STATE OF M. P. v. HOSHIYARSINGH — 1989 DIGILAW 233 (MP)

A. G. QURESHI, J. ( 1 ) AGGRIEVED by the judgement dated 31-7-1986, passed by the 5th Additional Sessions Judge, Ujjain, in Session Trial No. 116 of 1986, acquitting the respondent of the charge under Section 302 of the Indian Penal code the state has filed this appeal. One Shri Vishwanath Barve, Deputy Superintendent of Police at present posted as Dy. S. P. , Indore Area Superintendent, Special Branch, Indore, has filed an application under Section 482 Criminal Procedure Code for expunging the remarks made against him by the trial Court. ( 2 ) FACTS leading to this appeal and the application under Section 482 Criminal Procedure Code are that the respondent Hoshiyarsingh was married to the deceased Shantirani in the year 1953 and she continued to remain as the wife till her death in the city of Ujjain in the Freegunj locality. One building known as Chhabra Lodge belongs to the respondent. This is a three storied building with a terrace over that. It is also covered by the parapet wall of the height of 2 feet. One Surendrapalsingh was also residing as a tenant in that house. Mahendrasingh and Mastansingh are the sons of the deceased and the respondent. The height of the building is 30 feet. The prosecution witnesses Gurubachansing (P. W. 1) and Khushalsingh (P. W. 5) are the brothers of the deceased Shantirani and the prosecution witness Inder Kaur (P. W. 15) is the sister-in-law and wife of Khushalsingh (P. W. 5 ). They also reside in Ujjain. On 24-2-1986, Smt. Shantirani died due to fall from the terrace of Chhabra Lodge. As a result of the fall, her bones were fractured and she was immediately rushed to the District Hospital, Ujjain and in the interventing night of 24th and 25th February 1986, she succumbed to the injuries. After the death, her dead body was handed over to her sons - Mahendrasingh and Mastansingh and on the next day at 11-30 a. m. cremation was held. The respondent was not present at the time of the cremation. Even after 3 days of her death, the respondent was not present at the ceremony of picking up the mortal remains of the dead body. On 23-2-1986, the accused was in Ujjain to attend the Shanti Path of his mother. The respondent was not present at the time of the cremation. Even after 3 days of her death, the respondent was not present at the ceremony of picking up the mortal remains of the dead body. On 23-2-1986, the accused was in Ujjain to attend the Shanti Path of his mother. For the last many years, the accused-respondent was residing in village Mandana, district Kota, Rajasthan and one Rani was his concubine. The respondent also opened a Savings Bank Account in the Bank in the joint names of himself and Rani. He also transferred an amount of Rs. 5000/- on 25-2-1986 in the joint account from his account. The accused-respondent was arrested on 5-4-1986 for committing the murder of his wife. ( 3 ) ACCORDING to the prosecution story, the accused and the deceased lived happily as husband and wife for seven years and thereafter their relations became strained. The accused kept one Sita in village Hardosan as his concubine, as a result of which the relations become strained. Thereafter the accused kept or Ayodhyabai as his concubine. The accused was involved with Ayodhyabai so much that he wanted to keep her in the house but Shantirani was not agreed to this, whereupon that relations with Shantirani became very strained. At that time the accused beat Shantirani and threatened her to throw down. On 23-2-1966, the accused was in Ujjain to attend the death anniversary of his mother. On 24-2-1986 at about 11 p. m. there was a bitter quarrel between the husband and wife and as a result of which th accused threw Shantirani from the roof top to the ground due to which Shantirani received bone injuries and later on she succumbed to injuries in the hospital. Thereafter the accused fled away from Ujjain and did not attend any of the rites of Shantirani. The Police did not get the post mortem examination performed and handed over the dead body to the sons of the deceased. On a report lodged on 1-3-1986 in writing, an offence was registered against the accused and after investigation charge sheet was submitted in the Court. The accused was charged for committing an offence under Section 302 of the Indian Penal Code. He abjured the guilt and claimed trial. His plea was that of innocence. On a report lodged on 1-3-1986 in writing, an offence was registered against the accused and after investigation charge sheet was submitted in the Court. The accused was charged for committing an offence under Section 302 of the Indian Penal Code. He abjured the guilt and claimed trial. His plea was that of innocence. ( 4 ) THE learned trial Court, after the trial, acquitted the respondent of the offence under Section 302 of the Indian Penal Code and also passed strictures against the officers. Hence this appeal and application. ( 5 ) VIKYAMAL (P. W. 3) is the witness, according to whom he had seen one man and woman fighting in Punjab on the terrace of Chhabra Lodge. Thereafter Shantirani fell from the roof and he had seen the accused peeping from the terrace immediately thereafter and one or two minutes after the incident the accused came on the road and went towards the bazar. In cross-examination this witness states that he did not narrate this fact to anyone except Gurubachansingh (P. W. 1) and that too after three or four days of the incident. In cross-examination he could not deny that he was a tenant of the accused and for 18 times his shop was raided for keeping illicit liquor. The most important fact is the omission of the main fact in the case diary statement of this witness. He did not narrate it to the Police that after having seen Shantirani fallen from the terrace, he had also seen the accused-respondent peeping from the roof of the Chhabra Lodge and he did not narrate this fact to Gurubachansingh (P. W. 1 ). There was no light an the terrace of Chhabra Lodge and it was dark there and nothing was visible. Although this witness had seen the accused going out of Chhabra Lodge, but he did not tell him that his wife had fallen from the roof. His conduct after the incident was also unnatural because he neither took any steps to get Shantirani to the hospital nor to to inform anyone or even to raise an alarm. ( 6 ) ACCORDING to Gurubachansingh (P. W. 1), Vikyamal (P. W. 3) has told