KALU ALIAS LAXMINARAYAN versus STATE OF MADHYA PRADESH

KALU ALIAS LAXMINARAYAN

STATE OF MADHYA PRADESH

(Criminal Appeal No. 1677 of 2010)

NOVEMBER 07, 2019

[NAVIN SINHA AND B.R. GAVAI, JJ.]

Penal Code, 1860: s. 302 – Homicidal death within theconfines of house – Prosecution case was that appellant husbandstrangulated his wife to death – Trial court held that the victim-deceased was strangulated to death while High Court opined thatshe was hanged to death – Both the courts unanimously held thatdeceased did not commit suicide but it was homicidal death –Conviction under s.302 – Appeal against conviction – Held: Therewas evidence as to strained relations between appellant and hiswife (deceased) – Prosecution sufficiently established that there wascow dung on the hands of the deceased indicating that she wasengaged in household chores when the assault was made – Injurieson the person of the deceased as also in the post mortem report,were clearly indicative of struggle or resistance put up by deceasedin the last hour – The fact that the neck of deceased was not foundstretched and elongated, considering that the body was still fresh,ruled out any possibility of suicide by her – The view of trial courtthat the deceased was strangulated to death acceptable as it wasnot possible for appellant to hang the deceased alone – The bodywas also found lying on the ground – The conduct of the appellantin not conveying to the family members of the deceased about herdeath and his absence whole night from the house and failure inoffering explanation with regard to circumstances under which thedeceased met an unnatural death inside the house would lead toconclusion of his being the assailant of the deceased – Convictionupheld.

Dismissing the appeal, the Court

HELD: 1.1 The deceased lived alone with the appellantand their minor child. The evidence of the relatives of thedeceased, PW 2, PW 4 and her parents PWs.6 and 8 revealed

Athat all was not well between the appellant and the deceased.Because of the strained relations between them, the deceasedhad stayed at her parents’ home for nearly 10 months prior to theoccurrence and had returned barely month before the fatefulday after her father-in-law had come to take her back. There wasno reason to disbelieve this part of evidence of PWs. 6 and 8.B[Para 5][331-H; 332-A-B]

1.2 The prosecution sufficiently established that there wascow dung on the hands of the deceased indicating that she wasengaged in house hold chores when the assault was made. Theinjuries on the person of the deceased, as noticed in the inquestCreport as also in the post mortem report, were clearly indicativeof struggle or resistance put up by the deceased in the lasthour. The fact that the neck of the deceased was not foundstretched and elongated, considering that the body was still fresh,ruled out any possibility of suicide by the deceased. The tongueDwas not protruding. Scratches and abrasions would not be presentin case of suicide. There was no fracture or dislocation of thebones in the neck area. The saliva was not running down the faceor chest of the deceased but had flowed out at the left of themouth. [Paras 6, 8][332-D; 333-C-E]

EShambu Nath Mehra v. The State of Ajmer 1956 SCR199; Sawal Das v. State of Bihar (1974) 4 SCC 193 :[1974] 3 SCR 74; Jose v. The Sub-Inspector of Police,Koyilandy and Ors. (2016) 10 SCC 519 : [2016] 8 SCR115 – held inapplicable.

F2. The High Court opined that the deceased had beenhanged to death. Suicide was ruled out as the wooden log in theroom used for storing grains from which piece of rope wasfound hanging was 11 ft. 2 inches in height from the floor. Thedeceased was of 5’4" and assuming that she would stretch outanother one foot six inches it would still leave gap of 4 feetGbetween her and the log, therefore suicide was an impossibility.There was no reason to differ with the reasoning. The conclusionof the High Court also did not help the appellant in the defenceof suicide. The views taken by the Trial Court and the HighCourt nonetheless both pointed towards homicidal death clearly.HThe view of the Sessions Court that the deceased was strangulated

to death is accepted as it was not possible for the appellant tohang the deceased alone. The body has also been found lying onthe ground. [Para 9][333-F-G]

