Sec.302 - Murder of Wife - Circumstantial evidence - last seen theory - Accused in the last night with his wife - Sec.313 - non-explanation about his where abouts at the time of death which took place in the last night, by accused - recovery of assaulted weapon - clearly discloses the Accused is an offender - Apex court dismissed the appeal =
The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1986 OF 2009
KHIM SINGH … APPELLANT
VERSUS
STATE OF UTTARAKHAND … RESPONDENT
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment dated 24th August, 2005
passed by the High Court of Uttaranchal(now Uttarakhand) at Nainital in
Criminal Appeal No.1388 of 2001 (Old No.-Criminal Appeal No.1165 of 1988).
By the impugned judgment the High Court upheld the judgment and order of
conviction dated 30th March, 1988, passed by the Sessions Judge, Almora in
Sessions Trial No.54 of 1987, State vs. Khim Singh, whereby the accused-
appellant was convicted for the offence punishable under Section 302 IPC
and was sentenced to undergo imprisonment for life.
2. Brief facts, giving rise to the present appeal as emerging from the
material on record, are that the accused Khim Singh was residing with his
wife Himuli Devi in his residential house at village Simgari. He has a son,
named Mohan Singh, who was also residing with them, but sometimes, he
resided with his grandmother, who resides in the adjacent house of Laccham
Singh, brother of accused-Khim singh. Earlier accused-Khim Singh was in
service outside his village, but for the last 4-5 years he had come back
and was working as labourer. His wife, Himuli Devi, was a short- tempered
woman and she often quarrelled with Khim Singh. It was suspected in the
village that she was a woman of loose character and on account of this,
accused-Khim Singh was also not in good terms with her. Often they used to
be quarrelled with each other. On 17th July, 1987, also in the evening,
they had a quarrel. Early in the morning of 18th July, 1987, one Bahadur
Singh (since deceased), a resident of the village, while passing in front
of the house of the accused-Khim Singh found that the door was closed and
there was none outside. He opened the door and went inside the house and
found Himuli Devi lying dead. He raised an alarm, on which, the mother of
the accused also came there. He called the Sabhapati of the village, Bachi
Singh also. They all saw that Himuli Devi was lying inside the room, having
injuries on her body and she was dead.
3. The Sabhapati of the village, Bachi Singh, prepared a written report,
Ext.Ka-1. It was sent to the Patwari of the Kshetra through one Kishan
Singh. In the said report, Sabhapati mentioned that it was accused-Khim
Singh who killed his wife Himuli Devi and requested the Patwari to come and
investigate the matter. The written report was received by the Patwari,
Narain Singh, at 11.30 a.m. on 18th July, 1987 and on that basis he
prepared the FIR, Ext.Ka-3. He came to the house of Bachi Singh and
recorded his statement. Accompanied by Bachi Singh, he went to the house of
the accused, where Himuli Devi was found lying dead inside the house. The
dead body was taken into custody and the inquest report, Ext.Ka-4, was
prepared and the dead body was sealed. The letter with a request for
postmortem, Ext.Ka-5, was also prepared. The blood stained clothes were
taken into custody from the dead body and Fard, Ext.Ka-6 was prepared. From
the place where the dead body was lying, blood stained and plain earth were
also taken and sealed and a Fard, Ext.Ka-7, was prepared. The scene of
occurrence was also reflected in site plan Ext.Ka-8. The accused-Khim
Singh, who was present there, was arrested and a Fard, Ext.Ka-9, was
prepared. At the instance of the accused, a blood-stained Kulhari (axe) was
found inside the house and a Fard, Ext.Ka-2, was prepared. The sealed
articles were handed over to the peon and Fard, Ext.Ka-10 was prepared. The
statements of Manuli Devi (PW-1) and Khimuli Devi (PW-2) were recorded. In
between 19th and 22th July, 1987 the statements of other witnesses,
including Joga Singh (PW-5) were recorded. The sealed articles were sent
for chemical examination. The investigation was completed and the
chargesheet dated 22nd August, 1988, Ext.Ka-14, was submitted against the
accused.
4. The dead body was sent for postmortem which was conducted by Dr. N.D.
Punetha, on 19th July, 1987, at 11.30 a.m. at Bagesnwar. He found the
following ante mortem injuries on the dead body:
“1. Incised wound 5 cm x 2 cm bone deep present on the left side of
mastoid region of the head. Margins were lacerated and well defined.
2. Contusion 5 cm x 3 cm present on the occipital region of the head.
Semi digested food material was coming out from the mouth.”
5. On internal examination, the bone under the two injuries was found to
be fractured. Clotted blood was also found beneath these injuries. In the
stomach, a small quantity of semi-digested food material was found. There
were gases in the small and large intestines. This death, in the opinion of
the Medical Officer resulted from shock and haemorrhage, caused by the two
injuries, found on the dead body, which were sufficient for death in
ordinary course of nature. The postmortem report, Ext.Ka-15, was prepared.
