Jamnadas Vs State of M.P

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 156 OF 2015

Jamnadas … Appellant

Versus

State of M.P. …Respondent

WITH CRIMINAL APPEAL NO. 155 OF 2015

Manoj … Appellant

Versus

State of M.P. …Respondent

J U D G M E N T

Prafulla C. Pant, J.

These appeals are directed against judgment and order

dated 23.8.2012 passed by High Court of Madhya Pradesh,

Bench Indore, whereby criminal appeal no. 977 of 2007 (filed

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by father-in-law of deceased), criminal appeal no. 993 of 2007

(filed by husband of deceased), and criminal appeal no. 1000

of 2007 (filed by mother-in-law of deceased) were dismissed.

At the outset, it is relevant to mention that Special Leave

Petition (Crl.) No. 9812 of 2013 filed by Dhanwantari

(mother-in-law of deceased) was dismissed by this Court as

withdrawn on 16.9.2014. The present criminal appeal nos.

156 of 2015 and 155 of 2015 have arisen out of Special Leave

Petition(s) filed by father-in-law and husband of deceased,

respectively.

2. It is a case where a young bride was brutally murdered

within six months of her marriage, her body chopped off in two

pieces and thrown in a park.

3. Prosecution story in brief is that on 16.9.2006 at about

19.50 hours (7.50 p.m.) PW 19 Constable Nirmal Kumar Patil

received telephonic information at Police Control Room that a

middle aged woman came on a scooty, and threw two bundles

wrapped in bed sheets in Sewa Ram Zilani Garden, Patel

Nagar, Indore, and that some blood stains were visible from

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the packets. On the basis of the telephonic information,

Ext.P.33 was recorded at the Control Room. Within five

minutes at about 19.55 hours (7.55 p.m.) the information was

transmitted to the concerned police station Juni and

information Ext. P.34 was recorded. After Dehati Murg

intimation Ext.P.1 entered, PW 17 Head Constable Ashraf Ali

left the Police Station Juni along with PW 12 Constable Mohd.

M. Ahmad towards the spot. Enquiries were made in the same

evening on which PW 1 Mukesh Jaiswal told that as usual on

that day (16.09.2006) at about 5.30 p.m., he had gone to

temple and was sitting with PW 5 Manohar @ Mannu, PW 4

Udhav Dass and PW 3 Narayana. They sent PW 2 Phugga @

Kamal to bring milk, and after sometime PW 2 Phugga @

Kamal came back and told them that one packet wrapped in

colored bed sheet was lying in the park near walking track, in

which blood spots were visible. The above named four persons

with Phugga went towards the place, and saw the bundle with

blood stains. Soon thereafter they saw a woman coming on an

Activa who threw another packet, and went away. On this the

telephonic information was given to the Control Room.

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Thereafter Murg inquiry was made by PW-35 SI Mohan Lal

Purohit, who registered crime no. 431 of 2006 on the next day

17.9.2006 against unknown persons. Inquest report Ext.P-6

was prepared by the police on 17.9.2006 at about noon after

dead body was identified as the one that of Bhoomi @ Richa by

PW 6 Sanjay Chhabra, cousin of the deceased. The dead body

was sent in a sealed condition for autopsy.

4. Thereafter, house of the appellants i.e. 40, Sarvodaya

Nagar (Indore) was searched. During investigation blood stains

were found in the house of the appellants. Samples of blood

stains were taken and, search memo Ext.P-54, P-56 and P-57

prepared in the presence of PW 30 Suresh Neema and one

Ramesh. Silver colour Activa bearing registration No. MP

09/JX-7556 was also seized.

5. The investigation revealed that marriage of Bhoomi @

Richa (deceased), daughter of PW-22 Rajesh Kumar Nachani,

was solemnized with appellant Manoj on 22.4.2006 at Indore,

whereafter she started residing in 40, Sarvodaya Nagar with

her husband (Manoj), father-in-law (Jamnadas), Mother-in-law

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(Dhanwantari), brother-in-law (Vishal) and minor sister-in-law

(Heena @ Madhuri).

6. On 19.9.2006, appellants Manoj and Jamnadas along

with Dhanwantari (mother-in-law) were arrested. After their

arrest, accused were medically examined by PW 27 Dr. G.L.

