Madhya Pradesh High Court
Suraj Jatav vs The State Of Madhya Pradesh on 21 April, 2025
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
DB :- HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE HIRDESH, JJ
ON THIS OF 21st OF APRIL, 2025
CRIMINAL APPEAL NO. 25 OF 2018
SURAJ JATAV
VS.
STATE OF MADHYA PRADESH
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Appearance:
Shri Virendra Singh Pal- learned Counsel for appellant.
Shri Deependra Singh Kushwah- learned Additional Advocate General for
respondent/ State.
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JUDGMENT
Per Justice Hirdesh:-
The present criminal appeal under Section 374(2) of CrPC is filed
against the judgment of conviction and order of sentence dated 30-10-2017
passed by 9th Additional Sessions Judge, Gwalior (MP) in Sessions Trial
No.466 of 2015 whereby, appellant has been convicted under Section 302 of
IPC and sentenced to suffer Life Imprisonment with fine of Rs.1,000/- with
default stipulation.
(2) In nutshell, the case of prosecution is that on 02-09-2015, complainant
Kedar Singh Jatav (PW-6) gave an Unnatural Death Intimation of his daughter
Anita Jatav at Police Station Janankganj, on the basis of which, Merg No.36
of 2015 u/S 174 of CrPC vide Ex.P10 was recorded. During inquest
proceedings, statements of complainant- Kedar Singh, witnesses Mahadevi
and Akash were recorded. Witnesses were summoned through Safina form
vide Ex.P6 and Naksha Panchayatnama was prepared vide Ex.P7. Spot map
vide Ex.P8 was prepared. Photographs of deceased were taken and dead body
was sent for postmortem examination. Postmortem report was received.
Articles received from hospital, viscera, clothes, salt packets, seal sample and
neck bone were seized vide seizure memo Ex.P17. Dead body of deceased was
handed over to Raja Jatav (son of deceased) vide Ex.P18. After completion of
inquest proceedings, it was found that accused (appellant herein) was married
to the deceased and she lived with accused along with her children and
accused used to drink alcohol and harass the deceased. On 01-09-2015,
deceased informed her uncle Laxminaryan (PW-3) that accused was harassing
her a lot and was threatening to kill her and on 02-09-2015 accused beat her,
strangled her and killed her and thereafter, fled away. The death of deceased
Anita Jatav was caused by strangulation by accused with a saafi (scarf). FIR
vide Crime No.586 of 2015 (Ex.P19) was registered against accused-
appellant for offence punishable under Section 302 of IPC and case was taken
into investigation.
(3) During investigation, statements of witnesses under Section 161 of
CrPC as well as statements of witnesses Karan Jatav and Jaikishan were
recorded under Section 164 of CrPC. Appellant Suraj was arrested vide arrest
memo Ex.P11 and on the basis of memorandum of accused (Ex.P12), a white
and green coloured saafi (scarf) was seized from the possession of accused
vide seizure memo Ex.P13.Viscera and packet of salt solution of the deceased
were sent to FSL, Gwalior through Superintendent of Police from where, a
report was received for further investigation. Neck bone of deceased was sent
to Medico-Legal Institute, Gandhi Medical College, Bhopal through
Superintendent of Police from where, a report was also received vide Ex.C-1.
(4) After completion of investigation, charge-sheet was filed in the Court
of concerned Magistrate from where, the case was committed to the Sessions
Court, Gwalior. Charges were framed and read out & explained to the
accused. Accused denied having committed the crime and went to trial.
(5) Prosecution, in order to prove its case, examined as many as 18
witnesses including Raja alias Jaikishan as PW-1, Ku. Chhaya Jatav as PW-2,
Laxminarayan as PW-3, Karan Jatav as PW-4, Akash Jatav as PW-5, Kedar
Singh as PW-6, Smt. Mahadevi as PW-7, Smt. Munni as PW-8 and Manoj as
PW-9. Statement of accused u/S 313 of CrPC was recorded in which, accused
claimed himself to be innocent and has been falsely implicated in the alleged
crime and pleaded that he was in Kanpur and was not present in home on the
alleged date of incident. Accused, in order to lead evidence, did not examine
any witness in his defence.
