Bhajju @ Ramprasad vs State Of M.P.
2021 Latest Caselaw 4211 MP

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                          Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

              HIGH COURT OF MADHYA PRADESH
                     GWALIOR BENCH

                         DIVISION BENCH

           G.S.Ahluwalia & Rajeev Kumar Shrivastava J.J.

                          Cr.A.No.279/2004

              Bhajju alias Ramprasad Vs. State of M.P.

Shri A.K. Jain, Counsel for the appellant.
Shri Rajiv Upadhyay, Counsel for the State.

Date of Hearing                   : 09-Aug-2021
Date of Judgment                  : 12-Aug-2021
Approved for reporting            :

                              Judgment
                          12- August - 2021

Per G.S. Ahluwalia J.

      This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 29/3/2004 passed by

Special Judge, [Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act]/Additional Sessions Judge, Gwalior in SST

No.43/2003, thereby convicting the appellant for the following

offence:

Appellants       Conviction under Sentence
                 Sections
Appellant        302 of IPC           Life Imprisonment and a fine of
                                      Rs.1000/-, in default, six months'
                                      rigorous imprisonment.


2.    The prosecution story in short is that the deceased Munnibai

had lost her husband prior to four years of the date of incident, i.e. on
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                          Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

24/11/2002

. Munnibai had six children and after leaving them, she

was residing with the appellant for the last one and half years as his

wife. On 24/11/2002 at about 12 PM the appellant and the deceased

Munnibai went towards Parvati river alongwith the fishing net and

tube for the purposes of fishing. It is alleged that Maniram and

Hardas were also catching fishes in the nearby area. They heard the

noise of quarrel between the appellant and Munnibai. They saw that

Munnibai was lying on the ground and the appellant was choking her

neck with the help of one Safi. When both these witnesses tried to

come towards them, then they were threatened by the appellant that

in case if the incident is narrated to anybody, then he would kill them.

Thereafter, the appellant ran away. Maniram and Hardas saw that the

deceased Munnibai had already expired. As they got frightened,

therefore, they came back to their house and did not inform the

incident to anybody. On 25/11/2002, i.e. on the next date of incident,

somebody informed the younger brother-in-law of the deceased

(Devar) Gunga that Munnibai-deceased is lying in a dead condition

near the river, therefore, he went to see her dead body. Since he was

dumb, therefore, he narrated the incident to Girjabai (PW-5) by signs

and accordingly, Girjabai alongwith Gunga went to police station to

lodge the report and accordingly, the report Ex.P/3 under Section 174

of Cr.P.C. was lodged and inquest No.37/2002 was registered. The

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

dead body of the deceased was sent to CHC Bhitarwar. As per

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

postmortem report, the cause of death was asphyxia and throttling

and accordingly, the first information report, Ex.P/10 was registered

in Crime No.269/2002. During the course of investigation, Girjabai

(PW-5) informed that she had seen that the deceased and the

appellant had gone towards Parvati river and, therefore, she had a

suspicion against the appellant accordingly, she searched for him, but

he was not found. Ultimately, on 2/5/2003 the appellant was arrested

and on the basis of his discovery memo recorded under Section 27 of

the Evidence Act, a Safi of green colour was seized vide seizure

memo Ex.P/2, which was kept in a hidden condition by digging a

hole in the earth. The seized Safi was sent to FSL, Gwalior vide

request memo Ex.P/14. After recording the statement of the

witnesses, the police filed the charge-sheet for offence under Section

302 of IPC and under Section 3 (2) (v) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities), Act 1989 (in short "Act,

1989" ).

3. The Trial Court by order dated 7/7/2003 framed charges under

Section 302 of IPC read with Section 3 (2) (v) of the Act, 1989.

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

5. The prosecution in order to prove its case examined Leelawati

(PW-1), Maniram (PW-2), Hardas (PW-3), Kosabai (PW-4), Girjabai

(PW-5), Harimohan (PW-6), Dr. R.P. Saral (PW-7), K.K. Singh (PW-

8), Jivankumar (PW-9), Rati Ramsingh (PW-10), Mukesh Kumar

Shrivastava (PW-11).

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

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

7. The Trial Court by judgment and sentence dated 29/3/2004

passed in Special Case No.43/2003 acquitted the appellant for

offence under Section 3 (2) (v) of the Act, 1989 and convicted the

appellant for offence under Section 302 of IPC.

