Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 200 (MP)

Shantabai v. State of M. P.

2003-01-30

DEEPAK VERMA, S.L.KOCHAR

body2003
Judgment ( 1. ) APPELLANT Shantabai has preferred this appeal against the judgment dated 22. 4. 1999 passed by the Additional Sessions Judge, Indore in Sessions Trial No. 12/1999, thereby convicting the appellant for the offence punishable Under Section 302 of the Indian Penal Code and sentencing her to imprisonment for life and fine of Rs. 3,000/ -. In default of payment of fine, she was directed to suffer R. I. for two years. ( 2. ) FACTS of the prosecution case as unfolded before the Trial Court were that on 22. 9. 1998 at about 3. 30 p. m. , Chowkidar Bajesingh (P. W. 5) was sitting at the temple of village Pir Piplaya. At that juncture, Vikramsingh (P. W. 4) came there and informed that Laxmibai w/o Jagdish had fallen in the septic tank of her latrine. Bajesingh thereupon went to the house of Jagdish and found the dead body of Laxmibai floating in the septic tank. With the help of Chhitarsingh (P. W. 3) and one Rupsingh, the dead body of Laxmibai was taken out of the septic tank. Bajesingh informed the matter to Police Station Betma, where Merg No. 40/98 was registered. The matter was investigated by the S. D. O. P. Shri Rajoria and recorded the statements of the witnesses and sent the dead body for post-mortem examination. The post-mortem examination Report is Ex. P/10. From the statements of the witnesses it revealed that the mother-in-law (the appellant) of Laxmibai was in the habit of misbehaving with Laxmibai and on the date of incident, the appellant, after some quarrel, pushed Laxmibai into the septic tank. Spot was inspected and map Ex. P/l was prepared. A case Under Section 302, I. P. C. was registered. After usual investigation the appellant was charge-sheeted. ( 3. ) AFTER trial, finding the appellant guilty of the offence, the learned Trial Court convicted and sentenced as stated hereinabove. ( 4. ) WE have heard Mr. T. M. Punjwani, learned Counsel for the appellant and Mr. G. Desai, learned Dy. Advocate General for the State and perused the entire record. ( 5. ( 3. ) AFTER trial, finding the appellant guilty of the offence, the learned Trial Court convicted and sentenced as stated hereinabove. ( 4. ) WE have heard Mr. T. M. Punjwani, learned Counsel for the appellant and Mr. G. Desai, learned Dy. Advocate General for the State and perused the entire record. ( 5. ) CONTENTION of the learned Counsel for the appellant is that the ocular account given by P. W. 1 Devkanya and P. W. 2 Arjun should not have been relied upon by the Trial Court because, both these witnesses did not disclose about witnessing the incident at the earliest point of time and their statements were recorded by the police after a lapse of about 8 to 9 days. He also contended that the offence at the most would fall within the purview of Section 304 (Part II) of the Indian Penal Code. ( 6. ) AS against this, Mr. Desai, learned Dy. Advocate General submitted that the defence has not put any question to witnesses P. W. 1 Devkanya and P. W. 2 Arjun about delay in disclosing the incident. Therefore, without affording an opportunity to the witnesses to explain the delay, benefit cannot be given to the accused. The testimony of these witnesses could not be impeached on this ground. Over and all, he has supported the judgment of the Trial Court. ( 7. ) THIS is true that the defence has not put any question to P. W. 1 Devkanya and P. W. 2 Arjun about delay in disclosure or about delay in recording their statements by the police. We have gone carefully through the statements of both these witnesses and found that no questions were asked in cross-examination about late disclosure of the incident by these witnesses to police or any inhabitants of the locality. Therefore, on this ground, it cannot be said that these witnesses did not disclose about the incident immediately to the police or the villagers. ( 8. ) P. W. 13 Vijay Knot, S. D. O. P. recorded the statements of the witnesses and he has also not been cross-examined on the question of delay in recording the statements. There is absolutely no material on record to establish that P. W. 1 Devkanya and P. W. 2 Arjun behaved abnormally after witnessing the incident and did not disclose about the same to anybody. There is absolutely no material on record to establish that P. W. 1 Devkanya and P. W. 2 Arjun behaved abnormally after witnessing the incident and did not disclose about the same to anybody. In view of the statements of both these witnesses as well as the statement of Dr. P. C. Jain (P. W. 11), it is clearly established as day light that the appellant had pushed her daughter-in-law Laxmibai who was cleaning the utensils sitting by the side of the septic tank. P. W. 4 Vikramsingh has specifically stated that he took out the deceased Laxmibai from inside the septic tank and at that time she was still alive, but was unconscious. Same is the statement of P. W. 3 Chhatarsingh. In view of the statement of Chhatarsingh, the deceased was alive. Her body was warm and she was taken to the hospital. When she was in the tractor, she also opened her eyes. This shows that the deceased had not met instantaneous death inside the septic tank. ( 9. ) THE autopsy-surgeon P. W. 11 Dr. P. C. Jain has stated in para 13 that injury Nos. 1 and 2 haematoma on the head could be caused by a fall and friction and injury No. 3 on the thigh could be caused by Lathi. The deceased was sitting by the side of open septic tank and she was pushed. Therefore, possibility of her sustaining some injuries on her body by coming into contact with hard, blunt and rough surface of septic tank, cannot be ruled out. The deceased died because of asphyxia due to drowning. All other external injuries found on her person were simple in nature and did not contribute to her death. ( 10. ) NOW the moot question before this Court is whether even if the complete prosecution case is accepted, can the appellant be held responsible for committing the offence punishable Under Section 302 of the Indian Penal Code ? ( 11. ) PROSECUTION evidence is disclosing the fact that the deceased and the appellant were in the habit of picking up quarrels and on the date of incident, the deceased was cleaning utensils sitting by the side of septic tank which was open. At that juncture, on some verbal quarrel, the appellant pushed Laxmibai resulting into the fall of the deceased inside the septic tank. At that juncture, on some verbal quarrel, the appellant pushed Laxmibai resulting into the fall of the deceased inside the septic tank. In our opinion, this act is not sufficient to arrive at the conclusion that the appellant was having intention to commit murder of the deceased. There is no evidence on record to show that the appellant was knowing the depth of the septic tank and presence of water therein, above the height of the deceased. ( 12. ) ACCORDING to the statement of P. W. 7 Manakchand, who prepared the site map, in the septic-tank the level of water was upto 5 feet 10 inches and the open passage of the tank was 2 x 2. There is no evidence available on record about the height of the deceased. Therefore, it would be difficult to hold that the appellant with the intention to commit murder of deceased, pushed her inside the septic tank. But, at the same time it can safely be held that the appellant was having knowledge that her act is likely to cause death. In our opinion, the act of the appellant would fall within the purview of Section 304 (Part II) of the Indian Penal Code. The appellant also was not having any motive for commission of murder of her daughter-in-law. Therefore, in the light of the facts and nature of present case, the appeal deserves to be allowed in part. ( 13. ) AS a result of the discussion as aforesaid, this appeal is allowed in part. The conviction of the appellant for the offence Under Section 302, I. P. C. is set aside. Instead she is held guilty of the offence punishable Under Section 304 (Part II) of the Indian Penal Code. ( 14. ) THE Appellant remained inside the jail from 3. 10. 1998. By now she has completed four years, three months 25 days of incarceration. She is a woman and is shown to be of 55 years of age at the time of the incident. At present, she would be of about 60 years of age. In the opinion of this Court, interest of justice would be met by sentencing her to the period already undergone. She is sentenced accordingly. She be set at liberty forthwith if not required in any other case.