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The State Of M.P. vs Girwar Singh & Ors. on 28 February, 2018

HIGH COURT OF MADHYA PRADESH, JABALPUR

Criminal Appeal No. 83 of 1996
Parties Name State of M.P. Through P.S. Jawar
(M.P.)

Vs.

1. Girwar Singh, S/o Bhim Singh,
aged about 26 years.

2. Bhim Singh, S/o Ghisaji,
aged about 55 years.

All R/o Shiwana P.S. Jawar,
Tahsil District Khandwa (M.P.)

Bench Constituted Hon’ble Shri Justice S.K. Seth

Hon’ble Shri Justice Anurag
Shrivastava
Judgment delivered by Hon’ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for Counsel for the
parties appellant/State.
Shri Akshay Namdeo,
Government Advocate.

For respondent: Shri R.S.
Shukla.
Law laid down
Significant paragraph
numbers

JUDGMENT

( .02.2018)

The present appeal under Section 378(3) of Cr.P.C.
has been preferred by appellant/State against the judgment
dated 25.01.1995 passed by Sessions Judge, Khandwa (M.P.)
in Sessions Trial No.106/1994, whereby the respondents

-2- Cr.A No.83/1996

have been acquitted of the charge of offence punishable
under section 302 r/w Section 201/34 of IPC.

2. The case of prosecution in brief is that deceased
Basanti Bai was wife of respondent/accused Girwar Singh.
Marriage was solemnized about 6 years before the incident.
After marriage Basanti Bai was living in her marital home at
village Shivna with her husband and father-in-law Bhim
Singh. It is alleged that the deceased was subjected to
cruelty and harassment for demand of dowry by her husband
and father-in-law. Respondents used to make demand of
ornaments colour T.V. and Godrej Almirah. In the year 1990,
her father-in-law Bhim Singh had poured kerosine oil on her
and tried to set her ablaze. She had informed her parents
about the incident and also lodged report at Police Station
Jawar. Thereafter, Basanti Bai came to her parental house
and filed a petition for grant of maintenance against her
husband and obtained order of Court in this regard under
Section 125 of Cr.P.C. When her husband Girwar Singh failed
to pay maintenance for one year she filed recovery
proceedings and her husband was sent to jail in lieu of
recovery of maintenance. Thereafter a compromise had
taken place between the parties wherein Girwar Singh
promised to give 2 ½ acres of his land to Basanti Bai in lieu
of maintenance. Thereafter Basanti Bai came to her marital
home and started living with the respondents. About 2 – 3
months prior to the incident she delivered birth to a girl child.

3. As per prosecution due to above dispute and
maintenance proceedings respondents were keeping enmity
with Basanti Bai and intending do away her. On 11.01.1994
respondent Girwar Singh and Bhim Singh came to Khandwa

-3- Cr.A No.83/1996

with Basanti Bai and her infant daughter for purchasing some
ornaments for the girl. After purchasing ornaments they were
returning to village Shivna by Bullock-cart. On the way when
they reached near Masania Nala on instigation of Bhim Singh,
respondent Girwar Singh killed Basanti Bai by throttling her
and thereafter killed her newly born girl child. Thereafter the
respondents brought the dead body of Basanti Bai and girl
child to Government Hospital Khandawa and informed that
she had sustained injury due to accident by wheel of Bullock-
cart. The doctor examined Basanti Bai and her newly born
daughter and found them dead. An intimation of incident
was sent to Police Station Moghat Road, Khandawa by the
doctor. The police initiated the inquest, prepared panchnama
of dead body and sent the bodies for postmortem.
Respondent Girwar Singh had also sustained some injuries
and he was medically examined. In postmortem it was found
that the death of Basanti Bai was homicidal. On the basis of
inquest, FIR was got recorded on 13.01.1994 and offence
under Sections 302, 201 of IPC registered against the
respondents. The spot map was prepared. The broken pieces
of bangles and silver ornament of girl were seized from the
spot and statement of witnesses were recorded. After
completion of investigation charge-sheet has been filed
against the respondents and co-accused Dhan Singh.