(6) After conclusion of trial, the Trial Court on the basis of prosecution
evidence as well as exhibited material/documents available on record, found
appellant guilty and accordingly, convicted and sentenced him for alleged
offence, as stated in Para 1 of this judgment.
(7) It is contended on behalf of appellant that PW-3 Laxminarayan (uncle
of deceased), PW-6 Kedar Singh (father of deceased), PW-7 Smt. Mahadevi
(mother of deceased) and PW-9 Manoj (brother of deceased) are relatives of
deceased and there are some improvements in their police diary and Court
statements. There are also many contradictions and omissions in their
evidence. Although the incident came to the knowledge of these witnesses by
PW-2 Ku. Chhaya Jatav, who is daughter of deceased, but she did not support
the prosecution version, therefore, evidence of relative witnesses of deceased
are not reliable and the prosecution case appears to be doubtful. Akash Jatav
(PW-5), brother of deceased including sons of deceased, namely, Raja alias
Jaikishan Jatav(PW-1) and Karan Jatav (PW-4) are natural and close witnesses
of deceased, also did not support prosecution version.
(8) It is further contended that the onus/burden lies on prosecution to prove
guilt of accused and Section 106 of Indian Evidence Act (old Act) is certainly
not intended to relieve it of that duty, on the contrary, it is designed to meet
certain exceptional cases in which, it would be impossible or at any rate
disproportionately difficult for prosecution to establish the facts which are
especially within the knowledge of accused and which, he can prove without
difficulty or inconvenience, therefore, provisions of Section 106 of the
Evidence Act shall not be applicable in the present case, because prosecution
has failed to prove its case beyond reasonable doubt. It is further contended
that one Ramprakash (PW-10) is the independent witness to the arrest memo
as well as seizure memo and is the relative of deceased. Similarly, Umesh
Kumar Baraiya (PW-15), who is the witness of documents collected by the
investigating officer, is also a highly interested witnesses and is relative of the
deceased. The Trial Court has committed an error in convicting and
sentencing appellant without marshalling the evidence available on record in
proper perspective. Hence, appellant deserves acquittal, by allowing the
instant appeal.
(9) Learned Counsel for the State, on the other hand, supported the
impugned judgment of conviction and order of sentence. It is submitted that
after commission of crime, appellant fled away from the place of incident,
which was duly supported by the evidence of son of deceased Karan Jatav
(PW-4), who in Para 1 of his chief-examination has specifically deposed that
on the date of incident, he was taking food with his grandparents on ground
floor and his mother and father (appellant) were in first floor of the house.
Thereafter, his father came down from the upper floor and fled away. He
suspected that something is wrong. When he went to the upper floor of the
house, he saw that his mother was lying unconscious and he called out to his
grandparents and then, his grandparents took his mother to the hospital, where
Doctor declared his mother dead.
(10) It is further submitted that accused did not give any explanation in his
statement recorded under Section 313 of CrPC, therefore, according to the
provisions of Section 106 of the Evidence Act, it was the onus/burden on
appellant to explain/prove the fact which was especially within his
knowledge. Learned Trial Court after evaluating the entire oral and
documentary evidence as well as medical evidence, has rightly convicted
appellant and sentenced him. There is no infirmity or illegality in the
impugned judgment. The findings arrived at by Trial Court do not require any
interference. Hence, prayed for dismissal of this appeal.
(11) Heard learned Counsel for parties at length and perused the record.
(12) First question arises for determination of present appeal is whether the
cause of death of deceased was homicidal or suicidal in nature ?
