Leelaram Vs the State of Chhattisgarh

conviction and order of sentence dated 11.02.2019 passed by learned 2^nd Additional Sessions Judge, Sakti, District Janjgir-Champa (C.G.), in S.T. No.39/2016 whereby and whereunder appellants have been held guilty for

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commission of offence and sentenced as described below :-

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CONVICTION	SENTENCE
Under Section 201 IPC	R.I. for 05 years with fine of Rs.500/- each and in default of payment of fine amount to further undergo additional R.I. for 02 months.
Under Section 302 IPC	R.I. for Life with fine of Rs.500/- each and in default of payment of fine amount, to further undergo additional R.I. for 02 months.

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The prosecution story, leading to conviction of the appellants is that on 01.09.2016 at around 11:30 pm, Head Constable Dalganjan Singh (PW-2) and Constable Umesh Kashyap (PW-11) of Police Station Hasaud, who were on patrol duty in Hasaud Town, reached Bajrang Chowk at 03.30 pm. They saw a motorcycle bearing registration No.CG 11 F 6411 coming from Jaijaipur, being driven by the accused/appellants and a sack was kept between them. The two constables tried to intercept the vehicle but they did not stop, then the vehicle was chased and it was stopped near Hasaud Bus Stand. When the police checked the jute sack, they found a body of woman inside it. Appellant No.2 - Rohit

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was driving the motorcycle and appellant No.1 - Leela Ram had kept the sack in the middle and was sitting at the back. Being enquired, they told that they are 2 brothers and 2 sisters, all are married and they have 10 acres of land. Their mother and sisters have got notices issued from Jaijaipur Tehsil regarding division of all the land into five parts and mother supported the sisters. Due to this reason, on 01.09.2016 at night, they strangulated the neck of their mother Jalbai (since deceased) and done to death in her room in village Kachanda while she was sleeping. They also stated that they were taking the body in a sack on a motorcycle to throw it in the Mahanadi river to hide the evidence. When the police caught them during patrolling, zero number merg and crime under Ex.P-5 was registered in Police Station - Hasaud. Inquest on the body of deceased was prepared under Ex.P-16 and death body of deceased was sent to C.H.C., Jaijaipur, where postmortem examination on the body of deceased was conducted by Dr. (Smt.) Saroj Kashyap (PW-07) and gave her report under Ex.P-17 noticing following injuries :-

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Bruise (thumb mark) in the size of 1.5 cm x 1.2 cm present on right side of neck just 1 cm back to ear with radish brown in colour in oval shape. On cut section, the injury was dry and parchment caused by blunt object and the injury was antemortem in nature.

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Multiple linear abrasions mark present over right side of neck measuring 3 cm x 0.1 cm x 0.1 cm, 2.5 cm x 0.1 cm x 0.1 cm, 5 cm x 0.1cm x 0.1 cm, 3.2 cm x 0.1cm x 0.1 cm, reddish in colour ill-define caused by hard and rough object and in injuries were antemortem in nature.

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Bruise on left side of neck just below the mastoid region measuring 1.5cm x 1.2cm, illdefine reddish brown in colour with oval shape caused by blunt object. The injury was antemortem in nature.

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Four bruise (finger mark) present over left side of neck measuring 2.1cm x 1cm, 1.3cm x 1cm, 1cm x 1cm, margin ill define, disc shaped reddish brown in colour. On cut section, dry and parchment like, caused by blunt object.

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Contusion on right upper and lower orbital region measuring 5cm x 5cm, reddish blue in colour, conjunctiva congested and hemorrhage clot blood present, margine ill define, caused by hard and blunt object.

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Contusion on left upper and lower orbital region measuring 6cm x 5cm, conjunctiva congested with hemorrhage, clot blood present, margin ill define, reddish blue in colour, caused by hard and blunt object.

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Contusion on left side of face extending from left eyebrow region to left forehead measuring 4cm x 3 cm, reddish blue in colour, margin ill defined, caused by hard and blunt object.

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Contusion on left upper front of chest to shoulder region measuring 10cm x 7cm, margin ill define, reddish blue in colour, caused by hard and blunt object.

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Contusion on right upper front of chest to shoulder region measuring 6cm x 5cm, reddish blue in colour, caused by hard and blunt object. 10. Bruise on mid front of chest measuring

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10cm x 6cm, reddish in colour, caused by hard and blunt object.

