Radhe vs State Of M.P.
2022 Latest Caselaw 9554 MP

                             1

 IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                      +BEFORE
   HON'BLE SHRI JUSTICE GURPAL SINGH
                   AHLUWALIA
                         &
  HON'BLE SHRI JUSTICE RAJEEV KUMAR
                   SHRIVASTAVA
        CRIMINAL APPEAL NO. 259 of 2012
 Between:-
RADHE SON OF TULARAM HARIJAN,
AGED     32 YEARS,   OCCUPATION-
AGRICULTURE, VILLAGE RAMPURA,
POLICE STATION TYONDHA, DISTRICT
VIDISHA, MADHYA PRADESH
                        .... APPELLANT

(SHRI VINAY KUMAR- COUNSEL FOR THE
APPELLANT )
             AND

STATE OF       MADHYA PRADESH,
THROUGH POLICE STATION TYONDHA
DISTRICT VIDISHA (MP)
                         ....RESPONDENT

(SHRI         RAJIV          UPADHYAY-PUBLIC
PROSECUTOR         FOR   THE     RESPONDENT/
STATE)
                                        2

Reserved on                           :         7TH JULY, 2022
Delivered on                          :        13th July, 2022
---------------------------------------------------------------------------
        This appeal coming on for final hearing, Hon'ble Shri

Justice Rajeev Kumar Shrivastava, passed the following:

                             JUDGMENT

Being aggrieved by the judgment of conviction and

sentence dated 10th January, 2012 passed by Second

Additional Sessions Judge (FTC), Ganjbasoda, District

Vidisha (MP) in Sessions Trial No.119 of 2009 convicting the

appellant u/S 302 of IPC and sentencing him to undergo life

imprisonment with fine of Rs.1,000/- with default stipulation,

the present appeal u/S 374 of CrPC has been filed.

(2) In nutshell, prosecution case is that on the basis of

information given by Chowkidar Mohan (PW3), the police

recorded a dehati nalishi at around 10:55 O'clock for

commission of offence u/S 302 of IPC to the effect that the

said Chowkidar got an information from one Devraj of village

that the appellant has committed murder of his wife. On

arriving village Rampura, they entered in the house of

appellant and found that corpse of Shardabai (wife of the

appellant) is lying with bloods-stains in the kitchen room and

the appellant informed that he has committed murder of his

wife by an axe on the ground that he was always upset

because of demanding a share in the land by his sister. On the

basis of dehati nalishi Ex.P14, FIR (Ex.P16) was registered

and the matter was investigated. During investigation, the

statements of witnesses were recorded and a Naksha

Panchanama and postmortem requisition form Ex.P15 were

prepared. Bloods-stained and plain soil as well as hair braid of

the deceased were seized vide Ex.P17 and spot map was

prepared vide Ex.P2. The accused-appellant was arrested vide

arrest memo Ex.P4 on the basis of his memorandum Ex.P5.

As per memorandum Ex.P6, bloods-stained axe was seized

from the possession of appellant vide Ex.P16. Seized articles

were sent for examination to RFSL Bhopal. On completion of

investigation, the charge sheet was filed before the competent

Court from where the case was committed to the Sessions

Court. Accused-appellant abjured his guilt, pleaded complete

innocence and claimed for trial.

(3) Appellant, in his defence, got examined his real sister

Sakhi Bai as DW1. Prosecution in support of its case

examined as many as 12 witnesses.

(4) The Trial Court, after appreciating the entire evidence

led by prosecution and relying on the same, found charge

against appellant as proved and accordingly, convicted and

sentenced him for commission of offence as indicated above in

paragraph 1 of this judgment.

(5) It is the say of counsel for the appellant that the

judgment passed by trial Court is contrary to law as the trial

Court has not evaluated the evidence properly while

convicting the appellant. There is no eye-witness to the

incident and the incident is based on circumstantial evidence

and the trial Court has relied upon the statements of hearsay

witnesses. It is further submitted that PW-1 Raju, PW2-Pritam,

PW3-Mohan, PW4-Kunjilal, PW5-Bhupendra, PW6-Devraj,

PW8-Parvati Bai & PW9-Ghanshyam have not supported the

prosecution version, therefore, the death of deceased is under

suspicion. No motive of the appellant regarding murder of his

wife is proved by prosecution. Complainant/Chowkidar of

Village, namely, PW3- Mohan did not categorically mention

the name of person who had committed offence. None of

prosecution witnesses has seen the incident regarding murder

of the wife of appellant. Father of deceased Kunjilal also in his

evidence stated that at the time of incident the appellant was

with him. The Trial Court has committed an error by drawing

a finding in regard to blood-stains on the clothes of appellant

accused. The chain of circumstances is not fully established.