(13) R.P. Gautam (PW-17), who was posted on 04-09-2015 as Sub-
Inspector, PS Janakganj, deposed that on the basis of unnatural death
intimation given by Akash Jatav (brother of appellant), he reached the spot
and prepared spot map vide Ex.P8. During merg enquiry, it was found that
deceased had died by strangulation with a saafi (scarf) and thereafter, FIR was
lodged vide Ex.P19.
(14) Kamalkishore Sharma (PW-13), who was posted as Head Constable in
Police Station Janakganj on 03-09-2015, in his evidence deposed that in the
presence of witnesses, Naksha Panchayatnama Ex.P7 was prepared by him
and death of deceased appeared to be due to strangulation.
(15) Further, the Investigating Officer- R.K. Sharma (PW-18), who was
posted as Station House Officer, PS Janakganj in his evidence deposed that
on 08-09-2015, he had arrested the accused vide arrest memo Ex.P11 and on
the basis of memorandum of accused, a white coloured saafi (scarf) kept in a
box of house of the accused was recovered vide seizure memo Ex.P12. After
completion of investigation, it was found that deceased Anita was murdered
by accused- appellant by strangulating her.
(16) Dr.Ajay Gupta (PW-12), who was posted in Forensic Medicine
Department, JA Hospital, Gwalior on 03-09-2015, in his evidence deposed
that Constable Dev Singh of PS Janakganj produced dead body of deceased
before him for postmortem examination. Dead body of deceased was
identified by Raja alias Jaikishan Jatav, son of deceased. Upon postmortem
examination, he found following antemortem injuries on the body of
deceased:-
''Injury No.1- Reddish blue abrasion size of 5 cm below middle
of chin to right side of neck, 5x3.5 cm size on the middle of the
forehead below which there was a blood clot in the muscles. On the
right side of this abrasion, there was a reddish-blue abrasion of 0.7 cm
size at a distance of 0.1 cm.
Injury No.2. A bluish contusion of 8x6 cm size on the right side
of neck.
Injury No.3 - A bluish contusion of 6x5 cm size on the upper and
outer part of right collarbone.
Injury No.4 -A bluish contusion of 8 x 5 cm size on the upper and
outer part of left collarbone.
Injury No.5- In the lower part of chest, there was a reddish-blue
contusion measuring 3x 2cm on the right side.
Injury No.6-On the upper part of right leg, there was a bluish
contusion measuring 2x1cm.
Injury No.7- There was a reddish abrasion 7 cm below the middle
of larynx and 3x2 cm in size.''
(17) Vide postmortem report Ex.P15, as per opinion of Dr. Gupta, death of
deceased was due to asphyxia signs of compression of neck and aspiration of
gastric contents evident. Antemortem head injury is also sufficient to cause of
death in ordinary course of nature. Neck bone of deceased was preserved for
confirmation regarding throttling. Dr. Gupta, further opined that injury to the
back of head of deceased could have been caused by falling. Nature of death
of deceased appears to be homicidal. Duration of death of deceased was
within 6 to 24 hours since postmortem examination. Dr.Gupta in his cross-
examination deposed that he cannot say that internal injuries on the body of
deceased would have caused due to falling from the stairs. Medical opinion
given by Doctor was not substantially rebutted by defence.
(18) From the medical evidence as well as Naksha Panchayatnama (Ex.P7)
prepared in the presence of witnesses, it is apparent that cause of death of
deceased was homicidal in nature.
(19) Next question arises for determination of present appeal is whether
appellant had committed murder of deceased or not ?
(20) There are two sets of evidence of witnesses, one from the in-laws' side
and another from the maternal side of deceased.
(21) Raja alias Jaikishan Jatav (PW-1), who is the son of deceased as well
as of appellant, in Para 1 of his chief deposed that at the time of incident, he
was not present in the house and had gone for work in the shop of Rajesh
Shrivastava situated at Maharaja Bada and further in Para 3 of his cross-
examination, deposed that his father had gone to Kanpur for work for two
days before his mother's death and there was no animosity or quarrel between
his mother and his father. This witness did not support prosecution story and
was declared hostile by prosecution.
