Jayantilal Verma vs State Of M.P. (Now Chhattisgarh) on 19 November, 2020


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Supreme Court of India

Jayantilal Verma vs State Of M.P. (Now Chhattisgarh) on 19 November, 2020

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, Dinesh Maheshwari, Hrishikesh Roy

                                                                                   REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                     CRIMINAL APPELLATE JURISDICTION



                                         CRIMINAL APPEAL NO. 590 OF 2015



                         JAYANTILAL VERMA                                    …Appellant



                                                          Versus



                         STATE OF M.P. (Now Chhattisgarh)                          …Respondent



                                                   JUDGMENT

SANJAY KISHAN KAUL, J.

1. On the fateful day of 24.8.1999, one Sahodara Bai was found dead

on a cot in her matrimonial home located in village Uslapur, District

Rajanandgaon, M.P. (now Chhattisgarh). A marg intimation was lodged

with the police at the behest of her brother, one Kishore Kumar, who
Signature Not Verified

Digitally signed by

alleged that he had returned to village Uslapur to see his sister, where he
Anita Malhotra
Date: 2020.11.19
18:45:14 IST
Reason:

was informed by her in-laws that she had died. He related a prior

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incident from a few days ago alleging that on 19.8.1999, the deceased

had returned to her maternal home to village Baiharsari stating that she

had been harassed at the hands of her in-laws for the last 6-7 months. The

cause for harassment was stated to be that the appellant herein (her

husband) had a brother who lived separately and the in-laws would beat

and harass her if she attempted to speak to the wife of the brother of the

appellant herein. The endeavour of reconciliation took place when

Kishore Kumar along with another brother, Lochan, had brought the

deceased back to her matrimonial home. Even at that stage, on being

asked whether they wanted her to live with them, the in-laws responded

that they will see for a few days and then decide. The deceased thereafter

stayed back at her matrimonial home.

2. A postmortem was conducted on the body and FIR No.72/99 came

to be registered at P.S. Bodla, District Kawargha on 29.8.1999 arraying

the appellant herein, his father, one Lalchand and mother, one Ahiman

Bai as accused for offences punishable under Sections 302 read with

Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the

‘IPC’). The FIR is stated to have been registered at the behest of one

K.P.S. Paikara, the SHO of P.S. Bodla, who relayed the abovementioned

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information from the marg intimation and also elaborated on the

relationship of the deceased and the appellant herein along with the

findings of the postmortem report. The marriage between the appellant

herein and the deceased had taken place about 8 years prior to the

incident and there was a son born, who was only a few months old. The

appellant herein, along with the deceased was staying with his parents.

The post mortem report stated that the cause of death was asphyxia due

to strangulation, and the nature of death was possibly homicidal. On

completion of investigation, Chargesheet No. 64/99 was filed and charges

were framed by the Sessions Court in Sessions Trial No.165/1999,

arraying the appellant herein and his parents as accused. The version

given by the accused in their statements under Section 313 Code of

Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’) was

that on the morning of the incident all the three accused had gone to the

fields, while only the deceased remained at home. Lalchand stated that

after taking a bath in the pond, when he returned, he discovered the

deceased lying dead in her cot. Thereafter he called the appellant herein

and his wife, Ahiman Bai, who were still in the fields. No evidence was

led in this regard.

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3. The prosecution led evidence of 9 witnesses to establish their case.

Five of these witnesses turned hostile – PW-2 (Lochan), brother of the

deceased, PW-3 (Mukund), PW-4 (Jagdev), PW-5 (Pitambar Verma) and

PW-6 (Ghasiya). The case of the prosecution was, thus, based on the

testimonies of the remaining witnesses, i.e., PW-1, Kishore Kumar, the

brother of the deceased and PW-7, Rajendra Chauhan, who prepared the

site plan, PW-8, K.P.S. Paikara, Investigating Officer and PW-9, Dr. M.S.

Bachkar, who conducted the postmortem. Thus, effectively the case was

based on the testimony of PW-1, apart from the testimony of the doctor

who conducted the postmortem.