The time since death was about one day and in the opinion of the doctor,
this death could have occurred in the night of 17th/18th July, 1987. He has
also given an opinion that the injuries were caused with some heavy sharp
edged weapon like Kulhari.
6. The Patwari-Simgari, after completing necessary formalities,
submitted a charge sheet dated 22nd August, 1987, against the accused,
Ext.Ka-14, to the Court of CJM, Almora. Since the offence was exclusively
triable by the Court of Sessions, the case was committed to the Sessions
Judge, Almora for trial of the accused. The Sessions Judge charged the
accused under Section 302 IPC, who pleaded not guilty to the charge and
claimed to be tried.
7. In order to bring home the guilt of the accused, the prosecution, in
oral evidence, examined as many as seven witnesses, namely, Manuli Devi (PW-
1)-mother-in-law of the deceased; Khimuli Devi (PW-2)-sister-in-law of the
deceased(gotani), Mohan Singh(PW-3)-minor son of the deceased with the
accused, Bachi Singh(PW-4), Joga Singh(PW-5)- a neighbour; Narain Singh-
Patwari (PW-6) and Dr. N.D. Punetha(PW.7) who conducted the postmortem on
the dead body of the deceased. Prosecution also tendered in evidence
affidavit of Bhagwat Singh, peon of Patwari, dated 5th January, 1988. All
the documents referred to above were filed by the prosecution. The Trial
Court on appreciation of evidence, both oral and documentary, based on
circumstantial evidence held the accused-Khim Singh guilty of the offence
punishable under Section 302 IPC.
8. Mr. Feroz Ahmed, amicus curiae appearing on behalf of the accused
assailed the judgment mainly on the ground that there is no complete chain
of circumstantial evidence to bring home the guilt of the accused. It was
contended that the appellant cannot be convicted merely on suspicion in
absence of any eye-witness. It was also contended that the relatives like
mother-in-law (PW-1), sister-in-law (PW-2) and even the neighbours Bachi
Singh (PW-4) and Joga Singh (PW-5) were declared hostile and hence there
was no sufficient evidence to prove the accused guilty.
9. In this case, there was no eye-witness of the occurrence. The case
was based on the circumstantial evidence. Manuli Devi (PW-1), the mother of
the accused in her testimony, stated that there was quarrel between the
accused and his wife, Himuli Devi,in the evening of 17th July, 1987, on the
festival of Harela. On the next morning, i.e. 18th July, 1987, one Bahadur
Singh found the door of the house of the accused closed and when he pushed
the door, he found Himuli Devi lying dead inside the house. Bahadur Singh
called Bachi Singh (PW-4), the Sabhapati. Thereafter, the Patwari also came
on the spot. However, she stated that after the dispute between accused-
Khim Singh and Himuli Devi she had not seen accused-Khim Singh and she was
declared hostile. However, she admitted that in the house only Khim Singh
and his wife were living. His son Mohan Singh was living with her. Khimuli
Devi (PW-2), is the wife of Lachham Singh, brother of the accused, sister-
in-law of the deceased Himuli Devi (gotani). According to her, she did not
know whether any quarrel took place between the accused and the deceased.
She had gone to her field on the day of Harela festival. The next morning
also, she had gone to the field, but when she came back, she saw Himuli
Devi lying dead. Mohan Singh (PW-3), is the minor son of the accused. He
stated that he was inside the house of his grandmother and he did not know
as to what happened in the house of his father.
10. Bachi Singh (PW-4), is the Pradhan of the village. He stated that
Khim Singh and his wife Himuli Devi often quarrelled. It was also talked
amongst the villagers that the wife of the accused was of loose character
and on that count accused Khim Singh was annoyed with his wife and they
frequently quarrelled. He further stated that on 17th July, 1987, in the
evening, there was a quarrel between Khim Singh and his wife, deceased
Himuli Devi. Early in the morning, at about 6.30 a.m., the mother of the
accused came to him and informed that Himuli Devi had not got up and Khim
Singh was also not there. When he went to the house of Khim Singh, he found
that the door was open and found that Himuli Devi was lying injured and
dead. Khim Singh was not found there. Bahadur Singh, Joga Singh(PW-5),
Lachham singh, Ram Singh and others also came and by that time, Khim Singh
was also found coming towards his house. He also testified that he got
prepared the written report,Ext.Ka-1, scribed by Bahadur Singh, and the
same was sent to the Patwari concerned. He further stated that when Patwari
came, a blood stained Kulhari was recovered from the house at the instance
of the accused and the Fard, Ext.Ka-2, was prepared. Joga Singh(PW-5),
another resident of the village, in his testimony, very hesitatingly stated
that the wife of accused was not of loose character. He stated that he went
to the house of Khim Singh when the Sabhapati called him there. There he
found Himuli Devi dead. Accused-Khim Singh was not present there at that
time, but after a short-while he was seen coming to his house. Narain Singh
(PW-6), Patwari,is the Investigating Officer and Dr. N.D.Punetha(PW-7),
conducted postmortem on the dead body. Both of them are formal witnesses
and had proved their report. The evidence of Mohan Singh (PW-3), aged about
8 years, minor son of the accused-Khim Singh, is not at all material.
