9911796707
TMI Blog2004 (4) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... mlabai 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 appellant No. 1 was eventually dismissed from services whereafter financial assistance was allegedly given to him by Ram Singh. The marriage of younger brother of Ramsingh, Rajendra was settled in De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed 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. Furthermore, as no person has seen the assassin, possibly it was a case of suicide. Assuming that it was a case of murder, the learned Sessions Judge wondered, keeping in view the place of occurrence vis-`-vis the points of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the fact that the burns have been held to be ante mortem in nature although the cause of death was said to be asphyxia. It was pointed out that the findings of the High Court to the effect that the death was a homicidal one by asphyxia was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Rs. 2000/- was asked for the same by itself could not be the motive on the part of the accused persons, for commission of the offence. Ms. Vibha Datta Makhija, learned counsel appearing on behalf of the State, on the other hand, would support the judgment of the High Court inter alia cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken 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 that the appellants herein have failed to prove their plea of alibi. What, however, is baffling to us on the manner in which the offence is alleged to have been committed. The High Court arrived at its findings relying upon the spot map prepared by learned trial Judge which indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.1 being seen as his jumping from the window would have been abnormal which would attract the attention of the persons who had assembled to take water from the tap. We also fail to see any force in the finding of the High Court to the effect that only because the appellant no.1 was the husb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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