1

(A.F.R)

Reserved on 07.09.2022

Delivered on 23.09.2022

Court No. -2

Case :- CRIMINAL APPEAL No. - 1984 of 1984

Appellant :- Manni Singh Alias Mannu Lal

Respondent :- State of U.P.

Counsel for Appellant :- G.S. Chaturvedi, Anurag Shukla, Mewa Lal

Shukla

Counsel for Respondent :- A.G.A.

Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Mayank Kumar Jain,J.

(Per : Hon’ble Mayank Kumar Jain, J)

1. This Criminal Appeal has been preferred against the judgment

and order dated 19.07.1984 passed by the Learned 1st Additional Sessions

Judge, Jhansi in Sessions Trial No.107 of 1983 (State Vs. Manni Singh @

Mannu Lal), arising out of Case Crime No.68 of 1983, under Sections

302/201 of IPC, Police Station Navabad, District Jhansi, whereby the

accused-appellant Manni Singh @ Mannu Lal was convicted under

section 302 of IPC and sentenced to undergo life imprisonment. He was

also convicted under Section 201 of IPC and sentenced to undergo three

years of rigorous imprisonment. Both the sentences were directed to run

concurrently.

2. Facts giving rise to the prosecution case are that Sri Krishna Dutt

Mishra, Sub-Inspector received information on 20.02.1983 at 6.30 p.m.

from constable Shrawan Kumar that a dead body of a female is lying in

the well situated in the University Campus. He along with constable

Matole Rajak and constable Shivcharan Sharma reached the place of

occurrence and with the assistance of some villagers, the dead body of the

deceased was taken out from the well. Since the source of light was not

available, inquest could not be made. On inquiring, it came to the

knowledge that the dead body so recovered is of Smt. Lad Kunwar, w/o

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Mannu Kumhar, chaukidar of the University Quarter. The inquest report

of the dead body was prepared the next day and the dead body was

handed over to constable Rananjay Singh and Constable Mahesh Prasad

for post-mortem examination.

3. After lodging of First Information Report, S.I. Krishna Dutt

Mishra started the investigation and it was revealed that the husband of

the deceased, Mannu Kumhar had killed his wife as both of them

quarrelled. The accused-appellant Mannu Kumhar had caused injuries on

the body of his wife and after her death, he threw the body in the nearby

well to conceal the evidence. Based on this, the first information report of

this case was registered as Case Crime No. 68 of 1983 under Sections

302, 201 IPC against the accused-appellant Manni Singh alias Mannu Lal,

which was entered in the G.D. of the police station concerned. One

Taveez, one chain of Gilat, and one chain of brass were recovered from

the body of the deceased and were taken into possession by the

Investigating Officer. A recovery memo was prepared which was

exhibited as Exhibit Ka-2. During the investigation, the Investigating

Officer prepared the recovery memo of a torch through which PW-2

Laxman Singh, the guard of the University Campus, had seen the

accused-appellant near the well on the fateful night. This recovery memo

was exhibited as Exhibit Ka -12. On 22.02.1983, the Investigating Officer,

in the presence of witnesses Khushal and Hariram, reached the place of

occurrence, i.e. the quarter of the accused-appellant, and recovered one

bloodstained coat, a piece of the plaster from the wall on which blood was

present, bloodstained ‘baan’ (rope used to knit the cot), few broken pieces

of bangles, one earring made of steel and one ‘Bichhiya’. Apart from

these, one bent (danda) with blood stains over it was also recovered. The

recovery memo was exhibited as Exhibit Ka-9. Recovered articles were

sent for examination to the Forensic Science Laboratory and a report was

obtained from there, which is available on record. After the conclusion of

the investigation, the charge sheet was submitted by the Investigating

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Officer under Sections 302/201 of IPC against the accused-appellant,

which was exhibited as Exhibit Ka-11. Thereafter, the case was

committed to the Court of Sessions, and charges under Section 302/201 of

IPC were framed against the accused-appellant Manni Singh alias Mannu

Lal. The accused-appellant pleaded not guilty and claimed to be tried.

