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2012 DIGILAW 154 (MP)

Praveen Kumar v. State of M. P.

2012-02-02

A.K.SHRIVASTAVA, SHUBHADA R.WAGHMARE

body2012
JUDGMENT : Asper A.K. Shrivastava , J . : - Feelingaggrieved by the judgment of conviction and order of sentence dated 28-8-2000passed by learned Additional Sessions Judge, Narsinghgarh , Distt . Rajgarh ( Biaora ) convicting the appellant under Section 302, IPC andthereby sentencing him to suffer life imprisonment and fine of Rs . 25,000/-; in default further RI of 3 years, theappellant has knocked the doors of this Court by preferring this appeal underSection 374 (2), Cr.PC , 1973. 2.Before narrating the facts of the case it is relevant to mention here that 5persons were made accused and they were tried by learned Trial Court for thecharges punishable under Section 302, IPC, in the alternative Sections 304-B,177, 498-A and 201, IPC, however, the learned Trial Court did not find any of thecharges to be proved against the accused Mishrilal , Surendra Kumar, Manju Mehta and Pradeep Kumar alias Mintu as aresult of which they have been acquitted. Learned Trial Court also did not findthe charges under Sections 304-B, 177, 498-A and 201, IPC to be proved againstthe appellant, however he has been found to be an uxoricide and holding him to be the guilty of the charge under Section 302, IPC convictedhim and passed the sentence as mentioned hereinabove. 3.In brief, the case of the prosecution is that appellant got married to Rashmibai alias Reshma (hereinafter referred 'the deceased'). The parents of the deceased according totheir capacity gave the dowry. After his marriage the appellant along with thedeceased went to his nuptial house were he stayed upto 24-2-91 .During the period 22-2-91 to 24-2-91 the deceasedtold her mother that the items which were given to her they are not being likedby her in-laws. Thereafter on 25-2-91 appellant as well as the deceased again went back to Nagpur and from there theyreturned back to their home at Narsinghgarh .Thereafter on 11-3-91 thedeceased again went to her parents house at Hinganghat ( Maharashtra ),where she completed her annual examination which ended on 30-4-91 . During this period she was not happy andall the time she was weeping. It is said that she was being ill-treated by herin-laws for and in respect of the dowry. On this, her mother told the deceasedthat because she has solemnised two marriage , therefore, their economic condition has becomeweak and at present they are not in position to give more dowry. It is said that she was being ill-treated by herin-laws for and in respect of the dowry. On this, her mother told the deceasedthat because she has solemnised two marriage , therefore, their economic condition has becomeweak and at present they are not in position to give more dowry. After 17-4-91 , when the examinationof the deceased was over, the mother of the deceased sent her along with heranother daughter Sonali on 30-4-91 at Narsinghgarh . On 17-5-91 again deceased cameback to her parental house at Hinganghat . Atthat juncture she again complained to her mother that her in-laws are disliking the items which they provided to her in thedowry. 4.It is the further case of the prosecution that on 21-6-91 at Raipur the maternal uncle of the deceased had gone toattend the marriage of his maternal uncle to Raipur ,where she was also accompanied by the appellant and in Raipur also she made complaint to her mother that why she has been married at an earlyage and has been pushed from her parents house. She also told that she wouldlike to undergo her studies further. It is said that on 22-6-91 the deceased insisted her mother to takeher back to her parents house at Hinganghat and she do not want to go to her husband's house because she was beingill-treated there. It was also told by her that sometime her mother-in-law alsoco-operate with the appellant when the dowry demand was being made. However,the mother of the deceased did not think it proper to accompany the deceasedwith her and she was given understanding that on 14-7-91 she (the mother) hadto go to Narsinghgarh in a marriage, but she willcome two days earlier to the date of marriage and at that juncture she willinteract with the in-laws of the deceased. Thereafter the deceased again cameback to her in-laws house at Narsinghgarh . 5.It is further case of the prosecution that in the night of 6-7-91 on the occasion of the marriage of oneRajesh Bhandari a party was organised by Banshilal Gupta in the garden of one Prahalad Das Bihani ,which is known as Nazarbag . In this party theappellant and the deceased also assembled. The dance etc. also took place inthat party where appellant dance with a girl which was not liked by thedeceased. After taking the dinner etc. In this party theappellant and the deceased also assembled. The dance etc. also took place inthat party where appellant dance with a girl which was not liked by thedeceased. After taking the dinner etc. in the party the deceased came back tohome in a car along with the appellant. 