11. The accused-appellant in his statement under Section 313 Cr.P.C.
denied the accusations levelled against him. He, denied that his wife did
not obey him and he used to quarrel with her. He also denied that she was
of loose character and that he was annoyed with her on that count. He
asserted that he was not present there at the alleged time of death,
therefore, there was no question of quarrel and altercation between him and
his wife. The accused did not disclose as to where he was on the relevant
date. However, he denied the recovery of blood stained Kulhari at his
instance. He claimed that the witnesses were inimical to him hence they
have falsely given evidence against him. In reply to question No.11, the
accused stated that he cannot claim if his wife was murdered by Kulhari on
the relevant date and time. He admitted that Patwari arrested him on 18th
July, 1987. He also claimed that he had no reason to kill his wife, who had
been living with him for the last about 17 years.
12. Himuli Devi died in the night intervening 17th and 18th July, 1987
and her death was fully proved by the postmortem report prepared by
Dr.N.D.Punetha(PW-7). It is not disputed that the deceased suffered from
ante mortem injuries, as detailed above. It is also not disputed that two
injuries found on the person of the deceased were sufficient in the
ordinary course of nature to cause death. It has not been challenged that
the ante mortem injuries could be self-inflicted. The prosecution thereby
established that the deceased Himuli Devi died as a result of ante mortem
injuries sustained by her in the night intervening 17th and 18th July,
1987.
13. From the perusal of the entire evidence on record, we find that the
prosecution in order to bring home the guilt of the accused has relied upon
the testimony of Manuli Devi(PW-1), Khimuli Devi (PW-2), Bachi Singh(PW-4)
and Joga Singh (PW-5). In order to see whether frequent quarrels were there
between the accused and his wife, the statements of these witnesses are
relevant to be discussed.
14. Manuli Devi(PW-1), is the mother of the accused and mother-in-law of
the deceased. That being so, there can be no reason for her to falsely
implicate her son in the commission of murder. In her statement she stated
that the wife of Khim Singh, Himuli Devi, did not obey Khim Singh,
therefore, Khim Singh was unhappy with her. She further stated that on the
festival of Harela in the evening, there was a quarrel between Khim Singh
and his wife. The next day in the morning, when Bahadur Singh opened the
door of the house of Himuli Devi, she also found Himuli Devi lying dead. In
her cross-examination she further testified that in the evening of the
alleged mis-happening the accused was present in the house and he had a
quarrel with his wife. She also stated that Himuli Devi was s short-
tempered woman and had often the accused assaulted her. She also stated
that earlier Himuli Devi had gone to jungle to hang herself. The entire
testimony of such a natural witness cannot be thrown out merely if the
prosecution asked to declare her hostile and on their request she was cross-
examined by the prosecution. The first circumstance that Himuli Devi was
short-tempered was further corroborated by the statement of Bachi Singh (PW-
4) Pradhan of the village. Generally the Pradhan of the village keeps
general information regarding the family matters and tries to settle such
matter in the village. Pradhan is instrumental to settle family disputes at
his level, therefore, as and when any such incident happens, the Pradhan is
immediately intimated. In the instant case, Pradhan (PW-4) prepared the
written report, got it scribed by Bahadur Singh,who had first seen the
deceased lying dead inside her house and called the Pradhan immediately on
the spot. In his statement, Bachi Singh, Pradhan, specifically stated that
Khim Singh and his wife often used to quarrel and there was a rumour in the
village that Himuli Devi was a woman of loose character and on account of
the result accused Khim Singh was unhappy with her.
15. Joga Singh (PW-5), is also a resident of the same village. Though
hesitatingly, this witness stated that so far as he knew the character of
Himuli Devi was good. The learned Sessions Judge observed that such
statement of Joga Singh(PW-5) is indicative of fact that probably Himuli
Devi was a woman on whom Joga Singh (PW-5) never intended to make any
specific remark. However, Joga Singh (PW-5) stated that accused and his
wife sometimes used to have amicable relation and sometimes they used to
quarrel.
16. From the above narration of the testimony of the witnesses, it can be
concluded that for the reason aforesaid, the accused was unhappy with his
wife Himuli Devi and this resulted in quarrels between them off and on. The
quarrel took place even in the evening preceding the date of the death.
17. In the night intervening 17th and 18th July, 1987 Himuli Devi was
killed by means of a Kulhari. Except accused Khim Singh nobody was residing
in the said house. Therefore, Himuli Devi could not be killed as a result
of assault by anybody else other than the accused. The conduct of the
accused in the morning of 18th July, 1987 was unnatural. He failed to
explain as to where he remained on the fateful night. In the background of
the aforesaid circumstances, it has to be examined whether the
circumstances relied upon by the prosecution formed a series of events and
whether the chain of circumstantial evidence was complete, which could be
sufficient to show involvement of the accused in the commission of murder.
