Madhya Pradesh High Court
State Of M.P. vs Kalyan Singh on 9 March, 2022
Author: Gurpal Singh Ahluwalia
1
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 910/2010
Kashiram Yadav
Vs.
The State of M.P.
&
Cr.A. No.453/2014
State of M.P.
Vs.
Kalyansingh and others
Shri D.S. Raghuvanshi, learned counsel for the appellant in
Cr.A. No.910/2010 and for respondents in Cr.A. No.453/2014.
Shri Lokendra Shrivastava, learned counsel for the
respondent/State in Cr.A. No.910/2010 and for appellant/State in
Cr.A. No.453/2014.
Date of Hearing : 24/February/2022
Date of Judgment : 9th/March/2022
Approved for Reporting :
Judgment
9th- March -2022
Per G.S. Ahluwalia J.
By this common judgment Criminal Appeal No.910/2010 filed
by Kashiram Yadav and Criminal Appeal No.453/2014 filed by the
State against the acquittal of Kalyansingh, Ballu alias Sobran Yadav
and Kailash Singh shall be decided.
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
2. Both the criminal appeals arise out of judgment dated
12/10/2010 passed by Sessions Judge, Datia in ST No.26/2010. The
appellant-Kashiram Yadav has been convicted under Section 302 of
IPC and sentenced to undergo life imprisonment and a fine of
Rs.50,000/- with default imprisonment of one year, whereas the
appellant-Kashiram Yadav has been acquitted of the charge under
Section 498-A of IPC. Similarly, respondents-Kalyansingh, Ballu
alias Sobran and Kailash Singh have been acquitted of the charge
under Sections 498-A and 302 of IPC.
3. The necessary facts for disposal of the present appeal in short
are that the appellant-Kashiram is the husband of the deceased-Smt.
Archana. After the marriage of the deceased with the appellant-
Kashiram Yadav, it was alleged that the appellant as well as the
acquitted accused persons were harassing her for demand of dowry.
On 16/11/2009 the deceased-Archana had a talk with her brother,
who informed that the appellant-Kashiram and his brothers are
demanding Rs.1,00,000/-, failing which they are threatening to kill
her. Accordingly, her brother-Amit Kumar alongwith his father
Kishore Singh and friend Ramji Gupta went to the matrimonial house
of the deceased and tried to pursue the appellant and other co-
accused persons. It was alleged that when the above-mentioned three
witnesses were about to return back, at that time the appellant-
Kashiram Yadav and acquitted accused persons set the deceased-
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
Archana on fire after pouring kerosene oil and ran away. The fire was
extinguished by Amit Kumar, Kishore Singh and Ramji Gupta as well
as other villagers and was brought to Police Station Goraghat at
about 1:20 in the night and lodged an FIR, Ex.P/1 and accordingly,
Crime No.105/2009 was registered for offence under Section 307/34
of IPC. The injured-Archana was sent for medical examination to
Dabra hospital. Dr. R.K. Arora found that the injured-Archana was in
a semi unconscious condition and was not in a fit state of mind to
give dying declaration and had superficial as well as deep burns on
her body. The extent of burn was 80-90%, which was caused by dry
heat. After giving first-aid, she was referred to J.A. Hospital, Gwalior.
On 17/11/2009 the injured-Archana was admitted in Kamla Raja
Hospital at about 3:30 in the morning and she died at about 9:45 in
the morning. An information was given to the Police Station Kampoo
and a Merg intimation was lodged, Safina form was issued and Lash
Panchnama was prepared. The dead body was sent for postmortem
alongwith a requisition. The postmortem of the dead body was
conducted. The scalp hairs, from which smell of kerosene was
coming, were removed and sealed. The viscera was also sealed and
handed over to the police. The dead body was handed over to Kishore
Singh, father of the deceased. The spot map was prepared on
17/11/2009. Semi-burnt clothes, broken pieces of bangles and match
stick were seized. The statements of the witnesses were recorded. The
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
appellant-Kashiram was arrested vide arrest memo Ex.P/7 and the
other acquitted accused persons were also arrested. The incriminating
articles were sent to FSL and the FSL report was received. After
completing the investigation, charge-sheet was filed for offence
under Sections 302, 307/34 of IPC and under Section 3/4 of the
Dowry Prohibition Act.
4. The Trial Court by order dated 9/3/2010 framed charges
against the appellant-Kashiram Yadav and acquitted accused persons
for offence under Sections 498-A and 302 of IPC.
5. The appellant as well as acquitted accused persons abjured
their guilt and pleaded not guilty.
6. The prosecution examined Amit Kumar Yadav (PW-1),
Munnalal (PW-2), Rajendra Kumar Vanshkar (PW-3), Rakesh Kumar
(PW-4), R.S. Shrivastava (PW-5), R.P. Sharma (PW-6), Ramdas (PW-
7), Narayan Singh (PW-8), Ku. Soumya alias Somu (PW-9), Kishore
Singh (PW-10), Ramji Gupta (PW-11), Surendra Sharma (PW-12),
Dr. Ankur Bhatnagar (PW-13), Ajay Bhargava (PW-14), Khemraj
Singh (PW-15), Dr. V.S. Tomar (PW-16), Dr. R.K. Arora (PW-17).
7. The appellant and the acquitted accused persons examined
Virendra Singh Jat (DW-1) and D.N. Waliya (DW-2) in their defence.
8. The Trial Court by the impugned judgment acquitted
Kalyansingh, Ballu alias Sobran Yadav and Kailash Singh of the
charge under Sections 498-A and 302 of IPC. Similarly, the
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
appellant-Kashiram Yadav was also acquitted of the charge under
Section 498-A of IPC, but convicted him for offence under Section
302 of IPC and sentenced him to undergo life imprisonment.
9. Challenging the judgment and sentence passed by the Court
below, it is submitted by the counsel for the appellant-Kashiram
Yadav that Amit Kumar Yadav (PW-1), Kishore Singh (PW-10) and
Ramji Gupta (PW-11) are the related and interested witnesses and,
therefore, their evidence is not reliable. Soumya (PW-9) is a child
witness and, therefore, she should have been disbelieved, as there
was a possibility of tutoring. The Trial Court after having come to a
conclusion that three accused persons were over-implicated and the
allegation of harassment or treating the deceased with cruelty was
false, should not have convicted the appellant-Kashiram Yadav for
offence under Section 302 of IPC.
10. Per contra, the counsel for the State has supported the findings
recorded by the Trial Court so far as it relates to conviction of
appellant-Kashiram and has also challenged the findings of the Trial
Court so far as it relates to acquittal of three accused persons, namely,
Kalyansingh, Ballu alias Sobran and Kailash Singh.
11. Considered the submissions made by the counsel for the
parties.
12. Before adverting to the facts of the case, this Court would like
to verify as to whether the death of deceased was homicidal or not ?
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
13. Dr. V.S. Tomar (PW-16) had conducted the postmortem and
found following injuries:-
"Eyes closed, cornea hazy, mouth closed, fist
semi-open, rigor mortis present all over the body.
Ante-mortem injuries present over the body, II
to III burn present over face, neck, chest, abdomen,
lower and upper limbs all over except hands, on back
from nape of neck to lumber region and below buttock
to ankle region both sides.
Scalp hairs emits faint kerosene smell which
was preserved for final opinion of foul media.
Burns were extensive and were sufficient to
cause death in ordinary course of nature and cause of
death is cardio respiratory failure, as a result of burn
and its effect. Duration of death was within 6 to 24
hours since postmortem examination and it was also
found that nature of death should be decided on the
basis of circumstantial evidence."
