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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 590 OF 2015
JAYANTILAL VERMA …Appellant
Versus
STATE OF M.P. (Now Chhattisgarh) …Respondent
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. On the fateful day of 24.8.1999, one Sahodara Bai was found dead
on a cot in her matrimonial home located in village Uslapur, District
Rajanandgaon, M.P. (now Chhattisgarh). A marg intimation was lodged
with the police at the behest of her brother, one Kishore Kumar, who
alleged that he had returned to village Uslapur to see his sister, where he
was informed by her in-laws that she had died. He related a prior
incident from a few days ago alleging that on 19.8.1999, the deceased
had returned to her maternal home to village Baiharsari stating that she
had been harassed at the hands of her in-laws for the last 6-7 months. The
cause for harassment was stated to be that the appellant herein (her
husband) had a brother who lived separately and the in-laws would beat
and harass her if she attempted to speak to the wife of the brother of the
appellant herein. The endeavour of reconciliation took place when
Kishore Kumar along with another brother, Lochan, had brought the
deceased back to her matrimonial home. Even at that stage, on being
asked whether they wanted her to live with them, the in-laws responded
that they will see for a few days and then decide. The deceased thereafter
stayed back at her matrimonial home.

2. A postmortem was conducted on the body and FIR No.72/99 came
to be registered at P.S. Bodla, District Kawargha on 29.8.1999 arraying
the appellant herein, his father, one Lalchand and mother, one Ahiman
Bai as accused for offences punishable under Sections 302 read with
Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the
‘IPC’). The FIR is stated to have been registered at the behest of one
K.P.S. Paikara, the SHO of P.S. Bodla, who relayed the above mentioned
information from the marg intimation and also elaborated on the
relationship of the deceased and the appellant herein along with the
findings of the postmortem report. The marriage between the appellant
herein and the deceased had taken place about 8 years prior to the
incident and there was a son born, who was only a few months old. The
appellant herein, along with the deceased was staying with his parents.
The post mortem report stated that the cause of death was asphyxia due
to strangulation, and the nature of death was possibly homicidal. On
completion of investigation, Chargesheet No. 64/99 was filed and charges
were framed by the Sessions Court in Sessions Trial No.165/1999,
arraying the appellant herein and his parents as accused. The version
given by the accused in their statements under Section 313 Code of
Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) was
that on the morning of the incident all the three accused had 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 called the appellant herein
and his wife, Ahiman Bai, who were still in the fields. No evidence was
led in this regard.

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

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

5. The finding of the Sessions Court was based on the cause of death
being asphyxia due to strangulation. The testimony of the doctor, PW-9,
was relied upon to come to the conclusion that the death was homicidal
as it was a result of strangulation. The possibility of any other manner of
death was explored by the court, i.e., thieves killing the deceased in order
to snatch a chain from her neck. This was ruled out as the incident took
place in the house, which in turn was surrounded by other houses on
three sides and no commotion was heard. Further, no crime of theft had
been reported in the recent past. Next, the possibility of death caused by
a snakebite was explored. This was owing to the testimony of PW-1, who
had stated, that upon finding his sister dead and enquiring as to what had
happened, Lalchand, father of appellant herein had stated that she had
died of a snakebite. Court noted that the postmortem did not indicate any
symptom of a snake bite as there was no mark or any poisoning detected
in the body. The suicide theory was also ruled out as there were scratch
marks found on her neck. The conclusion was, thus, based on
circumstantial evidence to convict the accused. All the three accused
preferred an appeal before the High Court, being Criminal Appeal
No.1930/2000. In the course of the pendency of the appeal, Lalchand,
the father-in-law of the deceased passed away. The High Court
concluded that there was no legally admissible evidence to convict the
mother-in-law of the deceased, and hence she was acquitted. However,
the conviction of the appellant herein was upheld by the High Court.

