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2009 DIGILAW 167 (MP)

SUNIL s/o NIHALSINGH v. STATE OF M. P.

2009-02-04

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
JUDGMENT : S. L. KOCHAR, J. 1. The appellant/accused stood convicted under sections 302 and 309 of the Indian Penal Code and sentenced to suffer imprisonment for life and fine of Rs. 2,500/-, in default of payment of fine to suffer additional S.I. for six months and fine of Rs. 500/-, in default of payment of fine to suffer additional S.I. for one month respectively vide judgment dated 31-10-2008 passed by the learned First Addl. Sessions Judge, Ujjain in Sessions Trial No. 173/2006. Aggrieved by this judgment of conviction and order of sentence, the appellant has come up in appeal under section 374, Criminal Procedure Code before this Court. 2. According to prosecution case, deceased Anju alias Manju was married with the appellant in a community marriage function before 10 to 11 months of her death i.e. in the intervening night of 28th and 29th March, 2006. After marriage, the appellant was not visiting his in-laws house along with his wife and his father used to bring and leave the deceased Anju from his house to her parents' house. The appellant was not eating food prepared by his wife was under the influence of his aunt Prembai. It was also alleged that the appellant was having illicit relation with his aunt Prembai and deceased told this fact to her mother PW-7 Reshambai. Deceased had seen both (appellant and Prembai) on one cot and disclosed this fact to her mother. In the night of 28-2-2006, appellant was sleeping with his wife Anju alias Manju in his bed-room situated at first floor of the house and on the next day in the morning he found his wife in dead condition. A report to this effect was lodged at the Police Station by PW-5 Village Chowkidar Bannulal and PW-1 Meharban Singh on information received from Amar Singh, uncle of the appellant. It is also alleged that on next day in the morning, appellant was found feeling giddiness and in drowsy condition. Asstt. Sub Inspector Shri R. N. Malviya (PW-18) registered Merg at No. 09/06 as per provision under section 174 of the Code of Criminal Procedure. He prepared the inquest report Ex.P/2 in presence of PW-1 Meharban Singh, PW-5 Bannulal, PW-3 Nihal Singh and PW-7 Reshambai, mother of the deceased. In the opinion of Panchas of inquest report, deceased had died because of consuming some poisonous substance. He prepared the inquest report Ex.P/2 in presence of PW-1 Meharban Singh, PW-5 Bannulal, PW-3 Nihal Singh and PW-7 Reshambai, mother of the deceased. In the opinion of Panchas of inquest report, deceased had died because of consuming some poisonous substance. Second inquest report of deceased vide Ex.P/12 was also prepared by PW-10 Additional Tehsildar, Sunil Patil. The dead body was sent with requisition memo Ex.P/14 for post-mortem examination and the same was performed by Dr. Deepak (PW-8) along with Dr. Anil Palod, Medical Officer of Civil Hospital, Tarana. The post-mortem examination report is Ex.P/18. Viscera of deceased was preserved and sent to Forensic Science Laboratory along with a bottle and plastic bag containing pesticides seized through seizure memo Ex.P/4 by PW-18 R. N. Malviya. The FSL report was received by the police, (It appears that report has not been exhibited, because of which in the record of the trial Court, there is no mention of this document in the list of proved documents). After inquest inquiry by PW-8 R. N. Malviya the same was again inquired by Dy.S.P. Smt. Hemlata Kurel (PW-14) and offence was registered against the appellant under sections 302 and 309 of the Indian Penal Code at Crime No. 60/06. After completion of investigation, charge-sheet was filed against the appellant. 3. The appellant refuted the charges and his defence was that he was suffering from mental disease at the time of incident and was falsely implicated. He has also submitted that at the time of marriage, he was suffering from mental ailment. He examined DW-1 Dr. A. K. Widwai and Dr. V. S. Pal (DW-2). Learned trial Court, after examining the witnesses of both sides and hearing them, convicted and sentenced the appellant as mentioned hereinabove. 4. Having heard learned counsel for the parties and after perusing the entire record carefully, it emerged that the conviction of the appellant is based on circumstantial evidence as found proved and summarized by the trial Court in para 54 of the impugned judgment.. The circumstances found proved are as follows :- (1) Deceased Anju alias Manju was the married wife of the appellant. (2) In the year 2005 before a year or 15 months, they were married in a community marriage function. The circumstances found proved are as follows :- (1) Deceased Anju alias Manju was the married wife of the appellant. (2) In the year 2005 before a year or 15 months, they were married in a community marriage function. (3) Deceased Anju had told her mother PW-7 Reshambai that the appellant was having illicit relations with his aunt and when deceased tried to admonish to him, appellant threatened her not to disclose it to anybody or else he would kill her. (4) The appellant was found in the night of 28-2-2006 in the bed room along with Anju situated at first floor of the house. (5) The appellant failed to explain as to how his wife died in the bed room and behaved abnormally by showing that he was mad, and (6) The appellant was not suffering from any paranoid and schizophrenia since the time of marriage and also was not having any history record of this disease. 