8. Challenging the judgment and sentence passed by the Court

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

case is based on the following three circumstances:-

i- Leelawati (PW-1) and Girjabai (PW-6) have been examined as

a witness of last seen together.

ii- Maniram (PW-2) and Hardas (PW-3) have been examined as

an eye-witness.

iii- Recovery of a Safi on the disclosure made by the appellant.

9. It is submitted that so far as the credibility of eye-witnesses

Maniram (PW-2) and Hardas (PW-3) is concerned, they are doubtful

witnesses. They did not inform anybody about the incident. Their

statements were recorded belatedly on 2/5/2003. In the meanwhile,

they did not narrate the incident to anybody. Further, Girjabai (PW-5)

has admitted that initially these witnesses were not inclined to depose

against the appellant, however, only after persuasion by Girjabai

(PW-5), these witnesses had given their statement to the police with

great difficulty. It is submitted that it is clear that Maniram and

Hardas are not reliable witnesses. It is further submitted that so far as

the evidence of last seen together by Leelawati (PW-1) and Girjabai

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

(PW-5) is concerned, the same are not reliable as their statements

were recorded belatedly. Further, Leelawati (PW-1) has not clarified

the time and date on which she had seen the deceased and the

appellant going together towards the river. So far as the recovery of

Safi is concerned, it is submitted by the counsel for the appellant that

Maniram (PW-2) and Hardas (PW-3) have stated that they had seen

that the appellant was strangulating the deceased by a Safi of red

colour, however, as per seizure memo, a Safi of green colour has been

seized, therefore, it is clear that the Safi seized on the disclosure

made by the appellant is not reliable.

10. Per contra, the counsel for the State has supported the findings

given by the Trial Court.

11. Heard the learned Counsel for the parties.

12. Before considering the merits of the case, this Court would like

to find out as to whether the deceased Munnibai, died a homicidal

death or not?

13. Dr. R. P. Saral (P.W.7) has conducted the post-mortem of the

dead body of the deceased Munnibai. In the post-mortem, the

following injuries were found :

(i) Contusion 2.5 cmx2cm on right side of neck.

(ii) Contusion 2.5 cm x 1.5 cm on left side of larynx brownish in colour.

(iii) Abrasion ¼ x ¼ on anterior aspect of right wrist.

(iv) contusion 4 x 1cm over part of right shoulder.

On dissection of neck Extra blood into subcutaneous tissue under the injuries no. 1 and 2 present.

Brain congested and petechiae hemorrhage was found Fracture of right cornua of hyoid bone and cartilage of larynx

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

and congested froth.

Cause of death was Asphyxia due to Throttling. The Post- mortem report is Ex.P.9.

14. This witness was cross examined very briefly. He admitted

that the dead body was not received in a sealed condition. He could

not recollect as to whether the name of the deceased was written on

her hand or not? He did not conduct any test to find out the age of the

deceased. The deceased had suffered 4 injuries which were caused

by hard and blunt object and all the injuries were caused within a

period of 24 hours. No question with regard to the cause of death of

the deceased was put to the witness.

15. Accordingly, it is held that the deceased had died a homicidal

death.

16. We shall now consider the circumstances on which the

prosecution has placed reliance.

Last seen together

17. Leelawati (PW-1) is a child witness aged about 14 years. After

verifying as to whether the child witness is in a position to

understand the proceedings or not, the Court below recorded the

evidence of Leelawati (PW-1) without administering oath to her.

Leelawati (PW-1) has stated that on the day when her mother had

died, she was fetching water from a Water Tap situated outside her

house. At that time, she had seen that the appellant and the deceased

were going towards the river and they were also carrying fishing net

as well as a tube. Thereafter, she came to know that her mother was

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

found dead by the side of the river. Her uncle had gone to river to see

her and informed that her mother is lying dead. Thereafter, her uncle

informed her grandmother Girjabai. The police also came there.

Thereafter, the police party alongwith her uncle, brother and Girjabai

went to the place of incident. A very short cross-examination was

done. In cross-examination, she has stated that after two days of

death of her mother, she came to know about her death. She further

admitted that she had not seen the incident, but clarified that she was

informed by Gadariya. She further admitted that she has not seen that

who had killed her mother and she further claimed that the appellant

had not killed her mother.

18. Unfortunately, the lawyer appearing for the appellant did not

realize the importance of this witness. This witness had never claimed

that she is an eye-witness. Her only evidence was that she had seen

the deceased going towards the river alongwith the appellant.

Unfortunately, no question in this regard was put to this witness,

therefore, the testimony of this witness to the effect that she had seen

the appellant going alongwith the deceased towards the river, who

was also having fishing net and tube, has remained unchallenged.

