1

Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

HIGH COURT OF MADHYA PRADESH

GWALIOR BENCH

DIVISION BENCH

G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.

Cr.A. No. 209 of 2010

Sitaram

Vs.

State of M.P.

Shri R.P. Gupta, Counsel for the Appellant.

Shri C.P. Singh, Counsel for the respondent/State.

Date of Hearing : 26-10-2021

Date of Judgment : 29-Oct-2021
Approved for Reporting : Yes

Judgment

29th-Oct. -2021

Per G.S. Ahluwalia J.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 15-1-2010 passed by

2nd Additional Sessions Judge, Dabra, Distt. Gwalior in Sessions Trial

No.57/2009, by which the appellant has been convicted under Section

302 of I.P.C. and has been awarded Life Sentence and a fine of

Rs.500/-, with default imprisonment of 6 months R.I.

2. The prosecution story in short is that the appellant is the

husband of the deceased Papitabai. He got married with her in the

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

year 2002. The deceased was residing with the appellant in Ayodhya

Colony, Jail Road, Dabra. In the morning of 16-12-2008, Sudama

informed Atar Singh, the father of the deceased, that his daughter has

expired, therefore, he should come immediately. Accordingly, Atar

Singh, Rajvir Singh, Chandan and Bhupendra came to Dabra and

found that the dead body of the deceased Papitabai was lying supine

in the house of the appellant. Thereafter, Atar Singh lodged report in

Police Station Dabra and accordingly, Merg No.122/2008 under

Section 174 of Cr.P.C. was recorded. The statements of the witnesses

were recorded. The spot map was prepared. The post-mortem of the

dead body of Papitabai was got done. The cause of death was found

to be strangulation. It was also found that the appellant was

demanding a motorcycle and an amount of Rs.20,000/- and was

harassing her for the same. It was also found that accordingly in the

night of 15-12-2008, the appellant had beaten his wife Papitabai. The

cause of death was strangulation, accordingly F.I.R. No.912/2008 was

registered. The police after completing the investigation, filed the

charge sheet for offence under Section 304B/302 of I.P.C.

3. The Trial Court by order dated 24-2-2009 framed charges

under Section 302 of I.P.C. or in the alternative under Section 304B

of I.P.C.

4. The appellant abjured his guilt and pleaded not guilty.

5. The prosecution examined S.C. Swarnkar (P.W.1), Satyadev

Sharma (P.W.2), Rampyari (P.W.3), Sushil Sharma (P.W.4), Sudama

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

(P.W.5), Parmanand Anuragi (P.W.6), Dr. Vibha Kurele (P.W. 7), Atar

Singh (P.W.8), Chandan Singh (P.W.9), Ranveer Singh (P.W.10),

Bhupendra (P.W.11), Meena (P.W. 12), Dr. R.K. Singh (P.W. 13),

Yashwant Singh (P.W. 14), Rakesh Singh Jadon (P.W. 15) and D.K.

Dixit (P.W. 16).

6. The appellant did not examine any witness in his defence.

7. The Trial Court by the impugned Judgment and Sentence,

convicted the appellant for offence under Section 302 of I.P.C.

8. Challenging the impugned judgment and sentence, it is

submitted by the Counsel for the appellant, that the appellant has

been convicted mainly on the ground that he has failed to explain as

to how his wife met with homicidal death. In fact the prosecution has

failed to prove that the death of the wife of the appellant was

homicidal in nature. The children of the appellant were not examined.

The possibility that some unknown person might have committed the

offence is not ruled out.

9. Per contra, the Counsel for the State has supported the

prosecution case as well as the findings recorded by the Trial Court.

10. Heard the learned Counsel for the parties.

11. Before adverting to the facts of the case, this Court thinks it

apposite to find out as to whether the death of Papitabai was

homicidal in nature or not?

12. Dr. R.K. Singh (P.W. 13) has conducted the post-mortem of the

dead body of Smt. Papitabai, and found the following injuries on her
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

body :

(i) One contusion of 3 cm x 2 ½ cm over right side of neck

starting from mastoid process to the angle of mandible.
(ii) Two Parallel contusions on left side of neck.
(a) 1 cm x 1 cm mandible towards angle.
(b) below “a” extending from left pinna downwards 2 cm
x2 cm.
(iii) One Contusion of 2 cm x 1 cm over middle of mandible.
(iv) One Contusion in area of 3 cm x3 ½ cm over chin extending
downwards.
(v) Multiple Contusions with swelling and abrasion in area of 5
cm x 4 cm extending from right eye to right ear.
(vi) Contusion with swelling over right upper and lower eye lid
with black eye.
(vii) Contusion with swelling over left upper and lower eye lid with
black eye.
(viii) Contusion of 1 ½ cm over right pinna.
All injuries were ante-mortem in nature.

