2. Precisely stated facts of the case are that complainant Krishnapal
Singh lodged a Dehti Nalish to the effect that at about 7 o'clock in
the evening, when he was laying pipe in his field, at the nearby
road, Jitendra Yadav was going to his village, he stopped him and
asked him to accompany upto their homes. After some time they
left agriculture field. As soon as they reached near the temple, they
heard the sound of a woman screaming. They got scared so
Jitendra called Pahalwan Singh Jat and asked him to come quickly.
Reacting on his call, Pahalwan Singh along with Karan Singh and
Kamal Singh, came on the spot. When all these persons tried to
search that woman, they saw that the accused coming down from
the top of the hill. They caught hold of the accused and enquired
about the screaming of woman. However, his evasive reply made
them suspicious. Therefore, they tried to search the woman and
found torso of a woman. On enquiry, accused admitted that she was
his wife and he killed her by cutting her neck with an axe and
hidden her head in the jungle. They called police and police arrived
at the crime scene, took custody of the appellant and recovered
dead body along with head, blood stained axe, blood stained
clothes of accused, a bag stated to be of accused, blood stained soil
and simple soil all were collected vide Ex-P/6 .
3. Marg investigation was carried out and thereafter, FIR vide Ex-
P/12 was registered on 01-12-2011 vide Crime No.325/2011 for the
offence under Section 302 and 201 of IPC. During marg enquiry,
police recovered a bag from the spot, having a dull colour blanket,
scarf, a white colour broken handle of axe, woman clips, sleeper.
Matter was investigated and challan was filed in the matter before
the concerned Magistrate.
4. Case was committed to the Sessions Court. Trial Court framed the
charges and proceeded with trial. Before the trial Court, appellant
abjured his guilt and prayed for trial. On behalf of prosecution, 15
witnesses were examined whereas defence has not examined any
witness. After recording of evidence, ocular as well as
documentary and hearing the submissions of counsel for the
parties, trial Court convicted and sentenced the appellant as
referred above. Therefore, appellant is before this Court.
5. It is submitted by learned counsel for the appellant that trial Court
erred in convicting the appellant for the offence referred above.
There is material contradictions and omissions between the
statements of prosecution witnesses. Such aspects have not been
considered by the trial Court. There is no eye-witness of the case
and all the witnesses have only seen the appellant coming down
from the hill and merely on this evidence, appellant has been
convicted for life imprisonment. It is further submitted that
complainant Krishna Pal Singh (PW-1) called his father Anand
Singh from the spot but the said witness has not been examined by
the prosecution and further no Call Detail Report is produced by
the prosecution so as to prove its case. Prosecution failed to
examine any witness who saw the appellant taking the deceased
towards Jungle. Only on the basis of conjecture and surmises,
appellant has been held guilty by the trial Court which is not
correct. Thus, the trial Court committed grave error in convicting
the appellant under Sections 302 and 201 of IPC.
6. It is further submitted that appellant belongs to a poor family and
he already suffered 13 years of actual incarceration and since in the
present case except the witnesses saw him coming down from the
hill, there is no other evidence which connects the present
appellant to this offence. Thus, prayed for setting aside of
impugned judgment of conviction and order of sentence passed by
the trial Court.
7. On the other hand, learned counsel for the respondent/State
opposed the prayer and prayed for dismissal of the appeal. It is
further submitted that appellant was caught on the spot, Krishna
Pal Singh (PW-1), Jitendra Yadav (PW-2) and Karan Singh (PW-
3) are the last seen witnesses. They supported the story of
prosecution. Further recovery of blood stained clothes of the
appellant and blood stained axe establish the guilt of appellant.
Therefore, trial Court did not err in convicting him under Sections
302 and 201 of IPC.
8. Heard learned counsel for the parties and perused the record.
9. This is a case where appellant has suffered conviction and awarded
jail sentence for the allegations referred above. All the witnesses
who have seen the appellant at the spot supported the case of
prosecution and appellant was arrested from the spot. Appellant
was seen in close proximity with the scene of crime.
10. The first and foremost question comes before this Court is; whether
the death of deceased was homicidal or not ?
