JAYANTILAL VERMA versus STATE OF M.P. (NOW CHHATTISGARH) on 19 November 2020

1. On the fateful day of 24.8.1999, one Sahodara Bai was founddead on a cot in her matrimonial home located in village Uslapur, DistrictRajanandgaon, M.P. (now Chhattisgarh). A marg intimation was lodgedwith the police at the behest of her brother, one Kishore Kumar, whoalleged that he had returned to village Uslapur to see his sister, where heCwas informed by her in-laws that she had died. He related a prior incidentfrom a few days ago alleging that on 19.8.1999, the deceased had returnedto her maternal home to village Baiharsari stating that she had beenharassed at the hands of her in-laws for the last 6-7 months. The causefor harassment was stated to be that the appellant herein (her husband)Dhad a brother who lived separately and the in-laws would beat and harassher if she attempted to speak to the wife of the brother of the appellantherein. The endeavour of reconciliation took place when Kishore Kumaralong with another brother, Lochan, had brought the deceased back toher matrimonial home. Even at that stage, on being asked whether theywanted her to live with them, the in-laws responded that they will seeEfor a few days and then decide. The deceased thereafter stayed back ather matrimonial home.

2. A postmortem was conducted on the body and FIR No.72/99came to be registered at P.S. Bodla, District Kawargha on 29.8.1999arraying the appellant herein, his father, one Lalchand and mother, oneFAhiman Bai as accused for offences punishable under Sections 302read with Section 34 of the Indian Penal Code, 1860 (hereinafter referredto as the ‘IPC’). The FIR is stated to have been registered at the behestof one K.P.S. Paikara, the SHO of P.S. Bodla, who relayed theabovementioned information from the marg intimation and also elaboratedGon the relationship of the deceased and the appellant herein along withthe findings of the postmortem report. The marriage between theappellant herein and the deceased had taken place about 8 years prior tothe incident and there was a son born, who was only a few months old.The appellant herein, along with the deceased was staying with hisparents. The post mortem report stated that the cause of death wasH

asphyxia due to strangulation, and the nature of death was possiblyhomicidal. On completion of investigation, Chargesheet No. 64/99 wasfiled and charges were framed by the Sessions Court in Sessions TrialNo.165/1999, arraying the appellant herein and his parents as accused.The version given by the accused in their statements under Section 313Code of Criminal Procedure, 1973 (hereinafter referred to as the‘Cr.P.C.’) was that on the morning of the incident all the three accusedhad gone to the fields, while only the deceased remained at home.Lalchand stated that after taking a bath in the pond, when he returned,he discovered the deceased lying dead in her cot. Thereafter he calledthe appellant herein and his wife, Ahiman Bai, who were still in thefields. No evidence was led in this regard.

3. The prosecution led evidence of 9 witnesses to establish theircase. Five of these witnesses turned hostile – PW-2 (Lochan), brotherof the deceased, PW-3 (Mukund), PW-4 (Jagdev), PW-5 (PitambarVerma) and PW-6 (Ghasiya). The case of the prosecution was, thus,based on the testimonies of the remaining witnesses, i.e., PW-1, KishoreKumar, the brother of the deceased and PW-7, Rajendra Chauhan, whoprepared the site plan, PW-8, K.P.S. Paikara, Investigating Officer andPW-9, Dr. M.S. Bachkar, who conducted the postmortem. Thus,effectively the case was based on the testimony of PW-1, apart fromthe testimony of the doctor who conducted the postmortem.

4. The Sessions Court held all the three accused persons guilty ofoffences punishable under Section 302 of the IPC, in terms of the judgmentdated 21.7.2000.