18. Manuli Devi (PW-1), clearly stated that in the evening of 17th July,
1987, Khim Singh and his wife had a quarrel. She, however, added that it
was before the sunset. Manuli Devi being the mother of the accused is a
very natural witness and the credibility of her testimony cannot be
discarded. It is in her statement that she lived with her another son
Lachham Singh in a separate house, which is adjacent to the house of the
accused. She stated in unequivocal terms that Khim Singh and his wife lived
together and she(Himuli Devi) did not obey the accused. Bachi Singh (PW-4),
who is also a close neighbor, also stated that on the festival of Harela,
i.e., on 17th July, 1987 at about 6.30 p.m., a quarrel took place between
the accused and his wife and the shouts were heard by him. This part of
his statement has not been challenged in the corss-examination. Bachi Singh
(PW-4), being Pradhan of the village is an independent witness and,
therefore, there was no reason for him to falsely implicate the accused for
the offence of murder. Therefore, the prosecution successfully proved that
there was a quarrel between the accused and his wife in the preceding
evening.
19. The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
20. Joga Singh(PW-5), in his testimony stated that when Khim Singh was
found in the morning, he was asked about his whereabouts, in the night,
which he could not explain.
21. Learned Sessions Judge for the said reason in the judgment observed
that “this conduct of the accused in not explaining the alleged absence
from the house would go to show the case taken by him that he was absent
from the house is not believable. Obviously, the prosecution has been able
to establish beyond doubt that this accused was present at his house in the
night between 17th and 18th July, 1987. Having considered the material on
record, the High Court was unable to disagree with the finding arrived at
by the learned Sessions Judge on the point that the accused Khim Singh, was
very much present in his house on the fateful day and we do not find any
reason to disagree with such finding. Thus, the third circumstance is fully
proved by the prosecution.
22. The statement of Bachi Singh (PW-4), who clearly stated that none of
the residents of the village had any enmity with the deceased Himuli Devi
is very relevant. It is evident from the record that the accused failed to
assign any reason for the alleged enmity of the villagers and he could not
utter a single word to that effect in his statement under Section 313
Cr.P.C. Therefore, there is no reason to infer that anybody else from the
village could have committed the murder of Himuli Devi who was in the house
along with the accused-husband on the fateful night. The Investigation
Officer, Narain Singh (PW-6), Patwari, was examined by the prosecution. He
clearly stated that at the instance of the accused, Kulhari used in the
crime was recovered. He was cross-examined by the defence. In cross-
examination, he clearly denied the suggestion that the Kulhari (weapon of
assault) was not recovered at the instance of the accused. The Medical
Officer, Dr. N.D. Punetha (PW-7) in his examination in chief stated that
ante mortem injury No.1 on the person of the deceased could have been
caused by heavy sharp-edged weapon such as Kulhari and injury No.2 could
have been caused by the blunt/rear side blow of Kulhari or by fall on the
stony surface. This part of his statement was not questioned in his cross-
examination. It has come in the statement of Investigation Officer (PW.6)
that Kulhari recovered on the pointing of the accused was blood-stained and
hair was stuck on it. He was cross-examined regarding the blood-stained
portion of the Kulhari and the weight of the Kulhari, etc. It is
established that blood-stained Kulhari-Ext.Ka-2 was seized by the
Investigating Officer at the house of the accused.
23. Homicidal death of Himuli Devi is corroborated by the conduct of the
accused in the morning of 18th July, 1987. Joga Singh (PW-5) stated that
when the accused was found in the morning, he was asked about his
whereabouts in the night and he was not able to explain it. Even Khimuli
Devi (PW-2) wife of the brother of the accused, Lachham Singh, stated that
accused was outside the house in the morning wandering here and there.
Although accused was raising hue and cry that his wife was killed, he never
bothered to contact the Pradhan or the Patwari concerned to lodge a report
in the matter. However, statement of the accused that he was not present at
the house in the night seems to be unbelievable considering the positive
and credible testimony of Manuli Devi (PW-1) and other witnesses referred
to above.
24. Bachi Singh (PW-4), stated that door of the house of the accused was
not bolted from inside. This is one of the incriminating circumstances
which can be taken into consideration to conclude that the accused after
committing offence opened the door and went out.
25. The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed. The impugned judgment under appeal is upheld. We appreciate the
endeavour made by the learned amicus curiae, Mr. Feroze Ahmed in assisting
the Court in the matter and direct to pay a sum of Rs.7,000/- as fee to the
amicus curiae.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 8, 2014.
ITEM NO.IB (For Judgment) COURT NO.6 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1986/2009
KHIM SINGH Appellant(s)
VERSUS
STATE OF UTTRAKHAND Respondent(s)
Date :08/07/2014 This appeal was called on for judgment today.
For Appellant(s)
Mr. Feroz Ahmed (A.C.)
For Respondent(s)
Mr. Jatinder Kumar Bhatia, Adv.
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice V.
Gopala Gowda.
The appeal is dismissed in terms of the signed judgment.
