JAYANTILAL VERMAversusSTATE OF M.P. (NOW CHHATTISGARH)

                         [2020] 12 S.C.R. 411                          411


                     JAYANTILAL VERMA                                  A
                                 v.
            STATE OF M.P. (NOW CHHATTISGARH)
                 (Criminal Appeal No. 590 of 2015)
                      NOVEMBER 19, 2020                                B
  [SANJAY KISHAN KAUL AND HRISHIKESH ROY, JJ.]
      Penal Code, 1860:
      s. 302 – Death caused by strangulation – In matrimonial house
of the deceased – Chargesheet against the husband (appellant-          C
accused) and father-in-law and mother-in-law of the deceased –
Trial Court relying on evidence of PW-1 and medical evidence
convicted all the accused u/s. 302 – During appeal to High Court
prosecution against father-in-law of the deceased abated due to
his death – High Court acquitted the mother-in-law while convicting
                                                                       D
the appellant-accused – Appeal to Supreme Court – Held: Evidence
of PW-1 was consistent and cogent – In view of the facts that family
members were present in the house, some time before the incident
and there was no possibility of outsider coming and strangulating
the deceased, it was for the accused to explain how the deceased
could have received the injuries – There was no explanation given      E
by the accused – Therefore there is no reason to interfere with the
impugned judgment – Conviction of appellant-accused upheld –
However, State is directed to consider the release of the accused on
completion of 14 years of actual sentence.
      Dismissing the appeal, the Court                                 F
      HELD : 1.1 It is no doubt true that a large number of
witnesses turned hostile and the Trial Court was also not happy
with the manner, the prosecution conducted this case. But that
is not an unusual event in the long drawn out trials and in the
absence of any witness protection regime of substance, one has         G
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. [Para 20][420-D-E]


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                                411
412            SUPREME COURT REPORTS                    [2020] 12 S.C.R.


A           1.2 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 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
B
      the Indian context, there exists a continued relationship between
      two families wherein the daughter-in-law comes from another
      house. [Para 21][420-E-G]
            1.3 The case of the prosecution rests only on the testimony
      of PW-1 and the medical evidence. The statement of PW-1 was
C     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
D     the police did not record it in the FIR though it was mentioned.
      [Para 22][420-G-H; 421-A]
            Yanob Sheikh Alias Gagu v. State of West Bengal (2013)
            6 SCC 428 : [2012] 13 SCR 1150 ; Gulam Sarbar v.
            State of Bihar (Now Jharkhand) (2014) 3 SCC 401 :
E           [2013] 12 SCR 1 – referred to.
            1.4 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
F     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. [Para 23][421-A-C]
            1.5 The death was caused and the body was found in the
      precincts of the house of the appellant, where there were only
G     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. [Para
      24][421-B-D]
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        JAYANTILAL VERMA v. STATE OF M.P. (NOW                         413
                   CHHATTISGARH)

       1.6 In the present case, the Court is confronted with a         A
situation where the appellant, 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 the incident
is also quite obvious. No explanation has been given as to how
the wife could have received the injuries. This is a strong
                                                                       B
circumstance indicating that he is responsible for commission of
the crime. The appellant 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. [Para 25][421-D-F]
      Trimukh Maroti Kirkan v. State of Maharashtra (2006)             C
      10 SCC 681 : [2006] 7 Supp. SCR 156 - relied on.
      Amarsingh Munnasingh Suryawanshi v. State of
      Maharashtra (2007) 15 SCC 455 : [2007] 11 SCR 1 ;
      Raj Kumar Prasad Tamarkar v. State of Bihar & Anr.
      (2007) 10 SCC 433 : [2007] 1 SCR 13 – referred to.               D

     2. However, the respondent-State is directed to examine
whether the appellant 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         E
on completion of 14 years of actual sentence. [Para 27][421-F-H]
                      Case Law Reference
[2007] 11 SCR 1                referred to            Para 15
[2007] 1 SCR 13                referred to            Para 15          F
[2006] 7 Supp. SCR 156         relied on              Para 15
[2012] 13 SCR 1150             referred to            Para 18
[2013] 12 SCR 1                referred to            Para 18
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                G
No. 590 of 2015.
      From the Judgment and Order dated 18.09.2014 of the High Court
of Chhattisgarh at Bilaspur in Criminal Appeal No. 1930 of 2000.

