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Phundi vs State Of M.P. on 23 September, 1992

Madhya Pradesh High Court

Phundi vs State Of M.P. on 23 September, 1992

Equivalent citations: 1993 CriLJ 1881

Author: S Chawala

Bench: S Dubey, S Chawala

JUDGMENT S.K. Chawala, J.

1. Appellant Fundi, aged about 52 years, has filed this appeal, challenging his conviction under two heads under Section 302, I.P.C. and sentense of imprisonment for life inflicted for each of the two offences, for committing murders of his own daughters, Kalawati aged 13 years, and Guddi aged 9 years, while they were asleep in his house on the night of 22nd/23rd October, 1983, in village Chak Sarwa, P.S. Gohad, district Bhind.

2. The prosecution case rested on the statement of appellant-Fundi, recorded as dying declaration (Ex. P. 17) by Naib Tahsildar and Executive Magistrate, Shri Purshottam Gupta (P. W. 9) and circumstantial evidence. The said dying declaration (Ex. P. 17) was excluded, and rightly, from consideration by the trial Court. It was alleged that in the wake of the incident, the accused had caused injuries to himself in a bid to end his life and was in a serious condition, when his statement was recorded by Shri Purshottam Gupta (P. W. 9) in Gohad Hospital, on 23-10-83, at 5.15 p.m. That statement so far as it released to the cause of his own injuries would have been admissible as dying declaration. But since the maker of the said statement chanced to survive, the said statement is clearly not admissible as dying declaration. It could be admitted in evidence as a previous statement of the maker for corroboration under Section 157 of the Evidence Act or for contradiction under Section 145 ibid with respect to his evidence in Court. But an accused, rarely if ever, examines himself as a witness in his defence in Court. The accused/appellant, in the present case, also did not examine himself in his defence. There was, therefore, no occasion for the use of that statement. A look at that statement would show that a part of it was a plenary acknowledgment of guilt in which the accused in so many words admitted to have dealt a number of blows with a spade (Phawda) on his to daughters and done them to death. It was, therefore, if at all, a ‘judicial’, as distinguished from ‘extra-judicial confession’. But even as a judicial confession, it was absolutely inadmissible in evidence. The simple reason for that was that it was not recorded by a Magistrate empowered to do so. Reading of Section 164 of Code of Criminal Procedure, 1973 would show that only a Metropolitan Magistrate or a Judicial Magistrate is empowered to record a confession under that provision. Shri Purshottam Gupta (P. W. 9), who recorded it, was an Executive Magistrate, who had also not observed the safegards described in Section 164 ibid. When a confession is recorded by a Magistrate who is not empowered, it is absolutely inadmissible. Even oral evidence about it by the Magistrate is inadmissible. Reference may be made in this connection to Supreme Court’s decisions in State of U.P. v. Singhara Singh in AIR 1964 SC 358 : (1964 (1) Cri LJ 263(2) and Nika Ram v. State of H.P. in AIR 1972 SC 2077 : 1972 Cri LJ 1317.

3. This left the case as based only on circumstantial evidence. From post-mortem reports, Ex. P.1-A and P.2-A proved by Dr. Mittal (P. W. 1), it appeared that deceased Guddi had an ante mortem lacerated wound 6″ x 5″ x brain matter deep, on her right side of scalp extending up to face. Below that injury there was a comminuted compound fracture of right frontial, parietal and temporal bones with fracture of maxilla of the right side. The membranes and the brain matter were lacerated. She had died of injury to scalp, skull and brain leading to come and death. The injury to her was sufficient in the ordinary course of nature to cause death. The other daughter Kalawati had 5 ante mortem wounds, namely, a penetrating wound 1/2″ x 1/4″ x 2/ 3″ on the right side of the face, another penetrating wound 1/2″ x 1/4″ x 1/2 on the right side of the frontal region of scalp, a lacerated wound 1″ x 1/4″ x brain deep on the right side of the occipital region of scalp and lastly, comminuted fracture of the lower jaw and right upper jaw with fracture or upper right central, lateral incisor tooth with laceration of gum and lips. There was comminuted fracture of the right side frontal, parietal and occipital bones. The membrane and brain matter were lacerated. She had died because of injuries to scalp, skull and brain. Her injuries were also sufficient in ordinary course of nature to cause death. There is no doubt on this evidence that both the daughters were murdered.

4. Before we advert to the various circumstances brought out against the accused, the one thing that need to be noticed at the very beginning is that prosecution examined the accused’s wife named Kailashi (P. W. 3), son Hari Singh (P. W.4) brother Tularam (P. W. 5) relation Maharaj Singh (P. W. 6) and a neighbour Karan Singh (P. W. 7). All of them turned hostile and were discredited with their contrary police statements. They exhibited great reluctance in their evidence to implicate the accused. If they spoke anything against the accused, those words were virtually wrenched out of their lips. Their evidence could safely be therefore accepted to the extent they felt compelled to admit in support of the prosecution story. The following circumstances were satisfactorily brought against the accused-appellant.

5.    First, the accused was present in his house on the fateful night. This was not only the evidence of   accused’s   wife    Kailashi (P. W. 3) and his son Hari Singh (P. W. 4), but also an undisputed fact.