In the opinion of the Doctors, the cause of death was Asphyxia

due to Strangulation. However, viscera was preserved and mode of

death was homicidal, but it was also mentioned that finally will

depend on circumstances and the evidence. The time since death was

6-12 hours of P.M.

The post-mortem report is Ex. P.7.

13. This witness was cross-examined and only one suggestion was

given that the witness has prepared the false report, which was denied

by Dr. R.K. Singh (P.W. 13).

14. It is submitted that since, in the post-mortem report, Ex. P.7, it

was also mentioned that final opinion would depend on

circumstances and the evidence, therefore, it is clear that the Autopsy

Surgeon were not sure about the cause of death.

15. Consider the submissions made by the Counsel for the

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

appellant.

16. In the Post-mortem report, Ex. P.7, it is clearly mentioned that

the cause of death is Strangulation. However, it was also mentioned

that the final opinion would depend on other circumstances and

evidence. This does not mean that Strangulation was not the cause.

Further, the presence of multiple injuries on neck, face, both eyes,

clearly shows that the deceased had struggled. Thus, after considering

the evidence of Dr. R.K. Singh (P.W. 13) coupled with the number of

injuries sustained by the deceased Papitabai, it is held that the

prosecution has succeeded in establishing that the death of the

deceased was homicidal in nature.

17. The next question for consideration is that whether the

appellant has committed murder of his own wife Smt. Papitabai or

not?

18. S.C. Swarankar (P.W.1) had given notice to the Panchas and the

Safina Form is Ex. P.1. The Lash Panchnama, Ex. P. 2 was prepared.

This witness was cross-examined. In cross-examination, this witness

clarified that the Lash Panchnama Ex. P.2 was prepared outside the

house of the deceased. The Lash Panchnama was prepared in

presence of the witnesses. He had received the information regarding

death of Papitabai in the morning of 16-12-2008. He was informed

by Tahsildar.

19. Satyadeo Sharma (P.W.2) did not support the prosecution case

and turned hostile.

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

20. Rampyari (P.W.3) also did not support the prosecution and was

declared hostile.

21. Sushil Sharma (P.W. 4) had brought Viscera, salt solution and

specimen of seal from dead house and handed over the same to Head

Constable Rakesh Singh who seized the same vide seizure memo Ex.

P.5 in the presence of Parmanand Anuragi (P.W.6).

22. Sudama (P.W. 5) has stated that he had informed Chandan

Singh regarding death of Papitabai. However, he did not support the

prosecution story on other aspects, therefore, he was declared hostile.

23. The entire prosecution case is based on circumstantial

evidence, and is based on following circumstances :

(i) The deceased and the appellant were residing under the same

roof.

(ii) On the date of incident, the deceased was with the appellant.

(iii) The death of deceased was homicidal.

(iv) As required under Section 106 of Evidence Act, the appellant

has not given any explanation as to how, his wife died a

homicidal death.

(v) Immediately after the incident, the appellant was found

missing.

(vi) False Explanation by the appellant under Section 313 of

Cr.P.C.

The deceased and the appellant were residing under the same

roof and on the date of incident, the deceased was with the
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

appellant.

24. Undisputedly, the deceased Papitabai was the wife of the

appellant. Atar Singh (P.W. 8) is the father of the deceased, whereas

Chandan Singh (P.W.9) is the cousin brother of Atar Singh (P.W.8).

Ranveer Singh (P.W. 10) is the brother of Atar Singh (P.W.8).

Bhupendra Singh (P.W.11) is the brother of the deceased. Meena

(P.W. 12) is the mother of the deceased.

25. Atar Singh (P.W. 8) has stated that they had gone to marry his

son, however, the appellant did not go with barat. Before the Barat

could return, the appellant took away the deceased with him. It was

also stated that the appellant was married to his daughter about 15

years back. Initially, the appellant used to keep the deceased properly,

but for the last about 1 year, he was harassing the deceased. After

receiving the information, he went to the house of the deceased. The

appellant was missing, and his daughter was lying dead in the house.

