JAMNADAS Vs. STATE OF M.P - Murder, Dowry Death, Cruelty.
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 498 A - Husband or relative of husband of a woman subjecting her to cruelty
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 155, 156 of 2015, Judgment Date: Jun 29, 2016
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 156 OF 2015
Jamnadas … Appellant
Versus
State of M.P. …Respondent
WITH
CRIMINAL APPEAL NO. 155 OF 2015
Manoj … Appellant
Versus
State of M.P. …Respondent
J U D G M E N T
Prafulla C. Pant, J.
These appeals are directed against judgment and order dated 23.8.2012
passed by High Court of Madhya Pradesh, Bench Indore, whereby criminal
appeal no. 977 of 2007 (filed by father-in-law of deceased), criminal
appeal no. 993 of 2007 (filed by husband of deceased), and criminal appeal
no. 1000 of 2007 (filed by mother-in-law of deceased) were dismissed. At
the outset, it is relevant to mention that Special Leave Petition (Crl.)
No. 9812 of 2013 filed by Dhanwantari (mother-in-law of deceased) was
dismissed by this Court as withdrawn on 16.9.2014. The present criminal
appeal nos. 156 of 2015 and 155 of 2015 have arisen out of Special Leave
Petition(s) filed by father-in-law and husband of deceased, respectively.
It is a case where a young bride was brutally murdered within six months of
her marriage, her body chopped off in two pieces and thrown in a park.
Prosecution story in brief is that on 16.9.2006 at about 19.50 hours (7.50
p.m.) PW 19 Constable Nirmal Kumar Patil received telephonic information at
Police Control Room that a middle aged woman came on a scooty, and threw
two bundles wrapped in bed sheets in Sewa Ram Zilani Garden, Patel Nagar,
Indore, and that some blood stains were visible from the packets. On the
basis of the telephonic information, Ext.P.33 was recorded at the Control
Room. Within five minutes at about 19.55 hours (7.55 p.m.) the information
was transmitted to the concerned police station Juni and information Ext.
P.34 was recorded. After Dehati Murg intimation Ext.P.1 entered, PW 17
Head Constable Ashraf Ali left the Police Station Juni along with PW 12
Constable Mohd. M. Ahmad towards the spot. Enquiries were made in the same
evening on which PW 1 Mukesh Jaiswal told that as usual on that day
(16.09.2006) at about 5.30 p.m., he had gone to temple and was sitting with
PW 5 Manohar @ Mannu, PW 4 Udhav Dass and PW 3 Narayana. They sent PW 2
Phugga @ Kamal to bring milk, and after sometime PW 2 Phugga @ Kamal came
back and told them that one packet wrapped in colored bed sheet was lying
in the park near walking track, in which blood spots were visible. The
above named four persons with Phugga went towards the place, and saw the
bundle with blood stains. Soon thereafter they saw a woman coming on an
Activa who threw another packet, and went away. On this the telephonic
information was given to the Control Room. Thereafter Murg inquiry was
made by PW-35 SI Mohan Lal Purohit, who registered crime no. 431 of 2006 on
the next day 17.9.2006 against unknown persons. Inquest report Ext.P-6 was
prepared by the police on 17.9.2006 at about noon after dead body was
identified as the one that of Bhoomi @ Richa by PW 6 Sanjay Chhabra, cousin
of the deceased. The dead body was sent in a sealed condition for autopsy.
Thereafter, house of the appellants i.e. 40, Sarvodaya Nagar (Indore) was
searched. During investigation blood stains were found in the house of the
appellants. Samples of blood stains were taken and, search memo Ext.P-54,
P-56 and P-57 prepared in the presence of PW 30 Suresh Neema and one
Ramesh. Silver colour Activa bearing registration No. MP 09/JX-7556 was
also seized.
The investigation revealed that marriage of Bhoomi @ Richa (deceased),
daughter of PW-22 Rajesh Kumar Nachani, was solemnized with appellant Manoj
on 22.4.2006 at Indore, whereafter she started residing in 40, Sarvodaya
Nagar with her husband (Manoj), father-in-law (Jamnadas), Mother-in-law
(Dhanwantari), brother-in-law (Vishal) and minor sister-in-law (Heena @
Madhuri).
