HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No. 2598/2000
1. Urmila Prasad Pandey Son of Munimahesh Pandey,
Aged 50 years
2. Anup Kumar Pandey Son of Urmila Prasad Pandey,
Aged 22 years
3. Smt. Shyama Bai Pandey wife of Urmila Prasad Pandey,
Aged 45 years
All R/o Village Padkhuri Pawai, Police
Station- Rampur Nekin, District-Sidhi (MP)
Vs.
State of Madhya Pradesh
PRESENT : HON'BLE SHRI JUSTICE RAKESH SAKSENA &
HON'BLE SHRI JUSTICE M.A.SIDDIQUI
Shri S.C.Datt, Sr.Advocate with Shri Siddharth Datt, Advocate for
appellants.
Shri Yogesh Dhande, Panel Lawyer for respondent/State.
JUDGMENT RESERVED ON 09/11/2010
JUDGMENT DELIVERED ON 15/11/2010
JUDGMENT
As Per : M.A.Siddiqui, J.
Appellants have filed this appeal against the judgment dated
12.10.2000 delivered by Ist Addl. Sessions Judge, Sidhi in
Sessions Trial No. 62/88, convicting the appellants under Section
302/34 IPC for imprisonment of life and under Section 498-A/34
IPC for imprisonment of two years’ R.I. and fine of Rs.500/- each,
in default of payment of fine, appellants to undergo further R.I.for
six months.
2. Undisputedly, appellant no.1 Urmila Prasad Pandey is the
father-in-law, appellant no.2 Anup Kumar is the husband and
appellant no.3 Smt. Shyama Bai Pandey is the mother-in-law of
-2-
deceased Geeta Pandey who died an unnatural death within seven
years of her marriage. It is also not disputed that Gita Pandey died
in her Sasural (house of appellants).
3. Facts, as alleged by the prosecution, are that Gita Pandey,
deceased was married to appellant no.2 Anup Kumar near about
five years back. After marriage she used to reside with the
appellants in Village-Padkhuri, PS-Rampur Nekin, District-Sidhi.
After marriage Gita went to her nuptial house and kept on visiting
her parental house. After sometime, she complained about the
harassment meted out to her by the appellants for not giving
sufficient things in dowry. Appellant no.1 wrote a letter (Ex.P/8)
and appellant no.2 wrote a letter (Ex.P/9) in which dowry was
demanded from nuptial side. On 4.2.1988 Siddha Muni Prasad
(PW.2) at about 15.05 PM informed in writing vide Ex.P/2 that his
niece Smt.Gita Pandey, daughter of Sant Sharan Gautam of
Village-Maldeva, who was married to Anup Kumar Pandey, as after
marriage there was dis-satisfaction relating to dowry, Urmila
Prasad Pandey wrote so many letters in which demand of dowry
was made and by which massage was given that if the dowry
demand was not fulfilled then girl will not remain alive. Gita
Pandey visited her nuptial house and complained about the
cruelty. On the day of incident also Gita Pandey was beaten by the
appellants in her in-laws house and she was also set on fire by
which she died in the hospital. On this report, Keshav Singh
(PW.17), Asstt. Sub-Inspector of Police registered Crime No.17/88
vide Ex.P/16. Marg was also registered vide Ex.P/17. In the
investigation J.P.Dangi (PW.18), Incharge of Police Station-Rampur
Nekin called witnesses and made Panchnama of the dead body
-3-
vide Ex.P/1 and body was sent for postmortem vide Ex.P/4-A
through a Constable. Dr.S.P.Mishra (PW.6) on 5.2.1988 conducted
the postmortem and found that there was burn of 90% on the body
of Gita Pandey, her 7th and 8th ribs were fractured and sound was
coming on being pressed. On dissection he found that right side of
the liver was ruptured. Injuries of ribs, liver as well as of burn were
ante mortem were caused within 24 hours of postmortem
examination. Death was caused due to burn as well as due to
rupture of liver. He gave postmortem report Ex.P/5.
4. In the investigation, the Investigating Officer prepared spot
map, arrested the accused persons. In the Marg inquiry and
investigation it was revealed that accused persons subjected the
deceased to cruelty for not meeting with the demand of dowry. As
the demand of dowry was not fulfilled, accused persons had
brutally beaten Geeta Pandey and set her on fire as a result of
which she died.
5. After investigation, charge sheet was filed in the Court of
Judicial Magistrate Ist Class, Sidhi and the case was committed for
trial to the Court of Sessions, Sidhi. Charges under Sections
302/34 and 498-A/34 IPC were framed on 14.03.1989.
6. Accused-appellants abjured their guilt. Accused Urmila
Prasad Pandey and Smt. Shyama Bai took the plea of false
implication. Accused-appellant Anup Kumar also took the plea of
false implication in the offence contending that he was not at home
at the time of incident, he was on the way for his service. One boy
Ramraj informed him that his wife has alighted herself so he came
back and took her to the hospital.