(Sukhbir Paul Kaur) (Usha Sharma)
Court Master Court Master
(Signed reportable judgment is placed on the file)
The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41755
REPORTABLEIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1986 OF 2009
KHIM SINGH … APPELLANT
VERSUS
STATE OF UTTARAKHAND … RESPONDENT
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment dated 24th August, 2005
passed by the High Court of Uttaranchal(now Uttarakhand) at Nainital in
Criminal Appeal No.1388 of 2001 (Old No.-Criminal Appeal No.1165 of 1988).
By the impugned judgment the High Court upheld the judgment and order of
conviction dated 30th March, 1988, passed by the Sessions Judge, Almora in
Sessions Trial No.54 of 1987, State vs. Khim Singh, whereby the accused-
appellant was convicted for the offence punishable under Section 302 IPC
and was sentenced to undergo imprisonment for life.
2. Brief facts, giving rise to the present appeal as emerging from the
material on record, are that the accused Khim Singh was residing with his
wife Himuli Devi in his residential house at village Simgari. He has a son,
named Mohan Singh, who was also residing with them, but sometimes, he
resided with his grandmother, who resides in the adjacent house of Laccham
Singh, brother of accused-Khim singh. Earlier accused-Khim Singh was in
service outside his village, but for the last 4-5 years he had come back
and was working as labourer. His wife, Himuli Devi, was a short- tempered
woman and she often quarrelled with Khim Singh. It was suspected in the
village that she was a woman of loose character and on account of this,
accused-Khim Singh was also not in good terms with her. Often they used to
be quarrelled with each other. On 17th July, 1987, also in the evening,
they had a quarrel. Early in the morning of 18th July, 1987, one Bahadur
Singh (since deceased), a resident of the village, while passing in front
of the house of the accused-Khim Singh found that the door was closed and
there was none outside. He opened the door and went inside the house and
found Himuli Devi lying dead. He raised an alarm, on which, the mother of
the accused also came there. He called the Sabhapati of the village, Bachi
Singh also. They all saw that Himuli Devi was lying inside the room, having
injuries on her body and she was dead.
3. The Sabhapati of the village, Bachi Singh, prepared a written report,
Ext.Ka-1. It was sent to the Patwari of the Kshetra through one Kishan
Singh. In the said report, Sabhapati mentioned that it was accused-Khim
Singh who killed his wife Himuli Devi and requested the Patwari to come and
investigate the matter. The written report was received by the Patwari,
Narain Singh, at 11.30 a.m. on 18th July, 1987 and on that basis he
prepared the FIR, Ext.Ka-3. He came to the house of Bachi Singh and
recorded his statement. Accompanied by Bachi Singh, he went to the house of
the accused, where Himuli Devi was found lying dead inside the house. The
dead body was taken into custody and the inquest report, Ext.Ka-4, was
prepared and the dead body was sealed. The letter with a request for
postmortem, Ext.Ka-5, was also prepared. The blood stained clothes were
taken into custody from the dead body and Fard, Ext.Ka-6 was prepared. From
the place where the dead body was lying, blood stained and plain earth were
also taken and sealed and a Fard, Ext.Ka-7, was prepared. The scene of
occurrence was also reflected in site plan Ext.Ka-8. The accused-Khim
Singh, who was present there, was arrested and a Fard, Ext.Ka-9, was
prepared. At the instance of the accused, a blood-stained Kulhari (axe) was
found inside the house and a Fard, Ext.Ka-2, was prepared. The sealed
articles were handed over to the peon and Fard, Ext.Ka-10 was prepared. The
statements of Manuli Devi (PW-1) and Khimuli Devi (PW-2) were recorded. In
between 19th and 22th July, 1987 the statements of other witnesses,
including Joga Singh (PW-5) were recorded. The sealed articles were sent
for chemical examination. The investigation was completed and the
chargesheet dated 22nd August, 1988, Ext.Ka-14, was submitted against the
accused.
4. The dead body was sent for postmortem which was conducted by Dr. N.D.
Punetha, on 19th July, 1987, at 11.30 a.m. at Bagesnwar. He found the
following ante mortem injuries on the dead body:
“1. Incised wound 5 cm x 2 cm bone deep present on the left side of
mastoid region of the head. Margins were lacerated and well defined.
2. Contusion 5 cm x 3 cm present on the occipital region of the head.
Semi digested food material was coming out from the mouth.”
5. On internal examination, the bone under the two injuries was found to
be fractured. Clotted blood was also found beneath these injuries. In the
stomach, a small quantity of semi-digested food material was found. There
were gases in the small and large intestines. This death, in the opinion of
the Medical Officer resulted from shock and haemorrhage, caused by the two
injuries, found on the dead body, which were sufficient for death in
ordinary course of nature. The postmortem report, Ext.Ka-15, was prepared.
The time since death was about one day and in the opinion of the doctor,
this death could have occurred in the night of 17th/18th July, 1987. He has
also given an opinion that the injuries were caused with some heavy sharp
edged weapon like Kulhari.