6.According to the prosecution immediately after the dawn hours at 7.30 a.m. on7-7-91 acquitted co-accused Pradeep alias Mintu went to the house of Dr. U.K. Gujarati, who waspresent at Narsinghgarh , although he was posted atBhopal, and informed him that some unhappening hasoccurred to the deceased and insisted him to examine her. Resultantly, the saidDr. Gujarati along with acquitted co-accused Pradeep Kumar alias Mintu went to his house where in a roomat second floor he found that the deceased was lying on a bed. On examining thedeceased, Doctor found her to be alive but her condition was serious. Her pulsewas quite weak. The said doctor advised to shift the deceased immediately tothe hospital and thereafter he telephonically informed Dr. P.S. Pal who wasposted in Civil Hospital at Narsinghgarh informing that one lady patient is inserious condition and she is being brought to him. Thereafter the appellantalong with acquitted co-accused Pradeep Kumar alias Mintu carried the deceased in his car to Civil Hospital to Narsinghgarh where Dr. Pal tried his best to save the life of the deceased. Thereafter whenshe did not survive, the doctor sent an information -tothe Police Station, Narsinghgarh . 7.On receiving information in the Police Station, the Sub Inspector, V.S. Rajput immediately arrived at the Civil Hospital at Narsinghgarh and found the deceased to be dead as a result of which sent her dead body forthe post-mortem at Medical Legal Cell, Bhopal .The forensic medicine expert, Dr. D.S. Badkur and thelecturer of Forensic Medicine Department at Gandhi Medical College , Bhopal , Dr .B.P. Dubey on 8-7-91 at 11 a.m. conducted the post-mortemof the deceased and according to these doctors, the deceased had died onaccount of hanging due to asphyxia. 8.The parents of the deceased arrived at Narsinghgarh in the night of 7-7-91 andafter the cremation was over they went back to Hinganghat . 9.However, on 14-7-91 , i.e.,after 7 days of the death of the deceased, the father of the deceased namely Nirmalchand Kothari createdcertain doubt that his daughter has been murdered as a result of which helodged a written report at the P.S. Narsinghgarh . 9.However, on 14-7-91 , i.e.,after 7 days of the death of the deceased, the father of the deceased namely Nirmalchand Kothari createdcertain doubt that his daughter has been murdered as a result of which helodged a written report at the P.S. Narsinghgarh . Onthe basis of this written report the criminal law was triggered and set intomotion. The investigating agency registered the case under Sections 302 and304-B, IPC at Crime No. 186/91 and the matter was handed over to CID and therest of the investigation was made by CID. 10.After completion of the investigation the charge-sheet was filed before the Committal Court which committed the case to the Court ofSession from where it was received by the Trial Court for trial. 11.The learned Trial Judge on the basis of the allegations made in thecharge-sheet, framed charges for offences punishable under Sections 304-B, 177,498-A and 201, IPC. In the alternative charge under Section 302, IPC was alsoframed. All the accused persons denied the charges and requested for the trial. 12.In order to bring home the charges, the prosecution examined as many as 26witnesses (P.W. 1 to P.W. 26) and also proved some of the documents. 13.The defence of the accused persons including theappellant is of false implication which they also set forth in their statementsrecorded under Section 313, Cr.PC and in support oftheir defence they examined 7 defence witnesses, they are Krishan Mohan Upadhyay (D.W. 1), Mahesh Kumar Soni (D.W. 2), Keshav Kumar Biyani (D.W. 3), Madan Mohan Nema (D.W. 4), Kushal Chaganraj Jain (D.W. 5), Anju Jain (D.W. 6) and Amita Bhandari (D.W. 7). 14.The learned Trial Judge on the basis of the evidence placed on record came tohold that charges were not proved against the other accused persons, resultantly they have been acquitted from all the charges. The learned TrialCourt also came to hold that all the other charges except Section 302, IPC arealso not proved against the appellant and he too has been acquitted from thosecharges. However, on the basis of the evidence learned Trial Court came to theconclusion that the appellant has committed the offence under Section 302, IPCand eventually convicted him and passed the sentence which is mentioned in theimpugned judgment. 