-4-
7. Relying on the evidence of dying declaration of Siddha Muni
Prasad (PW.2) and Vanshpati (PW.3) and as the death was caused
in the house where appellants were having exclusive access and no
plausible explanation was given about the vital injuries found on
the body of deceased, especially fracture of ribs and rupture of liver
which could not have been self-inflicted and for cruelty, and motive
on the evidence of Sant Sharan (PW.5) father of deceased, Smt.
Chandrawati (PW.19) mother, Smt. Savitri (PW.4) aunt, Aruna
(PW.7) sister, Umashankar (PW.10) uncle and Manwati (PW.16),
trial Court held accused persons guilty and convicted and
sentenced them as mentioned above.
8. We have heard learned counsel for both the parties and
perused the record.
9. Learned counsel for appellants mainly submitted that death
was not homicidal. Gita Pandey ignited herself, accused persons
have been roped in falsely in the case. On the other hand, learned
counsel for the State submitted that death was homicidal and
accused persons were responsible for that.
10. On the perusal of evidence of Dr. S.P.Mishra (PW.6) it is
revealed that he not only found that Gita’s body was burnt 90%,
but there was a sound of fractured bones. He found that 7th and
8th ribs were fractured. On dissection of dead body he found that
right lobe of liver was ruptured just below the fracture of 7th and 8th
ribs and ruptured area was 2 ½ Inch x 2 Inch x 1 Inch. It was also
the reason of death along with the burn injuries. Dr. Mishra
(PW.6) specifically denied the suggestion to the effect that liver
could be ruptured by burn injuries. It means this ante mortem
-5-
injury was caused by hard and blunt object and cannot be self-
inflicted. So as per medical evidence, death is homicidal.
11. Learned Panel Lawyer for the State submitted that there is
evidence of dying declaration of Siddha Muni Prasad (PW.2) and
Vanshpati (PW.3) as has been relied by learned trial Court.
12. Learned counsel for appellants have submitted that
statement of Siddha Muni Prasad (PW.2) about the dying
declaration is that Triveni Prasad Tiwari and Jagannath Prasad
Tiwari informed him that his niece has been burnt and was being
carried in Doli and Doli was there at Kanwar Station. So he went
there and saw that his niece Gita was in burnt condition. On
being asked from her, she told that she was beaten by her
husband, mother-in-law and father-in-law and was set on fire. But
this fact is not there in his written report (Ex.P/2) which he lodged
immediately after the death of his niece and he specifically
admitted vide para 8 in his cross-examination that report was
written by Ramasre Prasad and he had signed it after reading it
well, but this fact is not there. He is the real uncle so his evidence
is subject to minute scrutiny. Had he been informed by the
deceased, then the report which was got written by this fellow this
important thing would have been mentioned.
13. Learned counsel for the appellant have also submitted that
as far as evidence of Vanshpati (PW.3) is concerned, he stated that
Gita informed Siddhamuni Prasad (PW.2) about beating her and
set her on fire, but Siddhamuni Prasad (PW.2) does not say even a
single word about the presence of this fellow and he has also
admitted this fact that he has not narrated this thing to anybody
except in the Court and to the police. Counsel submitted that
-6-
learned trial Court has not only wrongfully believed on the
statements of Siddhamuni Prasad (PW.2) and Vanshpati (PW.3),
but has also taken into consideration the police statement under
Section 161 Cr.P.C. in para 35 of the judgment.
14. On perusal of judgment, it seems that learned trial Court not
only erred in believing the testimony of Siddhamuni Prasad (PW.2)
and Vanshpati (PW.3), but it seems that trial Court was influenced
by the police statement under Section 161 Cr.P.C.which cannot be
taken into consideration at all.
15. We are in full agreement with the learned counsel for
appellants that omission of not mentioning the fact of dying
declaration by Siddhamuni Prasad (PW.2) in his written report
(Ex.P/2) is very fatal and not mentioning the name of Vanshpati
(PW.3) causes a dent to the prosecution case. Triveni Prasad Tiwari
was not examined and Jagannath Prasad (PW.20) does not support
the version of Siddhamuni Prasad (PW.2).
16. Learned counsel for the State has submitted that since two
ribs were fractured and liver was ruptured, these injuries could not
be self-inflicted and in the circumstances of the case burn injury
was also not of self-made or accidental, and in the absence of
plausible explanation, it should be presumed that all the persons
after beating the deceased set her on fire. He has placed reliance
on Trimukh Maroti Kirkan vs. State of Maharashtra (2006) 10
SCC 681.
17. In Trimukh Maroti Kirkan vs. State of Maharashtra
(supra) , the Apex Court has held thus :-
“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
-7-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, 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. 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……..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……..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.”