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414            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A           Satish Pandey, Salim Ansari, Umang Tripathi, Ms. Geeta Verma,
      Manmohan Sharma, Raghvendra Kumar and Nishanth Patil, Advs. for
      the appearing parties.
            The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J.
B
             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
      alleged that he had returned to village Uslapur to see his sister, where he
C     was informed by her in-laws that she had died. He related a prior 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)
D     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
E     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
F     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 information from the marg intimation and also elaborated
G     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
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         JAYANTILAL VERMA v. STATE OF M.P. (NOW                               415
         CHHATTISGARH) [SANJAY KISHAN KAUL, J.]

asphyxia due to strangulation, and the nature of death was possibly           A
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
                                                                              B
‘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.                                   C
       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      D
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.
                                                                              E
      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,       F
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 place in the house, which in turn was surrounded by
other houses on three sides and no commotion was heard. Further, no           G
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
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416            SUPREME COURT REPORTS                          [2020] 12 S.C.R.


A     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
B
      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
C     was upheld by the High Court.
            6. The appellant herein filed the present appeal in which leave
      was granted on 30.3.2015.
             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
D     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
E     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.
F
             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
G     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
H     he returned to his house, he raised a hue and cry, pretending to be shocked
         JAYANTILAL VERMA v. STATE OF M.P. (NOW                                     417
         CHHATTISGARH) [SANJAY KISHAN KAUL, J.]

by the sudden death of the deceased. There was a possibility of death               A
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           B
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 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         C
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:                                          D
       “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           E
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 the submissions of the learned counsels for the parties.                   F
      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                      G
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
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418               SUPREME COURT REPORTS                     [2020] 12 S.C.R.


A     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
B     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 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
C     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,
D     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
E     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
F     placed on the following judgments:
               a. Amarsingh Munnasingh Suryawanshi v. State of
               Maharashtra 1: In this case, the death had occurred in the
               matrimonial home but the conviction was supported by a dying
               declaration.
G
               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.
      1
          (2007) 15 SCC 455
H     2
          (2007) 10 SCC 433
           JAYANTILAL VERMA v. STATE OF M.P. (NOW                               419
           CHHATTISGARH) [SANJAY KISHAN KAUL, J.]

         c. Trimukh Maroti Kirkan v. State of Maharashtra3: In this             A
         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.                                       B
      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:                                         C
         “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.         D
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
                                                                                E
         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   F
         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         G
            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
3
    (2006) 10 SCC 681
4
    (2013) 6 SCC 428                                                            H
420               SUPREME COURT REPORTS                           [2020] 12 S.C.R.


A                 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
                  spite of testimony of several witnesses if it is not satisfied about
                  the quality of evidence. The bald contention that no conviction
B
                  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.
C           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
D     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.
E
             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 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
F     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
G     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,

      5
          (2014) 3 SCC 401
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            JAYANTILAL VERMA v. STATE OF M.P. (NOW                               421
            CHHATTISGARH) [SANJAY KISHAN KAUL, J.]

but could not state the reason why the police did not record it in the FIR       A
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             B
suicidal. It was also voluntarily opined, that there had to be a minimum
of five minutes of forceful pulling to cause the death.
       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               C
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        D
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         E
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. The appeal is accordingly dismissed leaving the parties to             F
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            G
be undertaken within the same time on completion of 14 years of actual
sentence.

Kalpana K. Tripathy                                          Appeal dismissed.
6
    Trimukh Maroti Kirkan v. State of Maharashtra (supra).                       H