On 19.9.2006, appellants Manoj and Jamnadas along with Dhanwantari (mother-
in-law) were arrested. After their arrest, accused were medically examined
by PW 27 Dr. G.L. Sodhi, who found marks of simple injuries on the person
of Dhanwantari, and medical report Ext.P-50 was prepared. On 23.9.2016,
Vishal (brother-in-law of deceased) was also arrested.
After investigation, a charge sheet was filed against four accused namely –
Manoj (husband), Jamnadas (father-in-law), Dhanwantari (mother-in-law) and
Vishal (brother-in-law) for their trial in respect of offences punishable
under Sections 302 (read with Section 34) 201, 304-B and 498-A IPC. The
case appears to have been committed by the Magistrate to the Court of
Sessions where the trial court framed charge in respect of all the above
offences against the first three accused. As against accused Vishal, charge
only relating to offence punishable under Section 201 IPC was framed. All
the accused pleaded not guilty and claimed to be tried.
Prosecution got examined PW 1 Mukesh Jaiswal (who saw Dhanwantari disposing
of body of the deceased), PW 2 Phugga @ Kamal (who first noticed the thrown
1st packet), PW 3 Narayana (who was with PW 1), PW 4 Udhav Dass (who was
also with PW1), PW 5 Manohar @ Mannu (who was also with above four, and
informed the Police Control Room), PW 6 Sanjay Chhabra (cousin of the
deceased, who identified the dead body), PW 7 Dinesh (Parking Stand
wallah), PW 8 Yogendra (Hostile witness), PW 9 Rajesh Agrawal (Contractor
of boundary wall of the park), PW 10 Constable Ram Babu Sharma (who
received ten sealed packets from M.Y.Hospital for being sent to F.S.L.), PW
11 Head Constable Radhey Shyam Sharma (who prepared Ext.P-25 Murg/
intimation), PW 12 Constable Mohd. M. Ahmad, PW 13 Constable Smt. Savitri,
PW 14 Constable Mahabal Singh Chauhan, PW 15 Dr. N.M. Unda (who conducted
autopsy on the dead body of the deceased), PW 16 Dr. Anil Kapoor, PW 17
Head Constable Ashraf Ali, PW 18 Dr. Bharti Dwivedi, PW 19 Constable
Nirmal Kumar Patil (posted in PCR, Indore who informed the Duty officer),
PW 20 Manoj Chauhan (Wireless Operator who received message from PW 19), PW
21 Pankaj Nagpal, PW 22 Rajesh Kumar Nachani (father of the deceased), PW
23 Rajendra Kumar, PW 24 Keshav Kumar, PW 25 Sonam, PW 26 Umesh Nara
(uncle of deceased), PW 27 Dr. G.L.Sodhi (who examined injuries on person
of Dhanwantari), PW 28 Jeevan Lotani, PW 29 Harish, PW 30 Suresh Neema, PW
31 Yogesh Gupta, PW 32 Madhuri (minor sister-in-law of deceased), PW 33
Padvilochan Shukla (Investigating Officer), PW 34 Raksh Pal Singh (Incharge
P.S. Juni), PW 35 Mohan Lal Purohit and PW 36 Sub Inspector K. L. Pandey.
The prosecution evidence was put to each one of the accused under Section
313 Cr.P.C to which they replied that the same is false. It is pleaded by
the accused that Bhoomi @ Richa was missing after she went to her
relative’s place. It is further pleaded by the appellants that they were
in the shop during the day time when Bhoomi @ Richa went missing. In
defence, DW 1 Parmanand Sharma, (servant in the shop) was got examined in
support of plea of alibi of the appellants.
The trial court after hearing the parties found that charge framed against
accused Vishal (brother-in-law of the deceased) regarding his involvement
in the crime, was not proved beyond reasonable doubt as such he was
acquitted. The trial court found rest of the three accused, namely,
Dhanwantari, Jamna das and Manoj guilty of offence of murder with common
intention punishable under Section 302 read with Section 34 IPC, and
convicted them accordingly. Accused Dhanwantari was further convicted
under Section 201 IPC for causing disappearance of evidence of murder.
After hearing on sentence, 6th Additional Sessions Judge, (Indore), vide
his order dated 24.8.2009, sentenced each of the convicts under Section
302/34 IPC imprisonment for life and directed to pay fine of Rs.5000/-. It
was further directed that in default of payment of fine, the defaulter
shall undergo further rigorous imprisonment for a period of one year.