5. On perusal of the statement of prosecution witnesses, we do not find an iota of evidence regarding proof of circumstance No. 4 that in the night of 28-3-2006, the appellant was with his wife in his bed-room situated at the first floor of the house. PW-1 Meharban Singh, is an independent witness who had gone to the Police Station along with Village Chowkidar Bannulal (PW-5) to report the death of Anju alias Manju and thereafter police reached in the village and prepared inquest Ex.P/2 bearing his signature at portion marked A to A. He has stated that he was not knowing as to how the wife of appellant died and at the house of the appellant several persons of village were present. The appellant was sent to Dewas hospital. In cross-examination, he stated that the mental condition of the appellant was bad even prior to his marriage and he was roaming as an insane person. He was also being treated for this disease and that on the date of incident in the night the appellant was not in the village and was sleeping at his well. He has not been declared hostile by the prosecution. 6. PW-2 Nihal Singh, father of the appellant has deposed that the appellant was married with Anju in the year 2005. On the date of incident in the morning at 6.00 A.M. he was in the village. He has not been declared hostile by the prosecution. 6. PW-2 Nihal Singh, father of the appellant has deposed that the appellant was married with Anju in the year 2005. On the date of incident in the morning at 6.00 A.M. he was in the village. He over-heard cry that Anju alias Manju consumed poison and appellant who was mad, was also sick. Entire village people had assembled at his residence and police had already reached at his house. Ex.P/2. Inquest-Report was prepared by the police and at B to B part, this witness put his signature. The further say of this witness is that the appellant Sunil was taken to the hospital and he shown the place of incident to the Police. Police prepared spot map Ex.P/3 and also seized medical documents about treatment of appellant for his mental problem. He denied about seizure of any medicine, but accepted his signature on seizure memo Ex.P/4. In cross-examination, he stated that the appellant was being treated by Dr. Ramgulam and before eight days of death of his wife Manju he was seriously ill. Because of mental problem, they were not keeping him in the house and he was residing at the well in a field. On the date of incident he was not in the village and was at his well. He has also not been declared hostile by the prosecution. 7. PW-3 Prahlad Singh Chouhan was a teacher in Government Education Department and in the morning between 7.00 and 7.30 A.M., he received telephonic message from Natthu Singh that the wife of the appellant had died. He immediately reached in the village and one Amar Singh asked him to appellant to the hospital and he took him to the hospital on his vehicle. After leaving him in the hospital, he came back to his school. He has been declared hostile by the prosecution and was confronted with his case-diary statement Ex.P/6 which he was denied. In cross-examination, he stated that the appellant was suffering from mental problem. 8. PW-4 Suresh, brother of deceased Anju has deposed that on hearing information of death of Anju, he reached at her house in village Khatikhedi from his village Chandukhedi and came to know that the appellant was admitted in the hospital. He saw deceased Anju in dead condition in the room on first floor of the house of appellant. 8. PW-4 Suresh, brother of deceased Anju has deposed that on hearing information of death of Anju, he reached at her house in village Khatikhedi from his village Chandukhedi and came to know that the appellant was admitted in the hospital. He saw deceased Anju in dead condition in the room on first floor of the house of appellant. He has also stated that the deceased was saying that she was kept nicely by her in-laws. She had disclosed before his aunt that, the appellant was having illicit relation with his aunt Prembai and she had saw them in obscene condition and from that day, the appellant started beating her. In cross-examination, this witness admitted that after disclosure by the deceased, they had not lodged any report and no legal notice was served on the appellant. He has not denied the defence suggestion that Sunil was sick and suffering from mental ailment, but he admitted that the marriage was solemnized in the Community Marriage function. He was confronted with his case-diary statement Ex. D/1 wherein it is not mentioned that when he reached at the house of the appellant, appellant was not there and was admitted in the hospital because he had also consumed poison. He failed to assign any valid reason for this omission. In para 6, he has stated that after 2-3 days of the death of his sister, report was lodged, but no such report has been filed and got proved by the prosecution from this witness. 