Sodhi, who found marks of simple injuries on the person of

Dhanwantari, and medical report Ext.P-50 was prepared. On

23.9.2016, Vishal (brother-in-law of deceased) was also

arrested.

7. After investigation, a charge sheet was filed against four

accused namely – Manoj (husband), Jamnadas (father-in-law),

Dhanwantari (mother-in-law) and Vishal (brother-in-law) for

their trial in respect of offences punishable under Sections 302

(read with Section 34) 201, 304-B and 498-A IPC. The case

appears to have been committed by the Magistrate to the

Court of Sessions where the trial court framed charge in

respect of all the above offences against the first three

accused. As against accused Vishal, charge only relating to

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offence punishable under Section 201 IPC was framed. All the

accused pleaded not guilty and claimed to be tried.

8. Prosecution got examined PW 1 Mukesh Jaiswal (who

saw Dhanwantari disposing of body of the deceased), PW 2

Phugga @ Kamal (who first noticed the thrown 1st packet), PW

3 Narayana (who was with PW 1), PW 4 Udhav Dass (who was

also with PW1), PW 5 Manohar @ Mannu (who was also with

above four, and informed the Police Control Room), PW 6

Sanjay Chhabra (cousin of the deceased, who identified the

dead body), PW 7 Dinesh (Parking Stand wallah), PW 8

Yogendra (Hostile witness), PW 9 Rajesh Agrawal (Contractor

of boundary wall of the park), PW 10 Constable Ram Babu

Sharma (who received ten sealed packets from M.Y.Hospital

for being sent to F.S.L.), PW 11 Head Constable Radhey

Shyam Sharma (who prepared Ext.P-25 Murg/ intimation), PW

12 Constable Mohd. M. Ahmad, PW 13 Constable Smt. Savitri,

PW 14 Constable Mahabal Singh Chauhan, PW 15 Dr. N.M.

Unda (who conducted autopsy on the dead body of the

deceased), PW 16 Dr. Anil Kapoor, PW 17 Head Constable

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Ashraf Ali, PW 18 Dr. Bharti Dwivedi, PW 19 Constable

Nirmal Kumar Patil (posted in PCR, Indore who informed the

Duty officer), PW 20 Manoj Chauhan (Wireless Operator who

received message from PW 19), PW 21 Pankaj Nagpal, PW 22

Rajesh Kumar Nachani (father of the deceased), PW 23

Rajendra Kumar, PW 24 Keshav Kumar, PW 25 Sonam, PW

26 Umesh Nara (uncle of deceased), PW 27 Dr. G.L.Sodhi (who

examined injuries on person of Dhanwantari), PW 28 Jeevan

Lotani, PW 29 Harish, PW 30 Suresh Neema, PW 31 Yogesh

Gupta, PW 32 Madhuri (minor sister-in-law of deceased), PW

33 Padvilochan Shukla (Investigating Officer), PW 34 Raksh

Pal Singh (Incharge P.S. Juni), PW 35 Mohan Lal Purohit and

PW 36 Sub Inspector K. L. Pandey.

9. The prosecution evidence was put to each one of the

accused under Section 313 Cr.P.C to which they replied that

the same is false. It is pleaded by the accused that Bhoomi @

Richa was missing after she went to her relative’s place. It is

further pleaded by the appellants that they were in the shop

during the day time when Bhoomi @ Richa went missing. In

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defence, DW 1 Parmanand Sharma, (servant in the shop) was

got examined in support of plea of alibi of the appellants.

10. The trial court after hearing the parties found that charge

framed against accused Vishal (brother-in-law of the deceased)

regarding his involvement in the crime, was not proved beyond

reasonable doubt as such he was acquitted. The trial court

found rest of the three accused, namely, Dhanwantari, Jamna

das and Manoj guilty of offence of murder with common

intention punishable under Section 302 read with Section 34

IPC, and convicted them accordingly. Accused Dhanwantari

was further convicted under Section 201 IPC for causing

disappearance of evidence of murder. After hearing on

sentence, 6th Additional Sessions Judge, (Indore), vide his

order dated 24.8.2009, sentenced each of the convicts under

Section 302/34 IPC imprisonment for life and directed to pay

fine of Rs.5000/-. It was further directed that in default of

payment of fine, the defaulter shall undergo further rigorous

imprisonment for a period of one year. Convict Dhanvantari

was further sentenced to undergo rigorous imprisonment for a

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period of three years and to pay a fine of Rs.5,000/- in respect

of offence punishable under Section 201 IPC and in default of

payment of fine she was directed to undergo three months

rigorous imprisonment. On other heads, the accused stood

acquitted from the charge.