11. Dr. D.S. Rana (PW-7) who has conducted postmortem of the
deceased deposed before the trial Court and narrated the injuries
sustained by the deceased apart from beheading. He referred the
injuries in following manner:
"चचोट कक.1- कटटा हहआ चचौप वहणण्ड जचो कक 19 ससेममी लकबटा थटा और
ररीढ ककी हडण्डमी तक गहरटा थटा। यह गरर्दन कसे उपररी भटाग मम आगसे
ककी ओर एवक लसेटरल भटाग मम ससथत थटा। सजसकसे कटारण चमण्डमी
शबकचोटसेननयस टटसह मटासपसेशशयटाक , खखन ककी नशम, एवक नवर्दस एवक गरर्दन
ककी ररीढ ककी हडण्डमी कसे सवटार्दईकल रस
ख रसे एवक तमीसरसे वटर्टीबटा कट गयसे
थसे।
चचोट कक. 2- कटटा हहआ चचौप वहणण्ड जचो कक 16 ससेममी. लकबटा थटा हण्डण्डमी
तक गहरटा थटा गरर्दन कसे उपररी भटाग मम पमीछसे ककी ओर एवक लसेटरलरी
ससथत थटा और यह घटाव घटाव नकबर 1 ससे जहड़ रहटा थटा। सजसकसे
कटारण गरर्दन कसे पमीछसे ककी ओर ककी चमड़मी शबकचोटसेननयस टटसख ,
मटाससेपसेशशयटाक खखन ककी नशम, एवक नवर्दस एवक गरर्दन ककी ररीढ ककी हडण्डमी
कसे सवटार्दईकल रस
ख रसे एवक तमीसरसे वटर्टीबटा कट गयसे थसे। इन रचोनचो घटावव
ससे गरर्दन कटकर धण्ड ससे बबलकहल अलग हचो गई थमी।
चचोट कक. 3- कटटा हहआ घटाव 11 गहणटा 1.5 ससेममी. गहणटा 1/4 ससेममी. गहरटा
थटा और छटातमी मम उपर कसे भटाग मम बटायमी ओर गलसे कसे नजररीक
थटा।
चचोट कक. 4- कटटा हहआ घटाव 10 गहणटा 2 ससेममी. गहणटा 1/4 ससेममी. जचो कक
चसेहरसे पर रटायमी ओर गटाल पर थटा।
चचोट कक. 5- कटटा हहआ घटाव 8 गहणटा 2.4 ससेममी. मटास पसेशमी ककी गहरटाई
तक थटा, रचो रटायसे कटान कसे ननचलसे वटालसे भटाग मम थटा।
चचोट कक. 6- 'कटटा हहआ घटाव 5 गहणटा 1 गहणटा 1/4 ससेममी. रटायमी भहजटा कसे
उपररी भटाग मम थटा।
चचोट कक. 7- कटटा हहआ घटाव 2.5 गहणटा 1 ससेममी. गहणटा 1/4 ससेममी. रटायसे
ककधसे पर पमीछसे ककी ओर थटा।
चचोट कक. 8- कटटा हहआ घटाव 1.5 गण
ह टा 1/2 गण
ह टा 1/4 ससेममी. गहरटा थटा।
जचो कक ठचोण्डमी मम रटायमी ओर थटा।
आकतररक पररीक्षण-
4- गरर्दन कसे रस
ख रसे तमीसरसे सवटाईकल वटर्टीबटा कटकर अलग हचो गयसे
थसे। गरर्दन मम टसेककयटा कटरी हहई थमी। गरर्दन मम इसचो फसेगस कटरी हहई
थमी।
5- मनम तकटा कसे शररीर पर पटाई गई चचोटम जचो कक पसेज नकबर 3 पर
उललसेखखत हह, मतम यह पखवर्द ककी थमी एवक भटाररी धटाररटार, हथथयटार दवटारटा
पकहहचटाई गई थमी। मनम तकटा कसे शव पर पटायसे गयसे सभमी कपड़से जचो कक
पसेज नकबर 3 पर उललसेखखत हह, समीलबकर करकसे आरक्षक अमत
म लटाल
शमटार्द नकबर 334 थटानटा धरनटावरटा कचो सहपहरर्द कर टरयसे थसे।
6. gekjs er esa e`R;q dk dkj.k pksV dz-1 vkSj 2 gS ftlds dkj.k
xnZu /kM+ ls vyx gks xbZ FkhA ftlds lnesa dh ctg ls
dkfMZ;ksjslfijsVjh Qsfy;j gks x;k Fkk e`R;q dh vof/k ih-,e- ijh{k.k
ls 24 ?kaVs ds vanj dh FkhA gekjh fjiksVZ iz-ih-11 gS] ftlds , ls ,
Hkkx ij esjs gLRkk{kj gS rFkk ch ls ch Hkkx ij Mk- HkwisUnz /kkdjs ,oa
lh ls lh Hkkx ij Mk- Jherh 'kkjnk Hkksyk ds gLrk{kj gSA^^
12. Description of injuries and opinion of the doctor clearly indicates
that the deceased was beheaded by axe and the blood stained axe
was recovered from the possession of appellant. Medical report
also supports the allegation of prosecution of beheading of the
deceased as the second and third cervical vertebrae of the neck
were cut apart. The trachea in the neck was cut. The esophagus in
the neck was cut. Medical report further proves brutality which has
been done by the appellant with the deceased as he cut down the
neck of the deceased by axe.