On these grounds, the appellant prayed for his acquittal and

the impugned judgment passed by Trial Court deserves to be

set aside.

(6) In reply, counsel for the State supported the impugned

judgment and submitted that there is no infirmity in the

impugned judgment and the trial Court has not committed any

error in convicting and sentencing the appellant for the

aforesaid offence. Hence, prayed for dismissal of this appeal.

(7) We have heard the learned counsel for the parties and

perused the impugned judgment as well as the evidence of

witnesses.

(8) Raju (PW-1) in para 1 of his examination-in-chief has

stated that appellant informed him that he has committed

murder of his wife and the appellant is standing outside at the

time of assembling of the villagers. Pritam (PW-2) is the

hearsay witness who came to know from somebody else that

accused-appellant has committed murder of his wife. Mohan

(PW-3) who is the Chowkidar of the village, in para 1 of his

examination-in-chief, deposed that Devraj informed him that

the appellant has committed murder of his wife and thereafter,

he informed to the police. When he reached the house of

appellant of village Rampura, he found that the police was

already sitting there and the corpse of deceased along with

blood stains was lying in kitchen room and afterwards, the

police conducted other written formalities. This witness has

turned hostile by the prosecution. Kunjilal, father of deceased

(PW-4) and Bhupendra (PW-5) have turned hostile by the

prosecution as they did not support the prosecution version.

Devraj (PW-6) in para 2 of his cross-examination admitted that

he got an information from somebody else to inform the

Chowkidar of village regarding murder of deceased so that

the police received information from Chowkidar, who in his

evidence deposed that the wife of appellant was murdered.

This witness has admitted that the Chowkidar of village

informed him that the appellant himself has admitted that the

murder of his wife was committed by appellant himself. This

witness has also turned hostile as he did not support the

prosecution version. Mansingh (PW-7), Parvati Bai (PW-8)

and Ghanshyam (PW-9) have turned hostile as they did not

support prosecution story. Ramesh Prasad Dwivedi (PW-12) is

the Head Constable of Police Station Tyondha in para 2 of his

examination-in-chief has deposed that on the date of incident,

he had gone along with Officer in-Charge of said police station

and when they reached the house of the appellant, they found

that the deceased was lying dead.

(9) Dr. Prashant Kumar Jain (PW-11) deposed that on 24-

11-2008 he had conducted the postmortem of deceased &

found following injuries on the body of deceased:-

''(1) Left eye bluish colour and left upper- eye lid contusion 3''x1/2'' present.

(2) Left side of neck '' incised wound'' size 3''x2'' expository trachea punctured bone cut down (hole present) (3) Incised wound size 3''x1'' anterior side of the neck.

(4) Incised wound 2'x ½x ½'' ' upper-lip to skin 2'x ½ ''x ½ lower-lip deep to skin.

(5) Incised wound 1 ½ ''x ½ '' x1'' on the left neck.''

According to the opinion of doctor, the cause of death of

deceased was due to asphyxia as a result of incised wound

over trachea. The duration of death of deceased was 24:32

hours before autopsy. According to the opinion of doctor,

rigor moritis were present over the neck of the deceased.

(10) Manoj Dubey (PW10) who is the Investigating Officer

of the case in his evidence deposed that Mohan, the

Chowkidar of village Rampura had informed him that the

appellant committed murder of his wife deceased and her dead

body is lying in the house and on receiving merg information

Ex.P14, immediately he reached the house of appellant and

prepared Panchnama of dead body of the deceased and spot

map was also prepared. Statements of the witnesses were

recorded, blood-stained articles were seized, the appellant was

arrested & other formalities were also done by him. This

witness in para 5 of his cross-examination has specifically

admitted that the Chowkidar of village Rampura given an

information at 10:00 O'clock by telephone that the appellant

had committed murder of his wife-deceased.