(22) Ku.Chhaya Jatav (PW-2), who is daughter of deceased as well as of
appellant, in Para 1 of her examination-in-chief, deposed that her mother-
deceased died after falling from the stairs. On the date of incident, she had
gone to the school. This witness in Para 2 further denied that her father Suraj
(appellant) killed her mother by strangulating with a saafi and fled away from
the house and her father used to harass her mother. This witness did not
support the prosecution version and was declared hostile by prosecution.
(23) Karan Jatav (PW-4), who is son of deceased as well as of appellant in
Para 1 of his examination-in-chief deposed that on the date incident, he had
gone to the school. When he returned from school around 5 in the evening, he
came to know that his mother had fallen from the stairs and was unconscious.
His mother was taken to hospital, where the doctor declared his mother dead.
This witness did not support the prosecution and was declared hostile by
prosecution.
(24) Akash Jatav (PW-5), who is brother-in-law of deceased as well as
brother of appellant, in Para 1 of his chief deposed that on the date of
incident, he had gone for work and when he returned home, he came to know
that deceased had fallen from the stairs and his younger brother Jitendra had
taken her to JA Hospital, Gwalior. On receiving information, he reached
hospital, where the Doctor declared her dead. This witness did not support the
prosecution case and was declared hostile by prosecution.
(25) Kashiram Jatav (PW-11), who is father-in-law of deceased in Para 1 of
of his chief deposed that due to fall from the stairs, deceased died. In Para 2,
this witness further deposed that on the date of incident, he was in home and
her daughter-in-law was alone in house. Further, this witness deposed that his
grandson Karan and granddaughter Chhaya were also present in home. This
witness did not support the prosecution case and was declared hostile by
prosecution.
(26) Uncle of the deceased Laxminarayan (PW3) in Paras 1 and 2 of his
chief deposed that on 01-09-2015 in the evening, he had called deceased Anita
from mobile and then made his wife talk to deceased Anita. Anita told his wife
that accused is saying to deceased that he will suck her blood and had
snatched the mobile of her. This witness further deposed that on 02-09-2015,
he had gone to work and around 04:00 in the afternoon, his wife called him
and told that deceased Anita is no more. When he along his brother-in-law
Kedar and other persons reached in-laws house of deceased Anita, they saw
that there were marks of strangulation on the neck of Anita. Daughter of
deceased- Ku.Chhaya Jatav (PW-2) was saying that her father Suraj
(appellant) and mother had a fight and her father had strangled her mother
with a saafi (scarf). This witness in Paras 4 and 5 of his cross-examination
deposed that if the above fact is not written in his police diary statement
Ex.D1, he cannot give the reason. This witness in Para 6 of his cross-
examination denied that deceased Anita hanged herself with a scarf in her
room and when the noose opened due to her weight, she got scared and ran
down from the room and slipped on the stairs and got injured on her head and
other parts of body due to which, she died and further, denied that appellant
had gone to Kanpur for work for two days before the incident. Similar
evidence was given by wife of this witness Smt. Munni (PW-8)
(27) Father of deceased Kedar Singh (PW-6) in Paras 1 and 2 of his chief
deposed that appellant-accused used to drink alcohol, gambling and harass his
daughter deceased. When he along with others reached in-laws house of
deceased, they saw the dead body on the roof of the house and neck of
deceased was hanged with a scarf. His younger granddaughter Ku. Chhaya
Jatav was telling him that accused- Suraj killed her mother and fled away. This
witness in Para 7 of his cross-examination denied that deceased Anita hanged
herself with a scarf in her room and when the noose opened due to her weight,
she got scared and ran down from the room and slipped on the stairs and got
injured her head and other parts of body due to which, she died. Similar
statement was given by brother of deceased Manoj (PW-9).