6.    Secondly, the two girls Kalawati and Guddi were found to be murdered in their bed, in a room of the house in exclusive possession of the accused occupied by him, his wife, his son Hari Singh (P. W. 4) aged 22 years and the two deceased daughters. A blood stained spade was found to be lying in that very room.

7. Thirdly, the post-occurrence conduct of the accused was hightly incriminating. Even the accused’s wife Kailashi (P. W. 3) felt compelled to admit that her husband after the incident had jumped down from the terrace of the house. The explanation given by the accused in his examination under Section 313, Cr. P.C. was ridiculous; namely, that he had slipped from the terrace. If he had really slipped, his wife would not have said that he had jumped from the terrace. What is more, the accused’s real brother living in adjoining house, namely Tularam (P. W. 5) admitted that accused was seen trying to smash his head with a brick. Even Maharaj Singh (P. W. 6) admitted this fact. Thus the accused after jumping from the terrace tried to smash his head with a brick and was trying to end his life. Such conduct of the accused showed his dully mind that he was so much overcome by remorse and repentence for the deed done by him that he wanted to end his life. If he had not confessed to his crime by speaking any words at that time, his conduct was more eloquent and telling.

8. In contrast, evidence also appeared in the case about the exculpatory conduct of accused’s wife and his son. It came in the evidence that the accused’s wife had at least raised hue and cry, attracting people to the house of incident. Accused’s son Hari Singh (P. W. 4) had rushed to inform about the incident to Chowkidar Kashiram (P. W. 12), who of his turn visited the house of the accused and after seeing the place and situation of the incident went with accused’s brother; Tularam (P. W. 5) to the police station, where Tularam lodged a report.

9. Fourthly, the accused had motive to commit the crime. There was evidence of Karan Singh (P. W. 7) to the effect that the appellant often used to say that he did not have money and so how would he get his daughters married. It appears that this thought had become a nightmare with the accused. There was also the evidence of accused’s son Hari Singh (P. W. 4) to the effect that his father had incurred a debt of Rs. 3,000/- in performing obsequies of his (accused’s own) mother some time prior to the present incident. It is possible to understand that a person may incur expenses in performing obsequies, but the evidence of Hari Singh (P. W. 4) was that his father (i.e. accused) had incurred debt for that reason. This showed that financial condition of the accused was bad. He appeared to be under great financial stress and the thought that he would have to spend money on the marriage of his daughters had become an obsession and nightmare with him, which drove him to commit the crime.

10. Lastly, there was no explanation from |the accused with regard to the killings of his daughters, which had taken place in his own house. The present case was a case of custodial deaths. Where death occurs while in the custody of an accused, the accused is obliged to given at least a plausible explanation for the cause of death in his statement under Section 131, Cr. P.C. Failure to explain may be treated as a circumstance against him. In State of U.P. v. H. P. Mittal, reported in (1992) 3 SCC 300, a husband and his wife slept on the ill-fated night in a bed-room in their exclusive use. The wife was discovered to have been murdered in that room on the following morning. The husband was also present in the room on the following morning. The husband gave a false explanation that he was not present at the room an the following morning because he had gone to visit a patient. The Supreme Court observed that though the husband, who was respondent in that appeal before the Supreme Court, could not be held guilty solely on his false explanation that false explanation assumed great significance, for he was bound to give an acceptable and plausible explanation stating the circumstances under which the deceased had died. The observations of the Supreme Court in Paragraph 39 of the report are pertinent and may be profitably reproduced:–

Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bedroom in the early morning.

11. So also in Ganeshlal v. State of Maharashtra, reported in (1992) 3 SCC 106 : (1992 AIR SCW 1175) a husband and his family members were present in the house in which his wife was burnt to death. All were acquitted by the trial Court. The High Court reversed the acquittal of the husband and convicted him of the offence under Section 302, I.P.C. It did not how ever interfere with the acquittal of the family members. In appeal by the husband before the Supreme Court, the Supreme Court observed that the husband/ accused was bound to give wife. Following observations of the Supreme Court in Para 11 of the report are pertinent :–

When the death had occurred in their custody, the appellant is under an obligation in Section 313, Cr. P.C. statement at least to give a plausible explanation for the cause for her death. No such attempt was even made excepting denying the prosecution case. These facts completely are inconsistent with the innocence, but consistent with the hypothesis that the appellant is a prime accused in the commission of gruesome murder of his wife.

12. In the present case, despite the fact that daughters had been killed in his custody, there was no explanation on the part of the accused either at the spot or in his statement under Section 313, Cr. P.C. to show how and under what circumstances his daughters were killed.

13. When all the above circumstances are considered cumulatively or are joined together, they form a complete chain so as not to leave any reasonable doubt about the guilt of the accused-appellant. The chain of circumstances is not only consistennt with the guilt of the accused/appellant but is also inconsistent with his innocence. It leads to an irresistible (sic) all event a prime perpetrator of the crime which resulted in the murders of his daughters.

14. Before conducting we must record our appreciation for the assistance rendered by Smt. Mrinal Amresh, Amicus Curiae appointed by this Court for the appellant.

15. For the foregoing reasons, we find no force in this appeal. The convictions and sentences of the appellant are affirmed. The appeal is dismissed.

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