6. The appellant herein filed the present appeal in which leave was
granted on 30.3.2015.

7. It would be appropriate to note that there was some improvement
in the statement of PW-1 to the extent that he had never mentioned
Lalchand’s explanation of the death of the deceased by snake bite in the
earlier statement. While this was noted by the Trial Court, all other
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 also noted
that there was an absence of any prior animosity between PW-1 and the
family of the appellant herein. PW-1, incidentally, was the stepbrother of
the deceased, while PW-2, who turned hostile was her real brother. The
cause of witnesses turning hostile, as per the Trial Court, was that PW-2
was influenced on account of subsisting family relationship, as the
daughter of Lalchand (sister of the appellant herein) was married to the
brother of PW-2.

8. The circumstantial evidence was examined closely as that could be
the only basis of conviction, and it was found that there was a complete
chain to prove the guilt of the accused. The visit of the deceased to her
maternal home, her statement regarding the ill-treatment by her in-laws
to her brother, PW-1, her being taken to the matrimonial home by PW-1
along with another brother, Lochan, the discussion between PW-1 and
Lalchand and finally the cause of death being homicidal were all
circumstances examined to establish guilt of the accused. The Trial
Court held that after the murder, Lalchand sent his wife and the appellant
herein to the fields, while he himself went to the pond to bathe and when
he 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
death being caused by strangulation by an article made of a chain-like
material but the same had likely been destroyed. The Trial Court did
castigate the manner of prosecution.

9. The High Court in the given situation, apart from relying on the
testimony of PW-1, turned its attention to the postmortem report. In this
context, it was noted that there was blood oozing from both nostrils and
mouth of the deceased, there was swelling over the right cheek, marks of
ecchymosis at epiglottis region and back of the neck, bruise present at
left axillary of cheek and there was depression mark of a mala on the left
side of the neck. It went on to state that since the incident had taken place
inside the privacy of the house, the onus was on the persons residing in
the house, to give an explanation. In such situations, it was noted that it
is difficult for the prosecution to lead any direct evidence to establish the
guilt of the accused. In this regard, the High Court referred to Section
106 of the Indian Evidence Act, 1872 (hereinafter referred to as the
‘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
establish the case would be upon the prosecution, it would be of a
relatively light character. There would be a corresponding a burden on
the inmates of the 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 have examined
the submissions of the learned counsels for the parties.
11. The submission of the learned counsel for the appellant herein was
that the circumstantial evidence was not of such a nature that it could be
said to be conclusive, and the chain of evidence was not complete to
pronounce the appellant herein guilty. The previous allegations of cruelty
had not been proved as there was no prior complaint of harassment
lodged by the deceased or her relatives and that the testimony of PW-1 is
further discredited, as he is the stepbrother and not the real brother of the
deceased. It was further argued that the statements of the witnesses were
not recorded prior to 29.8.1999 i.e., for five days from the date of
incident, and even the site plan prepared by PW-7 was not proved. There
was stated to be no intention or motive attributable to the appellant herein
to kill the deceased and the prosecution could not absolve itself of the
burden to prove the case beyond reasonable doubt.

12. The testimony of PW-9, Dr. Bachkar was assailed as there was no
formation of a firm opinion regarding the nature of death as it was
mentioned that it “may” have been homicidal. There was stated to be a
mark on the left side of the neck and but no such mark existed around the
neck. He had stated that the mark could have been caused by pressing
the necklace on the neck, but asphyxia was not possible due to the same.
No recovery of necklace had taken place from the appellant herein and
the weapon of crime was never recovered. Lastly, it was contended that
on the same evidence, the mother of the appellant herein had been
acquitted.

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

14. Learned counsel for the respondent State relied upon the absence
of any explanation by the accused regarding the cause of death, even
though the death had occurred in the privacy of the matrimonial home.
The appellant herein and his family are stated to be the only residents,
where the body of the deceased was found and that itself cast a burden on
them within the meaning of Section 106 of the Evidence Act.