19. However, the next question for consideration is as to whether

this Court, while considering the evidence of child witness should

look for corroboration or not? The Supreme Court in the case of

Bhagwan Singh Vs. State of M.P. reported in (2003) 3 SCC 21 has

held as under :

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

19. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U.P.).

20. The Supreme Court in the case of State of Maharashtra Vs.

Damu reported in (2000) 6 SCC 269 has held as under :

29. For the boy the said instances might have been very minor not to keep them alive in memory even till the evening of that day. But when he was told later of the danger he escaped from, that minor incident would winch to the surface of his mood (sic mind). This is how the human mind works and the mind of a child is no exception to the process. For the parents of the boy the two episodes could not have created any impact at the time the incidents happened. But when they knew later that A-4 was kidnapping infants and killing them it would have created the most probable reaction of the human mind in them also by realising how they escaped by the skin of their teeth from a perennial calamity. The Division Bench was therefore too unrealistic when it brushed aside the truthful evidence of PW 31 (Sagar) and his father PW 30 (Ramakant).

21. The Supreme Court in the case of Suryanarayana v. State of

Karnataka, reported in (2001) 9 SCC 129 has held as under :

5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross- examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.

22. The Supreme Court in the case of Digamber Vaishnav Vs.

State of Chhatisgarh, reported in (2019) 4 SCC 522 has held as

under :

21....Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.

22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi v. State of U.P., State of U.P. v. Ashok Dixit and State of Rajasthan v. Om Prakash.]

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

23. In Alagupandi v. State of T.N., this Court has emphasised the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that: (SCC p. 463, para 36) "36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."

23. Thus, it is clear that for relying upon the evidence of a child

witness, the Court, as a Rule of prudence, may look for

corroboration. However, necessity of corroboration is not the rule and

an accused can be convicted on the basis of the evidence of a child

witness, if his evidence is found to be trustworthy and reliable.

24. Girjabai (PW-5) has stated that the deceased was her daughter-

in-law. The first husband of the deceased had already expired about

four years back. The deceased was having six children and was

residing with the appellant for the last one and half years. She has

specifically stated that she had seen the appellant and the deceased

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

going together towards the river. The appellant was having a tube

with him, whereas the deceased was having fishing net. When the

appellant was going, she had not said anything to him. In the evening

the information about the death of the deceased was received and

Chopiyon (pksfi;ksa) had informed that her daughter-in-law is lying

dead by the side of the river. On the next day, her son Gunga went to

see the dead body and informed her by signs that his sister-in-law

(Bhabhi) is lying dead by the side of the river and thereafter, she went

to the river to see her dead body. Thereafter, this witness went to the

police station alongwith Gunga. Brijlal (Gunga) had informed the

police that the deceased was his sister-in-law. This witness had

informed the police that her son Gunga had seen the dead body.

Marg intimation is Ex.P/3. Thereafter, she went alongwith the police

party to the place of incident. Writing work was done by the police on

the spot itself. The dead body was sent for postmortem and after the

postmortem, the dead body was handed over to her by

Supurdaginama Ex.P/4. The police had also given four silver rings

and one ear ring of the deceased. The spot map is Ex.P/5. In cross-

examination, this witness has admitted that she had got the

information about the death of the deceased on the very same day, but

she went to the police station on the next day. She also admitted that

she had seen the dead body of the deceased on the next day. She

further admitted that after getting an information from this witness,

the police went to the spot and writing work was done in the police

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

station. At the time when she went to the spot, the deceased-

Munnibai was wearing a Sari of red colour and blouse of blue colour.

The dead body was taken by the police in presence of this witness

and Gunga. She further claimed that all the documents were got

signed by the police in the police station itself. She further admitted

that no interrogation was done by the police except by asking as to

whether the deceased is her daughter-in-law or not. Thereafter, she

came back to her village and the villagers had also come to her house.

Maniram and Hardas are the resident of the same colony and they are

like her grandsons. Maniram and Hardas had also come to her house

to meet her. It was further stated that on the date of incident,

Maniram and Hardas had gone to Mohna, but they came back on the

same day. However, it is further clarified that these witnesses came

back on the day when the dead body was taken away from the place

of incident. She further claimed that Maniram and Hardas

continuously remained in village and never went outside. It is further

submitted that after two days of the incident, the police had called

this witness and had asked about the names of the witnesses and she

had disclosed the names of Janved, Maniram and Hardas. This

witness has further admitted that she had instructed Maniram, Hardas

and Janved that they should give the statement as required by the

police. However, with great difficulty, they had given their police

statement and that too after they were convinced by her relatives.