(28) Mother of deceased Smt. Mahadevi (PW-7) although in Para 3 of her
chief deposed that when she asked her granddaughter Chhaya what had
happened, her granddaughter Chhaya told her accused had killed deceased and
fled away. There were so many improvements and inconsistencies found in
her statement, therefore, this witness was also declared hostile by prosecution.
(29) From the above, it transpires that witnesses from in-laws side of
deceased in the same breath, deposed that cause of death of deceased was due
to fall from stairs and all of them turned hostile by the prosecution. Although
the witnesses from the parental side of deceased in their evidence deposed that
from the daughter of appellant as well as of deceased, Ku. Chhaya (PW-2),
they heard that appellant-accused killed deceased Anita and fled away, but
Ku. Chhaya denied this fact in Para 2 of her evidence and therefore, did not
support the prosecution version and turned hostile. There are so many
improvements and inconsistencies found in the police diary statements and
Court statements. Therefore, their evidence cannot be said to be worthy-
reliance and is unreliable. The prosecution having failed to prove the basic
facts as alleged against the accused.
(30) The next question arises for determination of present appeal is whether
the appellant- accused is unable to explain/prove in any manner as to what had
happened actually with his wife-deceased?
(31) Burden of proof is defined in Section 101 of the Evidence Act which
reads as under:-
''Whoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts which
he assets, must prove that those facts exist.
When a person is bound to prove the existence of any
fact, it is said that the burden of proof lies on that person.''
On whom burden of proof lies is defined in Section 102, which reads as
under:-
''The burden of proof in a suit or proceeding lies on that person
who would fail if no evidence at all were given on either side.''
(32) It would be apposite for this Court to refer to Section 106 of the
Evidence Act, which states as under:
"106. Burden of proving fact especially within
knowledge.--When any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him.
Illustration:
(a) When a person does an act with some intention other
than that which the character and circumstances of the
act suggest, the burden of proving that intention is upon
him.
(b) A is charged with travelling on a railway without a
ticket. The burden of proving that he had a ticket is on
him."
(33) Section 106 of the Evidence Act referred to above, provides that when
any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. The word "especially" means facts that are pre-
eminently or exceptionally within the knowledge of the accused. The ordinary
rule that applies to the criminal trials that the onus lies on the prosecution to
prove the guilt of the accused is not in any way modified by the rule of facts
embodied in Section 106 of the Evidence Act. Section 106 of the Evidence
Act is an exception to Section 101 of the Evidence Act. Section 101 with its
illustration (a) lays down the general rule that in a criminal case the burden of
proof is on the prosecution and Section 106 is certainly not intended to relieve
it of that duty. On the contrary, it is designed to meet certain exceptional cases
in which it would be impossible or at any rate disproportionately difficult for
the prosecution to establish the facts which are, "especially within the
knowledge of the accused and which, he can prove without difficulty or
inconvenience" .
(34) The Hon'ble Apex Court in the matter of Nagendra Sah vs. State of
Bihar (2021) 10 SCC 725 has held as under:-
''22. Thus, Section 106 of the Evidence Act will apply to those
cases where the prosecution has succeeded in establishing the facts
from which a reasonable inference can be drawn regarding the
existence of certain other facts which are within the special
knowledge of the accused. When the accused fails to offer proper
explanation about the existence of said other facts, the Court can
always draw an appropriate inference.
23. When a case is resting on circumstantial evidence, if the
accused fails to offer a reasonable explanation in discharge of
burden placed on him by virtue of Section 106 of the Evidence
Act, such a failure may provide an additional link to the chain of
circumstances. In a case governed by circumstantial evidence, if
the chain of circumstances which is required to be established by
the prosecution is not established, the failure of the accused to
discharge the burden under Section 106 of the Evidence Act is not
relevant at all. When the chain is not complete, falsity of the
defence is no ground to convict the accused.''