(11) Sakhi Bai (DW1) in support of appellant-accused in

para 3 of her statement, deposed that his brother appellant had

four- five acres of land and she got a share in the said land but

she returned the same to his brother appellant. This witness

deposed that her name was also mutated in the revenue records

and denied that she returned the land at the instance of his

brother appellant but the same was returned by her own

wishes. This witness denied that there was any ill-will between

her and her brother on account of land. This witness in para 4

of her cross-examination admitted that she had seen the dead

body of the deceased and the injuries sustained by her on the

head of deceased. This witness in para 12 of her cross-

examination denied that before the incident, a quarrel

regarding the land was taken place between her and her

brother appellant and since then, they did not have in talkative

terms and also denied that her brother appellant was always

furious and threatened to get back his land. From the evidence

of this witness, it is clear that this witness is giving a false

evidence in order to save his own brother appellant accused.

(12 ) In continuation, it is submitted by learned counsel for

the appellant that the impugned judgment is based on

circumstantial evidence and on the basis of wrong appreciation

of evidence on record, the Trial court has passed the impugned

judgment. It is further submitted that the IO did not get any

clue regarding the murder of wife of appellant and the trial

Court did not consider the defence evidence adduced before it

on behalf of appellant. Therefore, the appellant deserves to be

acquittal of alleged offence.

(13) So far as the contention of learned counsel for the

appellant that there is no direct connection of the appellant in

commission of murder of his wife and the chain of

circumstances is incomplete is concerned, it would be in the

interest of justice to consider the law-governing case based on

circumstantial evidence before a case against the accused can

be said to be fully established.

(14) In the matter of Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116, the Hon'ble Apex Court has

laid down a five golden principle as under which respect of a

case based on circumstantial evidence:-

"(1) Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long

and divides vague conjectures from sure conclusions.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused''.

(15) The Hon'ble Apex Court in the matter of Padala Veera

Reddy Vs. State of A.P. 1989 Supp (2) SCC 706 has held as

under:-

"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be

complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

(16) The Hon'ble Apex Court further in the matter of

Ramreddy Rajesh Khanna Reddy vs. State of A.P. (2006)

10 SCC 172 has held as under :-

''26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. '' (17) The Hon'ble Apex Court in the matter of Balwinder

Singh vs. State of Punjab, 1995 Supp (4) SCC 259 has held

as under:-

"4. ... the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with

the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."

(18) The Hon'ble Apex Court in the matter of Sunil Clifford

Daniel Vs. State of Punjab reported in (2012) 11 SCC 205

has held as under: -

''29. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] it was held by this Court that the onus is on the prosecution to prove that the chain is complete and that falsity or untenability of the defence set up by the accused cannot be made the basis for ignoring any serious infirmity or lacuna in the case of the prosecution. The Court then proceeded to indicate the conditions which must be fully established before a conviction can be made on the basis of circumstantial evidence. These are: (SCC p. 185, para 153) "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. ...the circumstances concerned 'must' or 'should' and not 'may be' established.

(2) the facts so established should be consistent

only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion however grave it may be, can never be treated as a substitute for proof.

While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it.''

(19) Circumstantial evidence of following character needs to

be fully established as laid down by Hon'ble Supreme Court in

the case of Satish Nirankari vs. State of Rajasthan (2017) 8

SCC 497 under:-

''(i) Circumstances should be fully proved.

(ii) Circumstances should be conclusive in nature.

(iii) All the facts established should be consistent only with the hypothesis of guilt.

(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused.''

(20) In the light of law laid down by Hon'ble Apex Court in

the above catena of decisions, it is needless to say that what is

required, is not quantitative but qualitative, reliable &

probable circumstances to complete chain connecting the

accused with the alleged crime. In the case at hand, as the

prosecution has established guilt of the accused beyond

reasonable doubt on the basis of clear and cogent evidence,

therefore, he is not entitled as of right to be acquitted.

(21) Next contention of learned counsel for the appellant

that the Trial Court had to examine the incriminating evidence

relied upon by the prosecution that is extra-judicial confession

made by the prosecution witnesses but the Trial Court has

disbelieved the same and has wrongly convicted the appellant

by the impugned judgment. In support of contention, he has

relied on the judgments of Hon'ble Apex Court in the case of

Chandrapal (Earlier MP) vs. State of Chhattisgarh,

reported in 2022 Live-law (SC) 529 & Sahadevan &

Another vs. State of Tamil Nadu decided on 8th May, 2012

in Criminal Appeal No.1405 of 2008.