Accordingly, he made complaint, Ex. P.8. Safina form is Ex. P.1 and

Lash Panchayatnama is Ex. P.2. The spot map is Ex. P. 9. The dead

body was handed over to him and its acknowledgment is Ex. P. 10.

The last rites of the deceased were performed by this witness in

village Mohangarh. In cross-examination, this witness has stated that

the deceased had three children. The elder daughter is aged about 12

years, whereas one son is aged about 9 years and another is aged

about 7-8 years. He admitted that in complaint, Ex. P.8, he did not

mention that the appellant used to beat his daughter. He further

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

admitted that he had not mentioned in his complaint, Ex. P.8 that the

appellant has killed the deceased, but clarified that he had not seen

the incident. He denied that he wants money from the appellant.

26. Chandan Singh (P.W.9) has also stated that before the marriage

of the brother of the deceased could be completed, the appellant took

the deceased back and he also went to the matrimonial house of the

deceased and found that she was lying dead. He used to beat and

harass her. In cross-examination, he admitted that earlier no report

regarding beating was ever lodged.

27. The evidence of Ranveer Singh (P.W. 10), Bhupendra (P.W.11),

and Meena (P.W.12) are in similar lines. These witnesses were cross-

examined very briefly, but nothing could be elicited from their cross-

examination, which may make their evidence unreliable or

untrustworthy.

28. Thus, from the evidence of Atar Singh (P.W. 8), Chandan Singh

(P.W.9), Ranveer Singh (P.W.10), Bhupendra Singh (P.W.11) and

Meena (P.W.12), it is clear that the appellant used to beat the

deceased. The appellant did not attend the marriage of his brother-in-

law and also took away the deceased with him, even before

completion of marriage of his brother-in-law. The appellant has not

proved that the deceased Papitabai was not with him at the time of

incident. On the contrary, in his statement recorded under Section 313

of Cr.P.C., the appellant has admitted that he had returned from the

marriage of his brother-in-law along with the deceased.

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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

29. Thus, the prosecution has succeeded in establishing the

strained relationship between the appellant and his wife Papitabai,

and the deceased Papitabai was with the appellant on the date of

incident.

30. Furthermore, the dead body of the deceased Papitabai was

found in the house of the appellant.

31. The Supreme Court in the case of State of T.N. v. Rajendran,

reported in (1999) 8 SCC 679 has held as under :

6. Coming now to the second question, the law is

fairly well settled that in a case of circumstantial evidence,
the cumulative effect of all the circumstances proved must
be such as to negative the innocence of the accused and to
bring home the charge beyond reasonable doubt. It has been
held by a series of decisions of this Court that the
circumstances proved must lead to no other inference except
that of guilt of the accused. [See Ram Avtar v. State (Delhi
Admn.)1 and Prem Thakur v. State of Punjab2.] The law
relating to circumstantial evidence no longer remains res
integra and we do not think it necessary to multiply
authorities on this point. The circumstances which can be
said to have been established by unimpeachable evidence
are that the husband and wife namely the accused and the
deceased were frequently quarrelling and even on the date
of the incident they quarrelled with each other from 7 p.m.
to 9 p.m., as has been deposed to by PWs 1, 3 and 4. The
incident namely the death of the deceased and her two
children occurred inside the house of the accused and the
accused had been seen inside the house at 9 p.m. on the date
of the incident, which has been established through the
evidence of PWs 1, 3 and 4 and PW 1 happens to be a
neighbour. In course of the incident, the accused himself
was seen coming out of the house through the roof as
deposed to by PWs 1 and 3 and the accused has also
admitted in his statement under Section 313 of the Code of
Criminal Procedure. The very conduct of the accused in not
raising any alarm even on seeing the fire, knowing fully
well that his wife and two daughters were inside the house
(sic) and no attempt had been made by the accused to save
any one of the deceased persons. On the other hand the
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

