Madhya Pradesh High Court
Vikram Ahirwar vs State Of M.P on 28 March, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 28th OF MARCH, 2023
CRIMINAL APPEAL NO.238 OF 2014
BETWEEN:-
VIKRAM SON OF KANCHHEDILAL AHIRWAR,
AGED 22 YEARS, RESIDENT OF BAKSARIYA
MOHALLA, VIDISHA, MADHYA PRADESH.
PERMANENT RESIDENT OF BAKSARIYA
MOHALLA, VIDISHA (MADHYA PRADESH).
........APPELLANT
(BY SHRI R.K. SINGH KUSHWAH - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION KOTWALI, VIDISHA,
MADHYA PRADESH.
........RESPONDENT
(BY SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 21st of February, 2023
Pronounced on : 28th of March, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
2
JUDGMENT
The appellant has preferred this appeal under Section 374(2) of
the Code of Criminal Procedure, 1973 (2 of 1974) (for brevity
"Cr.P.C.") being aggrieved by the judgment dated 24/1/2014, passed by
the Court of Sessions Judge, Vidisha (Madhya Pradesh) in Sessions
Trial No.236/2012, whereby the appellant has been convicted for the
offence punishable under Section 302 of Indian Penal Code (for brevity
"IPC") and sentenced him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
302 IPC Life Rs.1000/- RI for 3 months
Imprisonment
2. The prosecution case in brief is that the deceased Meena was
wife of the appellant, who got married with him on 20/1/2012. After
marriage, she went to her paternal house, from where about 15-20 days
prior to the incident, appellant's father and elder brother took her to her
matrimonial house at Baksariya Mohalla, District Vidisha, where
appellant and deceased were residing in a room, situated at the upper
portion of the house, while other family members were residing at the
ground floor. In the night of 4/4/2012, appellant and deceased went to
their room for taking sleep, whereafter, next day morning, the deceased
was found lying dead on her bed. On being asked by the appellant's
brother complainant- Birendra, appellant told him that in the intervening
night of 4-5/4/2012, a quarrel took place between him and the deceased,
wherein appellant pressed deceased's neck in anger, due to which she
died.
3. Complainant-Birendra took the deceased to District Hospital
Vidisha, where she was declared dead. Vide letter Ex. P/9, information
about the death of the deceased was sent to Police Station Vidisha, on
the basis of which, on the same day at about 8:00 hours, ASI Kanchhedi
Badkul registered the Merg Intimation Report, Ex. P/10. CSP, Pallavi
Trivedi, while conducting the merg eqnuiry, went to the place of
occurrence, prepared the spot map, Ex. P/1, and seized the pieces of
bangles, blood stained pillow cover, bed-sheets alongwith other articles
from the spot as per seizure memo, Ex. P/2. He recorded the statement
of appellant's brother complainant- Birendra alongwith other witnesses
and gave her report, on the basis of which, FIR Ex. P/14 was registered
against the appellant at Police Station Kotwali, District- Vidisha.
4. After receiving the information about the death of the deceased,
Executive Magistrate/Naib Tahsildar Motilal went to the Mortuary
Room of District Hospital Vidisha, called the witnesses issuing Safina
form, Ex.P/4, prepared the Naksha Panchayatnama, Ex. P/3, of the body
of deceased and sent the body of the deceased for postmortem
examination. On the same day, at about 11:25 hours, Dr. R.L. Singh
alongwith Dr. Ashok Jain and Dr. Smt. Mourya conducted the
postmortem examination of the body of the deceased and found two
transverse brownish hard leathery mark over her neck at thyroid level as
per postmortem report, Ex.P/5. He opined that the death of the deceased
was due to asphyxia as a result of strangulation within 24 hours from
the time of postmortem examination.
5. I/O, P.S. Thakur recorded the statements of prosecution witnesses,
sent all the seized material to FSL for forensic examination vide letter,
Ex.P/16, obtained FSL report, Ex.P/17, and after completion of
investigation, filed the charge-sheet before the Court of Chief Judicial
Magistrate, Vidisha, District Vidisha, who committed the case to the
Court of Sessions Judge, Vidisha.
6. Learned Trial Court considering the material prima facie available
on record framed charge under Section 302 of IPC against the appellant,
who abjured the guilt and prayed for trial. He took the defence of alibi
and stated that on the date of incident he alongwith his brother Birendra
had gone to village Banskhera to attend the Ateeka ceremony of the son
of Rashid Mohammad and stayed there in the house of his uncle
Munnalal. In support of his defence, he has examined four witnesses
and produced an invitation card of the aforesaid ceremony, addressed to
his father.
7. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record, convicted the appellant for
the offence punishable under Section 302 of IPC and sentenced him as
stated in para 1 of this judgment.
8. Being aggrieved by the said judgment of conviction and order of
sentence, the appellant has preferred this appeal for setting aside the
impugned judgment and discharging him from the aforesaid charge
framed against him.
9. Learned counsel for the appellant submits that in the instant case
it has not been proved that the death of the deceased was homicidal in
nature. Prosecution case rests upon circumstantial evidence, wherein
motive is always an important factor. In the instant case, it has not been
proved that appellant was having any motive to commit the murder of
the deceased. Appellant has been convicted merely on the ground that in
the intervening night of the incident deceased was found dead in the
room, wherein she and appellant normally resided. It is a settled
position of law that initial burden ever lies on the prosecution to prove
its case beyond reasonable doubt, but in the instant case learned Trial
Court has wrongly shifted the burden on the appellant to prove his
innocence. From the defence evidence, it is apparent that on the date of
incident appellant alongwith his brother Birendra had gone to village-
Banskhera, District Raisen to attend the Ateeka ceremony of the son of
Rashid Mohammad and stayed there in the house of his uncle Munnalal.
Therefore, impugned judgment has been passed only on the basis of
conjectures, surmises and presumptions and without any positive
evidence. Hence, the same may be set aside and the appellant may be
acquitted from the charge framed against him. Learned counsel in
support of his submissions relied upon the judgments passed by this
Court in the case of Jitendra Vs. State of M.P., reported in, 2022 (2)
MPLJ (Cri.) 153 and Chhattisgarh High Court in the case of Karan
Prasad Vs. State Chhattisgarh Through Police Station, Lalpur,
Distt. Mungeli, reported in 2022 (2) Cr.L.R.(C.G.) 523 and the
judgments passed by the Supreme Court in the cases of Nesar Ahmed
and Another Vs. State of Bihar, reported in 2002 SCC (Cri) 1100,
Jose Alias Pappachan Vs. Sub-Inspector of Police, Koyilandy and
Another, reported in (2016) 10 SCC 519, Parvat Singh and Others
Vs. State of Madhya Pradesh reported in 2020 Cr.L.R. (SC) 346, Md.
Younus Ali Tarafdar Vs. State of W.B. reported in 2020 (2) MPLJ
(Cri.) (SC) 476, Shivaji Chintappa Patil Vs. State of Maharashtra,
reported in (2021) 5 SCC 626 and Satye Singh and Another Vs. State
of Uttarakhand, reported in (2022) 5 SCC 438.
10. Per contra, learned counsel for the respondent/State while
supporting the impugned judgment of conviction and order of sentence
submits that judgment so passed by the Trial Court is based on proper
appreciation of evidence available on record. It is submitted that in the
intervening night of the incident, appellant and deceased went to their
room situated at the upper portion of his house, wherein on the next day
morning deceased was found lying dead on her bed. It is apparent from
the medical evidence that she was strangulated and nature of her death
was homicidal. Appellant has not given any satisfactory explanation
about the death of the deceased. Prosecution has proved its case beyond
reasonable doubt. Learned Trial Court has not committed any error in
holding the appellant guilty for the offence punishable under Section
302 of IPC. The appeal is devoid of merits. Therefore, confirming the
judgment of conviction and order of sentence, the appeal filed by the
appellant deserves to be dismissed.
11. Heard learned counsel for both the parties and perused the record.
12. Upon perusal of the record this fact appears undisputed that the
deceased Meena was the wife of the appellant, who got married with
him on 20/1/2012 and about 15-20 days prior to the incident, appellant's
father and elder brother took her from her paternal house to her
matrimonial house at village Baksariya Mohalla, Vidisha, where she
was residing with the appellant in a room situated at the upper portion
of the house, while other family members were residing at the ground
floor of the same house. This fact also appears undisputed that in the
intervening night of 4-5/4/2012, she was strangulated and found lying
dead on her bed.
13. Complainant- Birendra (PW-8) deposed that on 5/4/2012 at about
6.00 hours, when he went to the appellant's room, he saw the deceased
lying on her bed in an unconscious state. He deposed that he
immediately took the deceased to District Hospital, Vidisha in an auto,
where she was declared dead. ASI, Kanchhedi Badkul (PW-9) deposed
that on 5/4/2012, after receiving information, Ex.P/9, from the hospital,
about the death of the deceased, he at about 8.00 hours, registered the
Merg Intimation Report, Ex.P/10. Executive Magistrate/Naib Tahsildar
Motilal Ahirwar (PW-5) deposed that after receiving the information
about the death of the deceased, he on the same day at about 9:30 hours,
went to the mortuary room of the Civil Hospital, Vidisha, prepared the
Naksha Panchayatnama, Ex.P/3, of the body of the deceased and sent
her body for postmortem examination.