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Contusion on right side of mandible measuring 5cm x 3cm, reddish blue in colour, caused by hard and blunt object. 12. Contusion on upper lip in the size of 3cm x 1cm, reddish blue in colour, caused by hard and blunt object.

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Contusion on lower lip in the size of 3cm x 1cm, reddish blue in colour, caused by hard and blunt object.

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All the injuries were antemortem in nature. The Doctor has opined the cause of death of deceased to be asphyxia due to throttling. The mode of death was asphyxia and the death was homicidal in nature.

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During investigation, prima-facie after being found the appellants to have committed the offence under Sections 302 and 201/34, on 02.09.2016, FIR under Ex.P-04 was registered against them. Statements of witnesses were recorded. In Crime No.170/16 of Police Station Jaijaipur, Police Station Jaijaipur wrote a letter Ex.P-01 to Naib Tehsildar Hasaud for preparing a spot map of the incident. On the basis of the said letter, site map was prepared under Ex.P-02 and Panchnama Ex.P-03. On 02/09/2016, the appellant No.1 - Leela Ram was taken into custody and his memorandum statement Ex.P-22 was recorded. On 02/09/2016, on the basis of memorandum statement of

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appellant No.1-Leelaram Chandra, 9 pieces of gold wheat thread, Champa garland, one pearl garland, one sack sewing needle were seized from him and seizure memo Ex.P.-24 was prepared. From appellant No.2-Rohit, one motorcycle Hero Splendor Pro bearing registration No. CG 11 F 6411 navy blue colour, was seized in front of witnesses and seizure memo Ex.P. 23 was prepared. On the same day i.e. on 02/09/2016, one jute sack stained with blood, one jute sack, one blouse of blue colour, one plastic rope of about 2 meter of orange colour were seized from the place where the dead body was kept under Ex.P-25. The RC book of the motorcycle and the notice of revenue case were seized from appellant No.2-Rohit vide seizure memo Ex.P34 and the notice of revenue case was seized from appellant No.1- Leela Ram vide Ex.P.-35. On 01.09.2016 at 13.30 hrs., appellant No.1- Leela Ram and appellant No.2Rohit were arrested and arrest memo Ex.P-26 and 27 were prepared and information regarding arrest was given to their family member vide Ex.P-37.

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After completing usual investigation, charge sheet was filed against the accused-appellants under Sections 302, 201 read with section 34 of IPC, to which the accused-appellants abjured their guilt and pleaded for trial.

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After filing of the charge sheet, the learned trial Court

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framed charges against the appellants under Sections 302, 201 read with Section 34 of the IPC.

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So as to hold the accused-appellants guilty, the prosecution has examined as many as 27 witnesses. Statements of the accused-appellants were also recorded under Section 313 of the CrPC in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication.

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The learned trial Court after hearing counsel for the respective parties and considering the material available on record, has convicted and sentenced the accusedappellants as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellants submits that there is no eye-witness account to the occurrence and the conviction of the appellants is based on circumstantial evidence but none of the circumstances from which the inference of guilt of appellant can be drawn has been proved beyond reasonable doubt and, therefore, there can be no inference that it was the appellants who committed the murder. Learned counsel further submits that there is no direct evidence against the accused-appellants to connect them with the crime in question. Learned counsel also submits that the learned trial Court has not taken into consideration

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the evidence available on record in its proper perspective and by this way committed grave error in appreciating those piece of evidence which are incriminatory to the appellants and discarded those piece of evidence which are favourable to the appellants, which is against the principle of criminal jurisprudence. The learned trial Court has committed error in convicting the appellants solely on the testimony of Doctor (PW-7). The prosecution has failed to prove any motive in the case. Learned counsel also submits that the learned trial Court did not consider that as many as 27 witnesses have been examined by the prosecution but none of the witnesses have supported the case of the prosecution. There are omission and contradiction in the statement made under Section 161 to that of statement recorded under Section 164 and the statements made in the Court. The conviction of the appellants based on evidence adduced by the police during investigation which is highly unreliable and the evidence has not been duly corroborated by the independent witnesses. The prosecution has utterly failed to prove its case beyond all reasonable doubt. Therefore, the accused-appellants may be acquitted giving benefit of doubt.