prosecution evidence indicates that after coming out the

accused was standing as a silent spectator. The opinion of
the doctor indicating that the wife of the accused died of
asphyxia due to strangulation and not on account of burn
injuries and several findings indicated in the post-mortem
report undoubtedly supports the conclusion about the death
on account of asphyxia. If the accused and his wife were
seen together in the house at 9 p.m. and the accused came
out in the morning through the roof, leaving the wife and
two children and the death of the wife was found to be not
on account of burn injuries but on account of strangulation
and on being asked, the accused offers an explanation about
the accidental fire which is found to be untrue, then in such
a case, there cannot be any hesitation to come to the
conclusion that it is the accused who is the perpetrator of
the crime. In a case of circumstantial evidence when an
incriminating circumstance is put to the accused and the
said accused either offers no explanation or offers an
explanation which is found to be untrue, then the same
becomes an additional link in the chain of circumstances to
make it complete. This proposition fully applies to the
circumstances of the present case. On the circumstances
enumerated above which have been established by the
prosecution, we have no hesitation to come to the
conclusion that the charge of murder has been proved
beyond reasonable doubt as against the accused respondent
and the High Court erroneously acquitted him of the said
charge.

The Supreme Court in the case of Kalu v. State of M.P.,

reported in (2019) 10 SCC 211 has held as under :

13. In the circumstances, the onus clearly shifted on the

appellant to explain the circumstances and the manner in
which the deceased met a homicidal death in the
matrimonial home as it was a fact specifically and exclusive
to his knowledge. It is not the case of the appellant that
there had been an intruder in the house at night. In
Hanumant v. State of M.P., it was observed: (AIR pp. 345-
46, para 10)
“10. … It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully
established, and all the facts so established should be
consistent only with the hypothesis of the guilt of the
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

accused. Again, the circumstances should be of a

conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one
proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the
innocence of the accused and it must be such as to
show that within all human probability the act must
have been done by the accused.”
14. In Tulshiram Sahadu Suryawanshi v. State of
Maharashtra, this Court observed: (SCC pp. 381-82, para
23)
“23. It is settled law that presumption of fact is a rule
in law of evidence that a fact otherwise doubtful may
be inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved facts, the court exercises a process of
reasoning and reaches a logical conclusion as the most
probable position. The above position is strengthened
in view of Section 114 of the Evidence Act, 1872. It
empowers the court to presume the existence of any
fact which it thinks likely to have happened. In that
process, the courts shall have regard to the common
course of natural events, human conduct, etc. in
addition to the facts of the case. In these
circumstances, the principles embodied in Section 106
of the Evidence Act can also be utilised. We make it
clear that this section is not intended to relieve the
prosecution of its burden to prove the guilt of the
accused beyond reasonable doubt, but it 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. It is useful to quote the following
observation in State of W.B. v. Mir Mohammad Omar:
(SCC p. 393, para 38)
‘38. Vivian Bose, J., had observed that Section 106 of
the Evidence Act is designed to meet certain
exceptional cases in which it would be impossible for
the prosecution to establish certain facts which are
particularly within the knowledge of the accused. In
Shambu Nath Mehra v. State of Ajmer the learned
Judge has stated the legal principle thus: (AIR p. 406,
para 11)
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

“11. This lays down the general rule that in a criminal

case the burden of proof is on the prosecution and
Section 106 is certainly not intended to relieve it of
that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be
impossible, or at any rate disproportionately difficult,
for the prosecution to establish facts which are
“especially” within the knowledge of the accused and
which he could prove without difficulty or
inconvenience.
The word “especially” stresses that. It means facts that
are pre-eminently or exceptionally within his
knowledge.”’”
15. In Trimukh Maroti Kirkan v. State of Maharashtra, this
Court was considering a similar case of homicidal death in
the confines of the house. The following observations are
considered relevant in the facts of the present case: (SCC
pp. 690-91 & 694, paras 14-15 & 22)
“14. If an offence takes place inside the privacy of a
house and in such circumstances where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will
be extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if the
strict principle of circumstantial evidence, as noticed
above, is insisted upon by the courts. A Judge does not
preside over a criminal trial merely to see that no
innocent man is punished. A judge also presides to see
that a guilty man does not escape. Both are public
duties. (See Stirland v. Director of Public Prosecutions
— quoted with approval by Arijit Pasayat, J. in State of
Punjab v. Karnail Singh.) The law does not enjoin a
duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any
rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is capable
of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep
in mind Section 106 of the Evidence Act which says
that when any fact is especially within the knowledge
of any person, the burden of proving that fact is upon
him. Illustration (b) appended to this section throws
some light on the content and scope of this provision
and it reads:
‘(b) A is charged with travelling on a railway without
ticket. The burden of proving that he had a ticket is on
him.’
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

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.
* * *
22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes place in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission
of the crime.”
16. In view of our conclusion that the prosecution has
clearly established a prima facie case, the precedents cited
on behalf of the appellant are not considered relevant in
the facts of the present case. Once the prosecution
established a prima facie case, the appellant was obliged to
furnish some explanation under Section 313 CrPC with
regard to the circumstances under which the deceased met
an unnatural death inside the house. His failure to offer
any explanation whatsoever therefore leaves no doubt for
the conclusion of his being the assailant of the deceased.

