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2013 DIGILAW 949 (MP)

Dhaniya Bai v. State of M. P.

2013-08-13

Ajit Singh, B.D.Rathi

body2013
ORDER Rathi, J. 1. This appeal has been preferred under section 374 of the Code of Criminal Procedure (for short “the Code”) being aggrieved with the judgment dated 12.6.2009 passed by Additional Sessions Judge, Maihar, District Satna, in Sessions Trial No. 260/08, whereby the appellant has been convicted for the offences punishable under sections 302 and 201 of the Indian Penal Code (for short “the IPC”) and respectively sentenced to life imprisonment and rigorous imprisonment of 3 years with corresponding fine stipulations. 2. Prosecution story, in brief, is that on 11.9.2008 at about 5 p.m., appellant lodged a report at Police Station Amdara to the effect that she was staying with Bali Singh as his keep for the last 6 years, while his wife was residing at Mahgaon (Kamore). For the last two years, Bali Singh was suffering from Asthma and on Wednesday he had come from Maihar after taking medicines and a day before, i.e. on 10.9.2008 at 11 a.m., Balisingh had died. Yesterday, she had gone at Jamunia to call Indar Singh son of Balsingh for lodging report, but as he did not come, she had come with her son-in-law Amar Singh to lodge the report. On the basis of said information, Morgue No. 56/08 and First Information Report (Ex. P/3, for brevity “FIR”) were registered and during investigation, it surfaced that on the date of incident, there had been an altercation between the appellant and Balisingh regarding her marital status and the relief money awarded to famine victims, on which she had pushed Balisingh, who while falling, had got his head dashed with the cot and resultantly started trembling and had become restless. Being enraged, the appellant had strangulated him to death and circulated the buzz that he had died of ailment. 3. Autopsy was conducted by Dr.Jitendra Singh (PW 6). As per corresponding report (Ex. P/5), death could have been caused due to strangulation/throttling. 4. Learned counsel for the appellant submitted that the appellant had been falsely implicated and in fact Bali Singh had died due to asthma. He submitted that conviction of the appellant is based upon improper appreciation of the evidence on record and, accordingly, deserved to be interfered with. 5. On the contrary, learned Government Advocate, while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited. 6. He submitted that conviction of the appellant is based upon improper appreciation of the evidence on record and, accordingly, deserved to be interfered with. 5. On the contrary, learned Government Advocate, while making reference to the incriminating pieces of evidence on record, submitted that the conviction was well merited. 6. Having regard to the arguments advanced by the parties, we have perused the evidence and material on record. 7. A bare perusal of the evidence on record would reveal that conviction of the appellant is primarily based upon the medical evidence and non-explanation of cause of death of Balisingh by appellant in view of the facts mentioned in the FIR . Material witnesses viz. Govind Prasad Dahiya (PW 1), Chandrabhan Patel (PW 2), Amar Singh (PW 3), Dhaniram (PW 4) have not supported the case of the prosecution. Witnesses to extra judicial confession viz. Chandrabhan Patel (PW 2) and Awadhesh Prasad Paroha (PW 7) also resiled form their earlier statement and were declared hostile. 8. Post mortem report (Ex. P/5) reflects that it could not be said with certainty that mode of death was homicidal or not, as the doctor had put a question mark before “Homicidal”. In his evidence Dr. Jitendra Singh (PW 6) has deposed that the death was caused due to asphyxia /strangulation. In his cross-examination, he deposed that there was no sign of struggle on the body of deceased. According to him, no rope was used for strangulation. He further deposed that no nail scratches were observed on the neck of the deceased. Doctor has also testified in para 3 of his evidence that on 16.9.2008 appellant was also examined and no external or internal injury was found on his body. MLC report (Ex. P/6) prepared by him also indicates absence of scuffle between the appellant and deceased. 9. In the aforesaid premises, we are of the considered view that prosecution has failed to prove by cogent and reliable evidence that death was homicidal in nature. 10. According to the trial Court, the cause of death of Balisingh had to be explained by appellant as fact of natural death due to asthma was within her special knowledge and on failure to do so, she was convicted. 11. 10. According to the trial Court, the cause of death of Balisingh had to be explained by appellant as fact of natural death due to asthma was within her special knowledge and on failure to do so, she was convicted. 11. Provision under section 106 of the Evidence Act, 1872 (in short the Act) does not cast any burden on the accused person to prove that no crime was committed by proving facts lying specially within his/her knowledge. Section 106 of the Act, cannot by any implication, be utilized to cast on the accused the burden of proving his/her innocence. Where the accused fails to explain the facts which were within his/her special knowledge it would be an additional link in the chain of circumstantial evidence against him/her. Once the prosecution succeeds in proving its case, the burden shifts upon the accused to adduce sufficient and cogent evidence in regard to special knowledge of facts to rebut the presumption of guilt against him/her. Thus according to the fundamental principle of the Act, it was for the prosecution to prove its own case. trial Court could not have shifted the burden of proof upon the appellant. 12. As discussed above prosecution has failed to prove that death of Balisingh was homicidal in nature and therefore it was not necessary for the appellant to explain the cause of death of Balisingh. 13. Apart from this, it is well settled that if probability of defence version arises from the case of the prosecution itself, it is not necessary for the defence to prove its case. It is also well settled that it is not necessary for the defence to prove it’s case beyond reasonable doubt but only to establish probability. 14. As per postmortem report (Ex. P/5), abdominal organs and lungs were congested and lungs were full of blood. It was also opined by the doctor that cause of death was asphyxia. As per Modi’s Medical Jurisprudence and Toxicology Twenty-third Edition, Chapter 17 (The Pathology of Sudden Natural Death) at Page 562, disease of asthma may also produce asphyxia. As per chapter 18, last paragraph, page 570, in that case the lungs and abdominal organs are usually congested. So in this way, the defence succeeded in establishing that death could be caused due to asthma. 15. In view of the aforesaid, the appeal is allowed. Impugned conviction and sentences are set aside. As per chapter 18, last paragraph, page 570, in that case the lungs and abdominal organs are usually congested. So in this way, the defence succeeded in establishing that death could be caused due to asthma. 15. In view of the aforesaid, the appeal is allowed. Impugned conviction and sentences are set aside. Appellant is acquitted of all the offences. Appellant is in jail. She be released forthwith, if not required in any other case. Fine amount, if deposited, be refunded.