(35) Regarding applicability of Section 106 of the Evidence Act, the
Hon'ble Apex Court in the case of Ram Gulam Chaudhary & Ors. v. State
of Bihar (2001) 8 SCC 311 in Para 24 has held as under:-
"24. ............................When the abductors withheld that
information from the court, there is every justification for drawing
the inference that they had murdered the boy. Even though Section
106 of the Evidence Act may not be intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond
reasonable doubt, but the section would apply to cases like the
present, where the prosecution has succeeded in proving facts from
which a reasonable inference can be drawn regarding death.''
(36) Further, in the case of State of W.B. vs. Mir Mohammad Omar
(2000) 8 SCC 382, the Hon'ble Apex Court in Para 37 has observed that the
section is not intended to relive the prosecution of its burden to prove the guilt
of the accused beyond reasonable doubt. But the section 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.
(37) From the aforesaid decisions of the Hon'ble Apex Court, it is clear that
Section 106 would apply to cases where the prosecution could be said to have
succeeded in proving facts from which a reasonable inference can be drawn
regading guilt of accused. The presumption of fact is an inference as to the
existence of one fact from the existence of some other facts, unless the truth of
such inference is disproved. The Court should apply Section 106 of the
Evidence Act in criminal cases with care and caution. It cannot be said that it
has no application to criminal cases. The ordinary rule which applies to
criminal trials in this country that the onus lies on the prosecution to prove the
guilt of the accused is not in any way modified by the provisions contained in
Section 106 of the Evidence Act.
(38) Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of the
accused. This Section cannot be used to support a conviction unless the
prosecution has discharged the onus by proving all the elements necessary to
establish the offence. It does not absolve the prosecution from the duty of
proving that a crime was committed even though it is a matter specifically
within the knowledge of the accused and it does not throw the burden on the
accused to show that no crime was committed. To infer the guilt of the accused
from absence of reasonable explanation in a case where the other
circumstances are not by themselves enough to call for his explanation is to
relieve the prosecution of its legitimate burden. So, until a prima facie case is
established by such evidence, the onus does not shift to the accused.
(39) Section 106 obviously refers to cases where the guilt of the accused is
established on the evidence produced by the prosecution unless the accused is
able to prove some other facts especially within his knowledge which would
render the evidence of the prosecution nugatory. If in such a situation, the
accused offers an explanation which may be reasonably true in the proved
circumstances, the accused gets the benefit of reasonable doubt though he may
not be able to prove beyond reasonable doubt the truth of the explanation. But
if the accused in such a case does not give any explanation at all or gives a
false or unacceptable explanation, this by itself is a circumstance which may
well turn the scale against him.
(40) In the language of Prof. Glanville Williams "All that the shifting of the
evidential burden does at the final stage of the case is to allow the jury (Court)
to take into account the silence of the accused or the absence of satisfactory
explanation appearing from his evidence."
(41) Section 106 has no application to cases where the fact in question,
having regard to its nature, is such as to be capable of being known not only to
the accused but also to others, if they happened to be present when it took
place.
(42) The intention underlying the act or conduct of any individual is seldom
a matter which can be conclusively established; it is indeed only known to the
person in whose mind the intention is conceived. Therefore, if the prosecution
has established that the character and circumstance of an act suggest that it
was done with a particular intention, then under illustration (a) to this section,
it may be assumed that he had that intention, unless he proves the contrary.
(43) A manifest distinction exists between the burden of proof and the
burden of going forward with the evidence. Generally, the burden of proof
upon any affirmative proposition necessary to be established as the foundation
of an issue does not shift, but the burden of evidence or the burden of
explanation may shift from one side to the other according to the testimony.