13. Further the nature of injuries received by the deceased establish the
fact of brutality committed by the appellant with the deceased as
her neck was cut down with the means of axe. Injuries received by
the deceased specifically proves the intention of the appellant. It
was a brutal murder.
Thus, from the nature of injuries, opinion of doctor and the
evidence surfaced on the record clearly prove that the death of the
deceased was not Suicidal or Accidental but it is Homicidal in nature.
14. Prime witnesses of the case are Krishna Pal Singh (PW-1) and
Jitendra Yadav (PW-2) who were last seen witnesses also,
categorically supported the case of prosecution. According to
prosecution, Krishna Pal Singh (PW-1) who was working in his
field heard screaming of a woman and thereafter he along with his
friend Jitendra Yadav (PW-2) enquired about the same and also
called other persons of their village at the spot. When all these
persons went in search of cause of screaming which they heard,
they saw the accused coming down from the hill and when they
questioned him and dragged him to the spot, they found beheaded
body of a woman. Appellant admitted the said body to be of his
wife. Testimony of all these witnesses remained firm and on the
same line. In cross-examination, no adverse facts for the
prosecution surfaced.
15. The case in hand is of circumstantial evidence and it is a trite law
that to convict an accused on the basis of circumstantial evidence,
the prosecution must prove beyond reasonable doubt each of the
incriminating circumstances on which it proposes to rely; the
circumstance(s) relied upon must be of a definite nature unerringly
pointing towards accused's guilt and must form a chain so far
complete that there is no escape from the conclusion that within all
human probability, it is the accused and no one else who had
committed the crime.{See: State of Punjab Vs. Kewal Krishnan,
(2023) 13 SCC 695}.
16. In the case of circumstantial evidence, the chain of evidence must
be so far complete, such that every hypothesis is excluded but the
one proposed to be proved and such circumstances must show that
the act has been done by the appellant-accused within all human
probability {See: Hanumant Vs. State of Madhya Pradesh,
(1952) 2 SCC 71}.
17. In the case of Sharad Birdhichand Sarda vs. State of
Maharashtra, (1984) 4 SCC 116, the Hon'ble Apex Court outlined
five essential principles, often referred to as five golden principles,
which must be satisfied for circumstantial evidence to conclusively
establish the guilt of appellant accused:-
"(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency
(4) they should exclude every possible hypothesis except
the one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in
all human probability the act must have been done by the
accused."
18. Brother of the deceased Nandu alias Nand Kumar (PW-14) was
examined before the trial Court and he categorically stated that the
deceased Krishna Bai was his sister and her marriage with the
appellant was recently solemnized. It is further stated that in the
marriage dowry was also given according to their status but
appellant, his brother and his parents used to harass his sister. Thus,
this witness established the motive behind the murder of the
deceased Krishna Bai.
19. Constable Shailendra Singh (PW-10) who got registered the Dehati
Nalish examined before the Court and deposed that he went on the
spot along with Station House Officer of Police Station Ruthiyai
Shri Narendra Bhargawa who instructed him to lodge Dehati
Nalish at the Police Station. Thereafter, he handed over the said
Dehati Nalish to the Head Constable Vijay Singh at Police Station
in the night of 01-12-2011 on which FIR was registered at Crime
No.325/2011. This witness further deposed that on 02-12-2011 at
the instruction of appellant axe was recovered vide seizure memo
Ex-P/16 prepared by Station House Officer on which his signature
is there from A to A portion. This witness proves seizure memo of
axe from the appellant and Dehati Nalish.
20. Station House Officer Narendra Bhargawa (PW-15) deposed before
the Court that Dehati Nalish was registered against the appellant at
the instance of complainant Krishnapal Singh. It is further
submitted that on the said Dehati Nalish, matter was enquired,
witnesses were called under Section 175 of Cr.P.C. to record their
statements, dead body was sent for postmortem and dead body
inquest memo was prepared vide Ex-P/3 on which from B to B part
his signature is there. At the instance of complainant Krishnapal
Singh, spot map was prepared vide Ex-P/4 which bears his
signature from B to B portion. Appellant was arrested on the spot
in presence of witnesses vide Ex-P/5. Various other material having
material bearing in the case were seized and sent for examination.
According to this witness he reached at the spot at 7-7:15 pm
where he found all the last seen witnesses.