When a question was put by the Court as to how she came to know

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

that it was the appellant who had killed the deceased, then it was

replied by her that she was informed by Maniram, Hardas and Janved

that when they were manufacturing bricks, they had heard the noise

of quarrel and accordingly, they saw the incident. It was further stated

that the above-mentioned witnesses had informed that the deceased

was lying on the ground and the appellant was sitting over her and

after noticing the witnesses, the appellant ran away and, therefore, it

was the appellant only who had killed the deceased. In further cross-

examination by the accused, this witness denied that Maniram,

Hardas and Janved had never informed that they had seen the

appellant sitting over the chest of the deceased. At this stage, a note

was appended by the Court that a witness appears to be very old and

mal-nutritioned. Her one eye is weak/damaged/not well (Uski Ek

Ankh Kharab Hai) and it was also observed that it appears that the

witness is hard of hearing and she is not mentally intelligent.

25. Girjabai (PW-5) has specifically claimed that the deceased was

her daughter-in-law. In the entire cross-examination, no question was

put to this witness with regard to last seen together. Thus, it is clear

that the evidence of Leelawati (PW-1) and Girjabai (PW-5) with

regard to last seen together has remained unchallenged. Accordingly,

it is held that the prosecution has succeeded in establishing that the

deceased was seen for the last time in the company of the appellant

and thereafter, she was not seen alive.

26. Kosabi (P.W.4) has stated that She was informed by Girijabai

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

(P.W.5) that the deceased and the appellant had left together along

with tube and fishing net.

27. Unfortunately, once again the counsel for the appellant could

not realize the important aspect on which this witness had deposed.

No question was put to this witness, with regard to the information of

last seen together given to her by Girijabai (P.W.5).

28. The Supreme Court in the case of Shailendra Rajdev Pasvan

v. State of Gujarat, reported in (2020) 14 SCC 750 has held as

under :

15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In Bodhraj v. State of J&K, Rambraksh v. State of Chhattisgarh, Anjan Kumar Sarma v. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine Guj para 16) "16. ...The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

29. The Supreme Court in the case of Ashok v. State of

Maharashtra, reported in (2015) 4 SCC 393 has held as under :

12. From the study of abovestated judgments and many

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non- explanation of death of the deceased, may lead to a presumption of guilt.

Here another judgment in Harivadan Babubhai Patel v. State of Gujarat, would be relevant. In this case, this Court found that the time-gap between the death of the deceased and the time when he was last seen with the accused may also be relevant.

30. The Supreme Court in the case of Mahavir Singh Vs. State of

Haryana reported in (2014) 6 SCC 716 has held as under :

12. Undoubtedly, it is a settled legal proposition that the last seen theory comes into play only in a case where the time- gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead (sic is small). Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime............

31. The Supreme Court in the case of Jagroop Singh Vs. State of

Punjab reported in (2012) 11 SCC 768 has held as under :

27. Quite apart from the above, what is argued is that there is a long gap between the last seen and recovery of the dead body of the deceased. As per the material on record, the informant searched for his son in the village in the late evening and next day in the morning he went to the fields and the dead body was found. The post-mortem report indicates that the death had occurred within 24 hours. Thus, the duration is not so long as to defeat or frustrate the version of the prosecution. Therefore, there can be no trace of doubt that the deceased was last seen in the company of

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

the accused persons.

32. From the evidence of Lilawati (P.W.1) and Girijabai (P.W.5), it

is clear that the appellant and the deceased were seen going together

towards the river, and thereafter, the dead body was recovered on the

next day. As per the Post-mortem report, the duration of death was

within 24 hours. The post-mortem was conducted on 25-11-2002

i.e.,the date on which the dead body of the deceased was recovered.

Thus, it is clear that the time gap between the last seen together and

the date of recovery of dead body/time of death is so minimum, that it

rules out the possibility that the appellant may not be the perpetrator

of the offence.

33. It is not the case of the appellant that immediately after the

incident, he was staying in the village till his date of arrest. No

suggestion was given to Girjabai (PW-5) in this regard. It is

submitted by Shri Jain that the burden is on the prosecution to prove

that the appellant had absconded and the said burden cannot be

shifted to the appellant.

34. Considered the submissions made by the counsel for the

appellant.