3. The prosecution was able to successfully establish casefor homicidal death inside the house where the deceased residedwith the appellant alone. The conduct of the appellant in thisbackground, now becomes important. If the deceased hadcommitted suicide, it is strange that the appellant laid her bodyon the floor after bringing her down but did not bother to informanyone living near him much less the parents of the deceased.There was no evidence that the information was conveyed to thefamily members of the deceased by the appellant or at the behestof the appellant. The appellant was also not found to be at homewhen her family members came the next morning. The appellantoffered no defence whatsoever with regard to his absence thewhole night and on the contrary PW 3 attempted to build up acase of alibi on behalf of the appellant, when he himself had takenno such defence under Section 313, Cr.P.C. The occurrence hadtaken place in the rural environment in the middle of the monthof October when it gets dark early. Normally, in ruralenvironment people return home after dusk and life begins earlywith dawn. It is strange that the appellant did not return homethe whole night and was taken into custody on 21.10.1994. In thecircumstances, the onus clearly shifted on the appellant to explainthe circumstances and the manner in which the deceased met ahomicidal death in the matrimonial home as it was fact specificallyand exclusive to his knowledge. It is not the case of the appellantthat there had been an intruder in the house at night. Once theprosecution established prima facie case, the appellant wasobliged to furnish some explanation under Section 313, Cr.P.C.with regard to the circumstances under which the deceased metan unnatural death inside the house. His failure to offer anyexplanation whatsoever therefore leaves no doubt for theconclusion of his being the assailant of the deceased. [Paras 10,11, 12, 15][333-H; 334-A-E; 337-D-E]

Hanumant and Ors. v. State of Madhya Pradesh AIR1952 SC 343 : [1952] SCR 1091; Tulshiram SahaduSuryawanshi and Ors. v. State of Maharashtra (2012)

A10 SCC 373 : [2012] 7 SCR 1083; Trimukh MarotiKirkan v. State of Maharashtra 2006 (10) SCC 681 :[2006] 7 Suppl. SCR156 – relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1677 of 2010.

From the Judgment and Order dated 15.09.2009 of the High CourtDof Madhya Pradesh, Bench at Indore in misc. Criminal Appeal No. 1320of 2000.

Vinay Navare, Sr. Adv., A.P. Dhamija, J.P. Singh, Ms. TanyaSharma, Sarad Kumar Singhania, Advs. for the Appellant.

ESunil Fernandes, AAG, Zeeshan Diwan, Ms. Priyansha IndraSharma, Harsh Parashar, Advs. for the Respondent.

The Judgment of the Court was delivered by

NAVIN SINHA, J.

1. The appellant, husband of the deceased, is aggrieved by hisFconviction under Section 302 of the Indian Penal Code (in short, ‘IPC’)affirmed by the High Court. There is no eye witness and the case restsonly on circumstantial evidence.

2. The deceased was married to the appellant approximately sixto seven years back. Both of them were living alone in the house withGtheir minor child. On 14.10.1994, late in the evening, the family membersof the deceased, who resided about 35-40 kms. away, received atelephone call that their daughter had died. They came the next morningat 06.00 AM and found the body of the deceased in the middle room ofthe house, lying on the ground covered with white sheet. The firstHinformation report was lodged at about 07.00 AM, the inquest report

was prepared same day as also the post mortem was done in theafternoon. The police after completing investigation submitted chargesheet under Section 306 and 498A, IPC. During the course of the trial,considering the nature of evidence that emerged, the Sessions Judgealso added Section 302, IPC in the charges. The Sessions Judge held thecharge under Section 302 to be established as the deceased had beenstrangulated to death. The High Court in appeal opined that the deceasedhad been hanged to death. Both the courts have unanimously held thatthe deceased did not commit suicide but that it was homicidal death.