9. PW-5 Bannulal has deposed that on the date of incident, Amar Singh, early in the morning came to his house and reported about death of wife of the appellant and he reached at the house of appellant along with Amar Singh. Further say of this witness is that Sunil was not in the house and he was taken to Dewas whereas the dead body of deceased Anju was lying in the room and he was not knowing as to why Sunil was taken to Dewas. He went to Police Station along with Meharban Singh and lodged the report. He admitted his signature on the document Ex. P/4. He expressed his inability of any knowledge as to how the deceased had died. This witness has been declared hostile by the prosecution and was confronted with his case-diary statement Ex.P/7 and denied major part of his police statement. He admitted his signature on the document Ex. P/4. He expressed his inability of any knowledge as to how the deceased had died. This witness has been declared hostile by the prosecution and was confronted with his case-diary statement Ex.P/7 and denied major part of his police statement. In cross-examination by defence counsel, he deposed that the appellant was mad because of which he was kept at the well and not in the house where Anju alias Manju was residing and died. 10. PW-6 Satya Narayan, a child witness aged 12 years, brother of deceased has deposed that the appellant and deceased were not having cordial relations and the deceased had disclosed that she (Anju) had seen the appellant and his aunt sleeping on one bed and appellant had threatened her not to disclose it to anybody. On perusal of the statement of this witness, we are unable to believe that the sister of this child-witness, aged 12 years, would disclose to him such incidents. In cross-examination, he has admitted that he came to the Court along with his brother and mother and he was tutored to give statement as he had given to the police and police took his signature on his statement after ten to fifteen days of the death of his sister. He has also stated that he was taken to the police station by his brother and mother and the police obtained his signatures on two papers on which police recorded his statement. He has also admitted that prior to giving the statement in Court, police personnel told him to give the same statement in Court as he had given before the police. He was confronted with his case-diary statement Ex. D/2 wherein the disclosure by the deceased to him about illicit relation of appellant with his aunt and appellant was not behaving properly with the deceased and deceased disclosed this fact before two-three days from the date of her death, at that moment his sister, brother and mother were present and they complained this fact to the father-in-law of the deceased who had assured them for any repetition of any such incident, does not find place. For all these material omissions which amount to contradiction, he failed to assign any valid reason. For all these material omissions which amount to contradiction, he failed to assign any valid reason. In para 6, this witness has admitted that the marriage of appellant with his sister was solemnized before five to six years in a Community Marriage function and they were not knowing at that time that the appellant was suffering from any mental disease and his treatment was going on in Indore. The statement of this witness is not helpful to the prosecution because of material omissions and contradictions. 11. PW-7 Reshambai, mother of the deceased has also mainly deposed about illicit relation of the appellant with his aunt Prembai and strained relations with deceased Anju on this count. She has also admitted her signature on inquest-report. In cross-examination she has deposed that when they reached in village Khatikhedi in the morning at 10.0 A.M. and police had already reached there, but she did not disclose anything regarding death of her daughter and disclosed it after 15 days. She has also admitted that she lodged the report at the Police Station after 15 to 20 days of the death of her daughter and the said report was lodged by Suresh, but no such report has been filed by the police. The statement of Reshambai is only about strained relations between the appellant and deceased and there is absolutely nothing to hold that the appellant was in the company of the deceased in the night of incident in their bed room. 12. PW-8 Dr. Deepak has proved the post-mortem report Ex.P/8 of deceased Anju alias Manju. He did not find any external or internal injury on the person of the deceased and in his opinion, deceased died because of heart and respiratory failure probably on account of consumption of some poisonous substance. He preserved the viscera for test. Death of deceased by poison has not been disputed by anybody. PW-9 Dr. Yadav has proved the MLC report Ex.P/9 of appellant. He has stated that on 29-3-2006 in the District Hospital, Dewas Amar Singh brought the appellant Sunil and gave information that Sunil had consumed some pesticides, On his examination, he found his condition normal. He was admitted in Emergency Ward for observation. He also proved intimation (Ex.P/10) sent to Police-Chowki in regard to admission of the appellant in the hospital. He has stated that on 29-3-2006 in the District Hospital, Dewas Amar Singh brought the appellant Sunil and gave information that Sunil had consumed some pesticides, On his examination, he found his condition normal. He was admitted in Emergency Ward for observation. He also proved intimation (Ex.P/10) sent to Police-Chowki in regard to admission of the appellant in the hospital. In cross-examination, he admitted that because of abnormal behaviour of the appellant he had injected medicine for sleep because of which he was not in a position to give statement also proved treatment report Ex. D/5. The statement of this witness is not taking the prosecution case even near to the death of the deceased involving the appellant. 