21. So far as the contention of learned counsel for the appellant that
father of the complainant Anagad Singh was not examined is
concerned, it does not give any dent to the prosecution case
because according to the complainant himself Angad Singh was
not present on the spot, complainant only narrated the incident to
him on mobile. Further there is no need of producing the Call
Details Report because eye-witnesses were already present on the
spot and they heard the screaming of a woman and found the
appellant near the scene of crime. Thus, by no stretch of
imagination it can be said that the case of prosecution is based on
surmises and conjecture.
22. If the testimony of all these witnesses are seen in juxtaposition then
it clearly establishes that case of prosecution because according to
the witnesses who were present on the spot, they heard screams of
a woman who is being attacked by some one as the complainant
Krishpal Singh heard the noise of cutting. Krishnapal Singh and
Jitendra Yadav who were present on the spot went in search of that
woman and saw the appellant coming down from the hill and they
do not found any other person on the spot. Thus, all the facts and
circumstances goes against the appellant.
23. Appellant was husband of the deceased and recently their marriage
was solemnized, therefore, appellant was the companion of the
deceased and if anything happened with his wife in his presence or
proximity, then burden lies upon the appellant to explain. Appellant
has to discharge the said burden of proof as the deceased was his
legally wedded wife. Apart from this, he himself confessed before
complainant Krishnapal Singh, Jitendra Yadav and Karan Singh that
he killed his wife by axe. Thus, all the evidence goes against the
appellant. Appellant did not produce anything in his defence in order
to discharge his burden of proof.
24. Appellant was the husband of the deceased therefore, burden of proof
lies upon him to prove his innocence as to how his wife was found in
such condition at the hill, why she was screaming and what he was
doing near the scene of crime. Appellant was under bounden duty to
give explanation to all these queries but he failed to do so. Eye-
witnesses heard screams of a lady, then they saw the appellants
coming down from the hill where her wife was found dead and
except appellant and eye-witnesses there were no other person
present at the hill, therefore, being husband of the deceased, appellant
was required to explain the things, but he did not plead anything in
his defence. Thus, appellant failed to discharge his burden. 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
asserts, 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.''
25. 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.''
26. Section 106 of the Evidence Act 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."
27. 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.''
28. Regarding applicability of Section 106 of the Evidence Act, the
Hon'ble Apex Court in the case of Ram Gulam Chaudhary & Ors.
Vs. 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.''
29. Further, in the case of State of W.B. vs. Mir Mohammad Omar
(2000) 8 SCC 382, the Hon'ble Apex Court 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.
30. Since the appellant is husband of the deceased, therefore, it is his
duty to prove how his wife was found in such condition at the hill,
screaming and he found near the scene of crime. No plausible
explanation is given by accused about such facts to discharge the
burden. Section 114 of the Evidence Act provides that Court may
presume existence of certain facts. Thus, when in a jungle at about 7-
7:15 pm no one was there, screaming of a woman who is legally
married wife of appellant and he was coming out from jungle and
when the surrounding people rushed near to the spot, they found the
appellant there. Thus, the presumption goes against the appellant in
relation to murder of his wife particularly when brother of deceased
Nandu alias Nandkishore (PW-14) categorically stated before the
trial Court that appellant and his family members used to harass the
deceased for demand of dowry and appellant recently took away the
deceased from her maternal home.
31. In view of the above discussion, this Court is of the considered view
that chain of evidence in this case of circumstantial evidence is well
connected, prosecution successfully proved its case beyond
reasonable doubt and appellant failed to discharge his burden as well
as presumption attached to it. Accordingly, the appeal preferred by
the appellant fails and is hereby dismissed and the judgment of
conviction and order of sentence passed by the trial Court is hereby
affirmed. Appellant is in jail. He shall undergo the remaining jail
sentence as imposed by the trial Court. Record of the trial Court be
sent back.
32. Copy of this judgment be sent to the trial Court and jail authority for
necessary information.
33. Appeal stands dismissed.
(ANAND PATHAK) (PUSHPENDRA YADAV)
Anil* JUDGE JUDGE
ANIL Digitally signed by ANIL KUMAR CHAURASIYA
DN: c=IN, o=HIGH COURT OF MADHYA
KUMAR
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
2.5.4.20=8512f40a1a9eaa50b6802d068b51dae
27e84c266b09d283f0799e67cdc7df50f,
CHAURASIY
postalCode=474001, st=Madhya Pradesh,
serialNumber=EC534CBB3B245F050119F06F4
A296DD83C765A1E2ACC6EC7D8BD8CBCC9C2
446E, cn=ANIL KUMAR CHAURASIYA
A
Date: 2025.09.11 10:42:22 +05'30'