4. To prove its case, the prosecution produced nine witnesses. PW-

1-Roop Singh, PW-2-Laxman Singh, PW-3-Masalti, PW-4 Ramesh, PW-5

Bhagwan Das (brother of the deceased,) PW-6 Khushali, PW-7 S.I.

Krishna Dutt Mishra, First Investigating Officer, who prepared the inquest

report of the dead body, PW-8 Jai Pal Singh, second Investigating Officer,

and PW-9 Dr. R.N. Sharma, who conducted the post-mortem examination

of the deceased Lad Kunwar.

5. After the conclusion of the prosecution evidence, the statement of

the accused-appellant under Section 313 of Cr.P.C. was recorded, in

which the accused denied that he has committed the crime and stated that

the witnesses have given false evidence against him and deposed based on

doubt only. He further stated that witness Masalti is the cousin of his

brother-in-law (sadhu), witness Laxman Singh is the friend of witness

Khushali, and witness Ramesh is the pocket witness of the police and has

given false evidence against the accused. The accused-appellant also

stated that he had gone to his village on 19.02.1983 and returned on the

third day, thereafter he came to know that he has been implicated in this

case.

6. Hearing both sides and after vetting the evidence, facts and

circumstances of the case, the trial Judge recorded conviction and passed

sentence against the Appellant as aforesaid.

7. Being aggrieved by the impugned judgment and order, the

accused-appellant has preferred the present criminal appeal.

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8. We have heard Shri Mewa Lal Shukla, learned counsel for the

accused-appellant, Shri Sunil Kumar Tripathi, learned Additional

Government Advocate for the State, and perused the record.

9. On the basis of the evidence available on record, it has to be

determined as to whether on the intervening night of 19.02.1983 the

accused-appellant committed the murder of his wife Lad Kunwar and with

the intention to cause disappearance of the evidence threw away her dead

body in the well.

10. Learned counsel for the appellant argued that there is no direct

evidence that the appellant has committed the murder of his wife Lad

Kunwar. The appellant has falsely been implicated due to village enmity

and the appellant was not even present in the village at the time of

occurrence since he had gone to his village on 19

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morning and when he

returned after 2-3 days, he came to know that a case has been registered

against him. Further, it is submitted that the witnesses examined by the

prosecution are inimical with the appellant and have, therefore, given

false evidence against him. The oral evidence is not in consonance with

the medical report since incised wounds were also mentioned in the

medical report and the prosecution has not stated how these injuries were

inflicted upon the deceased by the appellant. It is also submitted that the

alleged recovery made from the house of the appellant is concocted and

false and no such recovery was made. To make his submission good, the

learned counsel for the appellant argued that no motive has been assigned

by the prosecution against the appellant, and hence, the prosecution has

utterly failed to prove the charges against the appellant. The appellant is

liable to be acquitted and the appeal deserves to be allowed.

11. Per contra, learned AGA argued that the case of the prosecution

rests upon circumstantial evidence. The appellant was last seen together

with the deceased by the witnesses who witnessed that the appellant was

mercilessly beating his wife Lad Kunwar and these witnesses suggested to

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the appellant that he should consult the doctor since she was bleeding

profusely. On being asked why the appellant was beating his wife, they

were told that she was always abusing him. Deceased Lad Kunwar was

not seen alive by anyone after these witnesses saw her with the appellant

till her body was recovered from the well. It is apparent that deceased Lad

Kunwar suffered nineteen injuries on her body and the cause of the death

was ascertained as a result of ante-mortem injuries. After throwing the

dead body of his wife in the well, the appellant was seen by the

Chowkidar of the village at around 1 AM and he identified the appellant

under the torch light.