14. This witness was cross-examined, who claimed that he is
posted in Casualty Department of Forensic Science Department of
J.A. Hospital for the last 20 years. He claimed that in a case of MLC,
no amount is to be deposited. He expressed his ignorance as to
whether any amount was deposited by the attender or not. He was not
in a position to say as to whether the deceased was ever admitted in
J.A. Hospital, Gwalior, but claimed that marks of treatment were
present. He did not receive any copy of the FIR or lash panchnama
along with the dead body. Before the postmortem, he was not aware
of the fact that which Police Station had territorial jurisdiction to
investigate the matter. Only some part of the back of the deceased
had remained un-burnt and the deceased had suffered approximately
90% burn. However, he admitted that in postmortem report Ex. P/24
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
extent of burn was not mentioned. He claimed that even a person
with 100 % burn can speak. He further claimed that death of the
deceased could be homicidal or suicidal and except burn injuries, no
other injury was found.
15. Dr. R.K. Arora (PW-17) has stated that on 17/11/2009 he was
posted as Medical Officer in Dabra Civil Hospital, Gwalior. In the
intervening night of 16th - 17th at about 01:45 AM, Police Constable
Awadhesh Kumar had brought the injured along with requisition Ex.
P/23 and he had medically examined her and found that injured was
in a semi-unconscious condition and, therefore, her dying declaration
could not be recorded. She had suffered superficial and deep burns
except on her back. She had suffered 80 - 90 % burns which could
have been sustained on account of dry heat. After giving first aid, she
was referred to J.A. Hospital, Gwalior. MLC is Ex. P/25.
16. This witness was cross-examined and he stated that in MLC
Ex. P/25, OPD number has been mentioned. OPD register is
maintained by the Compounder. Name of the Compounder is not
mentioned in the register. He denied that the name of attender is
required to be mentioned in the register and his signatures are also
required to be taken. In a semi-conscious condition, the patient is not
in a position to speak, but he remains in a drowsy condition. He
denied that injured was in a position to speak. 'Dry Heat' means use
of any inflammable substance like kerosene, petrol etc. Since there
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
was no smell of kerosene oil, therefore, he had not mentioned in the
MLC. He admitted that in case of burning by pouring kerosene oil,
smell of kerosene oil would remain for 6 hours. Since injured was in
a semi-unconscious condition, therefore, he had not recorded her
dying declaration. Thus, it is clear that the deceased suffered burn
injuries and she succumbed to the injuries. However, whether the
death was homicidal, accidental or suicidal shall be decided after
considering the evidence available on record.
17. Soumya alias Somu (PW-9) aged about 7 years has stated that
the incident took place in the night and from the morning itself
quarrel was going on between her parents and her father (appellant-
Kashiram) was beating her mother. Amit Kumar Yadav (PW-1) is her
maternal uncle, whereas her maternal grandfather is Kishore Singh
(PW-10) and Ramji Gupta (PW-11) is her maternal uncle. On the date
of incident all the three brothers had caught hold of her mother and
the appellant after pouring kerosene oil, set her on fire. The match
stick was lit by her father, as a result, her mother suffered burn
injuries. Her mother started shouting and asked for help from her
father and brother. After hearing her noise, Amit Kumar Yadav (PW-
1), Kishore Singh (PW-10) and Ramji Gupta (PW-11) came on the
spot and started extinguishing fire. All the accused persons ran away.
Her maternal uncle had telephoned her mother in the evening, who
had informed that her husband (appellant-Kashiram) is assaulting her
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
for the last 4-5 days and accordingly, the father of this witness had
snatched the phone from his wife (deceased). This witness was cross-
examined and she stated that on the ground floor, a school is being
run by her parents and she was also studying in the same school.
Building has two rooms on the first floor, in which they were
residing. The house of his uncle and Tau is at a distance of about 100
houses. Her house has a telephone connection and its number is
270234. She further stated that after the death of her mother, she is
residing with her maternal uncle and maternal grandfather. She
denied that her father or her uncles had ever requested her maternal
uncle and maternal grandfather to hand over her custody to them. She
denied that she has been tutored by her maternal uncle and maternal
grandfather. She was unable to inform the timings of her school. She
was also unable to inform the time to go to the bed and awakening in
the morning. She further stated that she woke up when her mother
was burnt. The police party had enquired about the incident. She was
interrogated in the police station. She was taken to the police station
by her maternal uncle and maternal grandfather. She denied that
while going to the police station, she was told by her maternal uncle
and maternal grandfather about the incident, which was to be narrated
by her. She once again clarified that she was never tutored by her
maternal uncle and maternal grandfather. She could not explain as to
why the fact of fight between her parents right from the morning was
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
not mentioned in her police statement Ex.D/1. She further claimed
that she had informed the police that her Tau and uncle had caught
hold of her mother, but could not explain as to why the said fact is
not mentioned in her police statement Ex.D/1. When her mother got
burn, her maternal uncle and maternal grandfather were standing near
their vehicle. She further claimed that she had informed the police
that when her mother got burn, her uncle and Tau were also present in
the room, but could not explain as to why the said fact was not
mentioned in her police statement Ex.D/1. She further claimed that
she had informed the police that her mother had shouted and had
asked for help from her maternal uncle and maternal grandfather, but
could not explain as to why the said fact is not mentioned in her
police statement Ex.D/1. Munnalal is her neighbour and had
extinguished the fire of her mother and in the process, his hands were
also burnt. She claimed that Munnalal never went to the police
station alongwith her mother. She denied that her father had also took
her mother to the hospital. She claimed that her maternal uncle and
maternal grandfather had taken her mother to the hospital. She denied
that her maternal uncle, maternal grandfather and Ramji Gupta were
not present at the time of the incident. She claimed that she had also
gone to the hospital alongwith her mother. She denied that her mother
was directly taken to Gwalior hospital, but claimed that earlier she
was taken to Goraghat Police Station and from there she was taken to
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
Dabra Hospital. She further claimed that she had informed the police
that her maternal uncle had taken her mother, but could not explain as
to why the said fact is not mentioned in her police statement Ex.D/1.
She further claimed that she had informed the police that her father
had intervened in the conversation between her mother and her
maternal uncle by snatching the phone, but could not explain as to
why the said fact is not mentioned in her police statement Ex.D/1.
She denied that her mother had called her maternal uncle. She
claimed that she has two maternal uncles, however, both of them are
unmarried. She has one maternal aunt, who is younger to her mother
and is married. She denied that her maternal uncle and maternal
grandfather had taken loan from her mother for the marriage of their
daughter. She denied that the school fees etc was being received by
her mother. She further claimed that the accused-Kailash has
toddlers, but could not explain that the name of her aunt is Kapoori.
The school is in four rooms. She further stated that she was sleeping
and after hearing the noise, she woke up. She further stated that her
maternal uncle and maternal grandfather and Ramji Gupta were
present there and Munnalal came thereafter. She was not in a position
to specifically clarify as to when she woke up, whether her mother
was already burnt or was lying or not. She once again denied that her
father had taken her mother to the hospital, but specifically claimed
that her maternal uncle and maternal grandfather took her mother to
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
the hospital.
18. Amit Kumar Yadav (PW-1), Kishore Singh (PW-10) and Ramji
Gupta (PW-11) are the persons who claims to have visited the
matrimonial house of the deceased immediately prior to the incident.