3. Learned senior counsel Shri Vinay Navare, appearing for theappellant, submitted that the deceased had committed suicide. Theconviction of the appellant under Section 302 IPC was not justified. Theappellant has been acquitted of the charge under Section 498A. It wasimpossible for the appellant to have alone forcibly hanged the deceasedfrom height of 11 feet. The fact that the body was found lying on theground in the house, does not detract from the appellant’s defence thatshe was brought down from the noose after she committed suicide andthe body laid on the ground. If the appellant had strangulated the deceased,nothing prevented him from concealing the dead body or cremating herin the night itself. His conduct is not conducive of his guilt. The merefact that the deceased died in unnatural circumstances inside thematrimonial home cannot by itself be sufficient to shift the onus on theappellant under Section 106 of the Indian Evidence Act, 1872 (hereinaftercalled as “the Act”). The onus first lies on the prosecution to establish aprima facie case of homicidal death ruling out all possibilities of asuicide. Reliance was placed on Shambu Nath Mehra vs. The Stateof Ajmer, 1956 SCR 199; Sawal Das vs. State of Bihar, (1974) 4 SCC193 and Jose vs. The Sub-Inspector of Police, Koyilandy and Ors.,(2016) 10 SCC 519.

4. Shri Sunil Fernandes, learned Addl. Advocate General appearingon behalf of the respondent State, submitted that all the circumstancesin the case inevitably point towards the guilt of the appellant. Death washomicidal in nature. The nature of oral, physical and medical evidencecompletely rules out the defence of suicide by the deceased.

5. We have considered the submissions on behalf of the partiesand have also gone through the evidence and other materials on record.The deceased lived alone with the appellant and their minor child. Theevidence of the relatives of the deceased, PW 2, PW 4 and her parents

APWs.6 and 8 reveal that all was not well between the appellant and thedeceased. Because of the strained relations between them, the deceasedhad stayed at her parents’ home for nearly 10 months prior to theoccurrence and had returned barely month before the fateful day afterher father-in-law had come to take her back. We find no reason todisbelieve this part of evidence of PWs. 6 and 8.B

6. PW 5 had deposed that he had seen cow dung on the hands ofthe deceased indicating that she was working when the homicidal assaulthad been made on her. He deposed having said so in his statement underSection 161, Cr.P.C. When the omission was pointed out to him in crossexamination, he reiterated the same. This omission in his police statementCwas put to PW 17, the Investigating Officer, under Section 145, Cr.P.C.The witness replied that he did not remember the statement made to himand not thatPW 5 had not made such statement. The question wasspecifically put to the appellant under Section 313, Cr.P.C. also, to whichhe only gave stock denial. The only defence taken by the appellantunder Section 313 Cr.P.C. was that he had been falsely implicated. TheDprosecution has therefore sufficiently established that there was cowdung on the hands of the deceased indicating that she was engaged inhouse hold chores when the assault was made.

7. The inquest report of the deceased noticed that her hair wasopen and scattered, both eyes were closed and froth was coming out ofEthe nose and mouth, the tongue was inside and the teeth visible. Theright hand was on the stomach and the left hand was on the floor withthe fist half open. There was ligature mark at the back. On turningover the body, there was blackening on the back and in the loin area.The post mortem report estimated the age of the deceased as 22 yearsFand noticed the following:

a) Froth marks blood is seen at the mouth and nostrils. Thesaliva is seen running out from left side of mouth and neck istilted to left side. Ante mortem injuries were present. Abrasionsvarying in left from ¼” to ½” and varying in width from 1/8" to1/4" situated on dorsum of fingers of right hand are present.

b) Abrasions on right forearm, upper dorsum signs ½” x ½”.

c) On dissection of the subcutaneous at the ligature mark, it isdry, and the M.M. of troches is red and congested and containforth tinged with blood. The right chamber of heart containedHblood and left chamber empty. The tongue caught betweenteeth.

d) There is well defined ligature mark, situated above the thyroidcartilage between larynx and chin 1" width and ½” deep directedobliquely upwards following the line mandible and reachingthe mastoid process. The mark is interrupted at the back. Thebase of the mark is pale and hard and the margins are red andcongested. The wound with crust and scan on left knee whichappears to 7 to 12 days old.

All the injuries were ante mortem in nature opining that thedeceased had died of asphyxia following hanging.