12. Further, it is submitted that since the appellant was absconding,

his house was searched by the investigating officer, and incriminating

articles such as blood-stained ‘dhurrie’, broken pieces of bangles, and one

bent, which was used by the appellant to beat the deceased, were

recovered. Apart from these, the investigating officer also took the piece

of the floor on which blood was found. All these articles were sent to

Forensic Laboratory and as per the report of this laboratory, human blood

was found on these articles. The prosecution witnesses have stated that the

appellant used to frequently quarrel with his wife Lad Kunwar. The

deceased Lad Kunwar told her brother Bhagwan Das (PW-5) that the

appellant beats her and she apprehended that he would kill her.

13. To buttress his arguments, the learned AGA further submitted

that being the husband it was the duty of the appellant to know about the

whereabouts of his wife while he only stated in his statement under

Section 313 Cr.P.C. that after returning from his village he came to know

that a case has been registered against him. The appellant did not utter

even a word about his wife. The presumption under section 106 of the

Evidence Act is to be drawn against the Appellant. These circumstances

indicate that the Appellant is only and the only author of the crime and he

has rightly been convicted and sentenced by the trial Court. Judgment and

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order of the trial Court are based upon the material available on record.

Thus, the appeal of the appellant is liable to be dismissed.

14. Admittedly, the case of the prosecution rests upon

circumstantial evidence.

15. The Hon’ble Apex Court while discussing the case of

circumstantial evidence in Mohd. Mannan Alias Abdul Mannan Vs.

State of Bihar, (2011) 2 Supreme Court Cases (Cri) 626 held that:-

"In our opinion to bring home the guilt on the basis

of circumstantial evidence the prosecution has to

establish that the circumstances proved lead to one

and the only conclusion towards the guilt of the

accused. In a case based on circumstantial evidence

the circumstances from which an inference of guilt is

sought to be drawn are to be cogently and firmly

established. The circumstances so proved must

unerringly point towards the guilt of the accused. It

should form a chain so complete that there is no

escape from the conclusion that the crime was

committed by the accused and none else. It has to be

considered within all human probability and not in a

fanciful manner. In order to sustain conviction

circumstantial evidence must be complete and must

point towards the guilt of the accused. Such evidence

should not only be consistent with the guilt of the

accused but inconsistent with his innocence. No hard

and fast rule can be laid down to say that particular

circumstances are conclusive to establish guilt. It is

basically a question of appreciation of evidence

which exercise is to be done in the facts and

circumstances of each case."

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16. In Md. Younus Ali Tarafdar v. State of West Bengal A.I.R.

2020 Supreme Court 1057: A.I.R. Online 2020 SC Page-238 the

Hon’ble Supreme Court laid out the factors to be considered while

adjudicating the case of circumstantial evidence observed that:-

" There is no direct evidence regarding the

involvement of the Appellant in the crime. The case

of the prosecution is on basis of circumstantial

evidence. Factors to be taken into account in

adjudication of cases of circumstantial evidence as

laid down by this Court are :

Admittedly, this is a case of circumstantial

evidence. Factors to be taken into account in

adjudication of cases of circumstantial evidence laid

down by this Court are :-

(1) the circumstances from which the

conclusion of guilt is to be drawn should be fully

established. The circumstances concerned "must" or

"should" and not "may be" established.

(2) the facts so established should be consistent

only with the hypothesis of the guilt of the accused,

that is to say, they should not be explainable on any

other hyopothesis except that the accused is guilty;

(3) the circumstances should be of a

conclusive nature and tendency;

(4) they should exclude every possible

hypothesis except the one to be proved; and

(5) there must be a chain of evidence so

complete as not be leave any reasonable ground for

the conclusion consistent with the innocence of the

accused and must show that in all human

probability the act must have been done by the

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accused."