19. Amit Kumar Yadav (PW-1) has stated that on 16/11/2009 he
had called his sister-Archana, who informed that the accused persons
(including acquitted accused persons) were demanding Rs.1,00,000/-
and they beat her. He had called his sister at about 7-7:15 PM and he
was also informed by the deceased that in case if the money is not
paid, then they are threatening to kill her. Accordingly, he alongwith
his father-Kishore Singh and friend Ramji Gupta left from village
Konch to village Uchad and when they reached the matrimonial
house of the deceased, all the four brothers (appellant and acquitted
accused persons) were present. He and his father had a talk with the
accused persons. His father tried to pursue the accused persons by
saying that he does not have money, therefore, they should not beat
his daughter, but they got annoyed and went upstairs. Thereafter, this
witness, Kishore Singh (PW-10) and Ramji Gupta (PW-11) came
downstairs and could merely reach to their vehicle, when they heard
the cries seeking help, accordingly, they rushed to the room on the
first floor and found that the appellant-Kashiram was having a
container of kerosene oil and poured the kerosene oil on the deceased
and lit the match stick, whereas the other acquitted accused persons
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
were catching hold of the deceased. When the witnesses shouted, the
appellant as well as acquitted accused persons ran away. Thereafter,
they tried to extinguish the fire of the deceased and Munnalal Yadav
had also helped them. Soumya, her niece, was also present in the
room. After extinguishing the fire, the deceased was brought
downstairs and they took her to Police Station Goraghat, where FIR,
Ex.P/1 was lodged. A police personnel was sent alongwith them to
Dabra hospital, from where the deceased was referred to Madhav
Dispensary. The deceased-Archana died at 9:30 in the morning. The
spot map is Ex.P/2. His phone number is 245773. The call details are
Ex.P/3 and P/4, which were collected from Telecommunication
Center, Urai, District Jalon. The dead body of the deceased was
received by his father and her cremation was done at Nodghat,
Jhansi. It was further alleged that immediately after the incident and
till her cremation, the accused persons had not come. This witness
was cross-examined and he claimed that he had informed the police
that he was informed by his sister that the accused persons are in the
habit of beating her daily, but could not explain as to why the said
fact is not mentioned in the FIR, Ex.P/1. He had informed the police
that he had called his sister at about 7-7:15 and his sister had
informed that in case of non-fulfillment of demand, they are
threatening to kill her. He further admitted that he did not inform the
police that after hearing this information from the deceased, he, his
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
father and friend Ramji Gupta went to her matrimonial house. He
further claimed that his father had informed the police that his
daughter may not be beaten as he does not have money, but could not
explain as to why the said fact is not mentioned in the FIR, Ex.P/1.
He further claimed that he had informed the police that when they
heard the noise from the first floor of the house, they rushed to the
room, but could not explain as to why the said fact is not mentioned
in the FIR, Ex.P/1. He further claimed that he had informed that the
appellant was pouring kerosene oil on the deceased and the other
accused persons had caught hold of her and thereafter, the appellant
lit the match stick, but could not explain as to why the said fact is not
mentioned in the FIR, Ex.P/1. He further claimed that he had
informed the police that his niece was also present, but could not
explain as to why the said fact is not mentioned in the FIR, Ex.P/1.
The appellant-Kashiram are four brothers, but claimed that he does
not know that the father of appellant-Kashiram had expired about 20
years back and the mother of appellant-Kashiram also expired after
the marriage of his sister. He admitted that appellant-Kashiram is
running a school, but on his own stated that he is residing on the first
floor of the same building. He denied for want of knowledge that his
sister had consumed dettol under the impression of an acid. He
denied for want of knowledge that Munnalal had taken the deceased
to Dabra hospital, but he claimed that Munnalal came on the spot
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
after this witness had already reached to the spot. The fire was
extinguished by this witness and his friend Ramji Gupta by putting
blanket and water. Since Munnalal had extinguished the fire on the
lower part of the body of the deceased, therefore, his hands got burnt.
A suggestion was given that his sister might have got burnt
accidentally, which was denied by saying that she was set on fire by
the appellant in his presence. He further admitted that when they
reached in the room, his sister was already burning and the appellant
was standing separately and after noticing the witnesses, all the
accused persons ran away. He had seen a container in the hand of the
appellant-Kashiram. He could not say as to whether the container of
the kerosene oil was seized or not. He denied that he is giving false
statement before the Court. Similar evidence has been given by
Kishore Singh (PW-10) and Ramji Gupta (PW-11).
20. Kishore Singh (PW-10) apart from reiterating the statement of
Amit Kumar Yadav (PW-1) claimed that Lash Panchnama, Ex.P/8,
was prepared in his presence and the Safina form is Ex.P/10. The
dead body of the deceased was handed over to him vide Ex.P/13.
This witness was cross-examined. It was stated by him that he has
two sons and two daughters. The deceased-Archana was the eldest
daughter. The younger daughter got married in the month of
February, 2008. He has two sons and both of them are unmarried. His
monthly salary is Rs.13,000-14,000/- and he also has 10 Bigha of
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
land. He admitted that his financial condition was not good to give
Rs.1,00,000/-. He admitted that the accused persons are five brothers,
out of which four are accused in the present case. His daughter was
married about 10 years back. He denied that Kashiram or any other
accused had never demanded Rs.1,00,000/-. He denied that he had
taken Rs.1,00,000/- from the deceased for the marriage of his
younger daughter and thereafter, had not returned the said amount.
He also denied that he was demanding jewelry from the deceased for
the marriage of his son Amit Kumar Yadav. He admitted that the
deceased had not visited her parental home for the last 7-8-9 months
prior to the date of her death. He further stated that on one occasion
he had made a complaint to the police, but nothing was done,
however, Panchayat was convened. He never disclosed the fact of
harassment to any neighbour. The people were watching the incident
from their roofs, but thereafter claimed that since he was in tension,
therefore, he could not notice anything. He denied that the accused
persons had also gone to Gwalior for the treatment of the deceased.
He denied that the expenses of conveyance were borne by the
appellant and other accused persons. He denied that the treatment
continued for two days and the medical expenses were borne by the
accused persons. He stated that first of all, they took the deceased to
the police station and from there, they went to Dabra hospital.
21. Munnalal (PW-2) is an independent witness, who has stated
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
that at about 11:30-12 in the night he heard the noise seeking help
and accordingly, he ran to the house of the deceased and found that
the deceased was burning and accordingly, he extinguished her fire
and in the process, his hands were also burnt. As the deceased was
still burning, he rushed towards downstairs for extinguishing his own
fire and by jumping in a pool of water, he somehow extinguished his
fire. Since this witness was also a witness of oral dying declaration
and did not support the prosecution case, therefore, he was declared
hostile. He denied that any oral dying declaration was given by the
deceased. He further denied that none of the accused persons were
present on the spot. He further denied that the fire was extinguished
by Amit Kumar Yadav, Kishore Singh and Ramji Gupta. He denied
that the deceased was taken to the Police Station Goraghat by Amit
Kumar, but claimed that he himself had taken the deceased to the
police station. He further claimed that they were directed to go to
Dabra, but they directly went to Gwalior. He denied that the deceased
was attended by a doctor at Dabra hospital. He admitted that at Dabra
hospital the doctor had informed that since the deceased has suffered
90% burn, therefore, she should be taken to Gwalior hospital. He
denied that he did not go to Kamla Raja Hospital, however, he
claimed that he did not stay back at Gwalior till the death of the
deceased, but claimed that Amit Kumar, Kishore Singh and Ramji
Gupta had stayed back in the hospital. He claimed that he went for
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
his treatment and came back after getting himself treated. He
admitted that in spite of the fact that the deceased had suffered burn
injuries, but the accused persons did not take her to Gwalior for
treatment, but thereafter claimed that her husband (appellant) was
with her. He denied that he is giving a false statement in the Court.
He further denied that right from the beginning of the day, he was
trying to compromise the matter between the appellant and the
accused persons. He denied that he had made an attempt to ensure
that the evidence of Amit Kumar is not recorded. He further denied
that Soumya (PW-9) was sleeping. He denied that Amit Kumar and
his father had come to the hospital after one day of the incident, but
claimed that they had reached to the hospital in the night itself and
met with him. He admitted that at the time of death of the deceased,
he was not in the hospital.