15.In this manner, this appeal has been filed by the appellant assailing hisjudgment of conviction and order of sentence. However, on the basis of the evidence learned Trial Court came to theconclusion that the appellant has committed the offence under Section 302, IPCand eventually convicted him and passed the sentence which is mentioned in theimpugned judgment. 15.In this manner, this appeal has been filed by the appellant assailing hisjudgment of conviction and order of sentence. 16.The contention of Shri Surendra Singh, learned Senior Counsel for the appellant isthat if the entire case of the prosecution is considered in toto ,since there is no definite evidence against the appellant, therefore, only onthe basis of the conjecture, surmises and assumptions he cannot be convicted.By inviting our attention to the testimony of post-mortem Doctor D.S. Badkur (P.W. 21) it has been submitted by learned Counselthat if his testimony is considered in true perspective the entire scene wouldbecome clear like a noon day that the deceased breathed her last on account ofsuicide and there is no iota of evidence of the homicidal death. In thiscontext, learned Counsel has also invited our attention to the post-mortemreport ( Exh . P-18) and has further invited ourattention to the most important document ( Exh . P-3)which according to the learned Senior Counsel is the turning point of the casebecause in this document specifically it has been mentioned by Dr. Pal (P.W.20) that when the deceased was brought to the hospital she was alive and was ingasping condition and if that would be the position why several queries weremade by police to the doctor as a result of which Dr. Pal issued letters Exhs . P-15, P-16 and P-17 on different dates to the policeand therefore, although the investigating agency tried its best to have favourable report in its favour that the death was not suicidal and was homicidal, but despite full efforts thehallmark of the naked truth that deceased committed suicide has not at all beensomersaulted. Learned Senior Counsel further submits that although Dr. Pal(P.W. 20) has stated in his testimony that the deceased already died 6 hoursearlier when she was brought to him, but if his testimony is tested on thetouchstone and the anvil of his own letter ( Exh . Learned Senior Counsel further submits that although Dr. Pal(P.W. 20) has stated in his testimony that the deceased already died 6 hoursearlier when she was brought to him, but if his testimony is tested on thetouchstone and the anvil of his own letter ( Exh . P-3)and other important evidence it would become clear that the deceased was aliveand this witness tried his best to save her life, therefore, it can be inferredthat under pressure such statement has been given by this doctor in the Courtand in this context learned Counsel has invited our attention to Para 7 of thecross-examination of this doctor. Hence, according to learned Senior Counsel ifthe statement of Dr. Pal is taken to be true that he examined the dead body ofthe deceased, no prudent man would accept his evidence. In this context,learned Counsel has invited our attention to Page 423 of Dr. Modi's Medical Jurisprudence and Toxicology, 23rd Edition, whereinduration of a dead body and its condition etc. are mentioned. To bolster hissubmission learned Counsel has placed heavy reliance on the decision of theSupreme Court in the matter of Mayur Panabhai Shah Vs. State of Gujrat , AIR 1983 SC 66 , and has argued that doctor always do not say the true versionand hence learned Counsel submits that after giving look to the entire gamut itwould be difficult to say that the death was homicidal and was not suicidal. 17.By inviting our attention to the testimony of Damodar Bihani (P.W. 1), who is the person in whose laws aparty was arranged a day earlier to the incident, it has been submitted thatbecause in the said party the appellant was dancing with another girl, thedeceased became little jealous and it was a cause to commit suicide. 18.Learned Senior Counsel further submits that Dr. D.K. Satpathi (P.W. 22) on the basis of the post-mortem report, other necessary informationsupplied by the police to him has opined in his report ( Exh .P-19) that the death was homicidal and not suicidal. According to learnedSenior Counsel unless and until a dead body is seen by a doctor and was presentthrough out during the autopsy, only on the basis of post-mortem report andother material and even on the basis of photographs of the dead body, hisopinion would be nothing but would be the guess work. According to learnedSenior Counsel unless and until a dead body is seen by a doctor and was presentthrough out during the autopsy, only on the basis of post-mortem report andother material and even on the basis of photographs of the dead body, hisopinion would be nothing but would be the guess work. According to learnedSenior Counsel before arriving at the conclusion whether the death washomicidal it was incumbent to see the dead body and also should have conductedthe post-mortem. In this context, heavy reliance has been placed on theDivision Bench of this Court in the matter of Anil Kumar Singhal Vs. State of M.P., 2010(4) M.P.H.T. 386 , wherein the situation arose that onthe basis of certain photographs and the post-mortem report etc. it was opinedthat the death was not suicidal and it was partial hanging and was homicidal.The said opinion was turned down by the Division Bench by acquitting theaccused. 