17. In Pattu Rajan V. State of Tamil Nadu (2019) 4 SCC 771, the

Apex Court observed the nature of evidence in the case of circumstantial

evidence and held that:-

“30. Before we undertake a consideration of the

evidence supporting such circumstances, we would

like to note that the law relating to circumstantial

evidence is well settled. The Judge while deciding

matters resting on circumstantial evidence should

always tread cautiously so as to not allow

conjectures or suspicion, however strong, to take

the place of proof. If the alleged circumstances are

conclusively proved before the Court by leading

cogent and reliable evidence, the Court need look

any further before affirming the guilt of the

accused. Moreover, human agency may be faulty in

expressing the picturisation of the actual incident,

but circumstances cannot fail or be ignored. As

aptly put in this oft-quoted phrase:" Men may lie,

but circumstances do not".

31. As mentioned supra, the circumstances

relied upon by the prosecution should be of a

conclusive nature and they should be such as to

exclude every other hyopothesis except the one to

be proved by the prosecution regarding the guilt of

the accused. There must be a chain of evidence

proving the circumstances so complete so as to not

leave any reasonable ground for a conclusion of

innocence of the accused. Although it is not

necessary for this Court to refer to decisions

concerning this legal proposition, we prefer to

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quote the following observations made in Sharad

Birdhichand Sarda V. State of Maharashtra, (1984)

4 SCC 116 (SCC p. 185 para 153-154) : (AIR 1984

SC 1622, at p. 1655-56, paras 152-153):

"153. A close analysis of this decision would

show that the following conditions must be fulfilled

before a case against an accused can be said to be

fully established:

(1) the circumstances from which the

conclusion of guilt is to be drawn should be fully

established.

It may be noted here that this Court

indicated that the circumstances concerned "must

or should" and not "may be" established. There is

not only a grammatical but a legal distinction

between "may be proved" and "must be or should

be proved" as was held by this Court in Shivaji

Sahabrao Bobde V. State of Maharashtra 1973 Cri

L.J 1783 where the following observations were

made:

Certainly, it is a primary principle that

accused must be and not merely may be guilty

before a Court can convict and the mental distance

between "may be and "must be" is long and divides

vague conjectures from sure conclusions."

(2) the facts so established should be

consistent only with the hypothesis of the guilt of

the accused, that is to say, they should not be

explainable on any other hypothesis except that the

accused is guilty,

(3) the circumstances should be of a

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conclusive nature and tendency.

(4) they should exclude every possible

hypothesis except the one to be proved, and

(5) there must be a chain of evidence so

complete as not to leave any reasonable ground for

the conclusion consistent with the innocence of the

accused and must show that in all human

probability the act must have been done by the

accused.

154. These five golden principles, is we may

say so, constitute the panchsheel of the proof of a

case based on circumstantial evidence."

18. The Hon’ble Supreme Court concerning the cases based on

circumstantial evidence in Ganpat Singh Vs. State of Madhya Pradesh

(2018) 2 Supreme Court Cases (Criminal) 159, held that:-

"There are no eyewitnesses to the crime. In a case

which rests on circumstantial evidence, the law

postulates a twofold requirement. First, every link in

the chain of circumstances necessary to establish the

guilt of the accused must be established by the

prosecution beyond reasonable doubt. Second, all the

circumstances must be consistent only with the guilt of

the accused. The principle has been consistently

formulated thus:

"The normal principle in a case based on

circumstantial evidence is that the circumstances from

which an inference of guilt is sought to be drawn must

be cogently and firmly established; that those

circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused;

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that the circumstances taken cumulatively should form

a chain so complete that there is no escape from the

conclusion that within all human probability the crime

was committed by the accused and they should be

incapable of explanation on any hypothesis other than

that of the guilt of the accused and inconsistent with his

innocence."

19. The present case of the prosecution consisted of the following

circumstances:-

(i)Evidence of last seen of the deceased together with the appellant

(ii)Motive of commission of the crime by the appellant

(iii)Recovery of the incriminating articles from the place of

occurrence

(iv)Concealment of evidence by the appellant

EVIDENCE OF LAST SEEN OF THE DECEASED TOGETHER WITH

THE APPELLANT

20. The investigation commenced on the basis of the information

given by PW-1-Roop Singh, the Chaukidar of Bundelkhand University.