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In support of his submission, learned counsel placed reliance on the decisions of this Hon’ble Apex Court in the

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matter of Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh reported in (2023) 16 SCC 510 .

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On the other hand, learned counsel for the State submits that the learned trial Court after appreciating oral and documentary evidence has rightly convicted the accusedappellants and no interference is called for by this Court. The appeal has no merit and the same deserves to be dismissed.

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We have heard learned counsel for the parties and perused the material available on record.

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It is apparent from the record of the learned trial Court that charges under Sections 302/34 and 201/34 of IPC were framed against the appellants and after appreciation of oral and documentary evidence, the learned trial Court convicted the appellants accordingly & sentenced them as described in para 01 of this judgment.

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The first question which arises for consideration before this Court whether the death of deceased Jalbai was homicidal or not.

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Dalganjan Singh (PW-2) is the Head Constable. He has stated that on 01.09.2016 at around 11.30 PM, he was on patrolling duty and one constable Umesh Kashyap (PW-11) was also with him. When they reached Bajrang Chowk at

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around 3.30 in the night, one motorcycle came from Jaijaipur side, on which appellants were sitting and a sack was kept between them. They intercepted the motorcycle but the appellants sitting on it did not stop and ran away. He has also stated that thereafter they chased the appellants on their motorcycle and stopped them near bus stand. They asked them what was in the sack but they did not tell them at first then they opened the sack and saw that there was a dead body in it. This witness has also stated that they asked the appellants whose body was that, they said that the dead body is of their mother whom they killed and were taking the body in a sack to throw it in the river. Thereafter, this witness along with other constable brought the appellants to Hasoud Police Station and informed the incident to Station House Officer and further investigation was carried out. This witness has also stated that his statement was taken by Station Incharge vide Ex.P-7 and on the basis of his statement, an FIR (Ex.P-4) was registered, in which he admitted his signature. He has also informed about the merg intimation being No.0/16 vide Ex.P-5. The police personnel had prepared the spot map under Ex.P-6 and this witness has admitted his signature in it.

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Umesh Kumar Kashyap (PW-11) is the Constable who was also on patrolling duty with Dalganjan Singh (PW-2). This

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witness has made similar statement as has been made by Dalganjan Singh (PW-2). He has stated that when he was on patrolling duty with Head Constable Dalganjan Singh (PW-2), they intercepted one motorcycle and found one dead body in the sack with the accused/appellants.

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Inquest on the body of deceased was prepared under Ex.P16 before PW-6 – Peelabai, daughter of deceased, PW-12 - Suraj Lal, nephew of the deceased, PW-13 – Doctor Prasad Chandra, son-in-law of the deceased and PW-24 – Harnarayan Yadav, a villager, and the dead body of deceased was sent to postmortem examination, which was conducted by Dr. Daroj Kachchhap (PW-7) and found as many as 13 injuries as mentioned in para 2 of the judgment and it was opined by the doctor that the cause of death of deceased was asphyxia due to throttling, mode of death was asphyxia and the death was homicidal in nature. In para 7 of her cross-examination, the autopsy surgeon (PW7) denied this suggestion of defence that the injuries sustained by the deceased could have been caused by attack by wild animals.

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Thus, from the aforesaid analysis of the prosecution witnesses including the postmortem report (Ex.P-17), the prosecution has been successful in proving this fact that the death of the deceased was homicidal in nature and cause of

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death was asphyxia due to throttling.

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The next question which arises for consideration by this Court whether it is the appellants who caused murder of their mother by throttling and with a view to conceal the evidence of crime, they transported the dead body in sack on their motorcycle at mid night ?

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It is apparent from the prosecution story that there is no eye witness to the incident and the prosecution story rests upon statements of Head Constable Dalganjan Singh (PW-2), Constable Umesh Kumar Kashyap (PW-11), memorandum of the appellants and consequent seizure thereof.

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The learned trial Court convicted the appellants on this ground that the dead body of deceased was found in possession of the appellants at mid night and they failed to offer any plausible explanation under Section 106 of the Evidence Act. The burden of proof lies upon the appellants as to how they came into possession of the dead body but they failed to offer any explanation and thus convicted them.