Convict Dhanvantari was further sentenced to undergo rigorous imprisonment
for a period of three years and to pay a fine of Rs.5,000/- in respect of
offence punishable under Section 201 IPC and in default of payment of fine
she was directed to undergo three months rigorous imprisonment. On other
heads, the accused stood acquitted from the charge.
The three convicts filed separate appeals before the High Court and the
same were heard together and disposed of by the common judgment and order
dated 23.8.2012, impugned in these appeals.
Before further discussion, we think it just and proper to mention the ante
mortem injuries and post mortem injuries found on the body of the deceased
(Bhoomi @ Richa), recorded by PW-15 Dr. N.M. Unda, Demonstrator, Forensic
Medicine and Toxicology Department, M. G. M. Medical College & M. Y.
Hospital, Indore on 17.09.2006 at 2:00 p.m. recorded in Exhibit P-27. The
observations in the autopsy report are reproduced below:-
“Dead body received in sealed condition, in two separated pieces in
the two bed sheets stained with blood. Body appears cleaned and washed.
Faint blood stained marks on the body, no clotting present. Dorsal part and
the skin of the hands and fingers showing very slight shrinking effect and
all the wound part small sizes show very scanty amount of blood at deeper
level while upper part shows clean. Body separated with hard and sharp
object at just above the umbilicus shows multiple inflictions by moving
body all around and vertebral column cut at inter vertebral disc with
multiple inflictions over the cartilogenous part and on vertebrae. Some
part of the intestinal loops small and large missing, and faecal soiling
present and lower part of abdomen where vertical present right to umbilicus
to pubic symphysis indicating cut mark on the bony and soft tissue part.
Body separation exposing abdominal and Pelvic cavity part are post-mortem
in nature with separated intestinal opening (available). Some part of the
kidney blood vessel and soft tissue missing.
Multiple post mortem wounds present on the different parts of the body over
the foot, leg and wrist shows the intention with post mortem nature to
convert body in small pieces for disposal.
Multiple defence wound present in the both hands and palmer side over the
metacarpo phalangeal joint and proximal phalaxin part in a plane with fist
closed. Cut mark manner (pattern) shows an object moved within closed
fist. Other three deep cut marks present in the palm of left hand also
present. Total number given on other page with other small wounds present
on both hands.
Lower half part 96 cm and upper part 63 cm. adjusted length.
Body average built, eyes closed. Partly, mouth closed and lip approximated.
Rigor Mortis present all over body stiffness present. Hypostasis present
on the back side of the body and fixed and faint. Cut part circumference 73
cm and 23 cm at chest upper part. Lower part circumference and diameter 27
cm into 20 cm both part matching each other shows the multiple cut marks.
Scalp hairs present at places over the body. Other hairs also present.
Stomach some watery fluid light brown in colour about 190 ml with slight
altered smell and mucosa healthy. Small intestine - contains little slight
digested food. Large intestine - contains little faecal in the lower
available part. Liver and Spleen pale and healthy. Kidney - dorceline
lower part missing. Genitals - available but shows stabwound in the lower
part laterally in the broad ligature. Uterus small size. Slide from
cervice opening and uterine cavity made along with vaginal smear slide and
swab – pubic hair shaved and preserved for any foreign hair and other
evidences. Uterus measured in formation for histopathological examination.
Anal opening dilated and shows an funnel pattern with multiple superficial
indepth heal scar marks … with mostly healed too.
Both lungs pale and healthy
Trachea pale and healthy injury present described in injury at serial 3.
Heart practically completely empty.
External injury on scalp described on Injury section.
Superficial cut marks present on the skull, Rest healthy
Brain extremely congested and non specific smell present. Preserved for
chemical analysis and sent to pathological examination no subdual or
extradual collection found.
Death was due to shock and hemorrhage as result of (ante mortem) multiple
injuries to the body.
Death homicidal in nature.
Along with ante mortem injuries, post mortem injuries present i.e. post
mortem separation of body into two halves and trying (effect of cutting) to
into multiple pieces with missing of intestinal parts (loops) and kidney
lower part, mesentery and blood vessels.
Evidence of defence wounds present and effect of leaning i.e. removing
stains present.
Preservation
Viscera preserved for chemical analysis.
Vaginal smear slides swab preserved along with cervical smear, uterine
cavity fluid slide preserved.
Anal swab slide preserved
Brain material preserved separately for chemical analysis.