PW-1 after receiving information that one dead body was lying in the well

near the university quarter, visited the spot and informed the police

telephonically. The police took out a dead body of a woman who was later

identified as Lad Kunwar, wife of Mannu Lal.

21. PW-3-Masalti and PW-4 Ramesh are the witnesses of the fact

that they saw Lad Kunwar alive for the last time in the company of the

appellant on the day of occurrence around 10:00 pm inside the quarter of

the appellant. Thereafter, her body was recovered, and she was not seen

alive by anyone in the intervening period. PW-3-Masalti and PW-4

Ramesh have stated in their evidence that they were passing by the quarter

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of the appellant when they heard and saw Lad Kunwar, wife of the

appellant, weeping. Besides, they saw that Lad Kunwar was sitting on the

floor and the appellant was mercilessly beating her with bent. Both the

witnesses have stated that they have witnessed the incident and they

suggested the appellant to take his wife to the hospital. No material

contradiction occurred in the testimony of these two witnesses in their

cross-examination that deceased Lad Kunwar was last seen alive by them

and after the incident, her body was found in the well.

22. The Hon’ble Apex Court in Ganpat Singh Vs. State of

Madhya Pradesh (2018) 2 Supreme Court Cases (Criminal) 159 while

observing the significance of last seen theory held that:-

"Evidence that the accused was last seen in the company

of the deceased assumes significance when the lapse of

time between the point when the accused and the

deceased were seen together and when the deceased is

found dead is so minimal as to exclude the possibility of

a supervening event involving the death at the hands of

another. The settled formulation of law is as follows:

"The last-seen theory comes into play where the

time gap between the point of time when the accused

and the deceased were seen last alive and when the

deceased is found dead is so small that possibility of any

person other than the accused being the author of crime

becomes impossible. It would be difficult in some cases

to positively establish that the deceased was last seen

with the accused when there is a long gap and

possibility of other persons coming in between exists. In

the absence of any other positive evidence to conclude

that the accused and the deceased were last seen

together, it would be hazardous to come to a conclusion

of guilt in those cases."

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MOTIVE OF COMMISSION OF THE CRIME BY THE APPELLANT

23. PW-1 Roop Singh has stated in his testimony that the appellant

was residing adjacent to his quarter and very often the husband and the

wife used to quarrel with each other. PW-3 Maslati and PW-4 Ramesh

stated in their testimony that when they reached inside the quarter of the

appellant, they witnessed that the appellant was mercilessly beating his

wife with a bent. On being enquired about the reason for such action, the

appellant told them that her wife, Lad Kunwar used to quarrel often and

used abusive language against him. PW-5 Bhagwan Das, who is the

brother of the deceased Lad Kunwar, has also stated in his testimony that

approximately five days before the occurrence of the incident, he had

heard about the fight between his sister and the appellant. After hearing

this news, he went to his sister, the deceased, to bring her back along with

him but the appellant did not permit him from doing so and asked him to

go back. The deceased confided with PW-5 that the appellant used to beat

her frequently and she feared for her life. She, thus, requested PW-5 to

take her back along with him. Thus, this witness has also corroborated the

version of PW-3 and PW-4 about the motive behind the commission of

the crime by the appellant as the appellant frequently had quarrels with his

wife and used to beat her often.

RECOVERY OF THE INCRIMINATING ARTICLES FROM THE

PLACE OF OCCURRENCE

24. PW-6 Khushali is the witness of recovery from the place of

occurrence, i.e. the house (quarter) of the appellant. He has proved the

recovery of a bloodstained dhurrie and a bloodstained bent. The police

also took possession of a piece of the plaster from the wall on which

blood was present along with bloodstained baan (rope used to knit the

cot). Apart from these, one ear pin, few broken pieces of bangles, and one

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Bichhiya (foot ring) were also recovered from the place of occurrence.