35. So far as the burden of proof with regard to abscondence is

concerned, it is true that each and every circumstance has to be

proved by the prosecution beyond reasonable doubt and the burden

would stand shifted on to the accused only if the existence of certain

facts is proved by the prosecution. Not a single witness has stated in

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

the examination-in-chief that the appellant went missing after the

incident. However, it is equally true that no such question was put in

the cross-examination. The prosecution has succeeded in establishing

the fact that the deceased was residing with the appellant as his wife

for the last one and half years. This Court has already held that the

evidence of last seen together has been established by the

prosecution. When the deceased had gone with the appellant towards

the river for fishing purposes, then the burden was on the appellant to

explain as to how the deceased suffered homicidal death. It is not

case of the appellant that after the deceased went missing, he had

ever informed the police. Thus, it is clear that the appellant went

along with the deceased towards the river and thereafter he did not

inform anybody about the death of the deceased. He also did not

inform the police that his wife is missing and it is also not the

defence of the appellant in his statement under Section 313 of

Cr.P.C. that after the incident he did not abscond. Accordingly, this

Court is of the considered opinion that the appellant had absconded

immediately after the incident, and has also failed to explain as to

how his wife suffered a homicidal death.

36. The Supreme Court in the case of Ramesh Vithal Patil Vs.

State of Karnataka reported in (2014) 11 SCC 516 has held as

under :

21......As to when and why the deceased left the house and how she died in suspicious circumstances was within the special knowledge of the appellant. When the prosecution

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

established facts from which reasonable inference can be drawn that the deceased committed suicide, the appellant should have, by virtue of his special knowledge regarding those facts, offered an explanation which might drive the court to draw a different inference. The burden of proving those facts was on the appellant as per Section 106 of the Evidence Act but the appellant has not discharged the same leading to an adverse inference being drawn against him (see Tulshiram Sahadu Suryawanshi v. State of Maharashtra and Babu).

37. The Supreme Court in the case of Badshah Vs. State of U.P.

Reported in (2008) 3 SCC 681 has held as under :

20. In Sucha Singh v. State of Punjab Section 106 of the Evidence Act was held to be applicable to cases where the prosecution had succeeded in proving facts for which a reasonable inference can be drawn as regards existence of certain other facts unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

38. Accordingly, it is proved that the deceased was seen for the last

time in the company of the appellant, and thereafter, She was never

seen alive, and the appellant has also not given any explanation, as to

how his wife died a homicidal death.

Whether Maniram (PW-2) and Hardas (PW-3) are eye-witnesses

or not?

39. Maniram (PW-2) has stated that he was digging the earth near

Parvati river and it was 5 PM. He heard the noise of quarrel between

the deceased and the appellant. When he went there in order to watch

the quarrel, then he saw that the appellant by throwing the deceased

on the ground was sitting over her and was assaulting her. The

appellant with the help of a Safi was strangulating the deceased. The

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

appellant had also seen these witnesses, therefore, he came towards

this witness. As he was frightened, therefore, he came back to his

house and did not inform the incident to anybody. The appellant had

also abused him and had threatened that in case if the incident is

narrated to anybody, then he would also kill him. He further stated

that the deceased was earlier married to Punna, who died four years

back and thereafter, the deceased started living with the appellant.

The discovery memo of the appellant is Ex.P/1, which was recorded

on his confessional statement and the police had recovered a Safi

vide seizure memo Ex.P/2, from a pit near the river. In cross-

examination he stated that as he was afraid that the appellant may

also kill him, therefore, he did not try to save the deceased. The

deceased was residing with the appellant for the last one and half

years. She was residing in Bhitarwar as well as also in Khagroli. The

appellant is the resident of the village of this witness and, therefore,

he is known to him. It was further admitted that the appellant was

keeping the deceased as his wife, however, on his own he explained

that sometimes he used to beat the deceased brutally. He denied that

on the date of incident, he had not gone towards the river. He was

confronted with the statement made by this witness in his police

statement Ex.D/1 that he had gone to catch fish, but he could not

explain that as to why the said fact was mentioned. The deceased was

wearing red coloured Sari, however, was not in a position to disclose

the colour of her blouse. He further admitted that he had not seen the

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

fishing net or any other article in the hands of the appellant. He

further stated that at the time when the appellant was strangulating

the deceased, he was at a distance of about 100 ft. and the appellant

was strangulating the deceased with a Safi of red colour. He further

admitted that lose earth is not found by the side of the river, but sand

is found. He could not explain as to why different colour of Safi was

mentioned in the seizure memo. He further admitted that the

appellant was not interrogated by the police in his presence.