18. Now the question before us is whether on the basis of facts
brought on record, the husband of the deceased or all the accused
would be liable for causing injuries to deceased. The indication
given by the Apex Court in Trimukh Maroti Kirkan vs. State of
Maharashtra (supra) appears to be that where an accused is
alleged to have committed murder of his wife and prosecution
succeeds in leading evidence to show that shortly before
commission of crime they were together in dwelling home, it has to
-8-
be held that if accused husband does not offer any explanation,
how the wife received injuries or offers a false explanation, it
would be a strong circumstance indicating that he is responsible
for commission of the crime. Thus, it appears to indicate the
responsibility of the husband only and not of other members of
the family except where there is clear evidence of their
involvement. In the opinion of doctor, the cause of death of
deceased was shock as a result of rupture of right lobe of liver and
extensive burn over the body. These injuries were ante mortem. On
the basis of the evidence adduced in the case, it is not possible for
us to hold all the persons in the house liable for causing injuries
to deceased in view of the ratio of Trimukh Maroti Kirkan vs.
State of Maharashtra (supra).
19. Learned counsel for appellants have next submitted that
there is tendency of roping all the members of the family. In Kans
Raj vs. State of Punjab and others (2000) 5 SCC 207, it was
held that roping of too many persons has become a tendency after
death of a married woman.
20. There is no direct evidence and the prosecution case is
wholly based on circumstantial evidence. It is well settled in
Subhash Chand vs. State of Rajasthan (2002) 1 SCC 702,
Dhananjoy Chatterjee vs. State of W.B. (1994) 2 SCC 220 and
Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4
SCC 116 that in a case based on circumstantial evidence, the
circumstances from which the conclusion of guilt is to be drawn
have not only to be fully established, but also that all the
circumstances so established should be of a conclusive nature
and consistent only with the hypothesis of the guilt of the
-9-
accused. Those circumstances should not be capable of being
explained by any other hypothesis except the guilt of the accused
and the chain of evidence must be so complete as not to leave any
reasonable ground for the belief consistent with the innocence of
the accused.
21. As far as cruelty is concerned, the learned trial Court has
very well appreciated the evidence and has rightly come to the
conclusion by appreciating the evidence of Siddhamuni Prasad
(PW.2), Savitri (PW.4), Sant Saran (PW.5), Aruna (PW.7),
Umashankar (PW.10), Manwati (PW.16) and Chandravati (PW.19).
Even the ocular version of prosecution is supported by letter
written Ex.P/8 and P/9 by Urmila Prasad Pandey and Anup
Kumar Pandey respectively in which it is very much clear that
appellants were dis-satisfied not only with the deceased, but also
with her parents.
22. As far as offence of homicidal death is concerned, the
husband Anup Kumar Pandey has the access and as he has not
offered any explanation about the injury on ribs and liver of the
deceased as well as burn injury, so his conduct is further
strengthening the prosecution case. He was the only person who
could have given proper explanation about the injuries but he has
taken defence that he was out of place of incident and he was
informed by one Ramraj but no such Ramraj has been examined
even after availing the opportunity of defence. The only defence
witness who was examined is Gyanendra Prasad Agnihotri . He is
not only the maternal uncle of Anup Kumar Pandey and brother-
in-law of Urmila Prasad and brother of appellant Smt. Shyama
bai, but he does not say anything about the alibi. Legally where
– 10 –
the plea of alibi is not proved, then the legal irresistible
presumption is that accused was present on the spot and his plea
of alibi is an after thought. In the circumstances together with not
giving satisfactory explanation about the death of wife, the
irresistible presumption would be that Anup Kumar
Pandey,appellant no.2, husband of the deceased was the sole
author of the incident.
23. As far as role of Urmila Prasad Pandey and Smt. Shyama
Bai Pandey is concerned, no direct or indirect evidence has been
produced that they were also involved in the murder of Gita
Pandey.
24. Resultantly, the appeal is allowed in part. Appellants
Urmila Prasad Pandey and Smt. Shyama Bai Pandey are acquitted
of offence punishable under Section 302/34 IPC by giving benefit
of doubt. As far as Anup Kumar Pandey is concerned, his
conviction is maintained under Section 302 IPC. He shall serve the
remaining sentence as ordered by the trial Court. The conviction
of all the accused-appellants under Section 498-A/34 IPC is
confirmed.
25. As far as sentence is concerned, learned counsel submitted
that Urmila Prasad Pandey has already undergone more than six
years imprisonment. In our opinion, as appellant Urmila Prasad
Pandey has already served the sentence of two years, no further
sentence need be awarded. He is on bail. His bail bonds stand
discharged.
26. As far as Smt.Shyama Bai is concerned, learned counsel
submitted that she is an old lady, she has already undergone
imprisonment for about 88 days, she may not be sent to further
– 11 –
imprisonment. In view of aforesaid, Smt. Shyama Bai is
sentenced for the period already undergone by her. She is also on
bail. Her bail bonds stand discharged.
27. Fine of Rs.500/- each imposed upon the appellants Urmila
Prasad Pandey and Smt. Shyama Bai Pandey is maintained. In
case the fine amount is not deposited, they have to further
undergo R.I. for six months as ordered by the trial Court.
(Rakesh Saksena) (M.A.Siddiqui)
Judge. Judge.
Jk.