The Supreme Court in the case of Shivaji Chintappa Patil v.

State of Maharashtra, reported in (2021) 5 SCC 626 has held as

under :

20. That leads us to the reliance placed by the High Court

as well as the trial court on the provisions of Section 106 of
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Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

the Evidence Act. In Subramaniam, this Court had occasion

to consider the similar case of the husband and wife
remaining within the four walls of a house and death taking
place. It will be relevant to refer to the following
observations of this Court: (SCC p. 426, para 23)
“23. So far as the circumstance that they had been
living together is concerned, indisputably, the entirety
of the situation should be taken into consideration.
Ordinarily when the husband and wife remained within
the four walls of a house and a death by homicide takes
place it will be for the husband to explain the
circumstances in which she might have died. However,
we cannot lose sight of the fact that although the same
may be considered to be a strong circumstance but that
by alone in the absence of any evidence of violence on
the deceased cannot be held to be conclusive. It may be
difficult to arrive at a conclusion that the husband and
the husband alone was responsible therefor.”
21. In Subramaniam, reliance was placed on behalf of the
State on the judgments of this Court in Trimukh Maroti
Kirkan v. State of Maharashtra and Ponnusamy v. State
of T.N. This Court observed thus: (Subramaniam case,
SCC p. 428, para 26)
“26. In both the aforementioned cases, the death
occurred due to violence. In this case, there was no
mark of violence. The appellant has been found to be
wholly innocent. So far as the charges under Section
498-A or Section 4 of the Dowry Prohibition Act is
concerned, the evidence of the parents of the deceased
being PW 1 and PW 2 as also the mediators, PWs 4
and 5 have been disbelieved by both the courts below.
That part of the prosecution story suggesting strong
motive on the part of the appellant to commit the
murder, thus, has been ruled out.”
22. It will also be relevant to refer to the following
observations of this Court in Gargi: (SCC p. 775, para 33)
“33.1. Insofar as the “last seen theory” is concerned,
there is no doubt that the appellant being none other
than the wife of the deceased and staying under the
same roof, was the last person the deceased was seen
with. However, such companionship of the deceased
and the appellant, by itself, does not mean that a
presumption of guilt of the appellant is to be drawn.
The trial court and the High Court have proceeded on
the assumption that Section 106 of the Evidence Act
directly operates against the appellant. In our view,
 15
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

such an approach has also not been free from error

where it was omitted to be considered that Section 106
of the Evidence Act does not absolve the prosecution
of its primary burden. This Court has explained the
principle in Sawal Das v. State of Bihar in the
following: (SCC p. 197, para 10)
‘10. Neither an application of Section 103 nor of 106
of the Evidence Act could, however, absolve the
prosecution from the duty of discharging its general or
primary burden of proving the prosecution case
beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will
sustain a conviction, or, which makes out a prima facie
case, that the question arises of considering facts of
which the burden of proof may lie upon the accused.’”
23. It could thus be seen that it is well-settled that Section
106 of the Evidence Act does not directly operate against
either a husband or wife staying under the same roof and
being the last person seen with the deceased. Section 106 of
the Evidence Act does not absolve the prosecution of
discharging its primary burden of proving the prosecution
case beyond reasonable doubt. It is only when the
prosecution has led evidence which, if believed, will
sustain a conviction, or which makes out a prima facie case,
that the question arises of considering facts of which the
burden of proof would lie upon the accused.

32. Thus, if the evidence led by the prosecution is considered in

the light of the judgments of the Supreme Court, then it is clear that

the prosecution has established beyond reasonable doubt that the

deceased Papitabai was residing with the appellant under the same

roof, and on the date of incident, the appellant and the deceased were

together and the dead body of the deceased was found in the house of

the appellant. It has also been established, that the relationship

between the appellant and deceased were strained. Further, the

appellant has also admitted in his statement under Section 313 of

Cr.P.C. that he had returned from the marriage of his brother-in-law

 16
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

along with the deceased.

