Madhya Pradesh High Court
Dita vs The State Of Madhya Pradesh on 16 February, 2022
Author: Vivek Rusia
-1-
The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
HON'BLE MR. JUSTICE RAJENDRA KUMAR (VERMA)
Criminal Appeal No.1984/2014
Appellant - Dita S/o Mundia Bhabhar Bhil
Age - 40 years
R/o Chainpuri at Present Navapada
Village - Thandla, District - Jhabua (M.P.)
versus
Respondent(s) - State of Madhya Pradesh,
Through Police Station - Thandla
District - Jhabua (M.P.)
Indore, dated 16.02.2022
As per Vivek Rusia, J:
Shri Gulab Sharma, learned counsel for the appellant.
Shri Sudhanshu Vyas, learned Panel Lawyer for the
respondent / State.
JUDGMENT
I.A. No.26598/2021 is the fifth application filed under
Section 389(1) of the Code of Criminal Procedure, 1973 seeking
temporary suspension jail sentence and grant of bail filed by the
sole appellant - Dita Bhabhar S/o Mundia Bhabhar but with the
consent of the parties, this criminal appeal is heard finally instead
of hearing the application on suspension.
The present Criminal Appeal is filed under Section 374 of
the Code of Criminal Procedure, 1973 against the judgment of
conviction and sentence dated 27.11.2014 passed by the Sessions
Judge, Jhabua in Sessions Trial No.65/2014, whereby the
appellant has been convicted for the offences punishable under
Section 302 of the Indian Penal Code and sentenced to undergo
Life Imprisonment along with fine of Rs.1,000/-. with default
clause to further undergo two months' rigorous imprisonment.
02. As per prosecution story, the dead body of the deceased -
Guddi Bai wife of the present appellant oozing blood inside the
house was first seen by her son P.W.-1 Praveen. On 21.04.2014
near about 6:00 pm when he came to the house to give food to his
father and mother, he saw his father, i.e. present appellant going
towards the forest with a sword in his hand and later saw his
mother inside the house lying dead. The F.I.R. was registered
under Section 302 of the IPC against the appellant. SHO - Gopal
Singh Thakur (P.W-11) reached the spot, drew a spot map, issued
a Safeena Form and called the five witnesses. Lash Panchnama
(Ex-P/5) was prepared, and the dead body was sent to the hospital
for postmortem. He recovered blood-stained soil, cloth etc. The
postmortem was carried out by Dr. Premkishore Panwar (P.W-9)
on 22.04.2014 and found incised would on an occipital parietal
part size 8-1/2 cm / 1-1/2 cm deep up to the brain along with a
fracture on occipital parietal bone. According to his opinion, the
deceased - Guddi Bai died due to the injury caused on the head
and the nature of death is homicidal. The postmortem report is
Ex-P/15. The appellant was arrested on 04.05.2014 and as per his
memorandum statement, a blood-stained sword was recovered
from an open place. Thereafter, a charge sheet was filed under
Section 302 of the IPC and Section 25(1-b) of the Arms Act
against the appellant. The charges were framed by the Sessions
Court, which the appellant denied and pleaded for trial. After
evaluating the evidence available on record, learned Sessions
Judge has convicted the appellant under Section 302 of the IPC.
Hence, the present criminal appeal is before this Court.
03. We have heard learned counsel for the parties at length
and perused the record.
04. Since the injuries sustained by the deceased and the cause
of death are not in dispute, hence, we have no reasons to
disbelieve the postmortem report and the statement of Dr.
Premkishore Panwar (P.W-9). The death is homicidal in nature.
We hereby affirm the findings recorded by the learned Trial court.
The only issue is whether the appellant has rightly been convicted
for the offence punishable under Section 302 of the IPC or not ?
05. The prosecution has examined Praveen (P.W-1), who first
saw the dead body of her mother oozing blood in the house and
saw the appellant running towards the forest area with a sword in
his hand. At the instance of P.W.-1, F.I.R. was registered but in
the witness box, he did not support the case of the prosecution.
