J U D G M E N T
(30.01.2018)
Appellant has filed this appeal against the judgment dated 31.01.2007 passed by 6thAdditional Sessions Judge, Jabalpur in S.T. No.67/2006, whereby he has been convicted for offence punishable under Section 302 of the IPC and sentenced imprisonment for life with fine of Rs.2,000/- with default sentence.
2. Allegation against the appellant is that he had killed his wife
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and son.
3. Prosecution story in brief is that appellant was living along with his son and wife in a rented house. At 10 o'clock in the morning, Rajaram Soni received a telephone call from elder brother of appellant Santosh, he informed him that present appellant told me that he had killed his wife and son. He went to the house of appellant after taking keys of house, because house was locked from outside. When door was opened, he noticed that wife of appellant and his son were lying dead. A report of the incident was lodged at police station. Police conducted investigation and filed charge sheet against the appellant.
4. Appellant abjured his guilt. He stated in his defence that at 5 O'clock he had gone for morning walk and when he returned back at the house, he noticed that police had come to his house and found his wife and son, who were lying dead. Further, he has stated that somebody had killed his wife and son.
5. Having heard learned counsel for the parties and perused the record.
6. Learned Govt. Advocate has submitted that the trial Court has not committed any error in convicting and sentencing appellant for offence punishable under Section 302 of the IPC. Therefore, it is prayed that appellant may not be acquitted from the charge levelled against him.
7. Ram Kishore Gupta (PW-6) is brother of deceased. He deposed that at around 9-9:30 O'clock Sonu Gupta told me that house of appellant was locked from outside. Thereafter, I reached at the house of Mama of appellant Sushil Agrahari and also telephoned my brother-in-law (Jija), who
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was living at Prem Sagar. Thereafter, I and Jija went to the house of appellant, which was locked from outside. Appellant handed over the keys of lock to Mr. Sushil Agrahari. Thereafter, I and Sushil Agrahari opened the lock and we found that wife Seeta and son Sagar of appellant were lying dead in a room. We informed the police. Police seized knife and some other articles from the spot vide seizure memo Ex.P/13. Appellant was arrested vide arrest memo Ex.P/14. A notebook was also seized, which is Ex.P/15. In his cross- examination, he admitted that I went to the house of appellant along with Sushil Agrahari and opened the door of appellant's house.
8. Sushil Agrahari (PW-2), who is Mama of appellant deposed that house of appellant was locked from outside and lock was not opened since morning. The house of appellant was 1/2 km. from my residence. Lock was broken and thereafter, we entered into the house of appellant and noticed that deceased Seeta and Sagar were lying dead. We lodged report at police station, which is Ex.P/7. Police registered a merg intimation, which is Ex.P/8. They prepared spot map and also Panchnama of dead body of deceased.
9. Kallu (PW-1) deposed that in the morning, I received a phone call from Rambabu and he informed me that appellant had consumed poison and requested me to come my house. Thereafter, I, elder Mama of appellant and other two persons went to the house of appellant. Mama of appellant opened the door, which was locked from outside and thereafter, we noticed that deceased persons were lying dead. A report was lodged at Police Station. A knife was lying at the spot. Police prepared Panchnama and also seized knife and other articles vide seizure memo Ex.P/5. Ashish Soni (PW-3) and Dinesh Mishra (PW-4) declared hostile.
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10. Jugal Kishore Gupta (PW-5) is the father of deceased Seeta. He deposed that appellant went to his father's house two days before the incident and made request to his father for some help. The appellant was living in a rented house along with his wife and child. The appellant did not pay the rent of house, whereas I paid the rent of six months. On 19 th September, appellant had taken his wife Seeta and son Sagar from his house and incident had occurred on 20thSeptember. Appellant told me that he had killed the deceased persons.
11. Ram Naresh Gupta (PW-7) is witness of seizure of knife and other articles. He admitted that police seized the aforesaid articles before him and prepared seizure memo. Uma Shankar Raikwar (PW-8) admitted that police seized a register of phone calls vide Ex.P/21. Bharat Kishore Gupta (PW-12) is witness of seizure of underwear and copy. He admitted that police seized the aforesaid articles vide Ex.P/15 from the possession of appellant and telephone diary Ex.P/16. S.P. Singh Baghel (PW-14) deposed that I had taken samples of handwriting of appellant in the Central Jail and after analysis, I found that handwriting Ex.P/28 upto Ex.P/28-F are the same handwritting. Dr. Smt. C.R. Jain (PW-17) deposed that I was posted on 21.09.2005 as Assistant Surgeon at Victoria Hospital, Jabalpur. Appellant was admitted in the hospital when he consumed poison. He was discharged on 22.9.2005 and I prepared report vide Ex.P/40.