The death of the deceased Papitabai was homicidal

33. This Court in para 16 of the judgment has already held that the

death of deceased Papitabai was homicidal in nature.

As required under Section 106 of Evidence Act, the appellant has

not given any explanation as to how, his wife died a homicidal

death.

34. The prosecution has already proved that the appellant was

residing with the deceased under the same roof and on the date of

incident also, the deceased was with the appellant, and She died a

homicidal death in the house of the appellant. The dead body of the

deceased was also found in the house of the appellant.

35. The appellant has not given any explanation as to how his wife

died a homicidal death. The complaint, Ex. P.8 was made by Atar

Singh (P.W.8) at 9:45 A.M. in Police Station Dabra, Distt. Gwalior

and therefore, it is clear that the deceased Papitabai had already died

much prior to 9:45 A.M. As already pointed out, the appellant had

also admitted in his statement under Section 313 of Cr.P.C., that he

had returned from the marriage along with the deceased. However, in

his statement under Section 313 of Cr.P.C., the appellant has taken

the following defence :

vrj flag us xksfoUn ls 40]000 pkyhl gtkj :i;s dqN fnu ds

fy;s Fks ftl fnu iihrk ckbZ ejh FkhA ;g :i;s enu pkSgku
fuoklh cMkSuh ds lkeus fy;s FksA eSus viuh iRuh iihrkckbZ dks
ugh ekjkA eSus dHkh ekjihV ugh dhA dHkh dksbZ ekax ugh dhA eS
?kVuk okys fnu Mcjk eaMh es iYysnkjh djds fnu ds yxHkx 4
 17
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

cts vius /kj x;k Fkk rFkk ySV~hu djus pyk x;k FkkA tc eS
ySV~hu djds vius /kj okfil vk jgk Fkk rks eq>s xksfoan esjs /kj ls
fudyrs gq, feyk rFkk /kj es esjh iRuh eq>s ejh iMh feyh rFkk
cPps jks jgs FksA xksfoan esjs lekt dk gSA dksbZ fj'rsnkj ugh gSA eS
funksZ"k gwa eq>s >wBk Qalk fn;k gSA

36. From the defence taken by the appellant, it is clear that he has

taken a defence, that when he returned in the afternoon at about 4

PM., then he saw that Govind was coming out of the house and his

wife was lying dead. It is not out of place to mention here that the

deceased died in the morning hours, some times around 4-6 A.M.,

whereas the appellant has claimed that he returned back at 4 P.M. and

his wife was lying dead. Further, the natural conduct of the appellant

should have been to inform the police and should have participated in

the police investigation. However, the Counsel for the appellant,

could not point out any police document, which may indicate, that the

appellant was present and had participated in the investigation. On

the contrary, it is clear that all the investigation was done in the

presence of Atar Singh (P.W.8) and other relatives of the deceased.

Even the dead body of the deceased was received by Atar Singh

(P.W.8) and even the last rites of the deceased were performed by her

father Atar Singh (P.W.8) and not by the appellant. Even in his

statement under Section 313 of Cr.P.C., this witness has admitted that

Atar Singh had performed last rites of the deceased in village

Mohangarh and other rituals were also performed by Atar Singh (P.W.

8).

37. Further in reply to another question put to the appellant under

 18
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

Section 313 of Cr.P.C., it was replied by the appellant as under :

ughA eS VsEiks ls yk'k dks Qasdus ugh tk jgk FkkA bykt djkus
ys tk jgk FkkA

38. Although the original prosecution story was that the appellant

was trying to dispose of the dead body by taking it in a tempo, but

after noticing the residents, he ran away after throwing the dead body

on the spot. However, it is made clear that all the witnesses to the

above mentioned circumstance have turned hostile. But the appellant

has admitted in his statement under Section 313 of Cr.P.C. that he was

trying to take the deceased to the hospital for treatment. Thus, if that

defence is correct, then the appellant should not have left the dead

body on the spot and should have taken it to the hospital.

39. Thus, it is held that the appellant has not given any explanation

as to how, his wife Papitabai died a homicidal death.

Immediately after the incident, the appellant was found missing.