4. The respondents have been charged under Sections
302/34 and 201/34 of IPC. They abjured guilt and pleaded
innocence.

5. The prosecution has examined 14 witnesses whereas
the respondents have not examined any witnesses in their
defence.

-4- Cr.A No.83/1996

6. The trial Court on appreciation of evidence found the
case of prosecution not proved beyond reasonable doubt and
acquitted the respondents, against this the State has
preferred the present appeal.

7. It is argued by learned counsel for the appellant/State
that the respondents had inimical terms with the deceased.
The eyewitness Sunil (PW-5) had categorically deposed
against the respondents. He had seen the respondent Girwar
Singh throttling and killing Basanti Bai and her daughter. The
trial Court had disbelieved this witness without any cogent
reasons. The postmortem report reveals that the deceased
died due to throttling. The respondents had concocted a false
story stating the cause of death as accident. The trial Court
on erroneous appreciation of evidence wrongly acquitted the
respondents.

8. The counsel for respondents supported the findings
recorded by trial Court and submitted that there is no
eyewitness to the incident. The eyewitness Sunil (PW-5) is a
chance witness who had not disclosed to anyone for long
time about witnessing the incident. There are material
discrepancies occurred in testimonies of PW-5 and other
prosecution witnesses. It is doubtful whether the deceased
died due to throttling. The trial Court had rightly considered
the facts and circumstances of the case and found the case
of prosecution not proved beyond reasonable doubt and
acquitted the respondents.

9. Heard arguments and perused the record.

10. It is not disputed that deceased Basanti Bai was the
wife of respondent Girwar Singh. She was brought dead

-5- Cr.A No.83/1996

along with her newly born daughter at District Hospital
Khandwa by respondents Bhim Singh and Girwar Singh.
Girwar Singh had also sustained some injuries and he was
admitted in the hospital. These facts are verified by head
constable Govind Prasad Mishra (PW-7), Keshav Prasad Ojha
ASI (PW-8), Bag Singh (PW-9) and Dr. Madhukar Shrimali
(CW-1). Govind Prasad Mishra (PW-7) deposed that on
12.01.1994 at about 8:35 p.m. he received a telephonic
message at Police Station Jawar from Police Station Moghat
Road, wherein it was informed that Girwar Singh, his wife
Basanti Bai and daughter had received injuries in a Bullock-
cart accident. Basanti Bai and her daughter died and Girwar
Singh was admitted in the hospital. On this information, a
Roznamcha-Sanha Ex.P-4 was recorded. Keshav Prasad Ojha
(PW-8) deposed that he had conducted the inquest, prepared
panchnamas Ex.P-7 and Ex.P-8, dead bodies of Basanti Bai
and her daughter Guddi were sent for postmortem. Dr.
Madhukar Shrimali deposed that on 12.01.1994 at about 5:50
a.m. in the morning at main hospital Khandwa, he had
examined Girwar Singh and found scratches on his palm and
he was admitted in the hospital. His statement is
corroborated by MLC report Ex.C-2.

11. Dr. Rajesh Tiwari (PW-13) deposed that on 12.01.1994
at main hospital Khandwa he had performed the autopsy of
Smt. Basanti Bai and found following injuries:-

^^mlds ‘kjhj ij vdM+u ekStwn Fkh eqg vkSj ukd
ls jDrfefJr n`c vk jgk FkkA cka;s vka[k esa [kwu
mrj vk;k FkkA xnZu ds nkfgus fgLls esa czw’k dk
fu’kku Fkk] tks esfMcy ds ,axy ls ‘kq: gksdj]
xnZu ds lkeus ds fgLls dh rjQ dks ?ksjrk gqvk
xnZu ds ihNs rd pyk x;k 0A bldk vkdkj 3
bap xqf.kr 1@4 bap rFkk 2 bap xqf.kr 1@4 bap
dk FkkA nksuksa fu’kku ds chp esa Ms bap dh nwjh