14. Dr. R.L. Singh (PW-6) deposed that on the same day, he
alongwith Dr. Ashok Jain and Dr. Smt. Mourya conducted the
postmortem examination of the body of the deceased and found
following injuries on her body:-
i- Two transverse brownish hard leathery mark
over neck at thyroid level. On cut, base is pale.
Size- one mark was 23 cm in length, whose
width was 1 cm on right side, while 3 cm on
left side, crossing middle line.
ii- Another mark was at the root of neck, crossing
middle line anteriorly. Size 9 cm X 1 cm.
15. Dr. R.L. Singh (PW-6) deposed that he prepared the postmortem
report, Ex.P/5, and opined that the deceased died due to asphyxia as a
result of strangulation and since deceased's thyroid cartilage was found
pressed and broken, therefore, nature of her death may be homicidal.
Appellant has although challenged the aforesaid fact, but Dr. R.L. Singh
(PW-6) in para 10 of his cross-examination ruled out the possibility
suggested by the appellant that the injuries found on the body of the
deceased were caused by hanging, therefore, there is no reason to
disbelieve this fact that the deceased died due to asphyxia as a result of
strangulation and the nature of her death was homicidal.
16. So far as the issue whether in the intervening night of 4-5/4/2012,
appellant strangulated the deceased and caused her death is concerned,
prosecution case rests upon the following circumstances:
(i) Appellant got married with the deceased on 20/1/2012,
whereafter, he was residing with her in the room, situated at the upper
portion of the house, at Baksariya Mohalla, District Vidisha, while other
family members were residing at the ground floor.
(ii) In the night of 4/4/2012, appellant and deceased went to their
room for taking sleep, whereafter, next day morning, the deceased was
found lying dead on her bed.
(iii) On being asked, appellant told his brother Birendra that in the
intervening night of 4-5/4/2012, a quarrel took place between him and
the deceased, wherein he pressed her neck, due to which she died.
(iv) Appellant, thereafter, denied his presence on the spot at the
time of incident and has not given any plausible explanation about the
homicidal death of the deceased.
17. Before discussing the evidence, produced on record, it is apposite
to mention the law relating to burden of proof in such matters. In this
regard, judgement passed by Hon'ble the Apex Court in the case of
Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 can
be relied upon. Relevant paras are as follows:
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 -- quoted with
approval by Arijit Pasayat, J. in State of Punjab v.
Karnail Singh.) 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) 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.
18. In the case in hand, admittedly, the incident took place in the
intervening night of 4-5/4/2012, in the room where appellant and his
wife the deceased were residing, and appellant, in his statement
recorded u/S 313 of Cr.P.C., himself admitted his presence on the spot,
on the next day morning i.e. 5/4/2012 at about 5.30 hours, therefore, it
will be presumed that in the intervening night of the incident appellant
was present in his room alongwith the deceased and in view of Section
106 of the Evidence Act and also in view of the aforesaid law laid down
by Hon'ble the Apex Court, the burden shifts upon him to prove that in
the said night he was not present with the deceased.
19. From the statement of the appellant, recorded u/S 313 of Cr.P.C.,
and also from the statement of his brother Birendra (PW-8), this fact is
undisputed that the appellant himself first saw the deceased lying on her
bed in unconscious state. Appellant, in his statement recorded u/S 313
of Cr.P.C., stated that on 4/4/2012, he alongwith his brother Birendra
went to Village Banskhera, District Raisen to attend Ateeka ceremony
of the son of Rashid Mohammad and stayed there in the house of his
uncle Munnalal. He further stated that on 5/4/2012 at about 5.30 hours,
when he returned and went into his room, first of all he himself saw the
deceased lying dead on her bed. Appellant's brother complainant
Birendra (PW-8) has also stated so, but his statements are inconsistent
with his earlier statements, Ex. P/8, recorded u/S 161 of Cr.PC.,
wherein, he had stated that in the intervening night of the incident,
appellant was sleeping with the deceased in his room and in the
morning of 5/4/2012, when he went to his room, he saw the deceased
lying dead on her bed, and appellant on being asked, told him that in the
intervening night of the incident, a quarrel took place between him and
deceased and he pressed her neck in anger, due to which she died.