PW-6 is the witness of the recovery memo (Ex Ka 9)

25. PW-8 Jai Pal Singh, SHO, who is the second investigating

officer of the case, has proved the recovery memo as Ex Ka 9. This

witness also stated in his evidence that in the presence of independent

witnesses, the lock of the quarter of the appellant was broken and a

bloodstained dhurrie, a bloodstained bent, piece of the plaster from the

wall on which blood was present along with bloodstained baan (rope used

to knit the cot), one ear pin, few broken pieces of bangles, and one

Bichhiya (foot ring) were recovered from the place of occurrence. This

witness proved the recovered article as Ex 12 to Ex 14. These articles

were sent to Forensic Laboratory for chemical examination. The report of

the Forensic Lab Ex Ka 15 concluded that human blood was found on

these articles. Thus, the recovery of incriminating articles from the

appellant’s quarter indicates that the appellant mercilessly beat his wife at

the place of occurrence, and owing to such beating, blood injuries were

inflicted upon her, as evidenced by the blood stains on such recovered

articles.

CONCEALMENT OF EVIDENCE BY THE APPELLANT

26. The body of the deceased Lad Kunwar was recovered from a

well by PW-7 S.I. Krishna Dutt Mishra after receiving the information

from Constable Shravan Kumar that a body of a woman is lying in the

well situated in the campus of the University. The body was taken out

which was identified as the body of Lad Kunwar, the wife of the

appellant. PW-7 prepared the site plan of the place of recovery of the dead

body (Ex Ka- 3). This witness had stated in his evidence that he prepared

the inquest report of the dead body and prepared requisite documents for

post-mortem.

27. PW-1 Roop Singh is the informant, gave information to the

police (station) about the presence of a dead body inside the well and also

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the witness of fact of the dead body being taken out from the well. He

identified the dead body as that of Lad Kunwar-the wife of the appellant.

28. PW-2 Laxman Singh stated that he was deputed as Chowkidar

from 5 PM to 5 AM in the university campus. On the day of occurrence,

at around 1 AM, he heard some sound and approached the well and found

that the engine of the well was intact in its place. appellant Mannu Lal

was returning from the well. On being asked, the appellant told that he

came there to ease himself and he hit the stone with his leg which fell

inside the well. This witness identified the appellant in the light of a torch

that he had at that time. On the next day, he came to know that body of a

woman was lying inside the well. He reached there and found that the

dead body was of Lad Kunwar, wife of the Appellant. He handed over the

torch to the investigating officer who prepared the recovery memo (Ex

Ka-2) which bore his signature. PW-7 SI Krishna Dutt has proved the

execution of Ex Ka 2. He also stated that after receiving the information

about the discovery of a dead body inside the well, he along with other

police personnel reached the site of the well and with assistance of the

villagers, took out the body from the well. At the same time, he came to

know that it was the body of the wife of the appellant.

29. On the basis of appreciation of the above evidence it is proved

that the appellant after committing the murder of his wife Lad Kunwar,

with the intention to cause disappearance of the evidence, threw her body

inside the well which was recovered later on and identified by the

witnesses as the wife of the appellant. The presence of the appellant as

proved by PW-2 Laxman near the well at 1 AM on the night of occurrence

indicates that the appellant was there to dispose off the body thus, causing

disappearance of the evidence.

30. Apart from the appreciation of the evidence available on record,

it is pertinent to mention here that PW-7 Krishna Dutt and PW-8 Jai Pal

Singh, the first and second Investigating Officer respectively, have stated

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in their evidence that they completed all the formalities during the course

of the investigation. The inquest of the dead body was conducted, and it

was sent for post-mortem. Formal documents were executed. A site plan

of the place of occurrence and the place of recovery of the body was

prepared. The torch through the light of which, witness Laxman saw the

appellant on the night of the incident was also taken and is proved as

exhibit.

