Research › Browse › Judgment

Madhya Pradesh High Court · body

1996 DIGILAW 178 (MP)

State of M. P. v. Kailash

1996-02-09

R.D.SHUKLA, S.B.SAKRIKAR

body1996
JUDGMENT S.B. Sakrikar, J.--1. This appeal under section 378 of the Code of Criminal Procedure, is directed against the judgment of acquittal dated 11th August, 1989, rendered by I Additional Sessions Judge, Dhar in Sessions Trial No. 27/87, thereby acquitting the accused/respondent of the charge punishable under Sec. 302 IPC for causing homicidal death of his wife Bhartibai. 2. Facts lie in a narrow compass, That deceased Bhartibai was married to respondent Kailash and was residing with respondent in village Mundlawada. It is stated that the respondent/accused was behaving with his wife with cruelty and used to quarrel and beat on the ground of less dowry given by her father at the time of marriage. It is also stated that on 7.10.86, respondent/accused Kailash quarrelled with his wife and tied her with the log by a rope and then forcibly administered poison used for killing of rats. After administering of poison, when Bhartibai started feeling unwell she was taken to Primary Health Centre, Ghatabillod and then brought to M.Y. Hospital, Indore, the same day and admitted there for her treatment. Bhartibai died in the M.Y. Hospital Indore on 11.10.1986. The informa tion about death of the deceased was given in Police Station, Sanyogitaganj, Indore and murg report, Ex. P/6 was registered Police Sanyogitaganj, Indore prepared inquest report of the deceased, the same day and dead body was sent for Post Mortem examination. Dr. Ashok Virang (PW 11) conducted autopsy on the dead body on 11.10.1986. The Post Mortem Report is Exh. P/16. It is stated that immediately after the incident, deceased Bharti stated to her father, Badrilal (PW 1) and mother, Kamlabai (PW 2) with regard to administration of poison by her husband, Kailash. It is also stated that on 8.10.1986, when deceased Bhartibai was admitted to M.Y. Hospital at Indore, her statement was recorded by Head Constable, Rambabu Mishra (PW 5) in which she stated the fact of administration of poison to her by accused Kailash. The murg report was sent to Police Pithampur and on that basis, FIR Exh p/10 was registered on 15.10.1986 at 1.00 in the night registering the offence against the respondent under section 302 IPC. 3. At the time of Post Mortem Examination, Dr. Ashok Virang preserved viscera and vomitting of the deceased, Bhartibai which were lateron sent for chemical examination. The report of Chemical Examiner is Ex. 3. At the time of Post Mortem Examination, Dr. Ashok Virang preserved viscera and vomitting of the deceased, Bhartibai which were lateron sent for chemical examination. The report of Chemical Examiner is Ex. P/18, which confirmed the presence of poison Zink Phosphate in the vomitting of the deceased. 4. On completion of investigations, Police Pithampur filed challan against the accused Kailash in the Court of JMFC Dhar. 5. The Trial Judge framed the charge under section 302 IPC against the respondent. 6. The respondent pleaded not guilty to the charge. 7. After trial, the respondent was acquitted of the charge framed against him. Aggrieved by the order of acquittal, the State, has filed this appeal. 8. We have heard Shri Raghuwanshi learned G.A. for the State and Shri Amarsingh learned counsel for the accused/respondent. 9. It was contended on behalf of the appellant that in the present case, from the statements of Badrilal (PW 1) and Kamlabai (PW 2) it was proved that deceased Bhartibai, immediately after the incident and before her death, stated to the witnesses that her husband Kailash forcibly administered the poison, by tying her (deceased Bhartibai) to the log with the aid of rope. The same fact was also stated by the deceased to the head constable Rambabu (PW 5) which was reduced in writing, Ex. P/1. The aforesaid statements of the deceased are admissible under section 32 of the Evidence Act as dying declaration. The trial Judge disbelieved the statements of the aforesaid witnesses without giving proper reason and acquitted the respondent/accused from the charge. Learned counsel contended that the acquittal recorded by the trial Judge is not well founded and deserves to be set aside. 10. In oppugnation, learned counsel appearing for the respondent supported the judgment and order of acquittal passed by the trial Judge and submitted that the judgment is well founded and requires no interference in this appeal. 11. Before proceeding with the facts of the case we considered it proper to see that under what circumstance, this Court as a Court of appeal can interfere with the order of acquittal recorded by the trial Court. In this respect, position of law is very clear that the appellate Court will interfere with the order of acquittal recorded by the trial Court only when the conclusion arrived at on the evidence on record is found to be unreasonable, perverse or unsustainable. 12. In this respect, position of law is very clear that the appellate Court will interfere with the order of acquittal recorded by the trial Court only when the conclusion arrived at on the evidence on record is found to be unreasonable, perverse or unsustainable. 