11. The three convicts filed separate appeals before the High

Court and the same were heard together and disposed of by

the common judgment and order dated 23.8.2012, impugned

in these appeals.

12. Before further discussion, we think it just and proper to

mention the ante mortem injuries and post mortem injuries

found on the body of the deceased (Bhoomi @ Richa), recorded

by PW-15 Dr. N.M. Unda, Demonstrator, Forensic Medicine

and Toxicology Department, M. G. M. Medical College & M. Y.

Hospital, Indore on 17.09.2006 at 2:00 p.m. recorded in

Exhibit P-27. The observations in the autopsy report are

reproduced below:-

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“Dead body received in sealed condition, in two

separated pieces in the two bed sheets stained with

blood. Body appears cleaned and washed. Faint

blood stained marks on the body, no clotting present.

Dorsal part and the skin of the hands and fingers

showing very slight shrinking effect and all the

wound part small sizes show very scanty amount of

blood at deeper level while upper part shows clean.

Body separated with hard and sharp object at just

above the umbilicus shows multiple inflictions by

moving body all around and vertebral column cut at

inter vertebral disc with multiple inflictions over the

cartilogenous part and on vertebrae. Some part of the

intestinal loops small and large missing, and faecal

soiling present and lower part of abdomen where

vertical present right to umbilicus to pubic symphysis

indicating cut mark on the bony and soft tissue part.

Body separation exposing abdominal and Pelvic

cavity part are post-mortem in nature with separated

intestinal opening (available). Some part of the

kidney blood vessel and soft tissue missing.

Multiple post mortem wounds present on the different

parts of the body over the foot, leg and wrist shows

the intention with post mortem nature to convert

body in small pieces for disposal.

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Multiple defence wound present in the both hands

and palmer side over the metacarpo phalangeal joint and proximal phalaxin part in a plane with fist

closed. Cut mark manner (pattern) shows an object moved within closed fist. Other three deep cut marks

present in the palm of left hand also present. Total number given on other page with other small wounds

present on both hands.

Lower half part 96 cm and upper part 63 cm.

adjusted length.

Body average built, eyes closed. Partly, mouth closed

and lip approximated. Rigor Mortis present all over

body stiffness present. Hypostasis present on the

back side of the body and fixed and faint. Cut part

circumference 73 cm and 23 cm at chest upper part.

Lower part circumference and diameter 27 cm into

20 cm both part matching each other shows the

multiple cut marks. Scalp hairs present at places

over the body. Other hairs also present.

Stomach some watery fluid light brown in colour

about 190 ml with slight altered smell and mucosa

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healthy. Small intestine - contains little slight

digested food. Large intestine - contains little faecal

in the lower available part. Liver and Spleen pale

and healthy. Kidney - dorceline lower part missing.

Genitals - available but shows stabwound in the

lower part laterally in the broad ligature. Uterus

small size. Slide from cervice opening and uterine

cavity made along with vaginal smear slide and

swab – pubic hair shaved and preserved for any

foreign hair and other evidences. Uterus measured

in formation for histopathological examination.

Anal opening dilated and shows an funnel pattern

with multiple superficial indepth heal scar marks …

with mostly healed too.

Both lungs pale and healthy

Trachea pale and healthy injury present described in

injury at serial 3.

Heart practically completely empty.

External injury on scalp described on Injury section.

Superficial cut marks present on the skull, Rest

healthy

Brain extremely congested and non specific smell

present. Preserved for chemical analysis and sent to

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pathological examination no subdual or extradual

collection found.

Death was due to shock and hemorrhage as result of

(ante mortem) multiple injuries to the body.

Death homicidal in nature.

Along with ante mortem injuries, post mortem

injuries present i.e. post mortem separation of body

into two halves and trying (effect of cutting) to into

multiple pieces with missing of intestinal parts (loops)

and kidney lower part, mesentery and blood vessels.

Evidence of defence wounds present and effect of

leaning i.e. removing stains present.