22. Rajendra Kumar Vanshkar (PW-3) is the Patwari and had
prepared the spot map on 15/12/2009.
23. Rakesh Kumar (PW-4) had arrested the accused Kashiram on
8/2/2010 from Uchad bus stand.
24. R.S. Shrivastava (PW-5) had prepared the Lash Panchnama,
Ex.P/8. In cross-examination, he denied that the husband of the
deceased (appellant) was present at the time of preparation of Lash
Panchnama. He also denied that Munnalal was also present at the
time of preparation of Lash Panchnama.
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
25. R.P. Sharma (PW-6) had issued the Safina form, Ex.P/10. Lash
Panchnama was prepared by R.S. Shrivastava (PW-5), Ex.P/8.
Requisition for postmortem Ex.P/11 was prepared. Constable Angad
Singh brought a packet containing scalp hairs, viscera, salt solution
and specimen of seal, which were seized vide seizure memo Ex.P/12.
The dead body of deceased-Archana was handed over to her father
Kishore Singh vide receipt Ex.P/13. This witness was cross-examined
and in the cross-examination, he specifically stated that since the
husband of the deceased was not present, therefore, the dead body of
the deceased was handed over to her father, however, the said fact is
not mentioned in Ex.P/13. He clarified that he did not think it proper
to mention the names of the persons who were present at the time of
handing over of dead body. He also claimed that he had verified as to
whether the husband of the deceased is present or not, but he was told
that he is not present.
26. Ramdas (PW-7) was a witness of seizure. Although he had
admitted his signatures on the seizure memo Ex.P/14, but he did not
support the prosecution case and accordingly, he was declared hostile
by the Public Prosecutor. In cross-examination by the Public
Prosecutor he denied seizure of burnt clothes, broken bangles and
burnt match stick, but admitted that the police had obtained his
signatures on the seizure memo.
27. Narayan Singh (PW-8) was also the witness of seizure, who too
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
turned hostile.
28. Surendra Sharma (PW-12) is a Police Constable, who had
brought the Merg intimation, Ex.P/9, from Police Station Kampoo to
Police Station Goraghat.
29. Dr. Ankur Bhatnagar (PW-13) had given the information on
17/11/2009 about the death of deceased-Archana, Ex.P/16.
30. Ajay Bhargava (PW-14) is the Investigating Officer. On
17/11/2009 he had prepared the spot map, Ex.P/2. On the said date at
about 1:20 pm he had seized semi-burnt pieces of clothes, semi-burnt
broken bangles and a match stick vide seizure memo, Ex.P/14. The
statement of the witnesses were recorded as per their narration. The
appellant-Kashiram was arrested on 8/2/2010 from Uchad Bus Stand
vide Ex.P/7. The acquitted accused Kalyansingh was arrested on
18/11/2009 vide arrest memo Ex.P/17, whereas the acquitted accused
Kailash Singh was arrested on 29/12/2009 vide arrest memo Ex.P/18
and acquitted accused Ballu alias Sobran was arrested on 24/12/2009
from Uchadeshwar Temple vide arrest memo Ex.P/19. The call details
issued by the department of Telecommunication were provided by
Amit Yadav which were seized vide Ex.P/3, P/4 and the incriminating
articles were sent to FSL Sagar vide draft Ex.P/20. FSL report
received from FSL Sagar is Ex.P/21 and P/22. Semi-burnt clothes of
the deceased are Article 'A', semi-burnt bangles are Article 'B', match
stick is Article 'C' and scalp hairs are Article 'D'. This witness was
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
cross-examined and in his cross-examination, he specifically stated
that at the time of spot inspection, he neither found any container of
kerosene oil nor any bucket or any utensils, which could have been
used for extinguishing fire. He admitted that had he found those
articles on the spot, he would have certainly seized them. He had
stayed in Kamla Raja Hospital for about 30 minutes. The omissions
and contradictions in the police statement of the witnesses were also
put to this witness, who specifically stated that the statements of the
witnesses were recorded in the words of the witnesses themselves and
he had neither added nor subtracted anything. He further stated that
he had not recorded the statement of the neighbours because their
houses were not immediately adjoining to the place of incident. The
match stick which was seized from the spot was sent for FSL. He
denied that the seized articles were not sealed on the spot, however,
he admitted that he has not affixed the specimen seal on the seizure
memo. He further admitted that Soumya (PW-9) had merely disclosed
the name of appellant-Kashiram Yadav and not of other acquitted
accused persons. He denied that he had ever recorded the dying
declaration of deceased-Archana.
31. Khemraj (PW-15) is the Scribe of the FIR who stated that Amit
Kumar brought the deceased in unconscious and burnt condition. The
FIR Ex. P/1 was written. Copy of the FIR was sent to JMFC vide
dispatch No.1433 dated 17/11/2009 which was received by the JMFC
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
on 17/11/2009 itself. The injured was referred to Dabra hospital for
medical examination vide requisition Ex. P/23. He had recorded merg
intimation Ex. P/15 on the basis of merg diary of Police Station
Kampoo which was brought by Constable Surendra Pachauri. In
cross-examination, he admitted that in column 3 of the FIR Ex. P/1,
rojnamcha number is not mentioned, but clarified on his own that if
the information of the non-cognizable offence under Section 155 of
Cr.P.C. is written, only then rojnamcha number is mentioned. He
admitted that in column 5, there is overwriting, but clarified that he
had also put his small signature. He denied that the FIR was lodged
after one day. He claimed that since the date is changed after 12:00 in
the night, therefore, he had mentioned the time as 00:20. He claimed
that the injured Munnalal had not come to lodge the FIR. He further
claimed that he had not sent Munnalal for medical examination. He
expressed his ignorance about the fact that Munnalal had also
sustained burn injuries while saving the deceased. He further claimed
that at the time of lodging the FIR, the deceased/injured was not in a
position to speak. The injured had stayed back in the Police Station
for about 10 minutes. He denied that the deceased was speaking and
he had wrote the FIR as per his wishes. It was further stated that at
the time of sending the deceased for medical examination, he was
aware of the number of the FIR. He further admitted that in the
acknowledgment of receipt of copy of the FIR, seal of the Court is
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
not affixed. His attention was also invited to various omissions in the
FIR and he claimed that the FIR was lodged in the words and as per
the dictations of the complainant. He denied that the deceased or
injured was brought by her husband and in-laws. He denied that he
did not lodge the FIR on the information given by Kashiram and had
referred the deceased/injured to the hospital without lodging the FIR.
He denied that the appellant had informed that the deceased had tried
to commit suicide. He denied that the constable Awadhesh was sent
along with injured lady and her husband Kashiram. He on his own
clarified that after recording the FIR, he had sent the injured for the
medical examination along with constable Awadhesh. He denied that
the FIR was lodged after the death of injured at the instance of Amit
Kumar and his father. He once again clarified that when the deceased
had come to the Police Station, she was not in a position to speak.
32. Virendra Singh Jat (DW-1) has stated that he is working as a
Compounder in the casualty department for the last 29 years. He has
brought register of Madhav Dispensary. On 17/11/2009 in between
12:00-03:00 AM, the injured Archana W/o Kashiram was sent to
female surgical ward from Dabra Hospital. The patient was admitted
by constable Awadhesh Kumar posted in Police Station Goraghat.
Along with constable, husband of the injured was also
accompanying. The entry was regularly made in the register. The
relevant entry was at Serial No.37903 and the signature of Kashiram
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
are at B to B. Relevant register is Ex. D/4 and photocopy is Ex.