19.Hence according to learned Senior Counsel since the prosecution has utterlyfailed to prove its case beyond all reasonable doubt that the death washomicidal, by allowing this appeal the appellant be acquitted from the chargeunder Section 302, IPC for which he has been convicted and sentenced. 20.Per contra, Shri Bohra , learned PublicProsecutor has argued in support of impugned judgment and submitted that for norhyme or reason the testimony of Dr. Satpathi (P.W.22) and his report ( Exh . P-19) should besomersaulted. According to learned Public Prosecutor since the doctor is havinglong experience his report should be relied upon wherein he has opined that thedeath of the deceased was homicidal. By putting deep dent on the argument oflearned Senior Counsel for the defence it has beenput forth by the learned Public Prosecutor that the submission put forth by himthat on account of jealousy the deceased committed suicide should be visualised , from another angle also that it was a cause forthe appellant to become an uxoricide because she didnot like his attitude dancing with another girl in the party, and therefore,there was a motive for the appellant to kill her and looking to the materialevidence of Dr. Satpathi , the learned Trial Court didnot commit any error in convicting the appellant, hence it has been prayed thatthis appeal sans substance and the same be dismissed. 21.Having heard learned Counsel for the parties, we are of the considered viewthat this appeal deserves to be allowed. 22. Satpathi , the learned Trial Court didnot commit any error in convicting the appellant, hence it has been prayed thatthis appeal sans substance and the same be dismissed. 21.Having heard learned Counsel for the parties, we are of the considered viewthat this appeal deserves to be allowed. 22. Damodar Bihani (P.W. 1) who organised the party has categorically stated that inthis party dance was going on and the appellant was dancing with another girlalthough his wife (the deceased) was also dancing, but on seeing appellantdancing with the other girl she sat down. 23.The statement of this witness is further corroborated by another witness Shantilal (P.W. 2) who was also present in the said partyand was there up to late night. One more very important evidence is carved outfrom his testimony that on the next day when he come to know that in the nightthe deceased has fallen seriously ill and has been admitted in the hospital,this witness went to the hospital in the morning to see her and he found thatthe drip bottle was injected to her. 24.In the present case, certain evidence which have been carved out from thetestimony of the witnesses, documentary evidence and the finding given bylearned Trial Court are as under :- (1)The deceased and appellant got married on 27-1-91 ; (2)A party was arranged by Damodar Bihani (P.W. 1) in Nazarbag garden where the deceased andappellant were also invited; (3)While enjoying the party the appellant was dancing with a girl; (4)The appellant did not offer his own wife (deceased) to dance with him [see Damodar Bihani (P.W. 1) and Shantilal (P.W. 2)]; (5)In the late night the appellant and deceased came back to their home; (6)During dawn hours on 7-7-91 the condition of the deceased was found to be serious; (7)Dr. U.K. Gujarati (P.W. 19) was called but after examining the deceased hedirected to shift her to the hospital. 25.On the basis of the aforesaid evidence the grain has been taken out from thechaff that the deceased was brought to the Civil Hospital at Narsinghgarh when she was alive and Dr. Pal (P.W. 20) triedhis best to save her life but failed and ultimately on account of her death theinformation was sent by him to the concerning police station. 26.Much emphasis has been put forth by the learned Public Prosecutor that indeedthe dead body was brought to the Civil Hospital and Dr. Pal (P.W. 20) triedhis best to save her life but failed and ultimately on account of her death theinformation was sent by him to the concerning police station. 