31. PW-9 Dr. R.N. Sharma has conducted the post-mortem of the

deceased Lad Kunwar and prepared his report. The following ante-

mortem injuries were found on the body of the deceased:-

“1- दाई खोपडी पर उभरे भाग के सामने Horizontal 1 -1/2” x 1/2” x हड्डी

तक गहरा साफ कटा घाव है। हड्डी पर नीचे घाव का निनशान था।

2- बाऐ

ं कन्धे से लेकर हाथ तक दोनों तरफ

¼” x 1/4” से लेकर ½” x ½”

की अनेक खराशें हैं।

3- बाई भुजा के निनचले भाग में पीछे ½” x ¼ ” x मांस तक गहरा साफ कटा

घाव है।

4- बाई जांग के नीचे बाहरी ओर 5” x ½” की खराश है।

5- बाऐ

ं

Cubital fossa के उपर 3” x ½” लाल नीला नीलगू निनशान। नीचे

काटने पर ख

ून जमा है व

humerus हड्डी ट

ूटी है।

6- बाई जांग के निनचले अन्दर के भाग में 2” x ¼” की खराश।

7-बाई टांग के निनचले सामने के भाग में व टखने के बाहरी भाग पर एक एक ¼”

x ¼” की खराशें हैं।

8- बाएं अंगूठा व उंगलिलयों पर तलवे की तरफ लाल नीले नीलगू निनशान हैं।

9- दाएं पंजे के अंगूठा व उंगलिलओ

ं पर लाल नीले नीलगू निनशान हैं।

10- दाई टांग के निनचले पीछे के भाग पर ¼” x ¼” की खराश हैं।

17

11- दाई जांग के बीच में सामने पास पास दो क्रमशः 3” x ¼” व 2” x 1/4” की

खराशें हैं।

12- दाई जांग की बीच से लेकर उपर भाग तक फै ला बाहरी ओर 5” x ½” का

लाल नीला नीलगू निनशान था। निनशान के बीच (कागज फटा) जगह खाल

सामान्य थी।

13- दाऐ

ं कूलहे पर

3” x ½ ” का लाल नीला नीलगू निनशान

14- दाई अग्रबाह

ु के पीछे बीच में व अन्दर की तरफ बीच में एक एक

1” x ¼”

की खराशें हैं। हलकी पपडी जमी है।

15- दाएं कं धे पर 1” x 1” का लाल नीला नीलगू निनशान।

16- बाएं स्तन पर 1” x ¼ ” की खराश

17- बाएं कन्धे के पीछे 2” x 2” की खराश।

18- दाई आंख के उपरी व निनचले पलकों पर ¼” x ¼ ” की एक एक खराश है।

19- बाएं कन्धे पर ¼ ” x ¼ ” की खराश है।

32.The doctor has opined that the death of the deceased was

caused due to bleeding and shock and may be caused by bent and danda.

The deceased died due to ante mortem injuries. Further, he stated that the

injuries might have been caused during the intervening night of

19/20.02.1983.

33. The medical evidence is in consonance with the oral evidence

of PW-3 Masalti and PW-4 Ramesh who are the witnesses of the fact that

they saw the appellant beating his wife using a bent mercilessly and she

was bleeding profusely. The nature of injuries caused to the deceased

indicates that the appellant caused severe injuries to his wife Lad Kunwar

and she succumbed to such injuries.

34.Appellant in his statement recorded under Section 313

Cr.P.C. pleaded not guilty and stated that he has falsely been implicated.

He was not present in the village on the day of occurrence, and he had

18

gone to his village on 19

th

morning and came back after 2-3 days.

Thereafter, he came to know a case has been registered against him.

35. Section 106 of the Evidence Act, 1872 reads thus:-

“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.”

36. The appellant in his statement under section 313 Cr.P.C. did not

utter even a single word as to ever finding his wife missing or else making

any effort to find her thereafter. Being husband, the appellant failed to

offer any acceptable explanation for this ignorance.