40. As already pointed out, the appellant could not point out from

any evidence or prosecution document, that he was present on the

spot. Even otherwise, the appellant was arrested after 8 days of

incident. Thus, the presence of the appellant, after the incident has

not been proved. Thus, it is clear that the appellant absconded

immediately after the incident. It is true, that this circumstance, by

itself, may not be sufficient to hold the appellant guilty, but if this

circumstance is considered along with the above mentioned

circumstances which have been found proved, then it is clear that the
 19
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

abscondence of the appellant from the spot is also an additional

circumstance, which indicates towards the involvement of the

appellant in the murder of his own wife.

41. The Supreme Court in the case of Omprakash Vs. State of

Uttaranchal reported in (2003) 1 SCC 648 has held as under :

10.... Another circumstance to be borne in mind is that the

appellant absconded and he was apprehended only after
five long years. There was no apparent explanation for this.

The Supreme Court in the case of Dara Singh Vs. Republic of

India, reported in (2011)2 SCC 490 has held as under :

88. The other circumstance urged by the prosecution was

that A-3 absconded soon after the incident and avoided
arrest and this abscondence being a conduct under Section 8
of the Evidence Act, 1872 should be taken into
consideration along with other evidence to prove his guilt.
The fact remains that he was not available for quite some
time till he was arrested which fact has not been disputed by
the defence counsel. We are satisfied that before accepting
the contents of the two letters and the evidence of PW 23,
the trial Judge afforded him the required opportunity and
followed the procedure which was rightly accepted by the
High Court.

42. A specific question was put to the appellant in his statement

under Section 313 of Cr.P.C. that the witness has stated that the

appellant Sitaram was not found on the spot, then it was merely

replied by the appellant that irk ughA

43. Thus, it is held that the appellant immediately absconded from

his house and could be arrested only on 24-12-2008, Ex. P.13, which

was admitted by the appellant in his statement under Section 313 of

Cr.P.C. also.
 20
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

False Explanation by the appellant under Section 313 of Cr.P.C.

44. The Supreme Court in the case of Rohtush Kumar Vs. State

of Haryana reported in (2013) 14 SCC 434 has held as under :

29. “50. It is obligatory on the part of the accused while

bexplanation with respect to the incriminating
circumstances associated with him, and the court must take
note of such explanation even in a case of circumstantial
evidence, to decide as to whether or not, the chain of
circumstances is complete.”
[Vide Musheer Khan v. State of M.P. and Sunil Clifford
Daniel (SCC p. 221, para 50).]
30. This Court in State of Maharashtra v. Suresh held as
under:
“51. … when the attention of the accused is drawn to
such circumstances that inculpate him in relation to the
commission of the crime, and he fails to offer an
appropriate explanation or gives a false answer with
respect to the same, the said act may be counted as
providing a missing link for completing the chain of
circumstances.” (Sunil Clifford Daniel case, SCC p.
221, para 51)
31. Undoubtedly, the prosecution has to prove its case
beyond reasonable doubt. However, in certain
circumstances, the accused has to furnish some explanation
to the incriminating circumstances, which have come in
evidence, put to him. A false explanation may be counted as
providing a missing link for completing aing examined
under Section 313 CrPC to furnish some e chain of
circumstances.

45. As already pointed out, the appellant had offered false

explanation in his statement under Section 313 of Cr.P.C., therefore,

such false explanation also provides an additional link.

46. If the circumstances relied upon by the prosecution are

considered in the light of the judgment passed by the Supreme Court

in the case of Sharad Birdhichand Sarda Vs. State of

Maharashtra, reported in (1984) 4 SCC 116, then it is clear that the

 21
Sitaram Vs. State of M.P. (Cr.A.No.209 of 2010)

chain of circumstances proved by the prosecution is complete.

Therefore, it is held that it is the appellant and appellant alone who

had killed his wife, Smt. Papitabai.

47. Accordingly, he is held guilty of committing offence under

Section 302 of I.P.C.

48. So far as the question of sentence is concerned, the minimum

sentence for offence under Section 302 of IPC is Life Imprisonment,

therefore, it does not require any interference.

49. Ex Consequenti, the judgment and sentence dated 15-1-2010

passed by 2nd Additional Sessions Judge, Dabra, Distt. Gwalior in

Sessions Trial No.57/2009 is hereby Affirmed.

50. The appellant is in jail. He shall undergo the remaining jail

sentence. A copy of this judgment be immediately provided to the

appellant, free of cost.

51. Let a record of the Trial Court be sent back along with the copy

of this judgment for necessary information and compliance.

52. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)

Judge Judge

ARUN KUMAR MISHRA

2021.10.29 16:42:22 +05'30'