12. Dr. D.K. Shakalya (PW-9) conducted postmortem of deceased persons. He deposed that I performed postmortem of deceased Seeta on 21.09.2005 and noticed following injuries on her body:-
pksV dz- 1&dVk gqvk ?kko ftldk vkdkj 3x1 lseh-
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vfLFk rd xgjkbZ esa BqM~Mh ij ekStwn FkkA pksV dz- 2& 3 HkkaSdh gqbZ pksVsa] tks fd vkM+h Fkh] xnZu ij lkeus ,d nwljs ds Åij 'kokl uyh ds Åijh fgLls ij fLFkr Fkh ftudh xgjkbZ 5 lseh Fkh] yackbZ 2 lseh ,oa pkSM+kbZ ,d lseh FkhA bu LFkkuksa ij 'okl dh uyh ,oa xzfLe dV xbZ FkhA
pksV dz- 3& rhu HkkSadh gqbZ pksVs ,d nwljs ds Åij] tcM+s ds ckbZ vksj xnZu ds Åij ekStwn Fkh] ftudk vkdkj 5&6 lseh xgjkbZ ,oa bu LFkkuksa ij xnZu dh jDrokfgdk,a dV xbZ FkhaA
pksV dz- 4& rhu HkkSadh gqbZ pksVsa] nkfgus da/ks ds ihNs ftudk vkdkj 2x1 lseh x5&6 lseh FkkA
pksV dz- 5& nks HkkSadh gqbZ pksVs frjNh] nkafguh Hkqtk ij Åijh Hkhrjh fgLls esa 6 lseh dh xgjkbZ rd dh ekStwn FkhA
pksV dz- 6& xnZu ds nkfguh vksj Ms<+ ls nks lseh- yackbZ dh ikap ?kko xnZu ds cktw esa ekStwn Fks] tks ,d nwljs ls feys gq, Fks ,oa 5&6 lseh xgjs FksA budh fn'kk Åij ls uhps dh vksj Fkh ,oa bu LFkkuksa ij Hkh xnZu dh jDr&okfgadk,a dV xbZ FkhA lkFk gh lkFk QsQM+s dk Åijh fgLlk ,d lseh xgjkbZ rd dV x;k FkkA
pksV dz- 7& nkafguh vksj dh vaxqfy;ksa ij vanj dh vksj flQZ NksVh vaxqyh dks NksM+dj] vkM+s dVs gq, ?kko ekStwn Fks] lkFk gh lkFk gkFk dh xnsyh ij ,d rhu lseha x ,d lseh vkdkj dk dVk gqvk ?kko Hkh ekStwn FkkA
pksV dz- 8& cka;s gkFk dh xnsyh ij Hkh] nkafguh gkFk dh xnsyh tSlh gh pksV ekStwn FkhA^^
He further deposed that I conducted postmortem of deceased Sagar aged about three years and noticed following injuries:-
pksV dz-1& ikap HkkSads gq, ?kko] xnZu ds chp okys fgLls esa lkeus dh vksj ekStwn Fks] ;s vkM+s ,oa frjNs Fks ,oa [kkus dh uyh buds jkLrs esa dVh gqbZ Fkh] ,oa [kkus dh uyh Hkh dVh gqbZ FkhA bu ?kkoksa dk vkdkj 2x1x5 lseh
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Fkk- pksV dz-2& nks HkkSads gq, ?kko] ,d nwljs ds Åij frjNs] nkafguh vksj dh da/ks dh vfLFk ds Åij ekStwn Fks] ftudk vkdkj 2x1x4 lseh FkkA buds LFkku ij xnZu dh jDr dh /kefu;k dV xbZ FkhA
pksV dz- 3& ,d HkkSadk gqvk ?kko xnZu ij nkafguh vksj vkM+k 2-5 lseh x1 lseh vkdkj dk ekStwn Fkk ;g BqM~Mh ds uhps fLFkr Fkk ftldh xgjkbZ 5 lseh Fkh ,oa blds jkLrs esa Hkh jDr dh /kefu;ka dV xbZ FkhaA^^ Dr. Shakalya (PW-9) deposed that injuries were stab wounds. These were caused by sharp and hard edged weapon, may be a knife. Both the persons were died due to the aforesaid injuries.