Preservation

1. Viscera preserved for chemical analysis.

2. Vaginal smear slides swab preserved along

with cervical smear, uterine cavity fluid slide

preserved.

3. Anal swab slide preserved

4. Brain material preserved separately for

chemical analysis.

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5. Pubic hair preserved with other material after

shaving.

6. Trimming of nails all fingers with its content

7. Scalp hair with skin pieces.

8. Other hair present

9. Both bed sheets

Brain and uterus preserved for histopathology

examination in formation.

All articles sealed and handed over to P.S.

Duration of death within 12 to 36 hours since post

mortem examination.”

(Emphasis supplied)

Wound marks as recorded in separate sheet annexed

with autopsy report are reproduced below:-

I. Four incised wounds present on the left side

face including lateral part eye lid to the ear

sizes (1) 11 x 1 ½ (2) 10 x ½ (3) 9 x 0.75 (4) (7 x

2) cm all are vertically placed extending up to

forehead left side. II. Multiple incised wound present on the right face

11 in (Eleven) number with muscle deep size

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1.5cm x 1.0cm to 1x1 cm size on upper lip. Rest

on cheek and zygomatic area.

III. Contusion present on the right zygomatic part

between 2 incised wound 3.5 x 1.3 cm size

transversely placed.

IV. Stab wound present on the right side cheek just

lateral to angle of mouth 3x1.5cm into deep

tongue skin deep 3.2 cm other smaller incised

on its medical and size 2 x 1cm size this also

deep skin.

V. Injuries as on the neck. Anterioly 3 x 1.0 cm

sizes 2 wounds present just lateral to med in a

right side and 2 wounds later mid line on left

side. Wound deep to neck tissue structure but

anteriorly no large vessel cut of wound deep to

the sub cut to neck tissue all the soft tissue

structure attached to the trachea on right side

shows cut marks. Back of the neck. Chop

wound present on the back mid line part size

6.9cm x 2.5cm x deep to the vertebral column

transversely placed with 2 infliction overlapping

each other mid line size measured 4.5 cm

wound all the muscles and deep structure

injury show cut marks.

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VI. 2 incised wounds present on the chest 4.0cm

medical to the left nipple size 3.0 x 1.2cm at 6th

rib other on right side 3.0cm lateral to mid line

at 7th rib size 2.8 x 1.0cm depth to the bone.

Multiple very small and fine linear large

marking wound present on the chest 0.1cm

deep present with varying length.

VII. Wound on right side upper limb (on the arm)

measuring deep wound 15 x 6 cm size deep to

muscle up to bone but no cut mark (on the bone)

seen. Muscles deep with two other injuries 5 x

2 cm and measuring with 3 superficial injury

mark.

VIII. Forearm multiple superficial injury longer size

obliquely placed and fine linear type. (Size not

mentioned). At right wrist obliquely placed 2

injury 6 x 2 cm deep to bone on dorsal part 6 x

0.3 cm this also present… medial to it. Defence

type wound. 3 incised wound present on right

forearm posterior medial border measuring

1x04cm at upper 1/3rd part second at lower

1/3rd part 3.0 x 1.0cm and 2.7 x 1.3 cm with

oblique slashing effect. One wound on the

dorsal of the thumb right side 1.2 cm x 0.2 cm

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skin deep. 5 wounds present on the right four

finger 10cm to 1.4cm and size width 0.2 to 0.3

cm deep to bone and to knuckle contusion also

present.

IX. Injury on left upper limb 4 incised wounds

present on the left upper limb (1) 4x2cm (2) 3.5

x 2.0cm (3)1.5 x 1.0cm and (4) 1 x 1cm size. All

are muscle deep. 3 injury present on the back

of the arm (1) 6 x 3cm (2) 3 x 1cm (3) 2.5 x

1.0cm all deep to muscle. Left forearm anterior

middle part 4 x 2cm size deep to muscle. Practically 3.4 amputated part size of the

wound 6 x 4.0 cm. Post mortem (in nature)……..

(illegible)

X. One stab wound present on the abdomen deep

to cavity 3.9cm x 2.0cm and other 6 incised

wounds present on the abdomen varying size

small deep to subcutaneous tissue.