D/4C. This witness was cross-examined and he admitted that in
complete address, only the name of Awadhesh Kumar, Constable
Goraghat is mentioned. He further admitted that name of Kashiram
and signatures are mentioned in the treatment column of Ex. D/4,
however, he clarified that he does not know, who Kashiram was. He
could not explain as to whether the signatures of Kashiram in Ex. D/4
are in Hindi or English. He further admitted that signatures of
Kashiram were not done in his presence. He further admitted that
register Ex. D/4 remains in the Casualty Ward in an open condition in
the custody of a Compounder. He does not know as to whether the
person Kashiram signs in Hindi or English. He further said that he
does not know as to whether signature of Kashiram on Ex. D/4 have
been made fraudulently or not. He further admitted that entry on A to
A and B to B in Ex. D/4 was not done in his presence.
33. D.N. Waliya (DW-2) has stated that on 17/11/2009 at about
01:45 AM, the Police Constable Awadhesh had brought patient
Archana along with police requisition for MLC. OPD register is Ex.
D/5 and its photocopy is Ex. D/5C. Name of the injured Archana is
mentioned at Serial No.056488. In the MLC register, it is mentioned
that the injured has sustained 80-90% dry heat and she was not in a
position to give dying declaration and she was referred to J.A.
Hospital, Gwalior. MLC register is Ex. D/6 and its photocopy is Ex.
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
D/6C. In cross-examination, he admitted that at the time when the
patient was brought, he was not present and as per the register Ex.
D/5 and D/6, only Police Constable Awadhesh was accompanying
injured and presence of any other person is not mentioned.
34. Thus, it is clear that the entire prosecution story is based on the
evidence of eye-witnesses Soumya (PW-9), Amit Kumar Yadav (PW-
1), Kishore Singh (PW-10) and Ramji Gupta (PW-11).
35. First contention of the counsel for the appellant is that Amit
Kumar (PW-1), Soumya (PW-9), Kishore Singh (PW-10) and Ramji
Gupta (PW-11) are related witnesses and, therefore, they are not
reliable. The Trial Court has disbelieved the witnesses so far as the
allegations of cruelty is concerned and has also disbelieved the
witnesses so far as the involvement of the acquitted accused persons
Kalyansingh, Ballu @ Sobran and Kailash Singh in the murder of the
injured, therefore, these witnesses are not reliable.
36. Considered the submissions.
37. The evidence of a witness cannot be discarded merely because
he is a related witness. The appellant could not point out any thing
from the record to show that the witnesses were "interested
witnesses." It is well established principle of law that the Latin
maxim falsus in uno falsus in omnibus is not applicable in our
country and the evidence of a witness cannot be discarded only on
the ground that against certain accused persons, he was not found to
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
be reliable. The entire efforts of the Court should be to remove the
grain from the chef. As already pointed out, Ram Kumar (PW-1),
Kishore Singh (PW-10) and Ramji Gupta (PW-11) had claimed that
after making an attempt to pursue the in-laws of the deceased, they
came downstairs and the moment, they reached near their vehicle,
they heard the noise of help raised by the deceased and they
immediately rushed to the first floor of the house and it was also
claimed that when they reached in the room, they saw that the
deceased was burning. Thus, the earlier part of the evidence, which
was to the effect that they saw that the deceased was set on fire by the
appellant-Kashiram Yadav after pouring kerosene oil, is not reliable
in view of the subsequent admission made by this witness.
Furthermore, from the FIR, which was recorded at Police Station
Goraghat, District Datia, it is clear that the injured was brought in an
injured condition by Amit Kumar Yadav. Copy of the FIR was also
sent to the JMFC on 17/11/2009 itself and it was received by the
concerning Magistrate on the very same day. Munnalal Yadav (PW-2)
is the neighbor who had also sustained burnt marks (although the
MLC of Munnalal Yadav has not been produced) but he has claimed
that the appellant-Kashiram Yadav and other in-laws of the deceased
were in the house and the appellant-Kashiram Yadav had
accompanied Munnalal to the Police Station. However, there is
nothing on record to indicate that Munnalal Yadav had ever lodged
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
any FIR. The evidence of Munnalal (P.W.2) to the effect that the
appellant was also present on the spot is false because it is not the
case of the appellant that he had ever tried to extinguish the fire.
Thus, it is clear that after setting the deceased on fire, the appellant
immediately ran away.
38. It is submitted by the counsel for the appellant that in fact, the
police has created an ante-dated and ante-timed FIR and the FIR
lodged by Munnalal Yadav was not placed on record, is misconceived
and is liable to be rejected. According to Munnalal Yadav, he had also
suffered burn injuries. Had Munnalal Yadav gone to the Police
Station along with the injured, then the police would have certainly
sent Munnalal for medical examination also. Even assuming that the
prosecution did not file the MLC of Munnalal Yadav, but still the
appellant could have filed an application under Section 91 of CrPC
for production of MLC or could have proved his MLC in his defence.
Nothing of that sort was done. Thus, it is clear that it was Amit
Kumar who took the injured to Police Station Goraghat to lodge the
FIR on 17/11/2009 at 01:20 AM, whereas the incident took place at
23:30 on 16/11/2009, i.e., about two hours prior to lodging of the
FIR. Furthermore, in any document of Civil Hospital, Dabra,
presence of Kashiram Yadav or any other in-laws of the deceased is
not mentioned. Even the presence of Munnalal Yadav is also not
mentioned in any of the document filed by the prosecution. The
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
appellant has relied upon the outdoor patient register of J.A.
Hospital, Gwalior to show that the injured Archana was brought to
the said hospital by one constable Awadhesh Kumar, Police Station
Goraghat as well as Kashiram, husband of the injured. This Court has
gone through the OPD patient register Ex. D/4. The name of
Kashiram is mentioned in column which is meant for "treatment".
39. Virendra Singh Jat (DW-1) in his cross-examination has
specifically stated that the register of outdoor patient Ex. D/4 is kept
in an open condition in Casualty Ward and remains in possession of
the Compounder. He further admitted that signatures of Kashiram
were not made in his presence. Further, if Kashiram Yadav had gone
to the hospital at Gwalior along with his wife (injured Archana), then
he should have stayed back in the hospital till her death. Safina form
Ex. P/10A clearly indicates that Kashiram Yadav was not present on
the spot at the time of issuance of Safina form Ex. P/10A. Kishore
Singh (PW-10), Vikram Singh, Ashutosh Kumar, Pawan and Vandana
are the witnesses, to whom the notice under Section 175 of CrPC
(Safina form) was issued and they were directed to appear in the dead
house of J.A. Hospital, Gwalior. Lash Panchnama was prepared on
17/11/2009 at 09:45 AM and it was signed by the above-mentioned 5
witnesses. If Kashiram Yadav was there in the hospital, then he
should have atleast participated in the inquest proceedings. As per the
postmortem report Ex. P/24, dead body was identified by Kishore
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
Singh (PW-10) and not by Kashiram Yadav. Further, the dead body of
the deceased was handed over to her father Kishore Singh Yadav vide
receipt Ex. P/13 and even the dead body was not received by the
appellant-Kashiram Yadav. Although Kashiram Yadav in his
statement under Section 313 of CrPC has claimed that the dead body
was not given to him, but R.P. Sharma (PW-6) who had handed over
the dead body of the deceased to her father Kishore Singh (PW-10)
has specifically stated that since the husband of the deceased was not
present, therefore, the dead body of the deceased was handed over to
her father. It was specifically denied by this witness that dead body of
the deceased was not handed over to the appellant although he was
present. Further, Munnalal Yadav has claimed that Amit Kumar (PW-
1), Kishore Singh (PW-10) and Ramji Gupta (PW-11) had also
reached the hospital in the night itself. Although it is claimed by Amit
Kumar, Kishore Singh and Ramji Gupta that they were the persons
who took the deceased from the house to the Police Station and from
there, they took her Dabra Hospital and from Dabra Hospital, they
went to Gwalior hospital. Further, Munnalal Yadav had claimed that
from Police Station Goraghat, they directly went to Gwalior and did
not go to Dabra Hospital. This contention of Munnalal Yadav is
contrary to record. Dr. R.K. Arora (PW-17) was posted as Medical
Officer in Dabra Civil Hospital and he had medically examined the
injured and had opined that since the injured had suffered 80 - 90 %
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
burns, therefore, vide MLC Ex. P/25, therefore, She was referred to
J.A. Hospital, Gwalior for further treatment. From MLC Ex. P/25, it
is clear that injured was examined at Civil Hospital, Dabra on
17/11/2009 at 01:45 AM. Thus, it is clear that in fact, Munnalal
Yadav (PW-2) and Kashiram Yadav-appellant, never went to the
Police Station or to any hospital along with injured for her treatment.