him that the accused had thrown Shantirani from the roof of Chhabra Lodge. His conduct after the incident was also unnatural because he neither took any steps to get Shantirani to the hospital nor to to inform anyone or even to raise an alarm. ( 6 ) ACCORDING to Gurubachansingh (P. W. 1), Vikyamal (P. W. 3) has told him that the accused had thrown Shantirani from the roof of Chhabra Lodge. The trial Court has, therefore, rightly disbelieved th testimony of Vikyamal (P. W. 3) and has rightly held that he wrongly informed Gurubachansingh (P. W. 1) that it was the respondent who threw the deceased from the roof tap. He has categorically stated buffer the trial Court that he is not in a position to say a to how the deceased feel the roof. As such, we do not find any infirmity in the appreciation of evidence by he trial Court when it held that the presence of this witness on the place of the incident itself at the time of the incident is doubtful. ( 7 ) NEXT witness Raju (P. W. 4) has been examined as an eye-witness but he does not support the prosecution story. He was declared hostile and cross-examined by the prosecution, but he has not stated anything in the Court to implicate the respondent. Shivnarayan (P. W. 14) has simply stated that he had heard one man and woman fighting on the roof of Chhabra Lodge, but he does not say anything more. Anil Chandel (P. W. 15) states that on 1-3-1956 Raju had stated to him that the accused had thrown his wife from the Chhabra Lodge but since Raju does not state anything against the accused, the statement of Anil Chandel (P. W. 16) can not be pressed into service to corroborate his testimony. It is true that the prosecution has led evidence to show that the relations of the deceased and the accused were not cordial and the accused when living with the deceased used to beat her and had relations with other women and it is also proved that the accused did not participate in the last rites of the deceased. These facts may raise a grave suspicion against the accused that he may be the culprit but these circumstances are not sufficient to hold that it was only the accused, who was responsible for the death of the deceased and none else. These facts may raise a grave suspicion against the accused that he may be the culprit but these circumstances are not sufficient to hold that it was only the accused, who was responsible for the death of the deceased and none else. There is no perverseness in the appreciation of evidence by the trial Court and the learned Government Advocate has not been able to point out any such facts from the record which may persuade us to interfere with the order of acquittal recorded by the learned trial Court. ( 8 ) AS regards strictures against the Police Officer and the doctor, we find that the learned trial Court has passed these strictures in a routine way. According to its own finding in paragraph 44 of the judgement, the learned Court has held that the prosecution witnesses Gurubachansingh (P. W. 1) and Inder Kaur (P. W. 15) cannot be relied upon when they say that they wanted the autopsy of the dead body of the deceased done as she had died under suspicious circumstances. According to the learned Judge, if they really wanted the post-mortem examination of the deceased and if the Police Officer at the lower level did not listen to them, then they could have made a complaint to the higher Police Officers, Collector, Commissioner, Civil Surgeon etc. who are available in Ujjain. As such, the observation of the learned trial Court in paragraph 6 that the death of Shantirani was unnatural it was necessary that the autopsy of the dead body should have been held and as the present applicant Vishwanath Barve allowed the body to be taken by their sons without any post-mortem examination, an inquiry should be held against him and inquiry should also be held against the doctor who allowed the dead body to be handed over to the sons of the deceased without her post-mortem examination, is not proper. It is manifest that both the above findings in paragraphs 6 and 44 of the judgement are contradictory to each other. Further more, it was nobody's case that the dead body was given to th sons of the deceased and that there was a four play. Till that time it was simply a case of fail from the roof. The police Station, Madhav Nagar, registered a report under S. 174, Criminal Procedure Code and inquest was conducted by the Sub-Inspector and other officers. Till that time it was simply a case of fail from the roof. The police Station, Madhav Nagar, registered a report under S. 174, Criminal Procedure Code and inquest was conducted by the Sub-Inspector and other officers. According to the applicant Shri Barve, the sons of the deceased Mahendrasingh and Mastansingh met the Police authorities including th applicant and stated that the case of fall is accidental and they have no suspicion over anybody. Therefore, no post-mortem examination of the body of the deceased be conducted. On that the Sub-Inspector sought instructions from the present applicant upon which the applicant directed that to avoid the hurting of the feelings of the sons of the deceased, the dead body may be given to them. The dead body was handed over to the sons of the deceased on 25-2-1986, whereas the report against the accused was lodged on 1-3-1986. The facts of the case clearly disclose that if the witnesses would have stated that it was the accused who threw the deceased from the roof top, then in view of the statement of Dr. Bhatnagar (P. W. 2) the accused could be convicted because there was a clear opinion of the doctor that the deceased had received injuries to the bones and she died due to these injuries. Therefore, the only question before the Court was whether the fall was accidental or she was thrown from the roof top. In such circumstances, in our opinion, the directions given by the learned Additional Sessions Judge in paragraph 6 of the judgement were uncalled for and contrary to his own finding in paragraph 44 of the judgement. In view of the aforesaid the application filed by Shri Vishwanath Barve, Deputy superintendent of Police is allowed and paragraph 6 of the judgement of the trial Court is ordered to be expunged. ( 9 ) IN the result, the appeal filed by the State is disallowed and the application under S. 482, Criminal Procedure Cycle filed by the applicant Shri Vishwanath Barve is allowed. Order accordingly. .