-6- Cr.A No.83/1996

FkhA fu’kku ds mij dk fgLlk dtsLVsM FkkA
esfMcy da cka;s rjQ ,csztu rFkk daVwtu Fkk ;g
?kko [kqjnjk Fkk bldk vkdkj 3 bap xqf.kr 1½
bap FkkA^^ —-

mDr pksaVs e`R;q iwoZ dh Fkh
phjQkM+ djus ij ;g ik;k fd dksbZ van:uh
pksaV ugha Fkh ij eSaus fcljk lqjf{kr j[kdj rhycan
dj ds lkFk vk;s gq, flikgh dks fn;k FkkA
esjs er ls xys ds ncus ls ne ?kqV tkus ds
dkj.k clUrh ckbZ dh e“R;w gqbZ FkhA
The statement of doctor is duly corroborated by the
postmortem report Ex.P-6 given by him. Thus, it is clearly opined
by the doctor that the cause of death of deceased was asphyxia
as a result of strangulation. Thus, relying upon the postmortem
report it is rightly found proved by the trial Court that the
deceased died due to asphyxia as a result of strangulation. The
death was homicidal.

12. The postmortem of newly born girl child was conducted by
Dr. Rajan Sinha (PW-14). He deposed that on 12.01.1994 at main
hospital Khandwa he had performed postmortem of dead body of
Guddi aged about two months. He has not found any internal or
external injuries on person of body of the deceased. He is unable
to give any opinion regarding cause of death. He preserved Visra
and referred it for chemical examination. The statement of doctor
is corroborated by postmortem report Ex.P-16. The prosecution
has not produced the FSL report of examination of Visra.
Therefore, it is not proved that the death of newly born child
Guddi was homicidal.

13. Now the question arises whether the respondents had
committed the murder of deceased Basanti Bai ?

-7- Cr.A No.83/1996

14. It is not disputed that Basanti Bai was the wife of
respondent Girwar Singh. The marriage was solemnized about six
years prior to incident. From the testimonies of father of Basanti
Bai namely Jaswant Singh (PW-1) and other relatives uncle Ram
Singh (PW-2), Narain Singh (PW-3) and cousin brother Dileep
Singh (PW-4), it appears that the relations of Basanti Bai with her
husband and father-in-law, after marriage were not good and
cordial. The deceased used to make complaint in respect of
cruelty and harassment meted out to her by the respondents for
demand of dowry. The deceased had instituted a proceeding in
the court for grant of maintenance against her husband and
obtained an order in her favour. When her husband had not paid
maintenance for one year, she filed recovery proceedings in the
court and her husband was sent to jail by the court. Thereafter, a
compromise was taken place between the parties wherein her
husband had given her 2 ½ acres of land in lieu of maintenance.
This fact is duly corroborated by compromise Ex.P-1 which is not
challenged by the respondents. Girwar Singh has admitted this
compromise in his statement recorded under Section 313 Cr.P.C.
Although in this compromise, it is not mentioned that deceased
was subjected to cruelty and harassment by respondents for
demand of dowry but this compromise shows that the relations
between deceased and respondents were not good.