13. PW-1- Additional Tehsildar Sunil has proved another inquest report Ex.P/12 prepared on the same day. He also did not find any external injury on the person of deceased. It is made clear at this juncture that the contents of both the inquest report, Ex.P/2 prepared bv PW-19 ASI R. N. Malviya and Ex. P/12 prepared by this witness are not automatically admissible in evidence, unless stated by these witnesses in Court. The inquest reports at the most can be used by its scribe and the witnesses to refresh their memory as per provision under section 159 of the- Indian Evidence Act. [See Bhagirath vs. State of M.P., 1958 MPLJ 745 ]. 14. PW-13 Kailash Bai sister of deceased Manju has also deposed about tensed relation between the appellant and deceased on account of extra marital relation with his aunt Prembai and though she was not an eye witness, but stated that her sister was murdered by the appellant. In cross-examination, she admitted that after disclosure about illicit relation of appellant with her sister Manju, she did not disclose this fact to any member of her family and after death of her sister, she had not gone to Khatikhedi and report was lodged after eight to ten days, during this period she did not disclose anything as stated by her in Court, to anybody and police had voluntarily reached at her house for recording her statement. She was confronted with her case-diary statement Ex.D/3 wherein it is not mentioned that the appellant has committed murder of Manju and disclosure by deceased about illicit relations of appellant with his aunt Prembai and appellant threatened the deceased not to disclose these facts to anybody otherwise he would kill her. Kailashbai failed to explain these omissions in her case-diary statement. The statement of this witness is also not for establishing the stand that in the fateful night of incident, appellant was seen in the company of the deceased in their bed-room situated at first floor of their residential house of joint family. 15. PW-14 Dy. S.P. Smt. Hemlata Kurel inquired about the death of the deceased vide Merg No. 09/06 and recorded the statements of the witnesses, thereafter on 8-4-2006 in the evening at 6.00 P.M. Crime No. 60/06 against the appellant was registered vide First Information Report Ex.P/16. In cross-examination, this witness in para 15 has admitted that during the course of inquiry, she came to know that the appellant was suffering from mental disease. PW-15 Ravindra Yadav, Sub-Inspector has proved the arrest memo of appellant and stated about recording of statements of prosecution witnesses. In cross-examination para 7, he deposed that during the course of investigation by him, he did not seize any bottle containing any kind of liquid and on the spot, he did not find any such article. 16. PW-18 ASI R. N. Malviya has proved about registration of Merg report 09/06 under section 174 of the Code of Criminal Procedure. He also brought the original Merg Register and proved the document Ex.P/21. Ex.P/21-C is a carbon copy of Ex. P/21. He has also proved the inquest Punchnama of the dead body Ex.P/2 and Ex.P/4 seizure of glass bottle and plastic bag containing pesticides with sample earth from the spot at the instance of Nihal Singh, father of appellant and spot map Ex. P/3. In para 7 of cross-examination, he admitted that at the time of preparation of inquest report (Ex.P/2), mother of deceased witness Reshambai was present and in the opinion of witnesses of inquest including Reshambai, it was found that the deceased consumed some poisonous substance and mother of deceased was called. 17. PW-20 Amar Singh, cousin brother of Nihal Singh has stated that he heard that deceased committed suicide by consuming poison and he reached at their house. 17. PW-20 Amar Singh, cousin brother of Nihal Singh has stated that he heard that deceased committed suicide by consuming poison and he reached at their house. This witness has been declared hostile. In cross-examination para 56, he deposed that the appellant was suffering from mental disorder from prior to his marriage and because of his bad condition he was kept in the house situated in the field. PW-21 Prembai , the aunt of appellant has deposed that the appellant is the son of his brother-in-law Nihal Singh, (elder brother of her husband). She has three sons, all residing in the same village with her in a separate house from the family of the appellant and his father Nihal Singh. She expressed her ignorance about cause of death of Manju. She has not been declared hostile by the prosecution and the learned trial Court virtually cross-examined and confronted