12. In AIR 1987 SC 1083 ; Tota Singh and another v. State of Punjab; the Apex Court held as under: "The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous." In AIR 1988 SC 1158 ; Awadesh and another v. State of M.P. the Supreme Court also taken the similar view and held as under: "Appeal against acquittal--Acquittal not to be disturbed unless findings of trial Court are perverse." In AIR 1983 SC 308 ; Babu and Ors. v. State of U.P.; similar view was reiterated by the Supreme Court and held as under: "Appeal against acquittal- Finding reached by trial Court not unreasonable--Appellate Court should not disturb it merely because another view is possible." 13. In view of the principles laid down by the Supreme Court we have to examine the evidence of the case on hand and the finding as recorded by the trial Court. We have carefully examined the record and considered the evidence of the prosecution led against the respondent/accused. 14. In the present case, it is not disputed that deceased Bhartibai was the wife of the respondent and at the time of incident, she was residing with the accused/respondent in village Mandlawada. We have carefully examined the record and considered the evidence of the prosecution led against the respondent/accused. 14. In the present case, it is not disputed that deceased Bhartibai was the wife of the respondent and at the time of incident, she was residing with the accused/respondent in village Mandlawada. It is also not disputed that on 7.10.1986 she suddenly got ill and taken to Primary Health Centre, Ghatabillod and from there was taken to M.Y. Hospital, Indore where she died on 11.10.1986. From the Post Martem Report and the report of the Chemical Examiner, it was also not disputed that the cause of death of Bhartibai was administration of the poison, zink phosphate, which is used for killing of rats. There is no eye witness available or examined on behalf of the prosecution, of the incident. The case of the prosecution rests on the alleged oral dying declaration of deceased Bhartibai stated to her father Badrilal (PW 1) and mother, Kamlabai (PW 2). Exh. P/1 is also alleged to be the statement given to head constable Rambabu Mishra (PW 5) on 8.10.1986 when the deceased was admitted in the M.Y. Hospital, Indore. The trial Court disbelieved the statements of Badrilal (PW 1) and Kamlabai (PW 2) on the point of stating the fact about administration of poison by the respondent to his wife deceased Bhartibai. The witnesses were disbelieved on the ground that as per their statements deceased Bhartibai stated the fact of administration of poison to them when she was taken to Primary Health Centre, Ghatabillod after the incident on 7.10.1986, but the witnesses did not report the matter to Police Ghatabillod or Sanyogitaganj, Indore prior to the death of their daughter, Bhartibai. It is but natural that when witnesses had knowledge of administration of poison by the accused to deceased Bhartibai then it must have been immediately reported to the police concerned. Some material contradictions were also observed by the trial Court in the statements of the aforesaid witnesses on the point of alleged oral dying declaration given by deceased Bhartibai and in the circumstances, in our opinion, the trial Court has committed no error in disbelieving the witnesses. 15. With regard to Statement, Ex. Some material contradictions were also observed by the trial Court in the statements of the aforesaid witnesses on the point of alleged oral dying declaration given by deceased Bhartibai and in the circumstances, in our opinion, the trial Court has committed no error in disbelieving the witnesses. 15. With regard to Statement, Ex. P/1, which is alleged to be recorded by head constable, Rambabu Mishra (PW 5) of Police Station, Sanyogitaganj, Indore on 8.10.86, when deceased was admitted in the M.Y. Hospital, Indore for her treatment, the reasoning given by the trial Court for considering this statement as suspicious and doubtful is well founded and well reasoned. When the alleged statement was recorded on 8.10.86 the fact of recording of such statement is not mentioned in the case diary of the case. The fact of alleged statement was also not mentioned in the murg report Ex. P/6. The head constable, Rambabu (PW 5) in his statement has admitted that he did not call any doctor, compounder or nurse or any other witness at the time of recording of statement, Ex. P/1. No certificate from any doctor was obtained to this effect that Bhartibai was in a fit condition to give the statement. Under the aforesaid circumstances, the trial Court has rightly disbelieved the alleged statement, Ex. P/1 on the point that the deceased vas given any such statement to head constable, Rambabu Mishra (PW 5). 16. In our view, the conclusion arrived at by the trial Court cannot be considered to be perverse, illegal and unreasonable. The acquittal recorded by the trial Judge is well founded and based on proper appreciation of evidence and therefore, requires no interference in this appeal. 17. Consequently, this appeal is devoid of any merits and the same is accordingly, dismissed. The respondent is discharged from his bail bonds as he is on bail by the orders of this Court.