(22) In the catena of decisions, although the Hon'ble

Supreme Court has held that it is settled principle of criminal

jurisdiction that extra-judicial confession is a weak piece of

evidence; unless it inspires confidence or is fully corroborated

by some other evidence of clinching nature, ordinary

conviction for offence of murder should not be made only on

the evidence of extra-judicial confession but, the aforesaid law

does not require that the evidence of an extra-judicial

confession should in all cases be corroborated. However,

coming to the facts and circumstances of the present case, the

confession is amply corroborated by evidence of Raju (PW-1)

who in para 1 of his examination-in-chief had deposed that the

accused-appellant informed him that he had committed murder

of his wife and after commission of murder, the appellant is

standing outside the house at the time of assembling of the

villagers and the nature of injuries sustained by the deceased is

also supported by medical evidence. It appears that a man can

not confess to himself; but he can only confess to another.

(23) Next contention of the counsel for the appellant that the

Trial Court has disbelieved plea of alibi of the appellant and in

support of contention, he has relied on judgments of Supreme

Court in the case of Shivaji Chintappa Patil vs. State of

Maharashtra decided on 02-03-2021 in CRA No.1348 of

2013 and Kallu @ Laxminarayan vs. State of MP decided

on 07-11-2019 in CRA No.1677 of 2010.

(24) It is settled principle of law that plea of alibi is used as

a shield of defence and never as a weapon of offence by

accused. It is a basic law that in a criminal case in which the

accused is alleged to have committed murder of another

person; the burden lies on the prosecution to prove that the

accused was present at the scene of occurrence and has

participated in the crime. But, once prosecution succeeds in

discharging the burden, it is incumbent on the accused who

adopts plea of alibi to prove it with absolute certainty so as to

exclude possibility of his presence at the place of occurrence.

When presence of accused at the scene of occurrence has been

successfully and satisfactorily proved by the prosecution

through reliable and cogent evidence, then normally the Court

would be slow to believe any counter-evidence to the effect

that the appellant was elsewhere when the occurrence was

happened. It appears that the prosecution, in the present case,

has successfully established its case beyond reasonable doubt.

(25) In the light of above, it is apparent that the burden of

proof lies on the appellant accused to prove that as to how

crime was committed, as to who has committed murder of his

wife and as to why his wife was murdered. The accused in the

present case at hand, has utterly failed to establish/prove the

above-said facts before the Trial Court. Even his sister Sakhi

(DW1) has remained failed to establish/prove the said facts

and in order to save her real brother-appellant, she has given a

false evidence before Trial Court whereby the trial Court

disbelieved her evidence.

(26) So far as next contention of the counsel for the

appellant that there is no eye-witness to the incident is

concerned, in various judgments of the Hon'ble Supreme

Court, it has been held that the Court will not insist on the

corroboration by any other witness particularly, as the incident

might have occurred at a time or place when there was no

possibility of any other eye-witness being present. Indeed, the

Court always insists on the quality and not on quantity of

evidence. Just because most of prosecution witnesses

had turned hostile is also not a ground or reason to discard the

entire prosecution evidence. Witnesses turning hostile is a

major disturbing factor faced by Criminal Courts in our

country and the reasons may be the result of threat or

intimidation or due to monetary consideration or by any other

tempting offers or whatsoever reason, best known to them.

There is no doubt that the appellant had committed murder of

his wife in a very devilish manner and the motive on the part

of appellant-accused for committing murder of his wife cannot

be ruled out.

(27) On the basis of prolix discussions made above and also

considering the material available on record, we are of the

considered opinion that the finding of conviction and sentence

for offence u/S 302 of IPC recorded by the Trial Court against

the appellant is well-substantiated by the evidence on record.

The Trial Court has appreciated the evidence in the right

perspective as such, we do not find any justification to

interfere with the findings, therefore, the impugned judgment

of conviction and sentence dated 10th January, 2012 passed by

Second Additional Sessions Judge (FTC), Ganjbasoda, District

Vidisha (MP) in Sessions Trial No.119 of 2009 is hereby

maintained and affirmed. The appeal is, accordingly,

dismissed.

(28) If the appellant is on bail, then his bail bond and surety

bonds are hereby cancelled and he is directed to surrender

before the Court concerned forthwith, failing which Trial

Court shall take appropriate steps to put the appellant back in

jail to undergo the remaining jail sentence as awarded to him.

(29) Let a copy of the judgment be sent to Jail Authorities

as well as a copy of this judgment along with the Lower Court

Record be immediately sent to the Court below for compliance

and necessary entries be maintained in the relevant Register.

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




MKB




 Digitally signed by MAHENDRA BARIK
 Date: 2022.07.13 17:43:04 +05'30'