of A.P., reported in (2013) 9 SCC 283 has held as under :

20. It is a settled legal proposition that in a case based on circumstantial evidence, where no eyewitness account is available, the principle is that:

"6. ... when an incriminating circumstance is put to the accused and the said accused either offers no explanation [for the same,] or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

[Vide State of U.P. v. Ravindra Prakash Mittal, Gulab Chand v. State of M.P., State of T.N. v. Rajendran (SCC pp. 685-86, para

6), State of Maharashtra v. Suresh and Ganesh Lal v. State of Rajasthan.]

21. In Neel Kumar v. State of Haryana this Court observed: (SCC p. 774, para 30) "30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under 14 CRA-148-2009

Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also Aftab Ahmad Anasari v. State of Uttaranchal.)"

22. In cases where the accused has been seen with the deceased victim (last seen theory), it becomes the duty of the accused to explain the circumstances under which the death of the victim has occurred. (Vide Nika Ram v. State of H.P., Ganeshlal v. State of Maharashtra and Ponnusamy.)

23. In Trimukh Maroti Kirkan v. State of Maharashtra this Court held as under: (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."

(See also Prithipal Singh v. State of Punjab.)

24. In view of the above discussion, we reach the inescapable conclusion that the appellant had been doubting the character of his wife and therefore, had adequate motive to eliminate her. In spite of the fact that he had been in the same room, he failed to furnish any explanation as to under what circumstances his wife was found dead. Particularly, in view of the fact that the courts below had excluded the theory of suicide. The same conclusion stands fully fortified by the fact that the saree of the deceased was lying in the corner of the room and the version given by the appellant that he had found his wife hanging with a saree around her neck and he cut the same by a knife stands fully falsified as in such a fact situation, part of the saree should have been found hanging with the ceiling of the room. The conduct of the 15 CRA-148-2009

appellant that he had given a false information to his in- laws and while the dead body was lying in his house he stayed in Krishna Guest House; further that he had absconded from the city itself, suggest that he is guilty of the offence.

(33) The Supreme Court in the case of State of Rajasthan Vs.

Thakur Singh, reported in (2014) 12 SCC 211 has held as under :

14. Questioning the decision of the High Court acquitting Thakur Singh, the State of Rajasthan has preferred this appeal.

15. We find that the High Court has not at all considered the provisions of Section 106 of the Evidence Act, 1872. This section provides, inter alia, that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

16. Way back in Shambhu Nath Mehra v. State of Ajmer 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.

                                   (emphasis supplied)
                           16                        CRA-148-2009

17. In a specific instance in Trimukh Maroti Kirkan v.

State of Maharashtra 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."

18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra 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.

19. Similarly, in Dnyaneshwar v. State of Maharashtra 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.

20. In Jagdish v. State of M.P. this Court observed as follows: (SCC p. 503, para 22) "22. ... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."

17 CRA-148-2009

21. More recently, in Gian Chand v. State of Haryana a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian Chand is that of State of W.B. v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act in the following words: (Mir Mohammad Omar case, SCC p. 393, para 35) "35. During arguments we put a question to the learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise."

22. The law, therefore, is quite well settled 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.

23. Applying this principle to the facts of the case, since Dhapu Kunwar died an unnatural death in the room occupied by her and Thakur Singh, the cause of the unnatural death was known to Thakur Singh. There is no evidence that anybody else had entered their room or could have entered their room. Thakur Singh did not set up any case that he was not in their room or not in the vicinity of their room while the incident occurred nor did he set up any case that some other person entered the room and caused the unnatural death of his wife. The facts relevant to the cause of Dhapu Kunwar's death being known only to Thakur Singh, yet he chose not to disclose them or to explain them. The principle laid down in Section 106 of the Evidence Act is clearly applicable to the facts of the case and there is, therefore, a very strong presumption that Dhapu Kunwar was 18 CRA-148-2009

murdered by Thakur Singh.

24. It is not that Thakur Singh was obliged to prove his innocence or prove that he had not committed any offence. All that was required of Thakur Singh was to explain the unusual situation, namely, of the unnatural death of his wife in their room, but he made no attempt to do this.

(34) If the evidence of Devendra (P.W.2) is appreciated in the light

of judgment passed by the Supreme Court in the case of Panchhi

(Supra), then it is clear that his evidence is corroborated buy his

immediate conduct of going to Police Station as well as informing his

Sister Rachna (P.W.5) and his maternal uncle Bhagwan Das (P.W. 7).

Further, in his cross-examination, nothing could be elicited, to create

a doubt that this witness is a tutored one. Therefore, this Court is of

the considered opinion, that Devendra (P.W.2) is a reliable and

trustworthy witness, as his presence on the spot at the time of incident

is natural and was also admitted by the appellant, that Devendra

(P.W.2) is also residing with him.

(35) Considering the totality of the facts and circumstances of the

case and considering the facts that not only, Devendra (PW-2), minor

son of the appellant has categorically stated that he had seen the

incident of assault by the appellant on the deceased at 04:00 in the

morning, the presence of Devendra was also natural as he isminor boy

and living along with his parents, dead body of the deceased was

found inside the house with two large incised wounds on her neck,

the appellant immediately absconded after the incident, although he 19 CRA-148-2009

was arrested on the same day and seizure of an axe from his

possession on the discovery made by the appellant, this Court is of

the considered opinion that the prosecution has succeeded in

establishing the guilt of the appellant beyond reasonable doubt.

Accordingly, he is held guilty of committing murder of his wife

Jashoda Bai.

(36) Accordingly, the conviction of the appellant for offence under

Section 302 of IPC is hereby affirmed. Accordingly, the judgment and

sentence dated 06.01.2009 passed by Additional Sessions Judge,

Picchore District Shivpuri in S.T. No.251/2008 is hereby affirmed.

(37) So far as the question of sentence is concerned, minimum

sentence for murder is life imprisonment. Accordingly, life

imprisonment awarded by the Trial Court does not warrant any

interference.

(38) The appellant is in jail. He shall undergo his remaining jail

sentence.

(39) A copy of this judgment be provided to the appellant free of

cost.

(40) The appeal fails and is hereby dismissed.

        (G.S. Ahluwalia)                       (Rajeev Kumar Shrivastava)
            Judge                                       Judge

Abhi
       ABHISHEK
       CHATURVEDI
       2021.08.04
       10:35:47
       +05'30'