15. Jaswant Singh (PW-1) deposed that on the date of incident,
the respondents Girwar Singh came with Basanti Bai and her
daughter to Khandwa by Bullock-cart for purchasing silver
ornaments for the girl. After purchasing the ornaments they
returned to village by Bullock-cart. The deceased had sustained
injuries on the way while she was returning home and died. This
fact is not controverted by the respondents. Girwar Singh in his
statement recorded under Section 313 of Cr.P.C. has admitted
above facts. The prosecution witness Bag Singh (PW-9) has
corroborated above fact and deposed that on the date of incident
at around 11:00 O’clock in the night at village Shivna, he was

-8- Cr.A No.83/1996

sleeping in his house, the respondent Bhim Singh and Jai Ram
came to his house and informed him that Girwar Singh had
returned from Khandwa. He had sustained injuries due to fall
from Bullock-cart, his wife and daughter were also injured and
unconscious. Receiving this information, Bag Singh arrived at the
house of Girwar Singh and saw Girwar Singh, his wife and
daughter in injured condition and taken them to main hospital
Khandwa for treatment. It was found that wife of Girwar Singh
namely Basanti Bai was dead. The defence has not challenged the
testimony of Bag Singh in cross-examination.

16. Thus, considering the testimony of witness Bag Singh
(PW-9) and admission of respondent Girwar Singh in his
statement under Section 313 of Cr.P.C., it is established that on
the date of incident Girwar Singh had taken her wife Basanti Bai
and daughter Guddi to Khandwa by Bullock-cart for purchasing
ornaments. In the night, he returned home with the dead bodies
of Basanti Bai and her daughter. He informed that they had
sustained injuries due to fall from Bullock-cart on the way, while
they were returning home.

17. The prosecution has examined Sunil (PW-5) as eyewitness
to the incident. He deposed that on 11.01.1994 at around 6:00
O’clock in the evening he was present in his field situated at
Devjhari. He saw respondent Bhim Singh sitting near his field. He
had lit a wood fire. After some time, Bhim Singh went towards a
Nala. Seeing his suspicious conduct, Sunil followed him. He saw
Basanti Bai was lying at Nala and Girwar Singh was throttling her
neck. Bhim Singh was telling him to kill her. Seeing the incident,
Sunil became frightened and returned to his house. Next day, he
informed Home-guard Constable Kailash at police control room
Kahndwa. In cross-examination it appears that this witness is
making exaggerated statement in respect of giving information of
incident at Police Station Jawar also, but only on this ground, his
testimony which otherwise inspires confidence cannot be

-9- Cr.A No.83/1996

discarded. His version is corroborated by Kailash (PW-6). He
deposed that on 11.01.1994 at about 10:00 O’Clock in the day he
was on duty at Police Control Room Khandwa, the witness Sunil
came there and informed him that Girwar Singh had killed his wife
by throttling. Bhim Singh was also present there. He had seen the
incident. In cross-examination, it appears that due to lapse of
time, this witness is wrongly stating the date 11.01.1994 instead
of 12.01.1994 this is minor discrepancy and does not affect the
veracity of his statement.

18. It is argued by learned counsel for respondents that if Sunil
would have seen the incident why he had not informed any body
on the same day and why he did not lodge the report ? It is not
proved that he had intimated the police at Police Station Jawar.
This creates doubt on his testimony. We are not agree with the
contention of counsel for respondents. Sunil is a rustic witness. He
was not related with the deceased. Seeing the incident, he
became frightened and perturbed and returned home. Next day
he went to Police Control Room and informed Home-guard
Kailash. An ordinary villager could not make difference between
Home-guard Constable and Police Constable. Therefore, we
cannot disbelieve the testimony of Sunil on this ground that he
had not informed anybody about the incident. Although his police
statement under Section 161 of Cr.P.C. has been recorded after a
delay of one month but no questions has been asked from the
investigating officer in this regard by the defence. Thus, on this
ground also the testimony of Sunil cannot be disbelieved. In view
of aforesaid discussion, it appears that Sunil had witnessed the
incident and saw Girwar Singh throttling and killing his wife
Basanti Bai. As far as participation of Bhim Singh is concerned,
there is omission in 161 Cr.P.C. Statement of Sunil regarding Bhim
Singh who has instigated Girwar Singh to kill the deceased.
Therefore, the testimony of Sunil in respect of Bhim Singh cannot
be believed beyond reasonable doubt.