5. The finding of the Sessions Court was based on the cause ofdeath being asphyxia due to strangulation. The testimony of the doctor,PW-9, was relied upon to come to the conclusion that the death washomicidal as it was a result of strangulation. The possibility of any othermanner of death was explored by the court, i.e., thieves killing thedeceased in order to snatch a chain from her neck. This was ruled outas the incident took place in the house, which in turn was surrounded byother houses on three sides and no commotion was heard. Further, nocrime of theft had been reported in the recent past. Next, the possibilityof death caused by a snakebite was explored. This was owing to thetestimony of PW-1, who had stated, that upon finding his sister dead andenquiring as to what had happened, Lalchand, father of appellant herein AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Ahad stated that she had died of a snakebite. Court noted that thepostmortem did not indicate any symptom of a snake bite as there wasno mark or any poisoning detected in the body. The suicide theory wasalso ruled out as there were scratch marks found on her neck. Theconclusion was, thus, based on circumstantial evidence to convict theaccused. All the three accused preferred an appeal before the HighBCourt, being Criminal Appeal No.1930/2000. In the course of thependency of the appeal, Lalchand, the father-in-law of the deceasedpassed away. The High Court concluded that there was no legallyadmissible evidence to convict the mother-in-law of the deceased, andhence she was acquitted. However, the conviction of the appellant hereinCwas upheld by the High Court.6. The appellant herein filed the present appeal in which leavewas granted on 30.3.2015.

7. It would be appropriate to note that there was someimprovement in the statement of PW-1 to the extent that he had neverDmentioned Lalchand’s explanation of the death of the deceased by snakebite in the earlier statement. While this was noted by the Trial Court, allother aspects were found to be consistent with his earlier statements.The testimony of PW-1 as a whole was found to be natural. It was alsonoted that there was an absence of any prior animosity between PW-1Eand the family of the appellant herein. PW-1, incidentally, was thestepbrother of the deceased, while PW-2, who turned hostile was herreal brother. The cause of witnesses turning hostile, as per the TrialCourt, was that PW-2 was influenced on account of subsisting familyrelationship, as the daughter of Lalchand (sister of the appellant herein)was married to the brother of PW-2.F

8. The circumstantial evidence was examined closely as that couldbe the only basis of conviction, and it was found that there was a completechain to prove the guilt of the accused. The visit of the deceased to hermaternal home, her statement regarding the ill-treatment by her in-lawsto her brother, PW-1, her being taken to the matrimonial home by PW-1Galong with another brother, Lochan, the discussion between PW-1 andLalchand and finally the cause of death being homicidal were allcircumstances examined to establish guilt of the accused. The TrialCourt held that after the murder, Lalchand sent his wife and the appellantherein to the fields, while he himself went to the pond to bathe and whenHhe returned to his house, he raised a hue and cry, pretending to be shocked by the sudden death of the deceased. There was a possibility of deathbeing caused by strangulation by an article made of a chain-like materialbut the same had likely been destroyed. The Trial Court did castigatethe manner of prosecution.

9. The High Court in the given situation, apart from relying on thetestimony of PW-1, turned its attention to the postmortem report. In thiscontext, it was noted that there was blood oozing from both nostrils andmouth of the deceased, there was swelling over the right cheek, marksof ecchymosis at epiglottis region and back of the neck, bruise presentat left axillary of cheek and there was depression mark of a mala on theleft side of the neck. It went on to state that since the incident had takenplace inside the privacy of the house, the onus was on the persons residingin the house, to give an explanation. In such situations, it was noted thatit is difficult for the prosecution to lead any direct evidence to establishthe guilt of the accused. In this regard, the High Court referred toSection 106 of the Indian Evidence Act, 1872 (hereinafter referred to asthe ‘Evidence Act’), which reads 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.”

It, thus, opined that in such cases, while the initial burden to establishthe case would be upon the prosecution, it would be of a relatively lightcharacter. There would be a corresponding a burden on the inmates ofthe house to give cogent explanation as to how the crime was committed.They could not get away by keeping quiet and offering no explanation.

10. In the aforesaid contours of the factual situation we haveexamined the submissions of the learned counsels for the parties.