with her case-diary statement Ex.P/23 which she has disowned. The Trial Court should have not done the job of Prosecutor, at the most it could put relevant questions as per provision under section 165 of the Indian Evidence Act, but confrontation of the witness with case-diary statement is not the job of the Court which should have been performed by the Prosecutor, as per provision under section 162 of the Criminal Procedure Code read with section 145 of the Evidence Act, with the permission of the Court to contradict the witness. Under section 154 of the Indian Evidence Act, the prosecution could pray to put any question to its witness which might be put in cross-examination by the adverse party, in this regard, provision under sections 141, 142 and 143 of the Indian Evidence Act are also relevant regarding putting leading questions (any question suggesting the answer). The evidence of PW-22 Jairam, uncle of deceased Anju and PW-23 Karan Singh, relative of deceased as also PW-24 Sajjan Singh is not on clinching issue and based on hear-say evidence. In the statements of all these three witnesses, before words "examination-in-chief", name of A.G.P. is typed, but thereafter, the examination-in-chief was conduced by the Court itself, which is not the correct procedure. Examination-in-chief of the witnesses must be conducted by the counsel for the party at whose instance the witness has been called. In the statements of all these three witnesses, before words "examination-in-chief", name of A.G.P. is typed, but thereafter, the examination-in-chief was conduced by the Court itself, which is not the correct procedure. Examination-in-chief of the witnesses must be conducted by the counsel for the party at whose instance the witness has been called. The trial Court has adopted altogether a different procedure from the Evidence Act for recording of examination-in-chief and confrontation of witnesses with their case-diary statements without declaring them hostile. 18. In view of the aforesaid discussion of the evidence of material prosecution witnesses, this Court is of the view that the prosecution has failed to establish circumstance No. 4 that the appellant was in the company of the deceased in the night of 28th March, 2006 inside their bed-room situated at first floor of the house and in absence of such evidence, the appellant cannot be asked to explain as to how his wife died and no adverse inference can be drawn against him. In the case of Rajkumar Prasad Tamarkar vs. State of Bihar and another, (2007)3 SCC (Cri) 716 and Dnyaneshwar vs. State of Maharashtra, (2007)3 SCC (Cri) 728, it was found that the appellant-husband was in the bed-room with his deceased wife who was found dead sustaining gun-shot injury and lying, in a pool of blood. The couple was lastly seen in the premises to which an out-sider may not have an access , therefore, it was held by the Apex Court in both the cases (supra) that it is for the husband to explain the cause for unnatural death of his wife and on failure to give reasonable and acceptable reason, the inference can be drawn with the aid of other circumstances against the accused. In the instant case, it is not established by the prosecution beyond any shadow of reasonable doubt that the appellant was last seen in the company of the deceased in their bed-room situated at first floor of the house where the deceased (Anju alias Manju) was found dead. 19. In the statement of accused under section 313 of the Code of Criminal Procedure, no question was put to the appellant in regard to the circumstance No. 4 that he was last seen in the company of his wife Manju alias Anju in their bed-room situated at first floor of the house. 19. In the statement of accused under section 313 of the Code of Criminal Procedure, no question was put to the appellant in regard to the circumstance No. 4 that he was last seen in the company of his wife Manju alias Anju in their bed-room situated at first floor of the house. The trial Court has referred to in para 53 of the impugned judgment that according to Regional Forensic Science Laboratory report, in Articles A, B, D, E and CYPER METHRYN AND CHLOROPHYRIPHOS pesticides was found, but neither this report is exhibited in the statement of any prosecution witness or tendered for marking exhibit as well as no questions were put to the appellant in statement under section 313 of the Criminal Procedure Code to this effect. It is well settled legal preposition that if the circumstances found proved against the accused and the same have not been put to him in the statement recorded under section 313, Criminal Procedure Code for furnishing explanation, the same cannot be relied upon against him. (See : Kuldip Singh vs. State of Delhi, ( AIR 2004 SC 771 (para9) and Narendra Singh vs. State of M.P., (2004) 10 SCC 699 (paras 28 and 29). 20. For the foregoing discussion, we find that this appeal deserves to be allowed. It is accordingly allowed. The conviction and sentences of the appellant as passed by the learned trial Court, are hereby set aside The appellant is directed to be released forthwith, if not required in any other criminal case. Let a copy of this judgment along with the record of the trial Court be transmitted to that Court for immediate compliance.