-10- Cr.A No.83/1996

19. Thus, from the evidence on record it is found that Girwar
Singh was all alone present with his wife Basanti Bai and newly
born child while they were returning home from Khandwa by
Bullock-cart. Girwar Singh brought dead body of deceased at
home and informed that the deceased had sustained injuries due
to fall from Bullock-cart. But, in postmortem report it is found that
the deceased was killed by throttling. Girwar Singh has to give
explanation how his wife died. His explanation of accident is
belied from postmortem report. If the neck of the deceased
Basanti Bai have been crushed under the wheels of Bullock-cart,
then the crush injuries and mark of wheel on the neck would have
been noticed in postmortem report. Normally the bones and
tissues of the neck would have been fractured if the neck was
crushed under the heavy wheel of Bullock-cart, but no such
injuries as described above have been found in postmortem.
Therefore, it cannot be believed that the deceased died in the
accident. This means that the respondent Girwar Singh is giving
false explanation regarding death of the deceased. This is a
strong circumstance against him indicating his involvement in
commission of crime.

20. Section 106 of Evidence Act lays down that
“When any fact is especially within the knowledge of
any person, the burden of proving that fact is upon
him.”

Hon’ble Apex Court in case law State of
Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 held
that:-

“The burden of proving the guilt of an accused is
on the prosecution, but there may be certain facts
pertaining to a crime that can be known only to
the accused, or are virtually impossible for the
prosecution to prove. These facts need to be
explained by the accused and if he does not do so,

-11- Cr.A No.83/1996

then it is a strong circumstance pointing to his
guilt based on those facts.”

21. Thus, from above discussions it is proved that due to family
dispute and maintenance case under Section 125 of Cr.PC., the
respondent Girwar Singh was not keeping good relation with his
wife Basanti Bai. The compromise Ex.P-1 shows that he had given
some land to deceased in lieu of maintenance. After the marriage,
deceased was being ill-treated and harassed by the respondents.
There was enmity between them and Girwar Singh was intending
to do away deceased. On the day of incident, Girwar Singh took
the deceased to Khandwa for shopping and while returning home,
he killed her by throttling. The incident was witnessed by Sunil
(PW-5). Thus, it is proved that Girwar Singh has committed
murder of his wife Basanti Bai. The trial Court on erroneous
appreciation of evidence disbelieved the statement of Sunil and
other circumstantial evidence led by prosecution and acquitted the
respondent Girwar Singh. The trial Court failed to appreciate the
fact that at the time of incident, Girwar Singh alone was present
with the deceased, therefore, he has to explain how deceased
died. Thus, it is proved that Girwar Singh has committed murder
of his wife Basanti Bai. The trial Court has wrongly disbelieved the
statement of Sunil (PW-5). Thus, relying upon circumstantial
evidence and the statement of PW-5, it is proved that respondent
Girwar Singh has killed his wife Basanti Bai.

22. Thus, the appeal is partly allowed. As far as acquittal of
Bhim Singh by trial Court is concerned, it is maintained and
affirmed.

23. The judgment of acquittal passed by trial Court in respect of
Girwar Singh is set aside. Girwar Singh is held guilty for
commission of murder of his wife Basanti Bai and causing
disappearance of evidence, punishable under Sections 302 and
201 of IPC and is hereby sentenced to undergo R.I. for life and

-12- Cr.A No.83/1996

fine of Rs.5000/- and in case of default shall undergo
imprisonment for six months and for offence under Section 201 of
IPC he shall suffer rigorous imprisonment for two years. His bail-
bonds stand cancelled, he be taken into custody and be sent to
jail to serve out his sentence.

(S.K.Seth) (Anurag Shrivastava)
Judge Judge

Vin**/haider
Digitally signed by SYED
MOHAMMAD SAQLAIN HAIDER
Date: 2018.02.28 21:30:27 -08’00’

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