6. The Patwari-Simgari, after completing necessary formalities,
submitted a charge sheet dated 22nd August, 1987, against the accused,
Ext.Ka-14, to the Court of CJM, Almora. Since the offence was exclusively
triable by the Court of Sessions, the case was committed to the Sessions
Judge, Almora for trial of the accused. The Sessions Judge charged the
accused under Section 302 IPC, who pleaded not guilty to the charge and
claimed to be tried.
7. In order to bring home the guilt of the accused, the prosecution, in
oral evidence, examined as many as seven witnesses, namely, Manuli Devi (PW-
1)-mother-in-law of the deceased; Khimuli Devi (PW-2)-sister-in-law of the
deceased(gotani), Mohan Singh(PW-3)-minor son of the deceased with the
accused, Bachi Singh(PW-4), Joga Singh(PW-5)- a neighbour; Narain Singh-
Patwari (PW-6) and Dr. N.D. Punetha(PW.7) who conducted the postmortem on
the dead body of the deceased. Prosecution also tendered in evidence
affidavit of Bhagwat Singh, peon of Patwari, dated 5th January, 1988. All
the documents referred to above were filed by the prosecution. The Trial
Court on appreciation of evidence, both oral and documentary, based on
circumstantial evidence held the accused-Khim Singh guilty of the offence
punishable under Section 302 IPC.
8. Mr. Feroz Ahmed, amicus curiae appearing on behalf of the accused
assailed the judgment mainly on the ground that there is no complete chain
of circumstantial evidence to bring home the guilt of the accused. It was
contended that the appellant cannot be convicted merely on suspicion in
absence of any eye-witness. It was also contended that the relatives like
mother-in-law (PW-1), sister-in-law (PW-2) and even the neighbours Bachi
Singh (PW-4) and Joga Singh (PW-5) were declared hostile and hence there
was no sufficient evidence to prove the accused guilty.
9. In this case, there was no eye-witness of the occurrence. The case
was based on the circumstantial evidence. Manuli Devi (PW-1), the mother of
the accused in her testimony, stated that there was quarrel between the
accused and his wife, Himuli Devi,in the evening of 17th July, 1987, on the
festival of Harela. On the next morning, i.e. 18th July, 1987, one Bahadur
Singh found the door of the house of the accused closed and when he pushed
the door, he found Himuli Devi lying dead inside the house. Bahadur Singh
called Bachi Singh (PW-4), the Sabhapati. Thereafter, the Patwari also came
on the spot. However, she stated that after the dispute between accused-
Khim Singh and Himuli Devi she had not seen accused-Khim Singh and she was
declared hostile. However, she admitted that in the house only Khim Singh
and his wife were living. His son Mohan Singh was living with her. Khimuli
Devi (PW-2), is the wife of Lachham Singh, brother of the accused, sister-
in-law of the deceased Himuli Devi (gotani). According to her, she did not
know whether any quarrel took place between the accused and the deceased.
She had gone to her field on the day of Harela festival. The next morning
also, she had gone to the field, but when she came back, she saw Himuli
Devi lying dead. Mohan Singh (PW-3), is the minor son of the accused. He
stated that he was inside the house of his grandmother and he did not know
as to what happened in the house of his father.
10. Bachi Singh (PW-4), is the Pradhan of the village. He stated that
Khim Singh and his wife Himuli Devi often quarrelled. It was also talked
amongst the villagers that the wife of the accused was of loose character
and on that count accused Khim Singh was annoyed with his wife and they
frequently quarrelled. He further stated that on 17th July, 1987, in the
evening, there was a quarrel between Khim Singh and his wife, deceased
Himuli Devi. Early in the morning, at about 6.30 a.m., the mother of the
accused came to him and informed that Himuli Devi had not got up and Khim
Singh was also not there. When he went to the house of Khim Singh, he found
that the door was open and found that Himuli Devi was lying injured and
dead. Khim Singh was not found there. Bahadur Singh, Joga Singh(PW-5),
Lachham singh, Ram Singh and others also came and by that time, Khim Singh
was also found coming towards his house. He also testified that he got
prepared the written report,Ext.Ka-1, scribed by Bahadur Singh, and the
same was sent to the Patwari concerned. He further stated that when Patwari
came, a blood stained Kulhari was recovered from the house at the instance
of the accused and the Fard, Ext.Ka-2, was prepared. Joga Singh(PW-5),
another resident of the village, in his testimony, very hesitatingly stated
that the wife of accused was not of loose character. He stated that he went
to the house of Khim Singh when the Sabhapati called him there. There he
found Himuli Devi dead. Accused-Khim Singh was not present there at that
time, but after a short-while he was seen coming to his house. Narain Singh
(PW-6), Patwari,is the Investigating Officer and Dr. N.D.Punetha(PW-7),
conducted postmortem on the dead body. Both of them are formal witnesses
and had proved their report. The evidence of Mohan Singh (PW-3), aged about
8 years, minor son of the accused-Khim Singh, is not at all material.