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In the instant case, foundation of the prosecution story commenced on the basis of statement of Dalganjan Singh (PW-2) and Umesh Kumar Kashyap (PW-11), who intercepted the appellants at mid night while on patrolling duty and found one sack in which the dead body of

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deceased was found and the other prosecution witnesses have stated that the police had told them that the appellants caused death of their mother Jalbai.

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Leela Bai (PW-5) is the sister of appellants and daughter of the deceased Jalbai. She has stated that she resides in her in-laws’ house at village Singhra. Her mother died on 02.09.2016 and the accused/appellant caused death of her mother. Her father Samelal died on 13.05.2016. At the time of death of her father, she had gone to attend the 10^th day ceremony of her late father and at the relevant time, accused/appellants, Amrika Bai and Nita Bai started abusing her. Her mother and father were residing separately and her mother told her that if she does not want to eat food, then don’t eat and go to her house. She has also stated that next day in the morning, she along with her sister Pilabai went to village Sarpanch Uttara Kumari and said that while removing the name of her father from the land record, he should add the name of this witness, her sister Pilabai, her mother deceased Jal Bai and both the brothers (the accused/appellants), then the village Sarpanch told them that when their brothers (accused/appellants) come, he would tell them. She has also stated that thereafter when accused/appellant Rohit went to village Sarpanch, he told him (appellant Rohit) that his sisters had come and after

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removing his father’s name from the land, she (this witness) was asking to register their (this witness and her sister’s) and their mother’s name in the land record, then accused/appellant Rohit told the Sarpanch that their partition has already been taken place, whereupon Sarpanch asked for documentary proof thereof and demanded death certificate of her father then accused/appellant Rohit went from there. This witness has also stated that after about 8-10 days her mother deceased Jalbai told her that the accused/appellants have got their name registered and name of deceased and this witness have not been registered in the revenue record. Thereafter, this witness, her sister Pilabai and deceased Jalbai went to Patwari and asked the Patwari about the status of land of their father Samelal then Patwari told them that he has recorded the name of accused/appellants and their partition has already been done so he has registered the names of both the accused/appellants in the land of Samelal. She has also stated that the accused/appellants had also told the Patwari that their parents have passed away and only their names have to be registered and no one else’s name has to be registered. This witness, in para 5, has also stated that she and her sister went to Patwari and asked him that how did he get the names of the accused/appellants registered

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without asking anyone, they are the daughters, their mother Jal Bai is also alive and why didn’t he ask the Sarpanch. Then the Patwari told them that the accused/appellant told him that they have no other family members. Thereafter, the Patwari told this witness that you all come, he will get the names of all of you registered. After that, this witness and

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her sister along with deceased went to the accused/appellants and told them that they all (accused/appellants) got only their names registered in father’s property, their mother is alive, get her name registered too then the accused/appellants told this witness

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that they would not get their (this witness, her sister and mother Jalbai’s) names registered, they (accused/appellants) have already divided the property amongst themselves. After that, they again went to the Patwari. She has also stated in para 6 that when the accused/appellants did not come to Patwari then he called them on phone then they came and told the Patwari that they don’t want any share in the property and give the entire land to them (this witness, her sister and mother Jalbai) and started arguing with them. Thereafter, the Patwari make the accused/appellants understand that nothing would happen by adding the names, after that the Patwari took their signature and registered the names of all of us in the land

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record. Thereafter, they came back home and the accused/appellants started abusing their mother Jalbai and told her that if she say that she has daughter, they will not give you food and if she say that she does not have daughter, they will give her food. After that, her mother deceased Jalbai told that she has daughter and from that day the accused/appellants stopped giving food to Jalbai and started residing in their respective houses. This witness has also stated in para 8 of her evidence that when the accused/appellants left her mother deceased Jalbai alone in old house, then her mother deceased Jalbai told both of us sisters that she will give both of you partition in the land and she (the deceased) would not be able to to stay alone in the house. She will come to their (this witness’s) house and stay for a few days. Then, this witness told the deceased that they will not take partition. If she is feeling scared then she can come to their house for 15 days and stay there. Then deceased Jalbai said that until they (this witness and her sister) do not take the partition, she (the deceased) will not come and stay with her in their house. This witness has also stated in para 9 that, thereafter, they (this witness and her sister) went to Tahsil Office at Jaijaipur and moved an application for partition amongst five persons and thereafter a notice for partition was sent to accused/appellants through

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Kotwar. This witness has also stated that next morning village Sarpanch Bhupendra Banjare came to her and told her husband that the accused/appellants have killed his mother-in-law and were taking her body away in a sack and the police of Police Station Hasaud have caught them.