According to him, he saw his mother dead and the appellant was
not in the house. He has even denied the lodging of the report to
the police. Thereafter, he was declared hostile and cross-
examined by the learned Public Prosecutor but he has denied all
the suggestions. The police have also examined Bhuri Bai (P.W-
2), daughter-in-law of the deceased who has also not supported
the case of the prosecution. Madhu (P.W-3), another relative of
the wife also turned hostile. Likewise, Pawan (P.W-4) another son
of the deceased and appellant has shown ignorance about the
cause of death. Mangu (P.W-5) has only stated that accused and
deceased - Guddi Bai used to fight and Guddi Bai went to the
house of her father, thereafter, Panchayat has directed the
appellant to call her back but he did not depose that the appellant
has committed the murder of his wife.
06. Adia (P.W-6), elder sister of the deceased has stated that
Praveen (P.W-1) came to her house and informed her that the
appellant has killed his mother. Thereafter, she went and saw the
dead body of Guddi Bai. Her statement cannot be relied on
because Praveen (P.W-1), who gave her information has turned
hostile. Apart from that, other witnesses i.e. Kamal Singh (P.W-7)
and Dinesh (P.W-8) are the seizure witnesses but they are not
supporting the recovery of the sword from the disclosure of the
appellant.
07. The learned Sessions Judge has convicted the appellant
only on the ground that he has failed to explain the cause of death
of his wife as required under Section 106 of the Indian Evidence
Act. The appellant came up with a defence that at the time of the
incident, he was not in the house and for that Praveen (P.W-1) has
supported him. Since he was not in the house, hence, he was not
supposed to give an explanation as required under Section 106 of
the Indian Evidence Act. Most recently the Supreme Court of
India in the case of Satye Singh v/s State of Uttrakhand reported
in 2022 Live Law (Supreme Court) 169 has held that Section 106
of the Evidence Act is not intending to relieve the prosecution
from discharging its duty to prove the guilt of the accused. Para
15 and 16 are reproduced below: -
"15.Applying the said principles to the facts of the present
case, the Court is of the opinion that the prosecution had
miserably failed to prove the entire chain of circumstances
which would unerringly conclude that alleged act was
committed by the accused only and none else. Reliance
placed by learned advocate Mr. Mishra for the State on
Section 106 of the Evidence Act is also misplaced,
inasmuch as Section 106 is not intended to relieve the
prosecution from discharging its duty to prove the guilt of
the accused. In Shambu Nath Mehra vs. State of Ajmer ,
AIR (1956) SC 404, this court had aptly explained the
scope of Section 106 of the Evidence Act in criminal trial.
It was held in para 9:
"9. This 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
preeminently 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. It is evident that that
cannot be the intention and the Privy Council has twice
refused to construe this section, as reproduced in certain
other Acts outside India, to mean that the burden lies on
an accused person to show that he did not commit the
crime for which he is tried. These cases are Attygalle v.
Emperor [AIR 1936 PC 169] and Seneviratne v. R.
[(1936) 3 All ER 36, 49]"
16. In the case on hand, the prosecution having failed to
prove the basic facts as alleged against the accused, the
burden could not be shifted on the accused by pressing into
service the provisions contained in section 106 of the
Evidence Act. There being no cogent evidence adduced by
the 11 prosecution to prove the entire chain of
circumstances which may compel the court to arrive at the
conclusion that the accused only had committed the alleged
crime, the court has no hesitation in holding that the Trial
Court and the High Court had committed gross error of law
in convicting the accused for the alleged crime, merely on
the basis of f the suspicion, conjectures and surmises."
08. After P.W.-1 became hostile, the prosecution has failed to
establish the charges against the appellant by circumstantial
evidence, hence, he has wrongly been convicted by relying upon
section 106 of the Evidence Act as held by the Apex Court in
Satye Singh (supra).
09. So far as an offence punishable under Section 25(1-b) of
the Arms Act is concerned, he has already been acquitted by the
Sessions Court, therefore, we are of the considered opinion that
the conviction is not liable to be upheld.
10. In view of the above discussion, we pass the following
order:-
(i) Criminal Appeal filed by the appellant is hereby
allowed;
(ii) Judgment of conviction and sentence dated 27.11.2014
passed by the Sessions Judge, Jhabua in Sessions Trial
No.65/2014 convicting the appellant under Section 302 of
the Indian Penal Code is hereby set aside;
(iii) Appellant - accused be set at liberty, if not required in
any other case.
The Registry is directed to send back the Trial Court's
record forthwith along with the copy of this judgment.
(VIVEK RUSIA) (RAJENDRA KUMAR (VERMA))
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.02.21 19:17:00 +05'30'