37. In the case of Pattu Rajan Vs. State of Tamil Nadu, (2019) 4

SCC 771 (2019) 2 SCC (Criminal) 354, the Hon'ble Supreme Court

held:

“The doctrine of last seen, if proved, shifts the

burden of proof onto accused, placing on him the onus to

explain how the incident occurred and what happened to

victim who was last seen with him. Failure on the part of

accused to furnish any explanation in his regard, as in the

case in hand, or furnishing false explanation would give

rise to a strong presumption against him, and in favour of

his guilt, and would provide an additional link in the chain

of circumstances."

38. In Sudru v. State of Chhattisgarh, (2019) 8 SCC

333, the Hon’ble Court observed:-

“In this view of the matter, after the prosecution has

established the aforesaid fact, the burden would shift upon the

appellant under Section 106 of the Evidence Act. Once the

prosecution proves, that it is the deceased and the appellant,

who were alone in that room and on the next day morning the

dead body of the deceased was found, the onus shifts on the

19

appellant to explain, as to what has happened in that night and

as to how the death of the deceased has occurred.

9. In this respect reference can be made to the following

observation of this Court in Trimukh Maroti Kirkan v. State of

Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra,

(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] : (SCC p. 694,

para 21)

“21. In a case based on circumstantial evidence where

no eyewitness account is available, there is another principle

of law which must be kept in mind. The principle is that when

an incriminating circumstance is put to the accused and the

said accused either offers no explanation or offers an

explanation which is found to be untrue, then the same

becomes an additional link in the chain of circumstances to

make it complete.”

39. In view of the above factual and legal matrix, it transpires that

the appellant has failed to discharge his burden as cast upon him under

section 106 of the Evidence Act, 1872 to prove the whereabouts of his

wife after she was found to be missing. The appellant only stated that after

returning to his village he came to know that a criminal case was

registered against him. However, he did not say anything about the status

of the whereabouts of his wife. In these circumstances, it was the liability

of the appellant to offer any explanation about his missing wife.

40. On the basis of the above discussion, we have concluded that

the circumstances clearly indicate that the appellant committed murder of

his wife Lad Kunwar, causing severe injuries on her body. The incident

was witnessed by the eye-witnesses namely PW-3 Masalti and PW-4

Ramesh. The motive of the incident is also proved by the prosecution with

the evidence of PW-1 Roop Singh, PW-2 Laxman Singh, PW-3 Masalti,

PW-4 Ramesh, and PW-5 Bhagwan Das. The recovery of incriminating

articles in the presence of PW-6 Khushali and the recovery memo

20

prepared by PW-7 Krishna Dutt as exhibited as EX Ka 2 also indicate the

circumstances leading to the murder of Lad Kunwar by the appellant. The

presence of the appellant on the intervening night at around 1 AM near the

well where later dead body was found, also indicates the conduct of the

appellant to try to cause disappearance of the evidence. Further, the

appellant failed to discharge his burden as cast upon him under section

106 of the Evidence Act, 1872. All this evidence indicates that appellant

Manni Lal is the author of the crime and he committed the murder of his

wife Lad Kunwar. The prosecution has succeeded to bring home the

charges against the appellant under section 302/201 IPC beyond

reasonable doubt. The trial court has rightly convicted and sentenced the

appellant Manni Lal. Therefore, the impugned judgment and order of the

trial court do not require any interference and are liable to be confirmed.

41. The criminal appeal is accordingly dismissed.

42. In this case, the Appellant is on bail, his personal bond and

surety bonds are cancelled. He be taken into custody forthwith and be sent

to jail to serve out the remaining part of his sentence.

43. Let the certified copy of this order be transmitted to the trial

court for ensuring compliance.

Dated: 23.09.2022

Mohit

(Mayank Kumar Jain, J) (Arvind Kumar Mishra-I, J)