TMI Blog2004 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... are son and mother. Along with them, the husband of appellant No. 2 Hari Singh and their daughter Kusum were chargesheeted for commission of murder of the aforementioned Bimlabai. The deceased Bimlabai was married to the appellant No. 1 herein on or about 21.4.1982 in relation whereto the betrothal ceremony was held in December, 1980. The appellant No. 1 after the said betrothal ceremony was appointed as a bus conductor by the Madhya Pradesh State Road Transport Corporation. About 4 and = months thereafter, he was suspended questioning which he filed a civil suit. At the relevant time, the family members of the appellants were living as tenants in a portion in the upper storey of the house of Bansidhar, P.W.1. Daulatram, another tenant, used to reside in the front portion in the first storey in the same house. One Moi Babu was a tenant on the front portion in the ground floor whereas Omprakash Shukla was tenant in the rear portion thereof. Allegedly a demand was made by the accused persons for a wrist watch and a chain of gold at the time of marriage to which Ramsingh, PW5 (brother of the deceased) expressed his inability. Sometimes later, the said demand was reiterated. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1 Banshidhar is the owner of the house. PW-2 Ramkunwar Bai is an adjacent neighbour of the appellants. PW-3 Harak Chand Mittal is an advocate, who lives at some distance from the house of accused persons, had informed the police about fire on phone. PW-4 Om Prakash is also a neighbour. He was a witness to the inquest report, site plan and seizure memo. PW-5 Ramsingh is the first informant. PW-6 and CW-1 are the doctors who conducted the post mortem examination over the dead body of Bimlabai. PW-7 Asha, PW-10 Kusha Bhau, PW-13 Yashoda Bai, PW-14 Gulab Singh are the other witnesses. PW-12 Bhagwanti Bai is the sister of the deceased. The court witnesses were not examined by the prosecution and all of them for some reason or the other were examined as court witnesses. CW2 to CW6 sought to prove the plea of alibi of the appellants. The Learned Sessions Judge disbelieved the prosecution case and recorded a judgment of acquittal inter alia on the ground that as admittedly the door of the kitchen had to be broken open; and as the death of Bimlabai presumably took place in between 4.15 p.m. and 5.30 p.m., it was impossible for the assassin to jump from the window in the lane. Furthermor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endrasingh was annoyed. Thus, there was motive for murder. (ii) Vimlabai met homicidal death by throttling and thereafter was set to fire. The setting of fire must have been with intent to cause disappearance of evidence for screening the offender; (iii) At least three persons, i.e., Narendrasingh, Gulbadanbai and Kusum were present in the house in the after noon and till the body was found inside the kitchen room. Had the murderer been anybody else Vimlabai must have raised alarm. Persons in the family including these accused persons could have also raised alarm and caused resistance to such murder; (iv) As no alarm was raised by Vimlabai, this goes to show that the person (murderer) must have been close relation of her and in all probability the husband. A Hindu wife while assaulted by her husband would not cause resistance. Sometimes even alarms are not raised unless the injuries caused are very painful and serious. Mr. Sushil Kumar Jain, learned counsel appearing on behalf of the appellants inter alia would submit that the preponderance of evidence not only show that the post mortem report should not have been relied upon by the High Court having regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f PW-1 Banshidhar, PW-2 Ramkunwar Bai and PW-7 Asha would categorically show that the incident must have taken place after 5.00 p.m. The learned counsel laid emphasis on the fact that admittedly water in the tap comes at 5.00 p.m. whereafter only the fire was noticed by the witnesses examined by the prosecution. The finding of the High Court to the effect that the appellant No. 1 after commission of the offence locked the room inside and slipped out of the window, Mr. Jain would urge, is untenable keeping in view the height of the window, the size of the room being 5'x 6' as also the fact that some people had already gathered near the water tap and, thus, it would be impossible for anyone to jump from the open space without being noticed and that too remaining unhurt. A judgment of acquittal without any cogent and sufficient reasons should not be reversed, Mr. Jain would argue. The learned counsel would further submit that the prosecution has not been able to prove any motive for commission of the offence as the prosecution witnesses accepted that the relationship between the husband and wife was cordial and only because a sum of ₹ 2000/- was asked for the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish sufficient motive for the accused persons to commit the murder of Bimlabai and then to make the same look like a case of suicide. The burn injuries suffered by the appellant No. 2 in hand is also a pointer to the fact, Ms. Makhija would contend, that she had also taken part in setting fire on the deceased. It was urged that as the plea of alibi of the appellants have not been proved and keeping in view the proximity of time and the place of occurrence and time of murder, it can safely be presumed that the entire occurrence took place within 10-15 minutes and it was possible for the appellant No. 1 to come back from the House of Illias Khan and upon commission of the crime go back to his house to show his absence. Furthermore, the burden of proof when a plea of alibi has been found to be false lies upon the accused persons, Ms. Makhija would argue. It is a case which, in our considered opinion, requires a broad based consideration. We will proceed on the basis that the death of Bimlabai was a homicidal one. We will also assume that the contents of the post mortem report is correct and, thus, the death of Bimlabai was caused due to asphyxia. We may further assume t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 313 of the Code of Criminal Procedure. Had it been the prosecution case that the appellant No. 1 after throttling the deceased and setting her on fire escaped through one of the two open places mentioned by the High Court, it was obligatory on the part of the Court to give an opportunity to the appellants to explain thereabout. Such a circumstance, had it been put to the appellant no.1, could have been explained away by him. The appellants were, therefore, prejudiced by not being given a chance to explain the said purported material against him. It is not a case where no prejudice can be said to have been caused to the appellants. The findings of the learned Sessions Judge to the effect that had any person slipped or gone away from that window, pedestrians through the lanes must have seen such person cannot, in our opinion, be said to be irrational warranting interference by the High Court. If the observations of the High Court to the effect that persons going through the road do not keep a vigil on such movements, is correct, the same by would itself give rise to some surmises keeping in view the fact that there existed a greater possibility of the appellant no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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