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In cross-examination, this witness (PW-5) denied this suggestion of defence that Dalganjan Singh (PW-2) is relative of her husband and he hatch the criminal conspiracy to falsely implicated the accused/appellant.

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Pilabai (PW-6) has made almost similar statement as has been made by Leelabai (PW-5) and she also admitted this suggestion of defence that the police of Police Station Hasaud had told them that her brother (the accused/appellants) have killed their mother Jalbai. This witness has denied this suggestion of defence that she hatched the criminal conspiracy with Dalganjan Singh (PW2)

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Panchram (PW-8), Buddheshwar (PW-9), Suraj Lal (PW12), Doctor Prasad Chandra (PW-13), Khikram Chandra (PW-20) and Harnarayan Yadav (PW-24) all the witnesses have stated that the police of Police Station Hasaud informed them that the accused/appellants, after killing their own mother, were taking her body in sack on their motorcycle.

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Ex.P-22 is the memorandum statement of accused/appellant Leelaram (A-1) and according to his memorandum statement, one motorcycle bearing registration No.CG-11-F-6411 was seized under Ex.P-23 & one golden necklace, one pearl necklace and one sack needle were seized under Ex.P-24.

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Buddheshwar (PW-9) and Khikram Chandra (Pw-20) have admitted their signature on memorandum (Ex.P-22) on ‘A to A’ and ‘B to B’ part and have also admitted their signature on seizure memo (Ex.P-23, P-24 and P-25), however, in examination-in-chief, they have not supported the memorandum and seizure. The prosecution declared these witnesses hostile and cross-examined them but they denied all suggestions of the prosecution and stated that they only signed on all papers in the police station and they have not given any statement nor any seizure was made.

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Buddheshwar (PW-9) has admitted this suggestion of defence that when he signed all papers at police station, at that time, the accused/appellants were not present before him. Khikram Chandra (PW-20) has admitted this suggestion of defence that the police have told them that the accused/appellants were carrying the dead body in sack and the police have showed the dead body of deceased in the police station.

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Thus, looking to the statements of all the prosecution witnesses, key witnesses in this case happen to be the police official being Dalganjan Singh (PW-2) and Umesh Kumar Kashyap (PW-11), yet this Court cannot reject their statement merely on that ground and we have to examine the statements of both the witnesses with greater care and caution.

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Dalganjan Singh (PW-2) lodged the FIR (Ex.P-4), according to which, the same got recorded on 02.09.2016 at 5.00 AM & the date and time of the incident is 02.09.2016 at 3.30 AM. Further, merg intimation (Ex.P-5) was recorded on 02.09.2016 at 5.20 AM. This witness has denied this suggestion of defence that when he along with one staff intercepted the motorcycle of the accused/appellants were not there but Doctor Prasad Chandra (PW-13) and Panchram (PW-8) were in the motorcycle with dead body in sack and they falsely implicated both the accused/appellants at the instance of PW-13 and PW-8. He has also denied this suggestion of defence that they took PW-13 and PW-8 to police station with sack. This witness has remained firmed in cross-examination.

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Umesh Kumar Kashyap (PW-11) has only stated about two persons driving motorcycle and when they followed/chased them, they threw the sack in which one dead body was

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found, which they took to police station and informed the Station House Officer. The prosecution declared this witness hostile and cross-examined him but he denied this suggestion that motorcycle rider had told their name as Leelaram and Rohit Kumar and killed their mother due to land partition dispute. He has stated that after bringing the dead body in sack in police station he went to his house.

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If the testimony of these two witnesses (PW-2 and PW-11) is scrutinized closely, it clearly emerges that on the date of incident, both the witnesses were posted at Police Station – Hasoud and while on patrolling duty in the intervening night of 1-2/09/2016, they saw one motorcycle being driven by the accused/appellants. Dalganjan Singh (PW-2) promptly lodged the FIR and merg intimation of the incident.

