Rajkumar Vs. State of M.P
 Insc 540 (14 September 2004)
P. Venkatarama Reddi & B.P.
Singh P. Venkatarama Reddi, J.
The appellant herein was convicted under Section 304 Part II IPC and
sentenced to suffer imprisonment for ten years and to pay a fine of
Rs.10,000/-. The High Court reversed the order of acquittal of the Additional
Sessions Judge, Shivpuri in Sessions Case No. 90 of 1986 in which charges were
framed against the appellant under Sections 302 and 498A of IPC. The appellant
was charged of committing the murder of his wife Kalpana on 23.5.1986 at about 2.00 p.m. at his house. The appellant married Kalpana in May, 1985. At the time of the
incident which took place a year later, she was in the advanced stage of
The accused Rajkumar and his brother Shyamlal (PW15) were residing in the
same building. Adjacent to this building, their elder brother Keshav Prasad
Agrawal (PW17) was residing. The accused Rajkumar was occupying the third
floor. It was in the bed-room of the accused that his wife was brutally
PW15the brother of the accused invited Suresh Kumar Chokse (PW2), Gopal
Krishna Dandatiya (PW5) and Mahesh Prasad Pandey (PW13) for lunch on that
At about 2.00 p.m., after hearing some noise and cries they went to the
upper floor of the building and found the wife of the accused lying almost
naked with face down in a pool of blood in the bed room with injuries all over
the body. PW15 went inside the room and asked her as to what happened.
She replied "Ve Mar Gaye" (the literal translation of 'Ve' being
'they'). The mother of the accused, who was in the 2nd floor, told PW13 while
weeping that some altercation was going on upstairs.
The victim succumbed to the injuries even before she reached the hospital.
The postmortem examination of the body was done by PW3 at Shivpuri District Hospital
at about 4.00 p.m. on the date of incident. He noticed two incised woundsone
'L' shaped over parietal region of scalp, the vertical limb of wound measuring
4 cm. x 5 cm. x scalp deep and horizontal limb being 2 cm. x = cm x scalp deep.
Two adjacent incised wounds were present over posterior and middle part of
frontal region of scalp. Contusions over many parts viz., right shoulder, left
eyebrow, left arm, right and left thighs, dorsum of left hand extending upto
left shoulder and a railway track contusion of 6 cm. x 2 cm. over lateral
aspect of right thigh were found. Horizontal abrasion of 4=" x ="
over left side of chest just below rest of left clavicle and another abrasion
of 3 cm. x 1 cm. over right anterior auxiliary line at 7th and 8th rib level
were also found.
Dark red fresh clotted blood was present around the wounds. The examination
of uterus showed a well grown foetus with fully developed male baby which was
found destroyed. PW3 expressed the view that the cause of death was shock due
to hemorrhage from various injuries sustained by her. In cross examination, he
clarified that hemorrhage due to injuries 1 & 2 resulted in death and that
no fracture of skull has been found and no injury to the brain was noticed.
However, immediate unconsciousness could be caused due to injuries 1 & 2.
They were not of such a nature that would cause immediate death. He opined that
injuries 1 & 2 would have been caused with a sharp-edged weapon and it
cannot be caused by a hammer or by article 'O' (iron pipe/rod). PW4, another
Medical Officer also stated that the cut wounds mentioned as injuries 1 & 2
could be caused with a sharp-edged weapon.
The brother of the deceased (PW1) lodged the report to the police at 3.00 p.m. and the FIR was registered on that basis. In the report, he stated that at about
2.00 p.m. he got information from PW2, with whom he was employed, that his
brother-in-law Rajkumar had beaten his sister and her condition was serious and
that she was taken to hospital. He added that at the hospital also he came to
know through others that the accused had beaten his sister. Thus, he clearly
incriminated the accused in the report given to the police. Then the
investigation was started by PW21. He had called PW10the Scientific Assistant,
who prepared site plan and inspection notes, according to which there were
extensive blood-stains on walls, clothes, table and mongri.
