Order
1. In this appeal by special leave the order of the High Court of Madhya Pradesh, Gwalior dated 23-9-2003 in Criminal Appeal No. 175 of 1989 has been impugned.
2. The appellant Gayadin was tried by the Court of IInd Additional Sessions Judge, Gwalior along with two other accused persons. The charge against the appellant was under Section 302 IPC. The second accused Baijnath was the father of the appellant and the third accused was the brother of the accused. They were charged of the offence punishable under Section 201 IPC. The Sessions Judge acquitted all of them. Aggrieved by the same, the State preferred an appeal before the High Court and the Division Bench of the High Court was pleased to reverse the acquittal of the present appellant and found him guilty of offence punishable under Section 302 IPC for having caused the death of his wife Kasturi Bai. The conviction and sentence against the appellant is challenged before us.
3. The marriage between the appellant and deceased Kasturi Bai took place at about 4/5 years prior to the incident. The prosecution alleged that the accused used to torture the deceased and there were frequent quarrels between the appellant and the deceased and on 18-1-1985 at about 8.30 p.m PW 12 Keshav Singh and PW 10 Lal Shah had gone to the house of the appellant to ascertain whether he was available for doing some labour work on the next day. These two witnesses saw the deceased Kasturi Bai lying on a carpet inside the house and she was weeping. The appellant Gayadin told the witnesses that he was not willing to come up for work as he was mentally upset. The witnesses were told by Kasturi Bai that she was beaten by the appellant. On the next day PW 13 came to know that Kasturi Bai had died and he went to the nearby police station and lodged an FIR statement. Head Constable Nawab Singh (PW 17) went to the place of incident and he saw a funeral pyre being set up for cremating the dead body of deceased Kasturi Bai. On seeing the police, the persons who were assembled there left the place and PW 17 took the dead body from the pyre. He sent the dead body for post-mortem examination and PW 16 Dr. D.S Badkur conducted the post-mortem examination and found that there were series of serious injuries on the body of the deceased Kasturi Bai. There were marks of violence on the neck and a contusion on the right side of the neck. The doctor also noticed a ligature mark and the presence of clotting of blood. There was also a stab wound of 32 × 12 cm of spandle (sic) nature on the abdomen and it was opined as an injury caused after the death.
4. On the side of the prosecution, 18 witnesses were examined and the High Court found the appellant guilty on the basis of the circumstantial evidence. The learned Sessions Judge was of the view that there was no direct evidence to connect the appellant to the incident and the plea set up by the appellant was accepted. The appellant had stated when questioned under Section 313 CrPC that he was not present at his house on the date of the incident and as his maternal uncle passed away, he went to the neighbouring village and from there he came to know that his wife had died and on reaching the house he was informed that his wife had died of cold and he made preparation to cremate the dead body and then the police came.
5. At the outset it is to be stated that there is no direct evidence to prove the prosecution case. The High Court mainly relied on the circumstances that there existed a bad relationship between the appellant and his wife and he used to beat her and that the appellant was last seen along with the deceased and that he had set up a false plea of alibi. The counsel for the appellant and the counsel for the State drew our attention to the oral evidence adduced in this case. PW 12 and PW 10 were examined to prove that the appellant used to beat the deceased Kasturi Bai. These two witnesses are neighbours and they stated that they came to the house of the appellant and saw the deceased Kasturi Bai lying on a carpet and she had been weeping and stating that she was beaten by her husband. Apart from this, there is no direct evidence as to what had transpired on the day prior to the death of the deceased. Strangely enough, these two witnesses were not questioned by the investigating officer within a reasonable time. PW 10 was questioned about 20 to 22 days after the incident whereas PW 12 was questioned by the police after a period of 8 days of the incident. There is no case that these witnesses were not available in the locality during the time of the incident and the police could have ascertained the facts from these neighbours. There is every possibility that these witnesses could have been planted witnesses just to help the prosecution. This fact should have been taken note of by the High Court, especially when the High Court was considering a case of an appeal against acquittal.
6. Apart from the evidence of PW 10 and PW 12, there is no other evidence to show the bad relationship between the appellant and the deceased. Of course, the evidence adduced by the appellant to prove his alibi was not very convincing and merely because he had set up a false alibi, it cannot be held that he was positively responsible for the murder. Apart from the accused, there were 5 other inmates in the house. The prosecution evidence is not able to throw any light on the complicity or otherwise of any one of the inmates of the house in this case. There is no evidence to point out that the appellant alone was responsible for causing death of the deceased Kasturi Bai.
7. Under these circumstances, the High Court was not justified in reversing the acquittal of the appellant for the charge of murder punishable under Section 302 IPC. However, we notice that even as per the statement of the appellant and the prosecution evidence is clinchingly proved that the appellant had actually participated in cremation of the dead body of the deceased Kasturi Bai, the appellant can certainly be attributed with the knowledge that the deceased died of multiple injuries as there were series of serious injuries on her body. Even if the appellant had not participated in the commission of murder, he was certainly aware that a criminal offence had been committed and instead of informing the police about the incident, he hastily made preparation for cremating the dead body of the deceased. The act committed by the appellant thus proves that the appellant committed the offence punishable under Section 201 of the Indian Penal Code. Already a charge against the appellant was there and he faced trial and defended his case and hence no prejudice is caused to him. He is found guilty of offence punishable under Section 201 IPC.
8. In the result, we set aside the conviction of the appellant under Section 302 IPC and instead he is found guilty of offence under Section 201 IPC and sentence him to undergo rigorous imprisonment for a period of three years. The appeal is partly allowed.