8. The injuries on the person of the deceased, as noticed in theinquest report as also in the post mortem report, are clearly indicative ofa struggle or resistance put up by the deceased in the last hour. It isunusual that if the deceased had committed suicide by hanging herself,her right hand would be lying on the stomach and the left hand would beon the ground with both fists half open. This is more of probability ifthe deceased was strangulated when life ebbed out of her slowly. Thefact that the neck of the deceased was not found stretched and elongated,considering that the body was still fresh, rules out any possibility of suicideby the deceased. The tongue was not protruding. Scratches and abrasionswould not be present in case of suicide. There is no fracture or dislocationof the bones in the neck area. The saliva was not running down the faceor chest of the deceased but had flowed out at the left of the mouth.

9. The High Court opined that the deceased had been hanged todeath. Suicide was ruled out as the wooden log in the room used forstoring grains from which piece of rope was found hanging was 11ft. 2 inches in height from the floor. The deceased was of 5’4" andassuming that she would stretch out another one foot six inches it wouldstill leave gap of 4 feet between her and the log, therefore suicide wasan impossibility. We find no reason to differ with the reasoning. Theconclusion of the High Court, to our mind, also does not help the appellantin the defence of suicide. The views taken by the Trial Court and theHigh Court nonetheless both point towards homicidal death clearly.We would rather be inclined to accept the view of the Sessions Courtthat the deceased was strangulated to death as it would not also bepossible for the appellant to hang the deceased alone. The body has alsobeen found lying on the ground.

10. The aforesaid factors leave us satisfied that the prosecutionhas been able to successfully establish case for homicidal death

Ainside the house where the deceased resided with the appellant alone.The conduct of the appellant, in the aforesaid background, now becomesimportant. If the deceased had committed suicide, we find it strange thatthe appellant laid her body on the floor after bringing her down but didnot bother to inform anyone living near him much less the parents of theBdeceased. There is no evidence that the information was conveyed tothe family members of the deceased by the appellant or at the behest ofthe appellant. The appellant was also not found to be at home when herfamily members came the next morning. The appellant offered no defencewhatsoever with regard to his absence the whole night and on thecontrary PW 3 attempted to build up case of alibi on behalf of theCappellant, when he himself had taken no such defence under Section313, Cr.P.C.

11. The occurrence had taken place in the rural environment inthe middle of the month of October when it gets dark early. Normally ina rural environment people return home after dusk and life begins earlyDwith dawn. It is strange that the appellant did not return home the wholenight and was taken into custody on 21.10.1994.

12. In the circumstances, the onus clearly shifted on the appellantto explain the circumstances and the manner in which the deceased meta homicidal death in the matrimonial home as it was fact specificallyEand exclusive to his knowledge. It is not the case of the appellant thatthere had been an intruder in the house at night. In Hanumant andOrs. vs. State of Madhya Pradesh, AIR 1952 SC 343,it was observed

“10. …..It is well to remember that in cases where the evidenceis of circumstantial nature, the circumstances from which theFconclusion of guilt is to be drawn should in the first instance befully established, and all the facts so established should be consistentonly with the hypothesis of the guilt of the accused. Again, thecircumstances should be of conclusive nature and tendency andthey should be such as to exclude every hypothesis but the oneGproposed to be proved. In other words, there must be chain ofevidence so far complete as not to leave any reasonable groundfor conclusion consistent with the innocence of the accused andit must be such as to show that within all human probability theact must have been done by the accused….”

13. In Tulshiram Sahadu Suryawanshi and Ors. vs. State ofMaharashtra, (2012) 10 SCC 373, this Court observed:

“23. It is settled law that presumption of fact is rule in law ofevidence that fact otherwise doubtful may be inferred fromcertain other proved facts. When inferring the existence of factfrom other set of proved facts, the court exercises process ofreasoning and reaches logical conclusion as the most probableposition. The above position is strengthened in view of Section114 of the Evidence Act, 1872. It empowers the court to presumethe existence of any fact which it thinks likely to have happened.In that process, the courts shall have regard to the common courseof natural events, human conduct, etc. in addition to the facts ofthe case. In these circumstances, the principles embodied in Section106 of the Evidence Act can also be utilised. We make it clearthat this section is not intended to relieve the prosecution of itsburden to prove the guilt of the accused beyond reasonable doubt,but it would apply to cases where the prosecution has succeededin proving facts from which reasonable inference can be drawnregarding the existence of certain other facts, unless the accusedby virtue of his special knowledge regarding such facts, failed tooffer any explanation which might drive the court to draw adifferent inference. It is useful to quote the following observationin State of W.B. v. Mir Mohammad Omar