4. The Sessions Court held all the three accused persons guilty of

offences punishable under Section 302 of the IPC, in terms of the

judgment dated 21.7.2000.

5. The finding of the Sessions Court was based on the cause of death

being asphyxia due to strangulation. The testimony of the doctor, PW-9,

was relied upon to come to the conclusion that the death was homicidal

as it was a result of strangulation. The possibility of any other manner of

death was explored by the court, i.e., thieves killing the deceased in order

to snatch a chain from her neck. This was ruled out as the incident took

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place in the house, which in turn was surrounded by other houses on

three sides and no commotion was heard. Further, no crime of theft had

been reported in the recent past. Next, the possibility of death caused by

a snakebite was explored. This was owing to the testimony of PW-1, who

had stated, that upon finding his sister dead and enquiring as to what had

happened, Lalchand, father of appellant herein had stated that she had

died of a snakebite. Court noted that the postmortem did not indicate any

symptom of a snake bite as there was no mark or any poisoning detected

in the body. The suicide theory was also ruled out as there were scratch

marks found on her neck. The conclusion was, thus, based on

circumstantial evidence to convict the accused. All the three accused

preferred an appeal before the High Court, being Criminal Appeal

No.1930/2000. In the course of the pendency of the appeal, Lalchand,

the father-in-law of the deceased passed away. The High Court

concluded that there was no legally admissible evidence to convict the

mother-in-law of the deceased, and hence she was acquitted. However,

the conviction of the appellant herein was upheld by the High Court.

6. The appellant herein filed the present appeal in which leave was

granted on 30.3.2015.

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7. It would be appropriate to note that there was some improvement

in the statement of PW-1 to the extent that he had never mentioned

Lalchand’s explanation of the death of the deceased by snake bite in the

earlier statement. While this was noted by the Trial Court, all other

aspects were found to be consistent with his earlier statements. The

testimony of PW-1 as a whole was found to be natural. It was also noted

that there was an absence of any prior animosity between PW-1 and the

family of the appellant herein. PW-1, incidentally, was the stepbrother of

the deceased, while PW-2, who turned hostile was her real brother. The

cause of witnesses turning hostile, as per the Trial Court, was that PW-2

was influenced on account of subsisting family relationship, as the

daughter of Lalchand (sister of the appellant herein) was married to the

brother of PW-2.

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8. The circumstantial evidence was examined closely as that could be

the only basis of conviction, and it was found that there was a complete

chain to prove the guilt of the accused. The visit of the deceased to her

maternal home, her statement regarding the ill-treatment by her in-laws

to her brother, PW-1, her being taken to the matrimonial home by PW-1

along with another brother, Lochan, the discussion between PW-1 and

Lalchand and finally the cause of death being homicidal were all

circumstances examined to establish guilt of the accused. The Trial

Court held that after the murder, Lalchand sent his wife and the appellant

herein to the fields, while he himself went to the pond to bathe and when

he returned to his house, he raised a hue and cry, pretending to be

shocked by the sudden death of the deceased. There was a possibility of

death being caused by strangulation by an article made of a chain-like

material but the same had likely been destroyed. The Trial Court did

castigate the manner of prosecution.

9. The High Court in the given situation, apart from relying on the

testimony of PW-1, turned its attention to the postmortem report. In this

context, it was noted that there was blood oozing from both nostrils and

mouth of the deceased, there was swelling over the right cheek, marks of
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ecchymosis at epiglottis region and back of the neck, bruise present at

left axillary of cheek and there was depression mark of a mala on the left

side of the neck. It went on to state that since the incident had taken place

inside the privacy of the house, the onus was on the persons residing in

the house, to give an explanation. In such situations, it was noted that it

is difficult for the prosecution to lead any direct evidence to establish the

guilt of the accused. In this regard, the High Court referred to Section

106 of the Indian Evidence Act, 1872 (hereinafter referred to as the

‘Evidence Act’), which reads as under:

“106. Burden of proving fact especially within knowledge.—
When any fact is especially within the knowledge of any person,
the burden of proving that fact is upon him.”