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

a. Amarsingh Munnasingh Suryawanshi v. State of
Maharashtra 1: In this case, the death had occurred in the matrimonial
home but the conviction was supported by a dying declaration.

b. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr. 2: Here,
the weapon of offence, a gun, was recovered from the room of the
accused and the dead body was found on the terrace attached to the
private room of the accused.

c. Trimukh Maroti Kirkan v. State of Maharashtra 3: In this
case, the body of the deceased was found in the matrimonial home
and the cause of death was strangulation, though the defence pleaded
it to be a case of a snakebite.

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

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

===================
1 (2007) 15 SCC 455
2 (2007) 10 SCC 433
3 (2006) 10 SCC 681

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

18. It was, thus, contended that mere presence or absence of a large
number of witnesses cannot be the basis of conviction. It is the quality 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 Bengal4
, where it was observed as under:

“20. We must notice at this stage that it is not always the quantity but
the quality of the prosecution evidence that weighs with the Court in
determining the guilt of the accused or otherwise. The prosecution is
under the responsibility of bringing its case beyond reasonable doubt
and cannot escape that responsibility. In order to prove its case
beyond reasonable doubt, the evidence produced by the prosecution
has to be qualitative and may not be quantitative in 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 legal
system does not insist on plurality of witnesses. Neither the
legislature (Section 134 of the Evidence Act, 1872) nor the
judiciary mandates that there must be particular number of
witnesses to record an order of conviction against the accused.
Our legal system has always laid emphasis on value, weight
and quality of evidence rather than on quantity, multiplicity or
plurality of witnesses. It is, therefore, open to a competent
court to fully and completely rely on a solitary witness and
record conviction. Conversely, it may acquit the accused in
spite of testimony of several witnesses if it is not satisfied
about the quality of evidence. The bald contention that no
conviction can be recorded in case of a solitary eyewitness,
therefore, has no force and must be negatived.”

================
4(2013) 6 SCC 428

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

19. On consideration of the evidence led by the prosecution and
considering the concurrent findings by the two courts qua the appellant
herein we are unable to find any reason to interfere with the judgment of
the courts below.

20. It is no doubt true that a large number of witnesses turned hostile
and the Trial Court was also not happy with the manner of prosecution
conducted this case. But that is not an unusual event in the long drawn
out trials in our country and in the absence of any witness protection
regime of substance, one has to examine whatever is the evidence which
is capable of being considered, and then come to a finding whether it
would suffice to convict the accused.

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

==================
5 (2014) 3 SCC 401

22. We are conscious that the case of the prosecution rests only on the
testimony of PW-1 and the medical evidence. The statement of PW-1
was consistent and cogent except to the extent that in the earlier
statement he had not mentioned the factum of the death being attributed
to snakebite. However, that itself would not nullify the remaining part of
his testimony. In fact, the said witness did not back out from the
statement, but could not state the reason why the police did not record it
in the FIR though it was mentioned.

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

24. In our view, the most important aspect is where the death was
caused and the body found. It was in the precincts of the house of the
appellant herein where there were only family members staying. The
High Court also found that the location of the house and the surrounding
buildings was such that there was no possibility of somebody from
outside coming and strangulating the deceased and that too without any
commotion being caused or any valuable/jewellery missing.

25. We are confronted with a factual situation where the appellant
herein, as a husband is alleged to have caused the death of his wife by
strangulation. The fact that the family members were in the home some
time before is also quite obvious. No explanation has been given as to
how the wife could have received the injuries. This is a strong
circumstance indicating that he is responsible for commission of the
crime.6 The appellant herein was under an obligation to give a plausible
explanation regarding the cause of the death in the statement recorded
under Section 313 of the Cr.P.C. and mere denial could not be the answer
in such a situation.

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

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

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

………………………………J.
[Sanjay Kishan Kaul]

………………………………J.
[Hrishikesh Roy]

New Delhi.
November 19, 2020.

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