XI. Four incised wounds present on the buttock (1)

2 x 1 (2) 3 x 1 ½ (3) 2 x 1 ½ (4) 3 x 1 ½ cm on

right side buttock and below buttock all deep to

muscle.

XII. Two stab wounds present on the thigh femoral

triangle L/3 part size of the wound 9.2 x 3.5 cm

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deep to the bone part with slight extension

effect total depth of the wound 8.5 cm all the

tissues and vertical part structure cut wound

….. in nature object is very sharp. There is very

less and very slight contusion. Direction of

wound is anterior posterior. 2 wounds incised

measuring 5.2cm meet each other with

overlapping.

XIII. Anteriorly Right thigh post mortem nature

wound 5 x 1 cm deep muscle. An injury of 9.2

cm on right leg at L/3 and middle 1/3 part of

leg. Cutting of both feet with ……… marks of injury

present at foot lower and medial part and left

foot lateral part. Right foot 6 wounds of 11.00 x

0.5 cm to 1.2 cm size depending upon the depth

maximum upto 2 cms with cutting of bones. (Emphasis supplied)

13. PW-15 Dr. N.M. Unda has stated that injury No. IX (in

para) and injury No. XIII were post mortem in nature. He

further opined that except contusion marks ante mortem and

post mortem injuries were caused by hard and sharp object.

From the autopsy report, quoted above, read with statement of

PW-15 Dr. N.M. Unda, it is clear that the deceased died due to

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shock and haemorrhage as a result of multiple injuries to the

body. Death of Bhoomi @ Richa was homicidal in nature with

twelve ante mortem injuries mentioned above. PW 15 Dr.

Unda has further proved reports (Exhibit P-30, P-30A, P-30B,

P-30B, P-30C, P-30D and P-30E) regarding examination made

on 25-09-2006 of weapons (knives and scissors) sent to the M.

G. M. Medical College and M. Y. Hospital, Indore.

14. Antemortem injuries narrated by PW-15 Dr. N.M. Unda

clearly suggest that the deceased attempted to save herself

and resisted the assault with all her might before her death,

and she appears to have been overpowered by the assailants,

and killed brutally.

15. Now we would like to examine the injuries stated to have

been suffered in the incident by co-accused Dhanwantari.

PW-27 Dr. G. L. Sodhi, CMO, M. Y. Hospital, Indore, has

examined the injuries found on the person of Dhanwantari

(co-accused, mother-in-law of the deceased) on 20.9.2006 and

the same are quoted below from Exhibit P-50:-

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“(i) Healing wound of right thumb pretends of size

1.5 x 0.2 cm x brownish scab. Transversally

placed.

(ii) healing wound over right index finger over

middle 3rd posterior aspect transversally placed

of size 1 x 0.5 cm with brownish scab and

palmer aspect transversally oblique of size .75

x .5 cm x healing scab.

(iii) Linear healing wound over right ring finger

dorsum aspect middle 3rd of size .75 x 0.2 cm x

brownish scab.

(iv) Linear healing wound 2 in number parallel

obliquely placed of size viz 2 x 0.2 cm and 1.75

x 0.2 cm over right cubital region with brownish

scab.

(v) Linear healing wound right cubital region 1.5

cm lateral to injury No. (iv) of size 1 x 0.2 cm

with brownish scab

(vi) Abrasion over back of right shoulder of size 0.5 x

0.2 cm with brownish scab.

Cause of the injuries could not be opined due to

healing and brownish scab found. Injuries may be

caused within 3 to 6 days since examination and

injuries are simple in nature.”

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16. There is also report of Regional Forensic Science

Laboratory, Rau (Indore) on record. The relevant extract from

the report dated 31-10-2006 (Exhibit P-73) regarding presence

of blood on the nails of the three accused is reproduced

below:-

No.1 Packet Mark

Found inside here Exhibit/detail Mark

From whom/whose seizure dated

Details of tins No., size, colour, distri-bu tion

35. V HB) Nails (04 Nos.)

Swab

Nails (08 Nos.)

Swab

V1

V2

V3

V4

Memo of accused Accused Dhanwanti from MGM, Indore 20.09.2016

-do-

---------

--------- 36. W Nails (08 Nos.) W Accused Manoj.