26.Much emphasis has been put forth by the learned Public Prosecutor that indeedthe dead body was brought to the Civil Hospital and Dr. Pal examined only adead body and in this regard our attention has been drawn to Exhs : P-15, P-16 and P-17, which are replies of the querieswherein Dr. Pal (P.W. 20) has stated that he examined only a dead body. How farhis statement is correct, on close of the testimony of this witness the hiddentruth is exposed that under pressure he has been forced to say so that heexamined a dead body but before marshalling the testimony of this witness andexamining the document ( Exh . P-3), dated 7-7-91,which is the turning point of the case, it would be relevant to mention herethat this doctor is in medical line and is serving on the post of AssistantSurgeon for last 25 years. At this juncture only it would be condign to quotethe entire document ( Exh . P-3), dated 7-7-91 written by this doctor which isas under : - To, TheT.I., Police Station Narsinghgarh . Sub : Information about Smt . Rashmi w/o Pravin Kumar Jain r/o Bada Bazar . Itis informed that a young woman Smt . Rashmi was brought to hospital for treatment in gaspingcondition. Shecollapsed during treatment. It appears to be a suspected case. Your are requested for needful. Please in continuation ofinformation already furnished by messenger at 10.15 a.m. dated 7-7-91 . 11 a.m. 7-7-91 Asstt . Surgeon C.H. Narsinghgarh . 27.If we accept the contention of the learned Public Prosecutor that according toDr. Pal (P.W. 20) he had examined only a dead body and whose testimony is alsocorroborated by Dr. Satpathi (P.W. 22) and hisopinion ( Exh . P-9), several big question marks arecarved out creating heavy doubt to digest and swallow, this argument and thesebig questions are :- (1) Why Dr. Pal is in its report ( Exh .P-3), dated 7-7-91 at 11 a.m. has stated that the patient was ingasping condition ? (2)Was she alive and therefore, messenger was sent to the Police Station at 10.15 a.m. as contained in Exh .P- 3 ? Pal is in its report ( Exh .P-3), dated 7-7-91 at 11 a.m. has stated that the patient was ingasping condition ? (2)Was she alive and therefore, messenger was sent to the Police Station at 10.15 a.m. as contained in Exh .P- 3 ? (3)And if she was already dead for last 6 hours, whether this doctor injected thedrip to a dead body ? [See Para 2 of Shantilal (P.W. 2)]. (4)Why witness Shantilal (P.W. 2) who is not a hostilewitness is saying that when he came to the hospital in the morning he saw adrip was injected to the deceased and she was being treated by the doctor inthe hospital ? (5)Why the symptoms of the death of the deceased was not noticed by the sameautopsy surgeon Dr. Pal (P.W. 20), which are mentioned on Pages 423 to 432 of Modi's Medical Jurisprudence and Toxicology (23rd Edition)particularly to the changes in the eyes, changes in the skin, rigor mortis andmuscular elasticity etc. 28.It be seen that Autopsy Surgeon Doctor Pal (P.W. 20) is an Asstt .Surgeon serving Tor last 25 years in the hospital andtherefore, since he did not notice the condition of the changes in the eyes,skin, rigor mortis and muscular elasticity etc. on the dead body which normallyis found after 6 hours of the death, therefore, the statement of this doctorsaying that he examined only a dead body cannot be accepted. In his post-mortemreport ( Exh . P-18) the duration of death 6 hours hasnot at all been stated. If we further scrutinise Para7 of the testimony of this we find that 15 to 20 queries were made to him bythe police one after the other, after he submitted his post-mortem report andnot only this the SDO (P) also summoned him to the Police Station and askedseveral questions there. Normally, a doctor is never summoned in the PoliceStation to give answers and if any doubt is carved out in the mind ofInvestigating Agency it should be clarified by queries and its reply which isgiven by the doctor. Thus, it appears and it could be inferred that the doctorwas pressurised to say that indeed he examined a deadbody and the death had occurred 6 hours earlier when he examined the deceased.According to Dr. Modi , in India the changes in the eyes, skin, rigor mortis, muscular elasticity etc. Thus, it appears and it could be inferred that the doctorwas pressurised to say that indeed he examined a deadbody and the death had occurred 6 hours earlier when he examined the deceased.According to Dr. Modi , in India the changes in the eyes, skin, rigor mortis, muscular elasticity etc. takesplace within 1 and 2 hours after the death, but no such symptoms were noticedand opened by the doctor in the post-mortem report. Apart from this in thepost-mortem report ( Exh . P-18) alsoit has not been opined that the death was homicidal. On the internalpage 7 of the post-mortem report it has been opined that death was due toasphyxia as result of hanging. 