It, thus, opined that in such cases, while the initial burden to

establish the case would be upon the prosecution, it would be of a

relatively light character. There would be a corresponding a burden on

the inmates of the house to give cogent explanation as to how the crime

was committed. They could not get away by keeping quiet and offering

no explanation.

10. In the aforesaid contours of the factual situation we have examined

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the submissions of the learned counsels for the parties.

11. The submission of the learned counsel for the appellant herein was

that the circumstantial evidence was not of such a nature that it could be

said to be conclusive, and the chain of evidence was not complete to

pronounce the appellant herein guilty. The previous allegations of cruelty

had not been proved as there was no prior complaint of harassment

lodged by the deceased or her relatives and that the testimony of PW-1 is

further discredited, as he is the stepbrother and not the real brother of the

deceased. It was further argued that the statements of the witnesses were

not recorded prior to 29.8.1999 i.e., for five days from the date of

incident, and even the site plan prepared by PW-7 was not proved. There

was stated to be no intention or motive attributable to the appellant herein

to kill the deceased and the prosecution could not absolve itself of the

burden to prove the case beyond reasonable doubt.

12. The testimony of PW-9, Dr. Bachkar was assailed as there was no

formation of a firm opinion regarding the nature of death as it was

mentioned that it “may” have been homicidal. There was stated to be a

mark on the left side of the neck and but no such mark existed around the

neck. He had stated that the mark could have been caused by pressing

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the necklace on the neck, but asphyxia was not possible due to the same.

No recovery of necklace had taken place from the appellant herein and

the weapon of crime was never recovered. Lastly, it was contended that

on the same evidence, the mother of the appellant herein had been

acquitted.

13. The appellant herein is stated to have served 16 years and 9 months

of his sentence but some dispute was raised about the actual time he had

spent in jail by learned counsel for the respondent State, though it was

conceded that cases for release were considered after 14 years of serving

the actual sentence.

14. Learned counsel for the respondent State relied upon the absence

of any explanation by the accused regarding the cause of death, even

though the death had occurred in the privacy of the matrimonial home.

The appellant herein and his family are stated to be the only residents,

where the body of the deceased was found and that itself cast a burden on

them within the meaning of Section 106 of the Evidence Act.

15. In order to support the aforesaid proposition, reliance was placed

on the following judgments:

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a. Amarsingh Munnasingh Suryawanshi v. State of

Maharashtra1: In this case, the death had occurred in the matrimonial

home but the conviction was supported by a dying declaration.

b. Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.2: Here,

the weapon of offence, a gun, was recovered from the room of the

accused and the dead body was found on the terrace attached to the

private room of the accused.

c. Trimukh Maroti Kirkan v. State of Maharashtra 3: In this

case, the body of the deceased was found in the matrimonial home

and the cause of death was strangulation, though the defence pleaded

it to be a case of a snakebite.

16. The aforesaid, would thus, show that the third case best fits the

factual scenario in the present case.

17. Learned counsel for the State emphasised that the other witnesses

turning hostile cannot be a ground itself to acquit the accused and the

testimony of PW-1 was consistent and sufficient to convict the appellant

herein. In this behalf, a reference was made to Section 134 of the

Evidence Act, which reads as under:

1

(2007) 15 SCC 455
2
(2007) 10 SCC 433
3
(2006) 10 SCC 681

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“134. Number of witnesses. – No particular number of witnesses
shall in any case be required for the proof of any fact.”

18. It was, thus, contended that mere presence or absence of a large

number of witnesses cannot be the basis of conviction. It is the quality of

evidence and not the number of witnesses, which is relevant. In this

behalf, a reference was made to the following cases:

a. Yanob Sheikh Alias Gagu v. State of West Bengal4, where it

was observed as under:

“20. We must notice at this stage that it is not always the quantity but
the quality of the prosecution evidence that weighs with the Court in
determining the guilt of the accused or otherwise. The prosecution is
under the responsibility of bringing its case beyond reasonable doubt
and cannot escape that responsibility. In order to prove its case
beyond reasonable doubt, the evidence produced by the prosecution
has to be qualitative and may not be quantitative in nature. In the case
of Namdeo v. State of Maharashtra [(2007) 14 SCC 150], the Court
held as under:

“28. From the aforesaid discussion, it is clear that Indian legal
system does not insist on plurality of witnesses. Neither the
legislature (Section 134 of the Evidence Act, 1872) nor the
judiciary mandates that there must be particular number of
witnesses to record an order of conviction against the accused.