PW21 seized the wooden mongri and the other blood-stained articles found
inside the room which was the scene of offence. As seen from Ext.P.8, the
wooden piece ('mongri', used while washing clothes) is of the length of one
foot and width of three inches. PW21 arrested the accused on the next day i.e.
on 24.5.1986 and at the instance of the accused an iron pipe of the length of
two feet, round in shape at one side and flat at another side was seized from
the bath room. It was noted in the seizure memo (Ext. P.19) that blood was
present at the flat side of the seized iron pipe. Though PW21 stated in his
deposition that iron rod and wooden piece were seized at the same time, it is
clear from Ext. P.19 & P.8seizure memos, that only the iron pipe was seized
after the arrest of the accused. On the same day, the I.O.(PW21) having found
traces of blood on the body of the accused, took the accused to Forensic
Science Laboratory's mobile unit and the dry blood scrapings were collected by
the in-charge of the mobile unit (PW10). It may be mentioned at this stage that
the reports of F.S.L. in regard to seized articles etc., have not been produced
for reasons best known to the prosecution. The Investigating Officer also
recorded the statements of various witnesses including PW17Keshav Prasad (the
elder brother of the accused) and PWs 2, 5, 13, 15 and others. Surprisingly,
the younger sister of the deceased(PW8), who allegedly came to the house in the
morning of 23.5.1986 and met the deceased and accused, and her mother were
examined about ten days later. In fact, PW8 denied that she ever gave the
statement to police. The accused, in the course of his examination under
Section 313 either answered the questions in the negative or made bare denial.
There was no eye-witness to the incident.
All the witnesses who were produced for unfolding the prosecution case, in
particular PWs 2, 13, 15 and 17 were declared as hostile witnesses by the
prosecution after their chief examination in part.
The trial Court, on an elaborate consideration of the circumstantial
evidence including the medical evidence, held that the participation of the
accused in the crime was not established beyond reasonable doubt. The learned
Sessions Judge found no evidentiary basis for the prosecution case in regard to
harassment or ill-treatment of the deceased for dowry or otherwise. No other
motive was found against the accused. The trial Court held that the alleged
dying declaration made before the hostile witnesses was doubtful.
The recoveries on the basis of disclosure statements were not satisfactorily
established. The circumstances proved by the prosecution were not at all
sufficient to fix the guilt on the accused. Therefore, the trial Court gave the
benefit of doubt to the appellant.
The High Court disagreed with the findings of the trial Court and found that
the circumstantial evidence was complete enough to unmistakably point the hand
of the accused in the crime. The High Court while affirming the view of the
trial Court that there was no previous animosity or motive to kill the wife,
gave the following reasons for holding that the circumstances established by
the prosecution formed a complete chain to prove beyond doubt the involvement
of the accused:
The deceased was seriously injured within the room in which she used to live
with her husband. The accused was last seen with the deceased by PW8the sister
of the deceased, at about 9.00 a.m. The elder brothers of the accusedPWs15 and
17 claimed that the accused was at the saw mill at the time the incident took
place and on being informed he came home and wept embracing the dead- body. No
independent witness was examined by the accused to show his presence at the saw
mill. The accused himself did not come forward with any such version. The
accused said nothing in his reply under Section 313 Cr.P.C. as to how the deceased
was injured inside their room. The accused had maintained silence on this
crucial aspect. No explanation was given for the presence of dried up blood on
his chest and arm which was scrapped out by PW10 for examination.
A false theory of robbery and fatal assault by some stranger was sought to
be set up by PWs 15 & 17, but it was totally unbelievable. There were many
circumstances to indicate that it could not have been a case of robbery. PW2
deposed that the deceased had stated that "he had beaten me" and that
PW2 was definite that the deceased had not referred to any stranger but to her
husband only. The same thing was said by PW5.
Coming to the last observation in the above para, we must say that it is
contrary to the evidence on record. In making such observation, the High Court
had either referred to the statement under Section 161 recorded by the police
or the High Court evidently misread the deposition. What was stated by PWs 2
& 5 was that Kalpana, on being questioned by Shyamlal (PW15), stated that
"they have given beatings" (ve mar gaye). It is true that the plural
expression "Ve" is often used by ladies as a respectful term while
referring to the husband. But it is not possible to say definitely that the
said expression was used not in the normal plural sense but with reference to
her husband. In this context, it is to be noted that there is no evidence to
the effect that the deceased Kalpana used to refer to her husband in that
manner. The High Court, on a wrong reading of the depositions of PWs 2 & 5,
construed the utterance of the deceased referred to above, virtually as a dying
declaration made by the deceased within the hearing of PWs 2 & 5
implicating the appellant.