However, he denied that no discovery information was given by the

appellant. On his own he explained that the discovery information

was given to the police. At the time of recovery of Safi, Janved and 5-

6 persons were also present. At the time of recovery Hardas (PW-3)

was not in his house. He further admitted that the appellant was

arrested after about 5-6 months of the incident. He further stated that

he had seen the appellant strangulating the deceased, but he did not

disclose it even to his wife as well as the family members of the

deceased. He admitted that he had never disclosed to the police that

he had seen the appellant strangulating the deceased and claimed that

he is making the statement for the first time in the Court. He further

stated that he used to go back to the village after 1-2 months of doing

labour work. He further stated that he used to work under the

contractorship of one Kher Singh. He denied that on the date of

incident he was working with the contractor and he claimed on his

own that he was present in the village. On the day when the deceased

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

had expired, he had come back to his house at 6:30 PM. He further

stated that on the date of incident, he had manufactured raw bricks

upto 4 PM. He further claimed that he had heard the noise of quarrel

at 5:30 PM and the appellant had also challenged him that he should

stay there otherwise he would see him. He denied that the

investigating officer had tutored him. He also denied that he is not

aware of any incident. On cross-examination by the Court, this

witness claimed that he had stayed in the village for about 8 days

after the incident and during this period, he had never gone to any

place for labour work and thereafter, he went towards Mohna for

labour work and came back in the village only on the festival of Holi.

10-15 days after returning back to his village, he had informed

Girjabai, mother-in-law of the deceased, that he had seen the

appellant strangulating the deceased. Girjabai had requested him to

give such a statement in the Court and that is why he has come to the

Court.

40. Hardas (PW-3) has also stated in the same line. He has also

stated that after the incident, he did not inform to anybody and went

for labour work to different places.

41. It is true that the statements of Maniram (PW-2) and Hardas

(PW-3) have been recorded belatedly. However, these witnesses have

given their explanation as to why they did not explain the incident

immediately after the incident. It is well established principle of law

that generally independent witnesses do not come forward to depose

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

in favour of the complainant or against the accused party as they are

apprehensive of taking enmity with any of them. Further, they also do

not want to get themselves involved in police investigation and they

also avoid in coming to the Court for giving their evidence.

42. The Supreme Court in the case of Mahesh Vs. State of

Maharashtra reported in (2008) 13 SCC 271 has held as under :

55......It is well settled that in such cases many a times, independent witnesses do not come forward to depose in favour of the prosecution. There are many reasons that persons sometimes are not inclined to become witnesses in the case for a variety of reasons.

43. The Supreme Court in the case of Ashok Kumar Chaudhary

Vs. State of Bihar reported in (2008) 12 SCC 173 has held as

under :

7. We are not impressed with the argument. Though it is true that the incident having taken place near the market around 6 p.m. on 17-7-1988, the prosecution should have attempted to secure public witnesses who had witnessed the incident, but at the same time one cannot lose sight of the ground realities that the members of the public are generally insensitive and reluctant to come forward to report and depose about the crime even though it is committed in their presence...........

44. The Supreme Court in the case of Sadhu Saran Singh Vs.

State of U.P., reported in (2016) 4SCC 357, has held as under :

29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

45. The Supreme Court in the case of Ambika Prasad Vs. State

(Delhi Admn.) reported in (2000) 2 SCC 646 has held as under :

12. It is next contended that despite the fact that 20 to 25 persons collected at the spot at the time of the incident as deposed by the prosecution witnesses, not a single independent witness has been examined and, therefore, no reliance should be placed on the evidence of PW 5 and PW

7. This submission also deserves to be rejected. It is a known fact that independent persons are reluctant to be witnesses or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed and it cannot be a ground for rejecting the evidence of injured witnesses. Dealing with a similar contention in State of U.P. v. Anil Singh this Court observed: (SCC pp. 691-92, para 15) "In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."

46. If the evidence of Maniram (PW-2) and Hardas (PW-3) is

considered in the light of reluctancy which an independent witness

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

shows, then their conduct in not informing anybody appears to be

normal. It is well established principle of law that mere delayed

recording of statement of the witnesses would not make their

evidence unreliable. However, the Courts are required to appreciate

their evidence more carefully. It is the case of Maniram (PW-2) and

Hardas (PW-3) that after the incident they got frightened and did not

inform the incident to anybody and thereafter they went to different

places in connection with the labour work and came back only during

the Holi festival.

47. The crux of the matter is that Maniram and Hardas were not

interested in indulging themselves in the matter, therefore, they did

not disclose this fact to anybody. Under these circumstances where

the independent witnesses do not come forward to narrate the

incident and they try to avoid in doing so, then the conduct of the

witnesses cannot be said to be a natural conduct.