Our legal system has always laid emphasis on value, weight
and quality of evidence rather than on quantity, multiplicity or
plurality of witnesses. It is, therefore, open to a competent
court to fully and completely rely on a solitary witness and
record conviction. Conversely, it may acquit the accused in
4
(2013) 6 SCC 428

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spite of testimony of several witnesses if it is not satisfied
about the quality of evidence. The bald contention that no
conviction can be recorded in case of a solitary eyewitness,
therefore, has no force and must be negatived.”

b. Gulam Sarbar v. State of Bihar (Now Jharkhand) 5 wherein

the Court relied on the same aforementioned principle.

19. On consideration of the evidence led by the prosecution and

considering the concurrent findings by the two courts qua the appellant

herein we are unable to find any reason to interfere with the judgment of

the courts below.

20. It is no doubt true that a large number of witnesses turned hostile

and the Trial Court was also not happy with the manner of prosecution

conducted this case. But that is not an unusual event in the long drawn

out trials in our country and in the absence of any witness protection

regime of substance, one has to examine whatever is the evidence which

is capable of being considered, and then come to a finding whether it

would suffice to convict the accused.

21. The rationale adopted for coming to the conclusion behind the

reason for the real brother of the deceased turning hostile while step

brother stood his ground is also obvious and correctly appreciated, i.e., to
5
(2014) 3 SCC 401

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preserve the close family ties which continued to exist by marriage in the

instant case, in view of the siblings of the deceased and appellant herein

being married. In the Indian context, there exists a continued relationship

between two families wherein the daughter-in-law comes from another

house.

22. We are conscious that the case of the prosecution rests only on the

testimony of PW-1 and the medical evidence. The statement of PW-1

was consistent and cogent except to the extent that in the earlier

statement he had not mentioned the factum of the death being attributed

to snakebite. However, that itself would not nullify the remaining part of

his testimony. In fact, the said witness did not back out from the

statement, but could not state the reason why the police did not record it

in the FIR though it was mentioned.

23. The doctor opined the cause of death to be asphyxia due to

strangulation. Thereafter, he has stated that nature may be homicidal.

This was so stated because asphyxia being the cause of death, the doctor

himself could not have conclusively said whether it was homicidal or

suicidal. It was also voluntarily opined, that there had to be a minimum

of five minutes of forceful pulling to cause the death.

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24. In our view, the most important aspect is where the death was

caused and the body found. It was in the precincts of the house of the

appellant herein where there were only family members staying. The

High Court also found that the location of the house and the surrounding

buildings was such that there was no possibility of somebody from

outside coming and strangulating the deceased and that too without any

commotion being caused or any valuable/jewellery missing.

25. We are confronted with a factual situation where the appellant

herein, as a husband is alleged to have caused the death of his wife by

strangulation. The fact that the family members were in the home some

time before is also quite obvious. No explanation has been given as to

how the wife could have received the injuries. This is a strong

circumstance indicating that he is responsible for commission of the

crime.6 The appellant herein was under an obligation to give a plausible

explanation regarding the cause of the death in the statement recorded

under Section 313 of the Cr.P.C. and mere denial could not be the answer

in such a situation.

26. We, thus, find no reason to interfere with the impugned judgment.

6
Trimukh Maroti Kirkan v. State of Maharashtra (supra).

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The appeal is accordingly dismissed leaving the parties to bear their own

costs.

27. We, however, direct the respondent State to examine whether the

appellant herein has completed 14 years of actual sentence or not and if it

is so, his case should be examined within a maximum period of two

months for release in accordance with norms. If not, the exercise be

undertaken within the same time on completion of 14 years of actual

sentence.

………………………………J.

[Sanjay Kishan Kaul]

………………………………J.

[Hrishikesh Roy]
New Delhi.

November 19, 2020.

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