“38. Vivian Bose, J., had observed that Section 106 of the EvidenceAct is designed to meet certain exceptional cases in which it wouldbe impossible for the prosecution to establish certain facts whichare particularly within the knowledge of the accused. In ShambhuNath Mehra v. State of Ajmer the learned Judge has stated thelegal principle thus:

‘11. This lays down the general rule that in criminal case theburden of proof is on the prosecution and Section 106 is certainlynot intended to relieve it of that duty. On the contrary, it is designedto meet certain exceptional cases in which it would be impossible,or at any rate disproportionately difficult, for the prosecution toestablish facts which are “especially” within the knowledge ofthe accused and which he could prove without difficulty orinconvenience.

The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.”

14. In Trimukh Maroti Kirkan vs. State of Maharashtra, 2006(10) SCC 681, this Court was considering similar case of homicidaldeath in the confines of the house. The following observations areconsidered relevant in the facts of the present case:

“14. If an offence takes place inside the privacy of house and insuch circumstances where the assailants have all the opportunityto plan and commit the offence at the time and in circumstancesof their choice, it will be extremely difficult for the prosecution tolead evidence to establish the guilt of the accused if the strictprinciple of circumstantial evidence, as noticed above, is insistedupon by the courts. judge does not preside over criminal trialmerely to see that no innocent man is punished. judge alsopresides to see that guilty man does not escape. Both are publicduties. (See Stirland v. Director of Public Prosecutions — quotedwith approval by Arijit Pasayat, J. in State of Punjab v. KarnailSingh). The law does not enjoin duty on the prosecution to leadevidence of such character which is almost impossible to be ledor at any rate extremely difficult to be led. The duty on theprosecution is to lead such evidence which it is capable of leading,having regard to the facts and circumstances of the case. Here itis necessary to keep in mind Section 106 of the Evidence Actwhich says that when any fact is especially within the knowledgeof any person, the burden of proving that fact is upon him.Illustration (b) appended to this section throws some light on thecontent and scope of this provision and it reads:

“(b) is charged with travelling on railway without ticket.The burden of proving that he had ticket is on him.”

15. Where an offence like murder is committed in secrecy insidea house, the initial burden to establish the case would undoubtedlybe upon the prosecution, but the nature and amount of evidenceto be led by it to establish the charge cannot be of the same degreeas is required in other cases of circumstantial evidence. Theburden would be of comparatively lighter character. In view ofSection 106 of the Evidence Act there will be correspondingburden on the inmates of the house to give cogent explanation

as to how the crime was committed. The inmates of the housecannot get away by simply keeping quiet and offering noexplanation on the supposed premise that the burden to establishits case lies entirely upon the prosecution and there is no duty atall on an accused to offer any explanation.

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22. Where an accused is alleged to have committed the murderof his wife and the prosecution succeeds in leading evidence toshow that shortly before the commission of crime they were seentogether or the offence takes place in the dwelling home wherethe husband also normally resided, it has been consistently heldthat if the accused does not offer any explanation how the wifereceived injuries or offers an explanation which is found to befalse, it is strong circumstance which indicates that he isresponsible for commission of the crime.”

15. In view of our conclusion that the prosecution has clearlyestablished prima facie case, the precedents cited on behalf of theappellant are not considered relevant in the facts of the present case.Once the prosecution established prima facie case, the appellant wasobliged to furnish some explanation under Section 313, Cr.P.C. with regardto the circumstances under which the deceased met an unnatural deathinside the house. His failure to offer any explanation whatsoever thereforeleaves no doubt for the conclusion of his being the assailant of thedeceased.

16. We find no merit in the appeal. It is dismissed. The appellantis stated to be on bail. His bail bonds are cancelled and he is directed tosurrender within two weeks for serving out his remaining period ofsentence.

Devika Gujral

Appeal dismissed.