48. So far as the admission of Girijabai (P.W.5), that Maniram

(P.W.2) and Hardas (P.W.3) agreed to give their statements on the

persuasion by this witness and her relatives is concerned, the same

cannot amount to tutoring or creating false witness. If the family

members of Girijabai (P.W.5) had persuaded Hariram (P.W.2) and

Hardas (P.W.3) to speak out the incident, then it cannot be said that

when the independent witnesses are reluctant in coming forward for

various reasons, then the non-disclosure of the incident to any body

can be said to be plausible reason.

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

49. The Supreme Court in the case of Shyamlal Ghosh Vs. State

of W.B. Reported in (2012) 7 SCC 646 has held as under :

51. On the contra, the submission on behalf of the State is that the delay has been explained and though the investigating officer was cross-examined at length, not even a suggestion was put to him as to the reason for such delay and, thus, the accused cannot take any benefit thereof at this stage. Reliance in this regard on behalf of the State is placed on Brathi v. State of Punjab, Banti v. State of M.P. and State of U.P. v. Satish.

52. These are the issues which are no more res integra. The consistent view of this Court has been that if the explanation offered for the delayed examination of a particular witness is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion arrived at by the courts. This is the view expressed in Banti. Furthermore, this Court has also taken the view that no doubt when the Court has to appreciate the evidence given by the witnesses who are closely related to the deceased, it has to be very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is that of an interested witness would inevitably relate to failure of justice (Brathi). In Satish, this Court further held that the explanation offered by the investigating officer on being questioned on the aspect of delayed examination by the accused has to be tested by the Court on the touchstone of credibility. It may not have any effect on the credibility of the prosecution evidence tendered by other witnesses.

53. The delay in examination of witnesses is a variable factor. It would depend upon a number of circumstances. For example, non-availability of witnesses, the investigating officer being preoccupied in serious matters, the investigating officer spending his time in arresting the accused who are absconding, being occupied in other spheres of investigation of the same case which may require his attention urgently and importantly, etc.

50. The Supreme Court in the case of V.K. Mishra v. State of

Uttarakhand, reported in (2015) 9 SCC 588 has held as under :

26. It cannot be held as a rule of universal application that the testimony of a witness becomes unreliable merely because there is delay in examination of a particular

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

witness. In Sunil Kumar v. State of Rajasthan, it was held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a core of witness to falsely support the prosecution case. As such there was no delay in recording the statement of PW 2 and even assuming that there was delay in questioning PW 2, that by itself cannot amount to any infirmity in the prosecution case.

51. So far as the delayed recording of the statement of the

witnesses is concerned, no question has been put to the Investigating

Officer in that regard. In cross-examination, Mukesh Kumar

Shrivastava (PW-11) has stated that he had received the case diary in

the month of May, 2003 for investigation purposes and prior to that

the SHO of the concerning police station was investigating the

matter. This witness has stated that he has recorded the statement of

the witnesses and had sent the incriminating articles to FSL Sagar. He

denied that he had not investigated the matter. He denied that on the

date of incident he was not posted in Bhitarwar. He further stated that

on 1.5.2003 after obtaining the advise of the ADPO, he had added

offence under Section 3(2)(v) of the Act, 1989.

52. The next question for consideration is that as to whether the

explanation given by Mukesh Kumar Shrivastava (PW-11) that he

recorded the statement of the witnesses immediately after getting

investigation can be said to be plausible explanation or not?

53. It appears that earlier there was no progress in the investigation

and the investigation effectively started only after the same was taken

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

over by Mukesh Kumar Shrivastava (P.W.11). Thus, it is held that

where the witnesses have given their explanation for non-disclosing

the incident to anybody and kept silent for 4-5 months, and as their

explanation has been found to be plausible and acceptable, this Court

is of the considered opinion, that Maniram (P.W.2) and Hardas

(P.W.3) are reliable witnesses.

Recovery of Safi

54. It is the case of Maniram (PW-2) and Hardas (PW-3) that the

appellant was strangulating the deceased by red coloured Safi,

whereas it is also admitted by them that they have witnessed the

incident from a distance. Hardas (PW-3) had also stated that he had

seen the Safi in the light of the torch. However, a green coloured Safi

was recovered on the discovery of the appellant. When it was already

twilight and the witnesses were witnessing the incident from a

distance of 100 ft., then there is every possibility that they may

commit a mistake in identifying the colour of the Safi which was used

for strangulating the deceased. Furthermore, the Safi was recovered

from a pit which was dug by the appellant. Only the appellant was

aware of the fact that the Safi has been hidden by him at a particular

place. Since the Safi was in a hidden condition, therefore, it was not

easily noticeable by any by-passers or any other person. Under these

circumstances, this Court is of the considered opinion that the

recovery of Safi at the instance of the appellant has been duly proved

by the prosecution.