13. D.L. Tiwari (PW-18) investigating officer deposed that on 21.09.2005, I was posted at Police Station, Gohalpur as Station House Officer In-charge and conducted investigation of the case. On the information of Sushil Agrahari, I recorded merg intimation Exs.P/8 & P/9 and signed the same. I prepared spot map Ex.P/41 and signed the same. Thereafter, I seized articles, plain earth and red earth vide seizure memo Ex.P/5 and signed the same. Clothes of appellant and a notebook were also seized vide Exs.P/3 & P/5 and I signed the same. He further deposed that I also seized articles vide seizure memo Ex.P/17 and phone call register vide seizure memo Ex.P/21. Appellant was arrested and he was also examined by doctor. MLC report of appellant is Ex.P/6. I recorded the statement of witnesses.
14. Case is based on circumstantial evidence. The Apex Court in case of "Satish Nirankari Vs. State of Rajashtan, (2017) 8 SCC 497", has held as under:-
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"It is now well established, by catena of judgements of this Court, that circumstantial evidence of the following character needs to be fully established:
(i) Circumstances should be fully proved.
(ii) Circumstances should be conclusive in nature.
(iii) All the facts established should be consistent only with the hypothesis of guilt.
(iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State vs. Dr. Ravindra; 1992 (3) SCC 300);
Chandrakant vs. State of Gujarat; (1992)
1 SCC 473. It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.
(30) Following tests laid down in Padala Veera Reddy vs. State of A.P. also need to be kept in mind:
"10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of
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the accused and such evidence should not only e consistent with the guilt of the accused but should be inconsistent with his
innocence."
(31) Sir Alfred Wills in his book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence, the best evidence must be adduced with the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and
(5) if there by any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
15. In the present case, appellant admitted in his statement recorded by the trial Court under Section 313 of the Cr.P.C. that he was in the house upto 5 O'clock in the morning. He further stated that I returned back after two hours and found that my wife and child were lying dead. I was in the house and thereafter, police came. From the statement of appellant, this fact has been proved that the appellant was present in the house, in the night or upto morning. This fact has also been established from
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the evidence of prosecution witnesses as discussed above in the judgment that house was locked from outside and thereafter, lock was opened. Ram Kishore Gupta (PW-6) deposed that appellant locked the house and thereafter, he handed over the keys to Mr. Sushil Agrahari (PW-2). Mr. Sushil Agrahari (PW-2) in his statement admitted that house was locked but he deposed that lock was broken. Statement of Shushil Agrahari (PW-2) that the lock was broken is incorrect and false. Kallu (PW-1) also deposed that Sushil Agrahari (PW-2) Mama of appellant opened the door and thereafter, they entered into the house. Hence, evidence of Ram Kishore Gupta (PW-6) is reliable upto the extent that keys of house was with Sushil Agrahari (PW-
2) and he himself opened the lock. Dead body of both the deceased persons were found inside the house. Presence of the appellant is very well established. His explanation that the house was not locked is contrary to the evidence on record. He tried to evade the evidence, which is against him. A knife was also seized from the house of appellant. Appellant admitted in his statement that he was admitted in the hospital. However, he denied the fact that he consumed poison.
16. M.M. Agrawal (PW-19) has specifically deposed that appellant was admitted in the hospital for one day because he consumed poison and there was an incised injury on right index finger of the appellant. This fact has further proved the prosecution story that after killing wife and his son, the appellant consumed poison. From the possession of appellant, underwear was seized. The witnesses deposed that they noticed blood stains on the articles.
17. In our opinion, the prosecution has proved beyond reasonable
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doubt that appellant had killed the deceased persons. The evidence is sufficient to prove the guilt of appellant beyond reasonable doubt. Hence, the trial Court has rightly held that appellant had killed his wife and son. We do not find any merit in this appeal. Accordingly, appeal is dismissed.
18. Copy of judgment be sent to the trial Court for information along with its record.
(S.K. Gangele) (Smt. Anjuli Palo) Judge Judge
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