20.09.2016 --------- 37. W1 Nails (08 Nos.) W1 -do-

--------- 38. X Nails (08 Nos.) X Accused

Jamnadas 20.09.2016

---------

39. X1 Nails (08 Nos.) X1 -do- ---------

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It is reported on Ex. P-73 that after

Benzedrine/Phenaphthelene and crystal test on exhibits were

done, it was found that on Exhibits V1, V2, V3 and V4 (i.e. on

nails of co-accused Dhanwantari, mother-in-law of the

deceased) blood was found and examination of category and

group of the blood found on these exhibits was done; and on

Exhibits W, W1, X, and X1 (i.e. on nails of the appellants)

blood was not found.

17. On the basis of above finding, learned counsel for the

appellants argued that unlike the finding against Dhanwantari

(mother-in-law of the deceased), it is clear that there is no

adverse finding as against the present appellants. It is also

pointed out that from the post mortem report Ex. P-27, the

incident appears to have taken place sometime during the day,

and natural presence of the appellants at that point of time

was at the place of their work, which also reflects from the

statement of DW-1 Parmanand Sharma, who told that the

appellants were in the shop on 16-09-2006 from 9:30 a.m. till

7:30 p.m. It is further submitted that witnesses PW-1 Mukesh

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Jayswal, PW-3 Narayana, PW-4 Udhvdass and PW-5 Manohar

alias Mannu have stated that it was a woman who was seen

taking a bundle and threw the same near Sevaram Gilani

Garden, situated near Patel nagar, Indore, but there is nothing

in their evidence as against the present appellants.

18. We have considered the above submissions in the light of

evidence on the record, and the law laid down by this Court

applicable to such cases. Undoubtedly, it is a case of

circumstantial evidence. In Sharad Birdhichand Sarda v.

State of Maharashtra1, a three-Judge Bench of this Court

has laid down the law as to when in a case of circumstantial

evidence charge can be said to have been established. Five

points enumerated in said case are summarized as under: -

(i) The circumstances from which the conclusion of guilt is

drawn should be fully established. The accused must be,

and not merely may be guilty, before a court can convict

and the mental distance between “may be” and “must be”

1 (1984) 4 SCC 116

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is long and divides vague conjectures from sure

conclusions;

(ii) The facts so established should be consistent only with

the hypothesis of the guilt of the accused, that is to say,

they should not be explainable on any other hypothesis

except that the accused is guilty;

(iii) The circumstances should be of a conclusive nature and

tendency;

(iv) They should exclude every possible hypothesis except the

one to be proved; and

(v) There must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have

been done by the accused.

19. On behalf of the appellants, it is submitted that the

accused has a right to silence and no adverse inference can be

drawn from his silence as to the cause of death of the

deceased. In this connection, reliance is placed on paragraph

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141 of Selvi and others v. State of Karnataka2, which

reads as under: -

“141. At this juncture, it must be reiterated that Indian law incorporates the “rule against adverse

inferences from silence” which is operative at the

trial stage. As mentioned earlier, this position is

embodied in a conjunctive reading of Article 20(3) of

the Constitution and Sections 161(2), 313(3) and

proviso (b) of Section 315(1) CrPC. The gist of this

position is that even though an accused is a

competent witness in his/her own trial, he/she

cannot be compelled to answer questions that could

expose him/her to incrimination and the trial Judge

cannot draw adverse inferences from the refusal to

do so. This position is cemented by prohibiting any

of the parties from commenting on the failure of the

accused to give evidence. This rule was lucidly

explained in the English case of Woolmington v.

Director of Public Prosecutions (1935 AC 462 : 1935

All ER Rep 1 (HL)), AC at p. 481:

“The ‘right to silence’ is a principle of common

law and it means that normally courts or

tribunals of fact should not be invited or

encouraged to conclude, by parties or 2 (2010) 7 SCC 263

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prosecutors, that a suspect or an accused is

guilty merely because he has refused to

respond to questions put to him by the police

or by the Court.”

Above observations are made by this Court in an answer

to the legal question raised in the batch of criminal appeals

relating to the involuntary administration of certain scientific

techniques, namely, narcoanalysis, polygraph examination

and the Brain Electrical Activation Profile (BEAP) test for the

purpose of improving investigation efforts in criminal cases.

In the present case facts and circumstances are different. The

above referred case, in our opinion, is of little help to the

appellants in the present case.