Pubic hair preserved with other material after shaving.
Trimming of nails all fingers with its content
Scalp hair with skin pieces.
Other hair present
Both bed sheets
Brain and uterus preserved for histopathology examination in formation.
All articles sealed and handed over to P.S.
Duration of death within 12 to 36 hours since post mortem examination.”
(Emphasis supplied)
Wound marks as recorded in separate sheet annexed with autopsy report are
reproduced below:-
Four incised wounds present on the left side face including lateral part
eye lid to the ear sizes (1) 11 x 1 ½ (2) 10 x ½ (3) 9 x 0.75 (4) (7 x 2)
cm all are vertically placed extending up to forehead left side.
Multiple incised wound present on the right face 11 in (Eleven) number with
muscle deep size 1.5cm x 1.0cm to 1x1 cm size on upper lip. Rest on cheek
and zygomatic area.
Contusion present on the right zygomatic part between 2 incised wound 3.5 x
1.3 cm size transversely placed.
Stab wound present on the right side cheek just lateral to angle of mouth
3x1.5cm into deep tongue skin deep 3.2 cm other smaller incised on its
medical and size 2 x 1cm size this also deep skin.
Injuries as on the neck. Anterioly 3 x 1.0 cm sizes 2 wounds present just
lateral to med in a right side and 2 wounds later mid line on left side.
Wound deep to neck tissue structure but anteriorly no large vessel cut of
wound deep to the sub cut to neck tissue all the soft tissue structure
attached to the trachea on right side shows cut marks. Back of the neck.
Chop wound present on the back mid line part size 6.9cm x 2.5cm x deep to
the vertebral column transversely placed with 2 infliction overlapping each
other mid line size measured 4.5 cm wound all the muscles and deep
structure injury show cut marks.
2 incised wounds present on the chest 4.0cm medical to the left nipple size
3.0 x 1.2cm at 6th rib other on right side 3.0cm lateral to mid line at 7th
rib size 2.8 x 1.0cm depth to the bone. Multiple very small and fine linear
large marking wound present on the chest 0.1cm deep present with varying
length.
Wound on right side upper limb (on the arm) measuring deep wound 15 x 6 cm
size deep to muscle up to bone but no cut mark (on the bone) seen. Muscles
deep with two other injuries 5 x 2 cm and measuring with 3 superficial
injury mark.
Forearm multiple superficial injury longer size obliquely placed and fine
linear type. (Size not mentioned). At right wrist obliquely placed 2 injury
6 x 2 cm deep to bone on dorsal part 6 x 0.3 cm this also present… medial
to it. Defence type wound. 3 incised wound present on right forearm
posterior medial border measuring 1x04cm at upper 1/3rd part second at
lower 1/3rd part 3.0 x 1.0cm and 2.7 x 1.3 cm with oblique slashing effect.
One wound on the dorsal of the thumb right side 1.2 cm x 0.2 cm skin deep.
5 wounds present on the right four finger 10cm to 1.4cm and size width 0.2
to 0.3 cm deep to bone and to knuckle contusion also present.
Injury on left upper limb 4 incised wounds present on the left upper limb
(1) 4x2cm (2) 3.5 x 2.0cm (3)1.5 x 1.0cm and (4) 1 x 1cm size. All are
muscle deep. 3 injury present on the back of the arm (1) 6 x 3cm (2) 3 x
1cm (3) 2.5 x 1.0cm all deep to muscle. Left forearm anterior middle part 4
x 2cm size deep to muscle.
Practically 3.4 amputated part size of the wound 6 x 4.0 cm. Post mortem
(in nature)……..(illegible)
One stab wound present on the abdomen deep to cavity 3.9cm x 2.0cm and
other 6 incised wounds present on the abdomen varying size small deep to
subcutaneous tissue.
Four incised wounds present on the buttock (1) 2 x 1 (2) 3 x 1 ½ (3) 2 x 1
½ (4) 3 x 1 ½ cm on right side buttock and below buttock all deep to
muscle.
Two stab wounds present on the thigh femoral triangle L/3 part size of the
wound 9.2 x 3.5 cm deep to the bone part with slight extension effect total
depth of the wound 8.5 cm all the tissues and vertical part structure cut
wound ….. in nature object is very sharp. There is very less and very
slight contusion. Direction of wound is anterior posterior. 2 wounds
incised measuring 5.2cm meet each other with overlapping.