Thus, if the prosecution has offered evidence, which if believed by the court,
would convince them of the accused's guilt beyond a reasonable doubt, the
accused, if in a position, should go forward with countervailing evidence, if he
has such evidence. When facts are peculiarly within the knowledge of the
accused, the burden is on him to present evidence of such facts, whether the
proposition is an affirmative or negative one. He is not required to do so even
though a prima facie case has been established, for the court must still find
that he is guilty beyond a reasonable doubt before it can convict. However, the
accused's failure to present evidence on his behalf may be regarded by the
court as confirming the conclusion indicated by the evidence presented by the
prosecution or as confirming presumptions which might arise therefrom.
Although not legally required to produce evidence on his own behalf, the
accused may therefore as a practical matter find it essential to go forward with
proof. This does not alter the burden of proof resting upon the prosecution
[See: Balvir Singh v. State of Uttarakhand reported in 2023 SCC OnLine SC
1261, Anees v. State Govt. of NCT reported in 2024 INSC 368 and State of
Madhya Pradesh Vs. Balveer Singh 2025 SCC OnLine SC 390]
(44) It is settled principle of law that the prosecution has to substantially
prove from the stages it alleges against the accused. Prosecution cannot take
advantage of weakness of defence. The Court, on its own cannot make out a
new case for prosecution and convict the accused on that basis.
(45) If this Court see the factual matrix of the case from all the angles, it is
found that all the close relatives of deceased in their evidence deposed that
cause of death of deceased was due to fall from the stairs and thereafter, the
deceased became unconscious whereby she was taken to the hospital, where
Doctor declared the deceased dead and appellant had gone to Kanpur for work
for two days before the death of deceased. In the statement of accused
recorded u/S 313 of CrPC, appellant pleaded that he was in Kanpur and was
not present in home on the date of alleged incident. The parents of deceased in
their evidence deposed that when they reached in-laws house of deceased,
they found marks of strangulation on the neck of the deceased. Some
improvements as well as contradictions and omissions were found in their
police diary and Court statements. Even otherwise, the mother of deceased
Smt. Mahadevi (PW-7) was declared hostile by the prosecution because of the
fact that major inconsistencies were found in her evidence also. If an offence
took place inside the four walls of a house due to some strained marital
relations or some other reasons and crime is committed in complete secrecy
inside the house, it is very difficult for the prosecution to lead any evidence.
Not a single witness from the side of in-laws of the deceased in the case at
hand, did not come forward to depose against the appellant-accused. As per
postmortem report of deceased, Dr. Ajay Gupta (PW-12) although opined that
the nature of death of deceased was homicidal and antemortem injuries were
found on the person of deceased are also sufficient to cause death in ordinary
course of nature, but opined that injury to the back of the head of deceased
could have been caused by falling and further, deposed that he cannot say that
the internal injuries on the body of the deceased would have caused due to fall
from the stairs.
(46) In the case at hand, prosecution has miserably failed to prove the entire
chain of circumstances, which would unerringly conclude that the alleged act
was committed by the accused only with intention and none else. The
prosecution having failed to prove the basic facts as alleged against the
accused, the burden could not be shifted on the accused by pressing into
service the provisions contained in Section 106 of the Evidence Act. There
being no cogent evidence adduced by the prosecution to prove the entire chain
of circumstances which may compel the Court to arrive at a conclusion that
the appellant-accused only had committed the alleged crime, the Court has no
hesitation in holding that the Trial Court had committed an error in convicting
the accused for the alleged crime, merely on the basis of evidence of parents
of the deceased.
(47) Resultantly, present appeal succeeds and is hereby allowed. The
judgment of conviction and order of sentence dated 30-10-2017 passed by 9 th
Additional Sessions Judge, Gwalior (MP) in Sessions Trial No.466 of 2015 is
hereby set aside. Appellant is acquitted of offence punishable under Section
302 of IPC. Appellant is reported to be in jail. He shall be released forthwith,
if not required in any offence.
(48) A copy of this judgment be sent to the Jail Authority concerned as well
as a copy of this judgment along with record be sent to trial Court concerned
for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MKB