11. The accused-appellant in his statement under Section 313 Cr.P.C.
denied the accusations levelled against him. He, denied that his wife did
not obey him and he used to quarrel with her. He also denied that she was
of loose character and that he was annoyed with her on that count. He
asserted that he was not present there at the alleged time of death,
therefore, there was no question of quarrel and altercation between him and
his wife. The accused did not disclose as to where he was on the relevant
date. However, he denied the recovery of blood stained Kulhari at his
instance. He claimed that the witnesses were inimical to him hence they
have falsely given evidence against him. In reply to question No.11, the
accused stated that he cannot claim if his wife was murdered by Kulhari on
the relevant date and time. He admitted that Patwari arrested him on 18th
July, 1987. He also claimed that he had no reason to kill his wife, who had
been living with him for the last about 17 years.
12. Himuli Devi died in the night intervening 17th and 18th July, 1987
and her death was fully proved by the postmortem report prepared by
Dr.N.D.Punetha(PW-7). It is not disputed that the deceased suffered from
ante mortem injuries, as detailed above. It is also not disputed that two
injuries found on the person of the deceased were sufficient in the
ordinary course of nature to cause death. It has not been challenged that
the ante mortem injuries could be self-inflicted. The prosecution thereby
established that the deceased Himuli Devi died as a result of ante mortem
injuries sustained by her in the night intervening 17th and 18th July,
1987.
13. From the perusal of the entire evidence on record, we find that the
prosecution in order to bring home the guilt of the accused has relied upon
the testimony of Manuli Devi(PW-1), Khimuli Devi (PW-2), Bachi Singh(PW-4)
and Joga Singh (PW-5). In order to see whether frequent quarrels were there
between the accused and his wife, the statements of these witnesses are
relevant to be discussed.
14. Manuli Devi(PW-1), is the mother of the accused and mother-in-law of
the deceased. That being so, there can be no reason for her to falsely
implicate her son in the commission of murder. In her statement she stated
that the wife of Khim Singh, Himuli Devi, did not obey Khim Singh,
therefore, Khim Singh was unhappy with her. She further stated that on the
festival of Harela in the evening, there was a quarrel between Khim Singh
and his wife. The next day in the morning, when Bahadur Singh opened the
door of the house of Himuli Devi, she also found Himuli Devi lying dead. In
her cross-examination she further testified that in the evening of the
alleged mis-happening the accused was present in the house and he had a
quarrel with his wife. She also stated that Himuli Devi was s short-
tempered woman and had often the accused assaulted her. She also stated
that earlier Himuli Devi had gone to jungle to hang herself. The entire
testimony of such a natural witness cannot be thrown out merely if the
prosecution asked to declare her hostile and on their request she was cross-
examined by the prosecution. The first circumstance that Himuli Devi was
short-tempered was further corroborated by the statement of Bachi Singh (PW-
4) Pradhan of the village. Generally the Pradhan of the village keeps
general information regarding the family matters and tries to settle such
matter in the village. Pradhan is instrumental to settle family disputes at
his level, therefore, as and when any such incident happens, the Pradhan is
immediately intimated. In the instant case, Pradhan (PW-4) prepared the
written report, got it scribed by Bahadur Singh,who had first seen the
deceased lying dead inside her house and called the Pradhan immediately on
the spot. In his statement, Bachi Singh, Pradhan, specifically stated that
Khim Singh and his wife often used to quarrel and there was a rumour in the
village that Himuli Devi was a woman of loose character and on account of
the result accused Khim Singh was unhappy with her.
15. Joga Singh (PW-5), is also a resident of the same village. Though
hesitatingly, this witness stated that so far as he knew the character of
Himuli Devi was good. The learned Sessions Judge observed that such
statement of Joga Singh(PW-5) is indicative of fact that probably Himuli
Devi was a woman on whom Joga Singh (PW-5) never intended to make any
specific remark. However, Joga Singh (PW-5) stated that accused and his
wife sometimes used to have amicable relation and sometimes they used to
quarrel.
16. From the above narration of the testimony of the witnesses, it can be
concluded that for the reason aforesaid, the accused was unhappy with his
wife Himuli Devi and this resulted in quarrels between them off and on. The
quarrel took place even in the evening preceding the date of the death.
17. In the night intervening 17th and 18th July, 1987 Himuli Devi was
killed by means of a Kulhari. Except accused Khim Singh nobody was residing
in the said house. Therefore, Himuli Devi could not be killed as a result
of assault by anybody else other than the accused. The conduct of the
accused in the morning of 18th July, 1987 was unnatural. He failed to
explain as to where he remained on the fateful night. In the background of
the aforesaid circumstances, it has to be examined whether the
circumstances relied upon by the prosecution formed a series of events and
whether the chain of circumstantial evidence was complete, which could be
sufficient to show involvement of the accused in the commission of murder.