20. In State of W.B. v. Mir Mohammad Omar and others3,

this Court, while interpreting the burden of extent of proof on

prosecution, observed as under: -

“31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused

should not be taken as a fossilised doctrine as

3 (2000) 8 SCC 382

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though it admits no process of intelligent reasoning.

The doctrine of presumption is not alien to the

above rule, nor would it impair the temper of the

rule. On the other hand, if the traditional rule

relating to burden of proof of the prosecution is

allowed to be wrapped in pedantic coverage, the

offenders in serious offences would be the major

beneficiaries and the society would be the casualty.

xxx xxx xxx

36. In this context we may profitably utilise the legal principle embodied in Section 106 of the

Evidence Act which reads as follows: “When any fact

is especially within the knowledge of any person,

the burden of proving that fact is upon him.”

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the

accused beyond reasonable doubt. But the section

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.”

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21. Shri S.K. Jain, learned senior counsel, on behalf of the

appellants drew our attention to the case of Tomaso Bruno

and another v. State of Uttar Pradesh4, and argued that to

invoke Section 106 of the Evidence Act the prosecution must

have proved presence of the appellants in their house at the

time of the incident. We have carefully gone through the case

cited before us. It was a case where CCTV footage of the hotel

was available but not produced to show the presence of the

accused in the hotel and, as such, the plea of alibi that the

accused had gone to witness “Subah-e-Bararas” from the hotel

was accepted. The present case relates to a different kind of

incident where a bride has been brutally murdered inside the

house and her body, after cutting into pieces, was thrown in

the park.

22. In Trimukh Maroti Kirkan v. State of Maharashtra5,

which is a case similar in nature to the present one, this Court

has held as under: -

4 (2015) 7 SCC 178 5 (2006) 10 SCC 681

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“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.”

23. Now we come to the plea of alibi taken by the appellants

that they were in the shop at the time of the incident. On

behalf of the appellants reliance has been placed on the case

of Narendra Singh and another v. State of M.P.6, in which

it has been held that even in a case where a plea of alibi is

raised, the burden of proof remains on the prosecution, and it

6 (2004) 10 SCC 699

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has been further observed that presumption of innocence is a

human right.

24. In response to above Shri C.D. Singh, learned counsel for

the State of Madhya Pradesh has referred to the case of

Suresh and another v. State of Haryana7, wherein,

discussing the issue in paragraph 19, this Court observed: -

“9. ………..No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve

it of that duty but the said provision is attracted

when it is impossible or it is proportionately difficult

for the prosecution to establish facts which are

strictly within the knowledge of the accused……”

25. Undoubtedly, as proved on the record in the present case

the deceased was murdered inside the house and her body

was thrown in the park, and was not missing from the house

after going to her relative’s place, as pleaded by the appellants

in their statements under Section 313 of the Code of Criminal

Procedure. They have taken a blatant false plea.

7 (2015) 2 SCC 227

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26. In Kuldeep Singh and others v. State of Rajasthan8,

in paragraph 18 a three-Judge Bench of this Court has held

that in a case of circumstantial evidence when the accused

offers an explanation and that explanation is found to be

untrue, then the same offers an additional link in the chain of

circumstances, to complete the chain.

27. Similar view has been taken by this Court in Rumi Bora

Dutta v. State of Assam9, wherein it has been accepted that

a false answer offered by the accused when his attention is

drawn to the circumstances, it renders a circumstance to be of

inculpating nature, i.e. in such a situation a false answer can

also be counted as providing a missing link for completing the

chain.

28. In an answer to above, the appellants have placed

reliance on Rajkumar v. State of M.P.10, wherein it has been

held that mere false plea does not absolve the prosecution of

burden to connect the accused with the crime. On careful

reading of the case referred to above, we find that it was a case 8 (2000) 5 SCC 7 9 (2013) 7 SCC 417 10 (2004) 12 SCC 77

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where two views were possible, and the trial court took the

view that charge cannot be said to have been proved, but the

High Court reversed it. In the case at hand there is consistent

view taken by both the courts below that the appellants had

acted in common intention with co-accused Dhanwantari in

commission of murder of the deceased.