40. The appellant Kashiram Yadav is the husband of the deceased.
According to Munnalal Yadav (PW-2), the appellant was present in
the house at the time of incident. Even by examining Virendra Singh
Jat (DW-1) defence of the appellant is that he was running from the
hospital to hospital for the treatment of the injured. Thus, the
presence of the appellant in the house along with his wife is admitted
circumstance. It is well established principle of law that if the wife
has suffered homicidal death in the company of her husband, then the
burden is on the husband to explain the circumstances under which
his wife has died homicidal death.
41. The Supreme Court in the case of Kalu alias Laxminarayan
vs. State of M.P. reported in (2019) 10 SCC 211 has held as under:-
13. In the circumstances, the onus clearly
shifted on the appellant to explain the
circumstances and the manner in which the
deceased met a homicidal death in the matrimonial
home as it was a fact specifically and exclusive to
his knowledge. It is not the case of the appellant
that there had been an intruder in the house at
night.....
The Supreme Court in the case of Tulsiram Sahadu
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
Suryawanshi and another vs. State of Maharashtra reported in
(2012) 10 SCC 373 has held as under:-
"23. It is settled law that presumption of fact is a
rule in law of evidence that a fact otherwise
doubtful may be inferred from certain other
proved facts. When inferring the existence of a
fact from other set of proved facts, the court
exercises a process of reasoning and reaches a
logical conclusion as the most probable position.
The above position is strengthened in view of
Section 114 of the Evidence Act, 1872. It
empowers the court to presume the existence of
any fact which it thinks likely to have happened.
In that process, the courts shall have regard to the
common course of natural events, human conduct,
etc. in addition to the facts of the case. In these
circumstances, the principles embodied in Section
106 of the Evidence Act can also be utilised. We
make it clear that this section is not intended to
relieve the prosecution of its burden to prove the
guilt of the accused beyond reasonable doubt, but
it would apply to cases where the prosecution has
succeeded in proving facts from which a
reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused
by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might
drive the court to draw a different inference. It is
useful to quote the following observation in State
of W.B. v. Mir Mohammad Omar [(2000) 8 SCC
382 : 2000 SCC (Cri) 1516] : (SCC p. 393, para
38)
"38. Vivian Bose, J., had observed that
Section 106 of the Evidence Act is designed to
meet certain exceptional cases in which it would
be impossible for the prosecution to establish
certain facts which are particularly within the
knowledge of the accused. In Shambhu Nath
Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956
Cri LJ 794] the learned Judge has stated the legal
principle thus: (AIR p. 406, para 11)
'11. 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
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
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.' "
The Supreme Court in the case of Trimukh Maroti
Kirkan vs. State of Maharashtra reported in (2006) 10 SCC 681
has held as under:-
14. If an offence takes place inside the privacy
of a house and in such circumstances where the
assailants have all the opportunity to plan and
commit the offence at the time and in
circumstances of their choice, it will be extremely
difficult for the prosecution to lead evidence to
establish the guilt of the accused if the strict
principle of circumstantial evidence, as noticed
above, is insisted upon by the courts. A judge does
not preside over a criminal trial merely to see that
no innocent man is punished. A judge also presides
to see that a guilty man does not escape. Both are
public duties. (See Stirland v. Director of Public
Prosecutions [1944 AC 315 : (1944) 2 All ER 13
(HL)] -- quoted with approval by Arijit Pasayat, J.
in State of Punjab v. Karnail Singh [(2003) 11
SCC 271 : 2004 SCC (Cri) 135] .) The law does
not enjoin a duty on the prosecution to lead
evidence of such character which is almost
impossible to be led or at any rate extremely
difficult to be led. The duty on the prosecution is
to lead such evidence which it is capable of
leading, having regard to the facts and
circumstances of the case. Here it is necessary to
keep in mind Section 106 of the Evidence Act
which says that when any fact is especially within
the knowledge of any person, the burden of
proving that fact is upon him. Illustration (b)
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
appended to this section throws some light on the
content and scope of this provision and it reads:
"(b) A is charged with travelling on a
railway without ticket. The burden of proving that
he had a ticket is on him."
15. Where an offence like murder is committed
in secrecy inside a house, the initial burden to
establish the case would undoubtedly be upon the
prosecution, but the nature and amount of
evidence to be led by it to establish the charge
cannot be of the same degree as is required in
other cases of circumstantial evidence. The burden
would be of a comparatively lighter character. In
view of Section 106 of the Evidence Act there will
be a corresponding burden on the inmates of the
house to give a cogent explanation as to how the
crime was committed. The inmates of the house
cannot get away by simply keeping quiet and
offering no explanation on the supposed premise
that the burden to establish its case lies entirely
upon the prosecution and there is no duty at all on
an accused to offer any explanation.
xxx xxx xxx
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. In Nika
Ram v. State of H.P. [(1972) 2 SCC 80 : 1972 SCC
(Cri) 635 : AIR 1972 SC 2077] it was observed
that the fact that the accused alone was with his
wife in the house when she was murdered there
with "khukhri" and the fact that the relations of the
accused with her were strained would, in the
absence of any cogent explanation by him, point to
his guilt. In Ganeshlal v. State of Maharashtra
[(1992) 3 SCC 106 : 1993 SCC (Cri) 435] the
appellant was prosecuted for the murder of his
wife which took place inside his house. It was
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
observed that when the death had occurred in his
custody, the appellant is under an obligation to
give a plausible explanation for the cause of her
death in his statement under Section 313 CrPC.
The mere 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 is
a prime accused in the commission of murder of
his wife. In State of U.P. v. Dr. Ravindra Prakash
Mittal [(1992) 3 SCC 300 : 1992 SCC (Cri) 642 :
AIR 1992 SC 2045] the medical evidence
disclosed that the wife died of strangulation during
late night hours or early morning and her body was
set on fire after sprinkling kerosene. The defence
of the husband was that the wife had committed
suicide by burning herself and that he was not at
home at that time. The letters written by the wife
to her relatives showed that the husband ill-treated
her and their relations were strained and further
the evidence showed that both of them were in one
room in the night. It was held that the chain of
circumstances was complete and it was the
husband who committed the murder of his wife by
strangulation and accordingly this Court reversed
the judgment of the High Court acquitting the
accused and convicted him under Section 302 IPC.
In State of T.N. v. Rajendran [(1999) 8 SCC 679 :
2000 SCC (Cri) 40] the wife was found dead in a
hut which had caught fire. The evidence showed
that the accused and his wife were seen together in
the hut at about 9.00 p.m. and the accused came
out in the morning through the roof when the hut
had caught fire. His explanation was that it was a
case of accidental fire which resulted in the death
of his wife and a daughter. The medical evidence
showed that the wife died due to asphyxia as a
result of strangulation and not on account of burn
injuries. It was held that there cannot be any
hesitation to come to the conclusion that it was the
accused (husband) who was the perpetrator of the
crime.