18. Manuli Devi (PW-1), clearly stated that in the evening of 17th July,
1987, Khim Singh and his wife had a quarrel. She, however, added that it
was before the sunset. Manuli Devi being the mother of the accused is a
very natural witness and the credibility of her testimony cannot be
discarded. It is in her statement that she lived with her another son
Lachham Singh in a separate house, which is adjacent to the house of the
accused. She stated in unequivocal terms that Khim Singh and his wife lived
together and she(Himuli Devi) did not obey the accused. Bachi Singh (PW-4),
who is also a close neighbor, also stated that on the festival of Harela,
i.e., on 17th July, 1987 at about 6.30 p.m., a quarrel took place between
the accused and his wife and the shouts were heard by him. This part of
his statement has not been challenged in the corss-examination. Bachi Singh
(PW-4), being Pradhan of the village is an independent witness and,
therefore, there was no reason for him to falsely implicate the accused for
the offence of murder. Therefore, the prosecution successfully proved that
there was a quarrel between the accused and his wife in the preceding
evening.
19. The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
20. Joga Singh(PW-5), in his testimony stated that when Khim Singh was
found in the morning, he was asked about his whereabouts, in the night,
which he could not explain.
21. Learned Sessions Judge for the said reason in the judgment observed
that “this conduct of the accused in not explaining the alleged absence
from the house would go to show the case taken by him that he was absent
from the house is not believable. Obviously, the prosecution has been able
to establish beyond doubt that this accused was present at his house in the
night between 17th and 18th July, 1987. Having considered the material on
record, the High Court was unable to disagree with the finding arrived at
by the learned Sessions Judge on the point that the accused Khim Singh, was
very much present in his house on the fateful day and we do not find any
reason to disagree with such finding. Thus, the third circumstance is fully
proved by the prosecution.
22. The statement of Bachi Singh (PW-4), who clearly stated that none of
the residents of the village had any enmity with the deceased Himuli Devi
is very relevant. It is evident from the record that the accused failed to
assign any reason for the alleged enmity of the villagers and he could not
utter a single word to that effect in his statement under Section 313
Cr.P.C. Therefore, there is no reason to infer that anybody else from the
village could have committed the murder of Himuli Devi who was in the house
along with the accused-husband on the fateful night. The Investigation
Officer, Narain Singh (PW-6), Patwari, was examined by the prosecution. He
clearly stated that at the instance of the accused, Kulhari used in the
crime was recovered. He was cross-examined by the defence. In cross-
examination, he clearly denied the suggestion that the Kulhari (weapon of
assault) was not recovered at the instance of the accused. The Medical
Officer, Dr. N.D. Punetha (PW-7) in his examination in chief stated that
ante mortem injury No.1 on the person of the deceased could have been
caused by heavy sharp-edged weapon such as Kulhari and injury No.2 could
have been caused by the blunt/rear side blow of Kulhari or by fall on the
stony surface. This part of his statement was not questioned in his cross-
examination. It has come in the statement of Investigation Officer (PW.6)
that Kulhari recovered on the pointing of the accused was blood-stained and
hair was stuck on it. He was cross-examined regarding the blood-stained
portion of the Kulhari and the weight of the Kulhari, etc. It is
established that blood-stained Kulhari-Ext.Ka-2 was seized by the
Investigating Officer at the house of the accused.
23. Homicidal death of Himuli Devi is corroborated by the conduct of the
accused in the morning of 18th July, 1987. Joga Singh (PW-5) stated that
when the accused was found in the morning, he was asked about his
whereabouts in the night and he was not able to explain it. Even Khimuli
Devi (PW-2) wife of the brother of the accused, Lachham Singh, stated that
accused was outside the house in the morning wandering here and there.
Although accused was raising hue and cry that his wife was killed, he never
bothered to contact the Pradhan or the Patwari concerned to lodge a report
in the matter. However, statement of the accused that he was not present at
the house in the night seems to be unbelievable considering the positive
and credible testimony of Manuli Devi (PW-1) and other witnesses referred
to above.
24. Bachi Singh (PW-4), stated that door of the house of the accused was
not bolted from inside. This is one of the incriminating circumstances
which can be taken into consideration to conclude that the accused after
committing offence opened the door and went out.
25. The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed. The impugned judgment under appeal is upheld. We appreciate the
endeavour made by the learned amicus curiae, Mr. Feroze Ahmed in assisting
the Court in the matter and direct to pay a sum of Rs.7,000/- as fee to the
amicus curiae.
………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………………J.
(V. GOPALA GOWDA)
NEW DELHI,
JULY 8, 2014.
ITEM NO.IB (For Judgment) COURT NO.6 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1986/2009
KHIM SINGH Appellant(s)
VERSUS
STATE OF UTTRAKHAND Respondent(s)
Date :08/07/2014 This appeal was called on for judgment today.
For Appellant(s)
Mr. Feroz Ahmed (A.C.)
For Respondent(s)
Mr. Jatinder Kumar Bhatia, Adv.
Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice V.
Gopala Gowda.
The appeal is dismissed in terms of the signed judgment.
(Sukhbir Paul Kaur) (Usha Sharma)
Court Master Court Master
(Signed reportable judgment is placed on the file)