29.At this juncture, it would be relevant to place reliance on the decision of theSupreme Court Mayur Panabhai Shah Vs . State of Gujrat (supra), wherein it has been held that there cannot be any presumption that thedoctor is always a witness of truth and the judgment of the Gujarat High Courtwas reversed. At this juncture it would also be profitable to place reliance onanother decision of the Supreme Court in the matter of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. and others, AIR 2010 SC 806 , wherein the Apex Court has laid down the law that the query report should be supported by thedocuments. Undisputedly no such material was sent along with the queries put bythe police and therefore, whatever clarification he has given cannot beaccepted and if it is accepted it would only be the conjectures and surmises. 30.Now we shall examine the testimony of Doctor Satpathi (P.W. 22) and his report ( Exh . P-19 )as well as the contention made by the learned Senior Counsel and learned PublicProsecutor. Admittedly, this Doctor has not conducted the postmortem nor he waspresent when the post-mortem was going on and only on the basis of thepost-mortem report and the other material sent to him, he straightway gaveopinion that the death was homicidal and not suicidal. According to us, inabsence of the examination of the dead body and in absence of conducting thepostmortem it would be hazardous for a Doctor to say only on the basis of thepostmortem report and other material or even on the basis of the photographs ofthe dead body that the death was not suicidal but it was homicidal. According to us, inabsence of the examination of the dead body and in absence of conducting thepostmortem it would be hazardous for a Doctor to say only on the basis of thepostmortem report and other material or even on the basis of the photographs ofthe dead body that the death was not suicidal but it was homicidal. On thispoint at length the Division Bench of this Court in the matter of Anil Kumar Singhal Vs . State of M.P. (supra),has dealt the point. In that case also, on the basis of the report of thedoctor who did not conduct the post-mortem or even did not see the dead body onthe basis of the material placed to him, opined that death was homicidal andhis opinion was not accepted by the Division Bench and the same was turned downby acquitting the accused of that case. The decision of the Division Bench(supra) is based on Supreme Court decision Mafabhai Nagarbhai Raval Vs . State, 1992 SC 2186 and in the matter of Mohan Singh Vs.State of Punjab, AIR 1975 SC 2161 . In the decision of Mafabhai (supra), the Supreme Court has held as under : - "Itis needless to say that the Doctor who has examined the deceased and conductedthe post-mortem is the only competent witness to speak about the nature ofinjuries and the cause of death. Unless there is something inherently defectivethe Court cannot substitute its opinion to that of the Doctor." Similarly,in Mohan Singh (supra), the Supreme Court has laid down the law in Para 7 as under : - "Theexpert stated that he came to the conclusion that the injuries on Dial Singhand Swaran Kaur wereprobably caused by one gun fire only. It must first of all be noted that he isnot categorical about it. The reason for his conclusion are the dimensions of the injuries. He had not seen the injuries and it would needsuper-human ability to come to a conclusion on this subject by merely lookingat the description of the injuries or even the photographs given by thedoctors." Whathas been held by the Division Bench of this Court in Anil Kumar Singhal (supra ), is fullyapplicable in the present case. True certain minor injuries are found on theperson of the deceased, but on account of those injuries the deceased did notdie. True certain minor injuries are found on theperson of the deceased, but on account of those injuries the deceased did notdie. At the most it can be inferred that on the point of dancing with a girlsome marpeet might have taken place but no stretch ofimagination it can be inferred that the death was homicidal particularly whenthe two doctors jointly performed the post-mortem and did not give any opinionabout the homicidal death and the duration of the death. Even otherwise lookingto the symptoms found by two autopsy surgeons on the dead body it cannot besaid that the death was homicidal. 31.Judging from all the angles the oral evidence and documentary evidence, weunable to uphold the conviction of the appellant since the charge of Section302, IPC is not at all proved by any cogent evidence and it is hereby held thatappellant is not an uxoricide . 32.By allowing this appeal, the judgment of conviction passed by the Trial Courtfor convicting the appellant under Section 302, IPC is hereby set aside.Appellant is on bail. His bail bonds are hereby discharged. Fine amount ifdeposited, be refunded to appellant.