29. Defence version of the appellants in the present case is

that appellant Jamnadas is a businessman having his shop at

5/2, Murai Mohalla, Sanyogitaganj, Indore. His working

hours at the shop were from 9 a.m. till 8-9 p.m. It is

contended that it is the usual practice for the shopkeepers in

parts of Northern India to have lunch at their shops and that

the appellants did not come to their residence for lunch. It is

further pleaded that on the date of incident, i.e. 16.9.2006, at

about 7.30 p.m. appellant Jamnadas was in his shop along

with appellant Manoj and younger son Vishal when he got a

telephone call from his wife (Dhanwantari) who was at home

and got information that Richa @ Bhoomi (deceased) had gone

to her relative’s place and did not return home. On hearing

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this, Jamnadas with both his sons came home and launched a

search for his daughter-in-law. It is further pleaded that on

16.9.2006 till 9 p.m., when Richa @ Bhoomi did not return

home, Jamnadas along with his two sons went to the police

station for lodging missing report. At about 10 p.m.

Jamnadas’s wife Dhanwantari and their minor daughter

Heena @ Madhuri also came to the police station and that

thereafter, the police illegally detained them for 3 days without

formally arresting them. But this defence story get completely

belied as prosecution has proved to the hilt that Bhoomi @

Richa was murdered inside the appellants’ house, and there

was no question of her going to her relative’s place or missing.

30. The chain of circumstances proved on the record against

the appellants is as under: -

(i) It is established that Bhoomi @ Richa (deceased) was

living in the house of the appellants, after her marriage

on 16.04.2006 with appellant Manoj.

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(ii) It is also established beyond reasonable doubt that death

of the deceased was homicidal in nature which occurred

on 16.09.2006.

(iii) It is also established that the deceased was murdered in

the house of the appellants where blood stains were

found.

(iv) It is also conclusively established that after commission

of murder, the body of the deceased was cut into two

pieces.

(v) It is further proved that the dead body was thrown in the

park by Dhanwantari (mother-in-law of deceased) who

was seen doing so by PW 1 to PW 5.

(vi) Perusal of the number of anti mortem and post mortem

injuries mentioned in autopsy report read with statement

of PW 15 Dr. N.M. Unda establish beyond reasonable

doubt that the crime could not have been committed by

one person alone.

(vii) There were in all five members in the family excluding the

deceased – three male members (Jamnadas father-in-law,

Manoj – Husband and Vishal brother-in-law of the

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deceased) and two female members (Dhanwantari

mother-in-law and Heena @ Madhuri minor

sister-in-law).

(viii) PW 32 Heena @ Madhuri (minor daughter of appellant

no.1) was too young. She was a student of class VIII

when her statement was recorded during trial and she

has stated that she had gone to school on the day of

incident and after her return she slept. (This witness

was declared hostile as she did not fully support the

prosecution case). It is nobody’s case that she had any

role in commission of the crime. This leaves four accused

named in the chargesheet, out of whom Vishal,

brother-in-law, was acquitted by the trial court (Rather

discharged in respect of offence of murder). His acquittal

is upheld by the High Court, and nobody has challenged

the same. The remaining three in the field are

Dhanwantari (mother-in-law) and the appellants.

(ix) The appellants have failed to disclose as to how deceased

has died which was especially within their knowledge.

(x) It is nobody’s case that any outsider came in the house.

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(xi) There is no report lodged to police by the appellants

regarding homicidal death of the deceased who was wife

of appellant Manoj and daughter-in-law of appellant

Jamnadas as discussed above.

(xii) False explanation has been given by the appellants in

their statements under Section 313 Cr.P.C. that the

deceased had gone to her relative’s place and that she

was missing which is an additional link on the record

against them, in the chain of circumstances.

31. The above chain of circumstances against the appellants

is complete, and the defence theory that they were in the shop

cannot be accepted. Therefore, having re-appreciated the

entire evidence on record, we concur with the courts below

that appellants Jamnadas and Manoj had common intention

with Dhanwantari in commission of brutal murder of Bhoomi

@ Richa. It is not a fit case where impugned order requires any

interference.

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32. For the reasons, as discussed above, these appeals are

liable to be dismissed, and the same are accordingly

dismissed.

……………….....…………J. [Prafulla C. Pant]

.……………….……………J. [D.Y. Chandrachud]

New Delhi; June 29, 2016.