20. Since, statements of the complainant Birendra (PW-8) are
inconsistent with his own erlier statements recorded u/S 161 of Cr.P.C.
and he has turned hostile, therefore, his statements cannot be said to be
reliable. Appellant, in his defence, has examined Rashid Mohammad
(DW-4), Mehmood Kamil (DW-1), Kailash Narayan (DW-2) and
Sitaram (DW-3), all resident of Village Banskhera, District Raisen. All
the above witnesses deposed that on 4/4/2012, appellant alongwith his
brother Birendra came to their Village to attend Ateeka ceremony of the
son of Rashid Mohammad and stayed there in the house of his uncle
Munnalal, but their statements are inconsistent on the point as to till
which time appellant remained in their village. Mehmood Kamil (DW-
1) and Kailash Narayan (DW-2) deposed that on 5/4/2012 at about 6.00
hours, they saw the appellant in front of their house, while Sitaram
(DW-3) deposed that at about 5.00 hours, he saw the appellant going
from his village. Rashid Mohammad (DW-4) deposed that at about
5.00-6.00 hours, he saw the appellant going from his house.
21. It has not been brought on record as to how far is the village
Banskhera, District Raisen from District Vidisha and appellant himself,
in his statements recorded u/S 313 of Cr.P.C., admitted that on 5/4/2012
at about 5.30 hours, he returned to his house and saw the deceased lying
on her bed in his room, therefore, the defence of alibi taken by him
apparently appears to be afterthought, and hence, not acceptable. The
appellant and his other family members, residing in the said house, have
not given any cogent explanation as to how the decesed died, therefore,
learned Trial Court has not committed any error in holding the appellant
liable for causing the death of the deceased. In this regard also, the
judgement passed by Hon'ble the Apex Court in the case of Trimukh
Maroti Kirkan v. State of Maharashtra (Supra) can be relied upon,
relevant paras are as follows:
21. In a case based on circumstantial evidence where
no eyewitness account is available, there is another
principle of law which must be kept in mind. The
principle is that when an incriminating circumstance
is put to the accused and the said accused either offers
no explanation or offers an explanation which is
found to be untrue, then the same becomes an
additional link in the chain of circumstances to make
it complete. This view has been taken in a catena of
decisions of this Court. [See State of T.N. v.
Rajendran (SCC para 6); State of U.P. v. Dr. Ravindra
Prakash Mittal (SCC para 39 : AIR para 40); State of
Maharashtra v. Suresh (SCC para 27); Ganesh Lal v.
State of Rajasthan (SCC para 15) and Gulab Chand v.
State of M.P. (SCC para 4).]
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. 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 the appellant was prosecuted
for the murder of his wife which took place inside his
house. It was 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
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 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.
22. In the case of Jitendra (Supra), cited by the learned counsel for
the appellant, incident took place in the daytime and presence of the
accused at the time of incident in the house was found doubtful on the
ground that normally elder members of the family go out to earn
livelihood. Similarly, in the case of Jose Alias Pappachan (Supra),
incident took place in between 6.30 to 8.30 p.m. and prosecution had
failed to produce any pursuasive evidence to prove the presence of the
accused, who was a police constable, in the house, at the relevant time .
Facts of the case Satye Singh (Supra), are entirely different, wherein it
was not proved that as to at which place deceased was killed and burnt,
and how and by whom her burnt body was brought in the chhan. Facts
of other cases, cited by the learned counsel for the appellant, are also
entirely different and of no assistance to the appellant.
23. In the instant case, presence of the appellant in the intervening
night of the incident in his house with his wife-deceased has been found
proved and appellant has neither given any plausible explanation about
the homicidal death of the deceased nor stated anything about the fact
that in the intervening night a quarrel took place between him and the
deceased and he pressed her neck under heat of passion in anger.
Therefore, looking to the injuries found on the body of the deceased and
overall conduct of the appellant, this fact is proved that he with an intent
to commit the murder of the deceased, pressed her neck and
strangulated her, due to which she died.
24. Hence, learned Trial Court has not committed any error in
recording the finding of conviction against the appellant for the offence
under Section 302 of IPC and sentencing him to suffer the imprisonment
as mentioned in para 1 of this judgment.
25. Ex-consequenti, the judgment and sentence dated 24/01/2014,
passed by the Court of Sessions Judge, Vidisha (Madhya Pradesh) in
Sessions Trial No.236/2012 is hereby affirmed.
26. The Appellant is in jail. He shall undergo the jail sentence so
awarded to him.
27. The Registry is directed to immediately supply a copy of this
judgment to the Appellant, free of cost.
28. Let the record of the Trial Court be sent back immediately, along
with copy of this judgment, for necessary information and compliance.
29. Accordingly, the Appeal is Dismissed.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.03.29 14:34:15 +05'30'