The Supreme Court in the case of State of Jammu and
Kashmir vs. Vijay Kumar and others reported in (2018) 13 SCC
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
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.
14. Even if the benefit of doubt is given to other
family members, there is no reason to doubt the
involvement of accused, Vijay Kumar in the
murder. The evidence of PW 11 also corroborates
the involvement of accused, Vijay Kumar.
The Supreme Court in the case of State of Rajasthan
vs. Kashi Ram reported in (2006) 12 SCC 254 has held as under:-
19. Before adverting to the decisions relied
upon by the counsel for the State, we may observe
that whether an inference ought to be drawn under
Section 106 Evidence Act is a question which
must be determined by reference to proved. It is
ultimately a matter of appreciation of evidence
and, therefore, each case must rest on its own
facts.
xxxxx
23. It is not necessary to multiply with
authorities. The principle is well settled. The
provisions of Section 106 of the Evidence Act
itself are unambiguous and categoric in laying
down that when any fact is especially within the
knowledge of a person, the burden of proving that
fact is upon him. Thus, if a person is last seen with
the deceased, he must offer an explanation as to
how and when he parted company. He must
furnish an explanation which appears to the court
to be probable and satisfactory. If he does so he
must be held to have discharged his burden. If he
fails to offer an explanation on the basis of facts
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
within his special knowledge, he fails to discharge
the burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on
him, that itself provides an additional link in the
chain of circumstances proved against him.
Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the
prosecution. It lays down the rule that when the
accused does not throw any light upon facts which
are specially within his knowledge and which
could not support any theory or hypothesis
compatible with his innocence, the court can
consider his failure to adduce any explanation, as
an additional link which completes the chain. The
principle has been succinctly stated in Naina
Mohd., Re. [AIR 1960 Mad 218 : 1960 Cri LJ
620].
42. Thus, when an accused is having special knowledge about
about a particular circumstance, then the burden is on the accused to
explain the said peculiar fact. From the evidence which has come on
record, it is clear that neither the appellant-Kashiram Yadav nor other
acquitted accused persons stayed back in the house after the incident.
Thus, the evidence of Soumya (PW-9) that after the incident, all the
accused persons ran away, appears to be more reliable. Soumya (PW-
9) is the minor daughter of the appellant. Her presence in the house is
natural.
43. Counsel for the appellant tried to convince this Court to
disbelieve her evidence on the ground that since at the beginning of
the incident, she was sleeping and she woke up only in the mid of the
incident, therefore, her evidence that she had seen the incident cannot
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
be relied upon. Although Soumya (PW-9) had claimed that she had
witnessed the incident right from very beginning, but in paragraph 14
she has claimed that after hearing the noise, she woke up. She has
also admitted that Munnalal Yadav (PW-2) had tried to extinguish the
fire and his hands were also burnt. She has further stated that she
woke up when her mother got burnt. This Court cannot lose sight of
the fact that even if a child is sleeping and after getting awaken by
hearing the noise can still witness the incident. The incident took
place inside the room. According to the prosecution itself, the
appellant, his wife and Soumya (PW-9) were residing in a two rooms
residential accommodation. Once Soumya (PW-9) has stated that as
soon as she heard the noise, she woke up and witnessed the incident,
this Court is of the considered opinion that it cannot be said that child
witness had not seen the incident at all. Furthermore, the child
witness Soumya (PW-9) was cross-examined in detail and in the
cross-examination, nothing could be elicited to show either this
witness is not a truthful witness or she was tutored. Whenever a
question was put to her to the effect that she was told by her maternal
uncle or maternal grandfather to speak against the appellant, then the
said suggestion was confidently denied.
44. It is submitted by the counsel for the appellant that the
statement of Soumya (PW-9) under Section 161 of CrPC was
recorded on 22.11.2009, whereas the incident had taken place in the
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
intervening night of 16th - 17th of November, 2009, therefore, there is
a delay of six days in recording of her statement and thus, she was a
tutored witness and was created with a solitary intention to falsely
implicate the appellant.
45. So far as the above-mentioned submission made by the counsel
for the appellant is concerned, the same cannot be accepted. Merely
because there was a delay in recording the statement of a witness,
would not invariably render the testimony of the witness doubtful.
However, the evidence of the said witness has to be scanned carefully
and if the witness is found to be reliable and natural, then his
evidence should not be doubted merely on the ground that statement
was recorded belatedly. Furthermore, only if the delay in recording
the police statement remains unexplained, then it may prejudice the
prosecution case. Thus, it cannot be said as a rule of universal
application that whenever there is a delay in examination of
particular witness, the said delay would make the testimony of the
witness unreliable. Thus, if the explanation offered by the
prosecution for the delayed examination is plausible and acceptable,
then the testimony of the witness can be relied upon. In the present
case, the incident took place in the intervening night of 16 th - 17th of
November, 2009. Thereafter, the injured / deceased was immediately
rushed to the Police Station and from there, she was rushed to Civil
Hospital, Dabra and then to J.A. Hospital, Gwalior. Thereafter, last
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
rites of the deceased were performed and the police statement of
Soumya was recorded on 22/11/2009, i.e., 5 days after death of her
mother. As a matter of common knowledge, we know that certain
rituals are to be performed after the cremation is done, like
immersion of ashes etc. and these rituals are performed within 2 - 3
days of the cremation. Therefore, recording of police statement of
Soumya on 22/11/2009 cannot be said to be delayed recording of her
police statement because prior to that, everybody must have been
busy in performing the last rites of the deceased specifically when the
appellant was missing and he was arrested on 08/02/2010 vide arrest
memo Ex. P/7. Thus, it is clear that the appellant was absconding for
three months after the incident. Thus, it is held that there was no
delay in recording the police statement of child witness Soumya
(PW-9).
46. It is next contended by the counsel for the appellant that since
the child witness Soumya (PW-9) is residing with her maternal uncle
and maternal grandfather, therefore, there is every possibility of
tutoring. It is true that if a child witness is found to be tutored, then
his or her evidence becomes doubtful, but merely because a child
witness is residing with her maternal grand parents or maternal uncle
or aunt cannot be said to be a solitary circumstance to draw an
inference that she might have been tutored. For the sake of
arguments, even if it is presumed that the child witness was asked to
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
narrate the truth before the Court, then such suggestion will not come
within the purview of tutoring. Tutoring necessarily means a
suggestion to the child witness to depose about certain acts which
were never done by the accused. The appellant who is father of the
child witness Soumya (PW-9) and other in-laws of the deceased who
were apprehending their arrest were missing or were absconding.
There was nobody to look after Soumya (PW-9) child aged about 7
years. The appellant cannot go to the extent of suggesting that even if
there is nobody to look after the child, still her maternal parents
should have disowned her and should not have looked after her.
47. In the present case, as already pointed out, the defence of the
appellant is that he was in the house and he had also taken the injured
to the hospital, whereas this Court has disbelieved the presence of the
appellant immediately after the incident and it has been found that
after the incident, he and other acquitted accused persons absconded
from the house. Further, it is not the defence of the appellant that he
had ever tried to extinguish the fire. When the appellant himself has
failed to explain the circumstances which were within his special
knowledge as required under Section 106 of the Evidence Act and
then the child who has already lost her mother and whose father is on
run, cannot be expected to live a life of destitute in order to ensure
that she may not be asked to depose the correct facts before the
Court. Thus, it is held that Soumya (PW-9) is a truthful and is reliable
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
witness. Furthermore, according to the prosecution case, the
appellant had poured kerosene oil on the deceased.