Anteriorly Right thigh post mortem nature wound 5 x 1 cm deep muscle. An
injury of 9.2 cm on right leg at L/3 and middle 1/3 part of leg.
Cutting of both feet with ……… marks of injury present at foot lower and
medial part and left foot lateral part. Right foot 6 wounds of 11.00 x 0.5
cm to 1.2 cm size depending upon the depth maximum upto 2 cms with cutting
of bones.
(Emphasis supplied)
PW-15 Dr. N.M. Unda has stated that injury No. IX (in para) and injury No.
XIII were post mortem in nature. He further opined that except contusion
marks ante mortem and post mortem injuries were caused by hard and sharp
object. From the autopsy report, quoted above, read with statement of PW-15
Dr. N.M. Unda, it is clear that the deceased died due to shock and
haemorrhage as a result of multiple injuries to the body. Death of Bhoomi @
Richa was homicidal in nature with twelve ante mortem injuries mentioned
above. PW 15 Dr. Unda has further proved reports (Exhibit P-30, P-30A, P-
30B, P-30B, P-30C, P-30D and P-30E) regarding examination made on 25-09-
2006 of weapons (knives and scissors) sent to the M. G. M. Medical College
and M. Y. Hospital, Indore.
Antemortem injuries narrated by PW-15 Dr. N.M. Unda clearly suggest that
the deceased attempted to save herself and resisted the assault with all
her might before her death, and she appears to have been overpowered by the
assailants, and killed brutally.
Now we would like to examine the injuries stated to have been suffered in
the incident by co-accused Dhanwantari. PW-27 Dr. G. L. Sodhi, CMO, M. Y.
Hospital, Indore, has examined the injuries found on the person of
Dhanwantari (co-accused, mother-in-law of the deceased) on 20.9.2006 and
the same are quoted below from Exhibit P-50:-
“(i) Healing wound of right thumb pretends of size 1.5 x 0.2 cm x brownish
scab. Transversally placed.
(ii) healing wound over right index finger over middle 3rd posterior
aspect transversally placed of size 1 x 0.5 cm with brownish scab and
palmer aspect transversally oblique of size .75 x .5 cm x healing scab.
(iii) Linear healing wound over right ring finger dorsum aspect middle 3rd
of size .75 x 0.2 cm x brownish scab.
(iv) Linear healing wound 2 in number parallel obliquely placed of size
viz 2 x 0.2 cm and 1.75 x 0.2 cm over right cubital region with brownish
scab.
(v) Linear healing wound right cubital region 1.5 cm lateral to injury
No. (iv) of size 1 x 0.2 cm with brownish scab
(vi) Abrasion over back of right shoulder of size 0.5 x 0.2 cm with
brownish scab.
Cause of the injuries could not be opined due to healing and brownish scab
found. Injuries may be caused within 3 to 6 days since examination and
injuries are simple in nature.”
There is also report of Regional Forensic Science Laboratory, Rau (Indore)
on record. The relevant extract from the report dated 31-10-2006 (Exhibit
P-73) regarding presence of blood on the nails of the three accused is
reproduced below:-
|No.1 |Packet |Found inside here |From whom/whose|Details |
| |Mark |Exhibit/detail Mark|seizure dated |of tins |
| | | | |No., |
| | | | |size, |
| | | | |colour, |
| | | | |distri-b|
| | | | |ution |
|35. |V HB) |Nails (04 |V1 |Memo of | |
| | |Nos.) | |accused | |
| | | | |Accused | |
| | | | |Dhanwanti from | |
| | | | |MGM, | |
| | | | |Indore | |
| | | | |20.09.2016 | |
| | | | | | |
| | | |V2 |-do- |--------|
| | |Swab | | |- |
| | | |V3 |-do- | |
| | |Nails (08 | | |--------|
| | |Nos.) | | |- |
| | | |V4 |-do- | |
| | |Swab | | | |
| | | | | |--------|
| | | | | |- |
|36. |W |Nails (08 |W |Accused Manoj. | |
| | |Nos.) | |20.09.2016 |--------|
| | | | | |- |
|37. |W1 |Nails (08 |W1 |-do- | |
| | |Nos.) | | |--------|
| | | | | |- |
|38. |X |Nails (08 |X |Accused | |
| | |Nos.) | |Jamnadas |--------|
| | | | |20.09.2016 |- |
|39. |X1 |Nails (08 |X1 |-do- |--------|
| | |Nos.) | | |- |
It is reported on Ex. P-73 that after Benzedrine/Phenaphthelene and crystal
test on exhibits were done, it was found that on Exhibits V1, V2, V3 and V4
(i.e. on nails of co-accused Dhanwantari, mother-in-law of the deceased)
blood was found and examination of category and group of the blood found on
these exhibits was done; and on Exhibits W, W1, X, and X1 (i.e. on nails of
the appellants) blood was not found.