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

55. The Supreme Court in the case of The Supreme Court in the

case of State of Maharashtra Vs. Bharat Fakira Dhiwar reported

in (2002)1 SCC 622 has held as under :

22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also.

56. The Supreme Court in the case of Yakub Abdul Razak

Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has

held as under :

1844. On the issue of recovery, this Court in State of H.P. v. Jeet Singh, held: (SCC p. 378, para 26) "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is 'open or accessible to others'. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."

(emphasis supplied) 1845. In State of Maharashtra v. Bharat Fakira Dhiwar, this Court also dealt with this issue.

1846. Thus, in view of the above, the submission made by Mr Mushtaq Ahmed, stating that as the recovery had been made from an open place to which all persons had access,

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

cannot be relied upon and is not worth acceptance. 1847. Undoubtedly, the appellant's disclosure statement had been made before the police, as well as the panch witness. The fact that he did not disclose the place where the contraband had been hidden remains entirely insignificant, for the reason that he had led the police party to the said place, and that the said recovery had been made at his behest. The open space from where the recovery had been made though was accessible to anybody, it must be remembered that the contraband had been hidden, and that it was only after digging was done at the place shown by the appellant, that such recovery was made. Hence, it would have been impossible for a normal person having access to the said place, to know where the contraband goods were hidden.

57. In view of the discussion above, the following circumstances

stand proved :

(i) The deceased Munnibai was residing along with the appellant

as his wife for the last more than 1-1 ½ years.

(ii) One day prior to the recovery of her dead body, She was seen

in the company of the appellant and was going towards the river

along with a tube and fishing net.

(iii) The appellant was seen strangulating her by Maniram (P.W.2)

and Hardas (P.W.3).

(iv) Although Maniram (P.W.2) and Hardas (P.W.3) did not narrate

the incident to any body, but they have given explanation in this

regard which is plausible and acceptable.

(v) Leelawati (P.W.1) and Girijabai (P.W. 5) had seen the deceased

for the last time in the company of the appellant and no question was

put to them in their cross examination, with regard to above

circumstance.

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

(vi) Thereafter, the deceased was never seen alive and her death

was homicidal in nature.

(vii) The time gap between the last seen together and date of

recovery of dead body or time of death of the deceased is very

minimum.

(viii) The appellant did not explain as to how the deceased Munnibai

died a homicidal death.

(ix) The appellant did not lodge any report regarding the missing or

homicidal death of his wife, the deceased Munnibai.

(x) There is nothing on record to suggest that the appellant did not

abscond after the incident.

(xi) Recovery of a Safi on the disclosure statement made by the

appellant.

(xii) The Safi was recovered in a hidden condition as it was buried

in the earth.

58. Thus, it is held that the prosecution has succeeded in

establishing beyond reasonable doubt, that the appellant had killed

his wife Munnibai by throttling/strangulating her.

59. It is submitted by the Counsel for the appellant, that the act of

the appellant would not be a murder but it would be covered under

Section 304 Part I of I.P.C.

60. No one can claim that he had no intention or knowledge that by

throttling or strangulating the deceased, death would be caused. Thus,

it is clear that the appellant had intention as well as knowledge to

Bhajju alias Ramprasad Vs. State of M.P. (Cr.A. No.279/2004)

cause death of his wife.

61. Accordingly, it is held that the appellant is guilty of committing

offence under Section 302 of I.P.C.

62. Since, the minimum jail sentence is Life Imprisonment,

therefore, the sentence awarded by the Trial Court is hereby upheld.

63. Ex consequenti, the judgment and sentence dated 29/3/2004

passed by Special Judge, [Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act]/Additional Sessions Judge, Gwalior in

SST No.43/2003 is hereby affirmed.

64. The appellant is in jail. He shall undergo the remaining jail

sentence.

65. A copy of this judgment be provided to the appellant, free of

cost.

66. The appeal fails and is hereby Dismissed.

     (G.S. Ahluwalia)                                         (Rajeev Kumar Shrivastava)
         Judge                                                          Judge
Arun*
                                ARUN KUMAR MISHRA
                                2021.08.12 19:54:22 +05'30'