11. The submission of the learned counsel for the appellant hereinwas that the circumstantial evidence was not of such a nature that itcould be said to be conclusive, and the chain of evidence was not completeto pronounce the appellant herein guilty. The previous allegations ofcruelty had not been proved as there was no prior complaint ofharassment lodged by the deceased or her relatives and that the testimonyof PW-1 is further discredited, as he is the stepbrother and not the realbrother of the deceased. It was further argued that the statements ofthe witnesses were not recorded prior to 29.8.1999 i.e., for five daysfrom the date of incident, and even the site plan prepared by PW-7 was A

B

C

D

E

F

G

H

Anot proved. There was stated to be no intention or motive attributable tothe appellant herein to kill the deceased and the prosecution could notabsolve itself of the burden to prove the case beyond reasonable doubt.

12. The testimony of PW-9, Dr. Bachkar was assailed as therewas no formation of a firm opinion regarding the nature of death as itBwas mentioned that it “may” have been homicidal. There was stated tobe a mark on the left side of the neck and but no such mark existedaround the neck. He had stated that the mark could have been causedby pressing the necklace on the neck, but asphyxia was not possible dueto the same. No recovery of necklace had taken place from the appellantherein and the weapon of crime was never recovered. Lastly, it wasCcontended that on the same evidence, the mother of the appellant hereinhad been acquitted.

13. The appellant herein is stated to have served 16 years and 9months of his sentence but some dispute was raised about the actualtime he had spent in jail by learned counsel for the respondent State,Dthough it was conceded that cases for release were considered after 14years of serving the actual sentence.

14. Learned counsel for the respondent State relied upon theabsence of any explanation by the accused regarding the cause of death,even though the death had occurred in the privacy of the matrimonialEhome. The appellant herein and his family are stated to be the onlyresidents, where the body of the deceased was found and that itself casta burden on them within the meaning of Section 106 of the EvidenceAct.

15. In order to support the aforesaid proposition, reliance wasFplaced on the following judgments:

a. Amarsingh Munnasingh Suryawanshi v. State ofMaharashtra[1]: In this case, the death had occurred in thematrimonial home but the conviction was supported by a dyingdeclaration.Gb. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.[2]:Here, the weapon of offence, a gun, was recovered from theroom of the accused and the dead body was found on the terraceattached to the private room of the accused.

1 (2007) 15 SCC 455H2 (2007) 10 SCC 433

c. Trimukh Maroti Kirkan v. State of Maharashtra[3]: In thiscase, the body of the deceased was found in the matrimonial homeand the cause of death was strangulation, though the defencepleaded it to be a case of a snakebite.

16. The aforesaid, would thus, show that the third case best fitsthe factual scenario in the present case.

17. Learned counsel for the State emphasised that the otherwitnesses turning hostile cannot be a ground itself to acquit the accusedand the testimony of PW-1 was consistent and sufficient to convict theappellant herein. In this behalf, a reference was made to Section 134 ofthe Evidence Act, which reads as under:

“134. Number of witnesses. – No particular number of witnessesshall in any case be required for the proof of any fact.”

18. It was, thus, contended that mere presence or absence of alarge number of witnesses cannot be the basis of conviction. It is thequality of evidence and not the number of witnesses, which is relevant.In this behalf, a reference was made to the following cases:

a. Yanob Sheikh Alias Gagu v. State of West Bengal[4], where itwas observed as under:

“20. We must notice at this stage that it is not always the quantitybut the quality of the prosecution evidence that weighs with theCourt in determining the guilt of the accused or otherwise. Theprosecution is under the responsibility of bringing its case beyondreasonable doubt and cannot escape that responsibility. In orderto prove its case beyond reasonable doubt, the evidence producedby the prosecution has to be qualitative and may not be quantitativein nature. In the case of Namdeo v. State of Maharashtra [(2007)14 SCC 150], the Court held as under:

“28. From the aforesaid discussion, it is clear that Indian legalsystem does not insist on plurality of witnesses. Neither thelegislature (Section 134 of the Evidence Act, 1872) nor thejudiciary mandates that there must be particular number ofwitnesses to record an order of conviction against the accused.Our legal system has always laid emphasis on value, weight 3 (2006) 10 SCC 681

4 (2013) 6 SCC 428

A

B

C

D

EF

G

H

A

Aand quality of evidence rather than on quantity, multiplicityor plurality of witnesses. It is, therefore, open to a competentcourt to fully and completely rely on a solitary witness andrecord conviction. Conversely, it may acquit the accused inspite of testimony of several witnesses if it is not satisfied aboutthe quality of evidence. The bald contention that no convictionBcan be recorded in case of a solitary eyewitness, therefore,has no force and must be negatived.”

b. Gulam Sarbar v. State of Bihar (Now Jharkhand)[5] whereinthe Court relied on the same aforementioned principle.

C19. On consideration of the evidence led by the prosecution andconsidering the concurrent findings by the two courts qua the appellantherein we are unable to find any reason to interfere with the judgment ofthe courts below.

20. It is no doubt true that a large number of witnesses turnedDhostile and the Trial Court was also not happy with the manner ofprosecution conducted this case. But that is not an unusual event in thelong drawn out trials in our country and in the absence of any witnessprotection regime of substance, one has to examine whatever is theevidence which is capable of being considered, and then come to a findingwhether it would suffice to convict the accused.E

21. The rationale adopted for coming to the conclusion behind thereason for the real brother of the deceased turning hostile while stepbrother stood his ground is also obvious and correctly appreciated, i.e.,to preserve the close family ties which continued to exist by marriage inthe instant case, in view of the siblings of the deceased and appellantFherein being married. In the Indian context, there exists a continuedrelationship between two families wherein the daughter-in-law comesfrom another house.

22. We are conscious that the case of the prosecution rests onlyon the testimony of PW-1 and the medical evidence. The statement ofGPW-1 was consistent and cogent except to the extent that in the earlierstatement he had not mentioned the factum of the death being attributedto snakebite. However, that itself would not nullify the remaining part ofhis testimony. In fact, the said witness did not back out from the statement, 5 (2014) 3 SCC 401H

but could not state the reason why the police did not record it in the FIRthough it was mentioned.

23. The doctor opined the cause of death to be asphyxia due tostrangulation. Thereafter, he has stated that nature may be homicidal.This was so stated because asphyxia being the cause of death, the doctorhimself could not have conclusively said whether it was homicidal orsuicidal. It was also voluntarily opined, that there had to be a minimumof five minutes of forceful pulling to cause the death.

24. In our view, the most important aspect is where the death wascaused and the body found. It was in the precincts of the house of theappellant herein where there were only family members staying. TheHigh Court also found that the location of the house and the surroundingbuildings was such that there was no possibility of somebody from outsidecoming and strangulating the deceased and that too without anycommotion being caused or any valuable/jewellery missing.

25. We are confronted with a factual situation where the appellantherein, as a husband is alleged to have caused the death of his wife bystrangulation. The fact that the family members were in the home sometime before is also quite obvious. No explanation has been given as tohow the wife could have received the injuries. This is a strongcircumstance indicating that he is responsible for commission of thecrime.[6] The appellant herein was under an obligation to give a plausibleexplanation regarding the cause of the death in the statement recordedunder Section 313 of the Cr.P.C. and mere denial could not be the answerin such a situation.

26. We, thus, find no reason to interfere with the impugnedjudgment. The appeal is accordingly dismissed leaving the parties tobear their own costs.

27. We, however, direct the respondent State to examine whetherthe appellant herein has completed 14 years of actual sentence or notand if it is so, his case should be examined within a maximum period oftwo months for release in accordance with norms. If not, the exercisebe undertaken within the same time on completion of 14 years of actualsentence.

Kalpana K. Tripathy

Appeal dismissed.

6 Trimukh Maroti Kirkan v. State of Maharashtra (supra).

A

B

C

DE

F

G

H