48. Dr. V.S. Tomar (PW-16) who has conducted postmortem has
specifically stated that there was a faint smell of kerosene oil coming
out from her scalp hairs and accordingly scalp hairs of the deceased
were preserved and handed over to the police. Scalp hairs were sent
to FSL, Sagar vide memo dated 26/12/2009 Ex. P/20 and as per the
FSL report dated 12/03/2010 Ex. P/21 and Article-A which were
semi-burnt clothes of the deceased and Article - D which were scalp
hairs of the deceased were found to be containing the remains of
kerosene oil, whereas Article - B, i.e., broken piece of bangle and
Article - C, i.e., matchstick were not found stained with kerosene.
Thus, the evidence of Soumya (PW-9) is further corroborated by the
FSL report Ex. P/21. Further, Ajay Bhargava (PW-14), who is the
Investigating Officer had seized semi-burnt piece of clothes, semi-
burnt pieces of bangles and matchstick from the spot vide seizure
memo Ex. P-14. From the evidence of Soumya (PW-9) as well as FSL
report Ex. P/21, it is clear that the presence of kerosene oil was found
in scalp hair of the deceased and according to the eye-witnesses,
deceased was burnt alive after pouring kerosene oil on her. Although
the counsel for the appellant made a faint effort to submit that in fact,
the deceased might have committed suicide by setting herself on fire
after pouring kerosene oil on her, but the said suggestion is
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
misconceived for another reason also. According to Ajay Bhargava
(PW-14), he did not find any container of kerosene oil from the spot.
If the deceased had committed suicide by pouring kerosene oil on her
then the container of kerosene oil should have been found on the spot
itself. The absence of container of kerosene oil clearly indicates that
the appellant after pouring kerosene oil must have removed the
container of kerosene oil from the spot because Amit Kumar (PW-1)
has stated that when he reached on the spot, he found that the
appellant was standing there with a container of kerosene oil in his
hands. Under these circumstances, this Court is of the considered
opinion that it was the appellant Kashiram Yadav who set his wife
Archana on fire after pouring kerosene oil on her.
Cr.A. No. 453 of 2014
49. Challenging the acquittal of the accused persons namely
Kalyansingh, Ballu @ Sobran and Kailash Singh, it is next contended
by the counsel for the State that the Trial Court has wrongly
disbelieved the evidence of Amit Kumar (PW-1), Soumya (PW-9),
Kishore Singh (PW-10) and Ramji Gupta (PW-11) with regard to the
presence and their participation. Since Kalyansingh, Ballu @ Sobran
and Kailash Singh were catching hold of the deceased when the
appellant Kashiram poured kerosene oil on her and set her on fire,
therefore, it is clear that all the four persons were sharing common
intention and thus, the acquittal of Kalyansingh, Ballu @ Sobran and
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
Kailash Singh is contrary to record.
50. Per contra, counsel for the respondents Kalyansingh, Ballu @
Sobran and Kailash Singh submitted that the Trial Court after
appreciating the evidence of the witnesses meticulously has come to
a conclusion that Soumya (PW-9) had stated in her statement under
Section 161 of CrPC Ex. D/1 about the presence and overt act of
Kashiram Yadav only. She had not disclosed the presence of
Kalyansingh, Ballu @ Sobran and Kailash Singh and, thus the
evidence of Amit Kumar (PW-1), Soumya (PW-9), Kishore Singh
(PW-10) and Ramji Gupta (PW-11) is unreliable so far as the
Kalyansingh, Ballu @ Sobran and Kailash Singh are concerned.
51. Considered the submissions made by the counsel for the
parties.
52. Police statement of Soumya was recorded on 22/11/2009 Ex.
D/1 and in the said statement, she had specifically stated about the
presence of Kashiram Yadav only and she had stated that it was the
appellant-Kashiram Yadav who poured kerosene oil on her mother
Archana and set her on fire. She has not spoken about the presence of
acquitted accused Kalyansingh, Ballu @ Sobran and Kailash. As per
provision of Section 145 of the Evidence Act, attention of this
witness was drawn towards above-mentioned omission in her police
statement Ex. D/1, but she could not explain the reason for such
omission. Further, Ajay Bhargava (PW-14) had specifically stated
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
that he had recorded statement of the witnesses in their own words
and he had not added or subtracted anything. Thus, there is material
omission and contradiction in the evidence of Soumya (PW-9) with
regard to the presence and overt act of the acquitted accused persons
Kalyansingh, Ballu @ Sobran and Kailash Singh. Further, Amit
Kumar Yadav (PW-1) had also admitted that when they reached
inside the room, the deceased was already burning. Therefore, the
evidence regarding presence and participation of acquitted co-
accused persons is shaky and does not prove their involvement
beyond reasonable doubt.
53. It is well established principle of law that while considering
the appeal against acquittal, the Appellate Court should not reverse
the finding of acquittal merely on the ground that two views are
possible. Unless and until the findings recorded by the Trial Court are
found to be perverse or contrary to record, the findings of acquittal
should not be interfered with. Reasons assigned by the Trial Court for
acquitting the accused persons Kalyansingh, Ballu @ Sobran and
Kailash Singh cannot be said to be perverse or contrary to record.
Furthermore, the acquittal of the co-accused Kalyansingh, Ballu @
Sobaran and Kailash Singh for offence under Section 498-A of IPC
cannot be said to be unreasonable in the light of evidence of Soumya
(PW-9). Soumya (P.W.9) neither in her Court evidence nor in her
police statement Ex. D/1 has stated about the harassment of the
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
deceased on account of demand of dowry or for any reason. In fact,
there is no averment by Soumya (PW-9) about the cruelty. She had
merely stated that on the fateful day, the appellant was beating her
mother from the morning itself. She has not stated that prior to the
date of incident, her mother was being treated by her father with
cruelty. Furthermore, the appellant Kashiram Yadav was also
acquitted for offence under Section 498-A of IPC. Although the State
has filed an appeal against the acquittal of Kalyansingh, Ballu @
Sobran and Kailash Singh for offence under Sections 498-A, 302 of
IPC, but no appeal has been filed by the State against the acquittal of
appellant Kashiram Yadav for offence under Section 498-A of IPC.
54. Accordingly, this Court is of the considered opinion that the
acquittal of accused persons Kalyansingh, Ballu @ Sobran and
Kailash Singh, does not require any interference.
55. Considering the totality of the facts and circumstances of the
case, the conviction of appellant-Kashiram Yadav for offence under
Section 302 of IPC is upheld.
56. So far as the question of sentence is concerned, minimum
sentence for offence under Section 302 of IPC is life imprisonment
and thus, the sentence awarded by the Trial Court does not call for
any interference. Ex consequenti, the judgment and sentence dated
12.10.2010 passed by the Sessions Judge, Datia in S.T. No.26/2010 is
hereby affirmed qua the appellant-Kashiram Yadav as well as qua the
Kashiram Yadav Vs. The State of M.P. (Cr.A. No.910/2010)
State of MP Vs. Kalyansingh and others (Cr.A. No.453/2014)
respondents Kalyansingh, Ballu @ Sobran and Kailash Singh.
57. The appellant-Kashiram Yadav is in jail. He shall undergo the
remaining jail sentence.
58. The respondents Kalyansingh, Ballu @ Sobran and Kailash
Singh are on bail. Their bail bonds are discharged. They are no more
required in the present cases.
59. A copy of this judgment be immediately provided to the
appellant-Kashiram Yadav free of cost.
60. Record of the Trial Court be sent back immediately along with
the copy of this judgment for necessary information and compliance.
61. Cr.A. No.910/2010 filed by Kashiram Yadav against his
conviction under Section 302 of IPC as well as Cr.A. No.453/2014
filed by the State against acquittal of Kalyansingh, Ballu @ Sobran
and Kailash Singh are hereby dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
Arun*
ARUN KUMAR MISHRA
2022.03.09 18:30:58 +05'30'