On the basis of above finding, learned counsel for the appellants argued
that unlike the finding against Dhanwantari (mother-in-law of the
deceased), it is clear that there is no adverse finding as against the
present appellants. It is also pointed out that from the post mortem
report Ex. P-27, the incident appears to have taken place sometime during
the day, and natural presence of the appellants at that point of time was
at the place of their work, which also reflects from the statement of DW-1
Parmanand Sharma, who told that the appellants were in the shop on 16-09-
2006 from 9:30 a.m. till 7:30 p.m. It is further submitted that witnesses
PW-1 Mukesh Jayswal, PW-3 Narayana, PW-4 Udhvdass and PW-5 Manohar alias
Mannu have stated that it was a woman who was seen taking a bundle and
threw the same near Sevaram Gilani Garden, situated near Patel nagar,
Indore, but there is nothing in their evidence as against the present
appellants.
We have considered the above submissions in the light of evidence on the
record, and the law laid down by this Court applicable to such cases.
Undoubtedly, it is a case of circumstantial evidence. In Sharad
Birdhichand Sarda v. State of Maharashtra[1], a three-Judge Bench of this
Court has laid down the law as to when in a case of circumstantial evidence
charge can be said to have been established. Five points enumerated in
said case are summarized as under: -
The circumstances from which the conclusion of guilt is drawn should be
fully established. The accused must be, and not merely may be guilty,
before a court can convict and the mental distance between “may be” and
“must be” is long and divides vague conjectures from sure conclusions;
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;
The circumstances should be of a conclusive nature and tendency;
They should exclude every possible hypothesis except the one to be proved;
and
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.
On behalf of the appellants, it is submitted that the accused has a right
to silence and no adverse inference can be drawn from his silence as to the
cause of death of the deceased. In this connection, reliance is placed on
paragraph 141 of Selvi and others v. State of Karnataka[2], which reads as
under: -
“141. At this juncture, it must be reiterated that Indian law incorporates
the “rule against adverse inferences from silence” which is operative at
the trial stage. As mentioned earlier, this position is embodied in a
conjunctive reading of Article 20(3) of the Constitution and Sections
161(2), 313(3) and proviso (b) of Section 315(1) CrPC. The gist of this
position is that even though an accused is a competent witness in his/her
own trial, he/she cannot be compelled to answer questions that could expose
him/her to incrimination and the trial Judge cannot draw adverse inferences
from the refusal to do so. This position is cemented by prohibiting any of
the parties from commenting on the failure of the accused to give evidence.
This rule was lucidly explained in the English case of Woolmington v.
Director of Public Prosecutions (1935 AC 462 : 1935 All ER Rep 1 (HL)), AC
at p. 481:
“The ‘right to silence’ is a principle of common law and it means that
normally courts or tribunals of fact should not be invited or encouraged to
conclude, by parties or prosecutors, that a suspect or an accused is guilty
merely because he has refused to respond to questions put to him by the
police or by the Court.”
Above observations are made by this Court in an answer to the legal
question raised in the batch of criminal appeals relating to the
involuntary administration of certain scientific techniques, namely,
narcoanalysis, polygraph examination and the Brain Electrical Activation
Profile (BEAP) test for the purpose of improving investigation efforts in
criminal cases. In the present case facts and circumstances are different.
The above referred case, in our opinion, is of little help to the
appellants in the present case.