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The prosecution has been successful in proving this fact that the death of deceased was homicidal in nature and PW2 remained firmed in his statement and proved this fact that both the accused/appellants were found with dead body of their mother Jalbai in sack.

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Leela Bai (PW-5) and Peela Bai (PW-6), sister of accused/appellants, have stated that there was property dispute among the accused-appellants, their mother and themselves. It is also proved that at the intervening night of the incident, the accused/appellants tried to dispose off the

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body of their mother.

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In case where house murder or the dead body found in the possession of the accused, is the issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died. Here in this case the dead body was found in the possession of the accused/appellants and as per the evidence of the witnesses, there was land dispute amongst accused/appellants, their deceased mother and sisters & owing to this they have stopped giving food to their deceased mother. While dealing with the matter involving the murder committed inside the house or in secrecy, it has been held by the Apex Court in the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 as under:

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“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

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escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) – quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character whichis almost impossible to be led or at any rate extremely difficult to be held. 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:

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“(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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Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubedly 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

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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 offeirng 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.”

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Further in the matter of State of Rajsthan v. Thkur Singh reported in (2014) 12 SCC 211 it has been held by the Apex Court as under:

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“17. In a specific instance in Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681) this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22)

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“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.”

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Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted

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for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.

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Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.

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In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22)

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“22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt.”

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More recently, in Gian Chand v. State of Haryana {(2013) 14 SCC 420} a large number of decisions of this Court were referred to and the interpretation given to Section 106 of the Evidence Act in Shambhu Nath Mehra was reiterated. One of the decisions cited in Gian

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Chand is that of State of WB v. Mir Mohammad Omar which gives a rather telling example explaining the principle behind Section 106 of the Evidence Act inthe following words: (Mir Mohammad Omar case (2000) 8 SCC p 393 para 35)

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“35. During arguments we put a question to the learned Sernioir Counsel for the respondents based on hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappered with the prey, what would be the normal inference if a mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. The learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise.”

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The law, therefore, is quite well settled 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, then it is a strong circumstance pointing to his guilt based on those facts.”

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Now if the facts of the present case are seen in the light of the afore-quoted judicial pronouncements, picture which emerges is almost identical. The death of the deceased in this case undisputedly took place in the privacy. In the cases like the present one, the assailant has all the opportunity to plan and commit the crime at the time and in the

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circumstances of his choice and it is extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence is insisted upon. Furthermore, no plausible explanation has come forth from the accused/appellants in their statement recorded under Section 313 of the Code of Criminal Procedure as to how the death of their mother occurred. It was their bounden duty to explain the things by leading cogent and pin-pointed evidence in their defence. Apart from that on the memorandum (Ex.P/22) of the accused/appellant Leelaram, recovery of motorcycle bearing registration No.CG-11-F-6411 vide Ex.P/23, golden and pearl necklace & and sack needle vide Ex.P-24 & one jute bag stained with blood, one bloodstained blouse and one orange colour rope vide Ex.P-25 were made, and at the instance of accused/appellant Rohit (A-2), one RC book of motorcycle bearing registration No. CG-11-F-6411 and notice issued in revenue case were seized vide Ex.P-34.

¶129

Thus in view of the aforesaid factual and legal position, this Court is of the considered opinion that the prosecution has collected sufficient evidence to hold the accused/appellants guilty for committing the murder of their own mother Jalbai and concealing the evidence of crime, & that way the Court below has also been justified to arrive at a conclusion

¶130

27

¶131

slapping conviction on the accused under Sections 201 and 302 IPC. Accordingly, the judgment impugned calls for no interference in this appeal.

¶132

Appeal thus being devoid of any substance is liable to be dismissed and it is hereby dismissed. Judgment impugned is affirmed. Being already inside, no order in respect of arrest etc. of the accused is necessary

¶133

The Lower Court records along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

¶134

Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellants are undergoing their jail term, to serve the same on the Appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶135

Sd/Sd/(Rajani Dubey) (Sachin Singh Rajput) Judge Judge

¶136

Digitally signedpekde by VIJAY BHARATRAO PEKDE

Leelaram v. the State of Chhattisgarh

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Leelaram v. the State of Chhattisgarh

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