The second factor that weighed with the High Court was the 'last seen'
evidence of PW8 coupled with the non- explanation of the injuries on the wife
while in bed-room.
PW8, as already stated, was allegedly examined long after the incident and
no explanation was given for such belated examination, as pointed out by the
trial Judge. In fact, she denied having made any statement to the police
earlier. Be that as it may, the evidence of PW8 does not advance the
prosecution case much. During the long gap of 4= hours in the day time, there
was a reasonable possibility of the accused leaving the house to attend to his
work or for any other purpose. In fact, PW15the brother of the accused who was
declared as hostile witness, set up the version that the accused was working at
the saw mill at the crucial time but it was not substantiated further. The
accused did not, in the course of his examination under Section 313 Cr.P.C.,
clarify whether he was at the house or elsewhere. He just denied the knowledge
of the incident. Though it is not safe to act upon the version given by PW15,
yet it was the duty of the prosecution to establish that the accused had or
necessarily would have remained at the house around the time when the attack
took place. The 'last seen' evidence of PW8, even if believed, cannot be
pressed into service by the prosecution on account of the long time gap, that
too during day time. Barring the evidence of PW8 who claimed to have seen the
accused at 9.00 a.m. at his house, there is no other evidence to establish the
presence of the accused in the house proximate to the time of occurrence.
Therefore, the vital link in this behalf is missing in the case.
The High Court harped on the fact that the theory of robbery sought to be
set up by PW15 was inconsistent with all probabilities and therefore it was
apparently a false plea.
But it does not absolve the prosecution of the burden to connect the accused
with the crime. The circumstantial evidence should be so overwhelming as to
exclude the hypothesis of the innocence of the accused. Unfortunately, such
circumstantial links are lacking in the present case.
Moreover, the prosecution even failed to adduce evidence as to the
subsequent conduct of the appellant, which could have provided one of the links
in the chain of circumstantial evidence. It is not the case of the prosecution
that the appellant was not seen in the house or in the hospital soon after the
One of the circumstances relied upon by the High Court was the presence of
the dried up blood traces on the chest and arm of the accused. Though the
scrapping of blood was done by PW10 on the day of appellant's arrest, the
laboratory report has not been produced. It is contended by the learned counsel
for the appellant that finding the blood traces a day after the incident seems
to be wholly unrealistic. However, it is not necessary to examine this aspect
further in the absence of the blood analysis report.
Amongst the main prosecution witnesses, PW5 was one witness who was not
treated hostile by the prosecution. His evidence has been referred to in
another context, supra.
None of the facts stated by him in the deposition would lead to an inference
that the accused had committed the crime.
On the other hand, his evidence as well as the evidence of the Investigation
Officer reveals that any outsider had easy access to the third-floor of the
building where the accused and his wife are living.
Above all, no motive has been proved or seriously suggested for inflicting
fatal injuries on the pregnant wife whom the accused married a year back. In a
case based on circumstantial evidence, this factor also should be kept in view.
In this state of evidence, the High Court should not have disturbed the
findings reached by the trial Court on an elaborate consideration of the
evidence adduced by the prosecution. It is not a case in which it could be
safely said that the view taken by the trial Court was clearly unreasonable or
perverse and against the settled principles of standard of proof and evaluation
of evidence in a criminal case.
We are, therefore, of the view that the conviction of the appellant on the
charge under Section 302 I.P.C. cannot be sustained though suspicion looms
large against the accused. The material witnesses turning hostile and deficient
investigationthe common maladies afflicting the criminal justice system have
irretrievably shattered the prosecution case leaving the Court with no option
but to acquit the accused.
We therefore allow the appeal affirming the verdict of acquittal given by
the trial Court. The appellant shall be released from prison forthwith.