In State of W.B. v. Mir Mohammad Omar and others[3], this Court, while
interpreting the burden of extent of proof on prosecution, observed as
under: -
“31. The pristine rule that the burden of proof is on the prosecution to
prove the guilt of the accused should not be taken as a fossilised doctrine
as though it admits no process of intelligent reasoning. The doctrine of
presumption is not alien to the above rule, nor would it impair the temper
of the rule. On the other hand, if the traditional rule relating to burden
of proof of the prosecution is allowed to be wrapped in pedantic coverage,
the offenders in serious offences would be the major beneficiaries and the
society would be the casualty.
xxx xxx xxx
36. In this context we may profitably utilise the legal principle embodied
in Section 106 of the Evidence Act which reads as follows: “When any fact
is especially within the knowledge of any person, the burden of proving
that fact is upon him.”
37. The section is not 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 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.”
Shri S.K. Jain, learned senior counsel, on behalf of the appellants drew
our attention to the case of Tomaso Bruno and another v. State of Uttar
Pradesh[4], and argued that to invoke Section 106 of the Evidence Act the
prosecution must have proved presence of the appellants in their house at
the time of the incident. We have carefully gone through the case cited
before us. It was a case where CCTV footage of the hotel was available but
not produced to show the presence of the accused in the hotel and, as such,
the plea of alibi that the accused had gone to witness “Subah-e-Bararas”
from the hotel was accepted. The present case relates to a different kind
of incident where a bride has been brutally murdered inside the house and
her body, after cutting into pieces, was thrown in the park.
In Trimukh Maroti Kirkan v. State of Maharashtra[5], which is a case
similar in nature to the present one, this Court has held as under: -
“15. Where an offence like murder is committed in secrecy inside a house,
the initial burden to establish the case would undoubtedly be upon the
prosecution, but the nature and amount of evidence to be led by it to
establish the charge cannot be of the same degree as is required in other
cases of circumstantial evidence. The burden would be of a comparatively
lighter character. In view of Section 106 of the Evidence Act there will be
a corresponding burden on the inmates of the house to give a cogent
explanation as to how the crime was committed. The inmates of the house
cannot get away by simply keeping quiet and offering no explanation on the
supposed premise that the burden to establish its case lies entirely upon
the prosecution and there is no duty at all on an accused to offer any
explanation.”
Now we come to the plea of alibi taken by the appellants that they were in
the shop at the time of the incident. On behalf of the appellants reliance
has been placed on the case of Narendra Singh and another v. State of
M.P.[6], in which it has been held that even in a case where a plea of
alibi is raised, the burden of proof remains on the prosecution, and it has
been further observed that presumption of innocence is a human right.
In response to above Shri C.D. Singh, learned counsel for the State of
Madhya Pradesh has referred to the case of Suresh and another v. State of
Haryana[7], wherein, discussing the issue in paragraph 19, this Court
observed: -
“9. ………..No doubt, the burden of proof is on the prosecution and Section
106 is not meant to relieve it of that duty but the said provision is
attracted when it is impossible or it is proportionately difficult for the
prosecution to establish facts which are strictly within the knowledge of
the accused……”
Undoubtedly, as proved on the record in the present case the deceased was
murdered inside the house and her body was thrown in the park, and was not
missing from the house after going to her relative’s place, as pleaded by
the appellants in their statements under Section 313 of the Code of
Criminal Procedure. They have taken a blatant false plea.
In Kuldeep Singh and others v. State of Rajasthan[8], in paragraph 18 a
three-Judge Bench of this Court has held that in a case of circumstantial
evidence when the accused offers an explanation and that explanation is
found to be untrue, then the same offers an additional link in the chain of
circumstances, to complete the chain.
Similar view has been taken by this Court in Rumi Bora Dutta v. State of
Assam[9], wherein it has been accepted that a false answer offered by the
accused when his attention is drawn to the circumstances, it renders a
circumstance to be of inculpating nature, i.e. in such a situation a false
answer can also be counted as providing a missing link for completing the
chain.
In an answer to above, the appellants have placed reliance on Rajkumar v.
State of M.P.[10], wherein it has been held that mere false plea does not
absolve the prosecution of burden to connect the accused with the crime.
On careful reading of the case referred to above, we find that it was a
case where two views were possible, and the trial court took the view that
charge cannot be said to have been proved, but the High Court reversed it.
In the case at hand there is consistent view taken by both the courts below
that the appellants had acted in common intention with co-accused
Dhanwantari in commission of murder of the deceased.
Defence version of the appellants in the present case is that appellant
Jamnadas is a businessman having his shop at 5/2, Murai Mohalla,
Sanyogitaganj, Indore. His working hours at the shop were from 9 a.m. till
8-9 p.m. It is contended that it is the usual practice for the shopkeepers
in parts of Northern India to have lunch at their shops and that the
appellants did not come to their residence for lunch. It is further
pleaded that on the date of incident, i.e. 16.9.2006, at about 7.30 p.m.
appellant Jamnadas was in his shop along with appellant Manoj and younger
son Vishal when he got a telephone call from his wife (Dhanwantari) who was
at home and got information that Richa @ Bhoomi (deceased) had gone to her
relative’s place and did not return home. On hearing this, Jamnadas with
both his sons came home and launched a search for his daughter-in-law. It
is further pleaded that on 16.9.2006 till 9 p.m., when Richa @ Bhoomi did
not return home, Jamnadas along with his two sons went to the police
station for lodging missing report. At about 10 p.m. Jamnadas’s wife
Dhanwantari and their minor daughter Heena @ Madhuri also came to the
police station and that thereafter, the police illegally detained them for
3 days without formally arresting them. But this defence story get
completely belied as prosecution has proved to the hilt that Bhoomi @ Richa
was murdered inside the appellants’ house, and there was no question of her
going to her relative’s place or missing.
The chain of circumstances proved on the record against the appellants is
as under: -
It is established that Bhoomi @ Richa (deceased) was living in the house of
the appellants, after her marriage on 16.04.2006 with appellant Manoj.
It is also established beyond reasonable doubt that death of the deceased
was homicidal in nature which occurred on 16.09.2006.
It is also established that the deceased was murdered in the house of the
appellants where blood stains were found.
It is also conclusively established that after commission of murder, the
body of the deceased was cut into two pieces.
It is further proved that the dead body was thrown in the park by
Dhanwantari (mother-in-law of deceased) who was seen doing so by PW 1 to PW
5.
Perusal of the number of anti mortem and post mortem injuries mentioned in
autopsy report read with statement of PW 15 Dr. N.M. Unda establish beyond
reasonable doubt that the crime could not have been committed by one person
alone.
There were in all five members in the family excluding the deceased – three
male members (Jamnadas father-in-law, Manoj – Husband and Vishal brother-in-
law of the deceased) and two female members (Dhanwantari mother-in-law and
Heena @ Madhuri minor sister-in-law).
PW 32 Heena @ Madhuri (minor daughter of appellant no.1) was too young.
She was a student of class VIII when her statement was recorded during
trial and she has stated that she had gone to school on the day of incident
and after her return she slept. (This witness was declared hostile as she
did not fully support the prosecution case). It is nobody’s case that she
had any role in commission of the crime. This leaves four accused named in
the chargesheet, out of whom Vishal, brother-in-law, was acquitted by the
trial court (Rather discharged in respect of offence of murder). His
acquittal is upheld by the High Court, and nobody has challenged the same.
The remaining three in the field are Dhanwantari (mother-in-law) and the
appellants.
The appellants have failed to disclose as to how deceased has died which
was especially within their knowledge.
It is nobody’s case that any outsider came in the house.
There is no report lodged to police by the appellants regarding homicidal
death of the deceased who was wife of appellant Manoj and daughter-in-law
of appellant Jamnadas as discussed above.
False explanation has been given by the appellants in their statements
under Section 313 Cr.P.C. that the deceased had gone to her relative’s
place and that she was missing which is an additional link on the record
against them, in the chain of circumstances.
The above chain of circumstances against the appellants is complete, and
the defence theory that they were in the shop cannot be accepted.
Therefore, having re-appreciated the entire evidence on record, we concur
with the courts below that appellants Jamnadas and Manoj had common
intention with Dhanwantari in commission of brutal murder of Bhoomi @
Richa. It is not a fit case where impugned order requires any interference.
For the reasons, as discussed above, these appeals are liable to be
dismissed, and the same are accordingly dismissed.
……………….....…………J.
[Prafulla C. Pant]
.……………….……………J.
[D.Y. Chandrachud]
New Delhi;
June 29, 2016.
-----------------------
[1] (1984) 4 SCC 116
[2] (2010) 7 SCC 263
[3] (2000) 8 SCC 382
[4] (2015) 7 SCC 178
[5] (2006) 10 SCC 681
[6] (2004) 10 SCC 699
[7] (2015) 2 SCC 227
[8] (2000) 5 SCC 7
[9] (2013) 7 SCC 417
[10] (2004) 12 SCC 77
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