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2014 DIGILAW 286 (CHH)

Bhupat Narayan Singh v. State of Chattisgarh

2014-07-31

CHANDRA BHUSHAN BAJPAI, PRITINKER DIWAKER

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JUDGMENT PRITINKER DIWAKER, J. 1. This appeal arises out of judgment and order dated 4.8.1999 passed by Additional Sessions Judge, Durg in Sessions Trial No. 31 of 1994 convicting accused/appellant No. 1-Bhupat Narayan Singh under Sections 302 and 498-A, IPC and sentencing him to undergo imprisonment for life with fine of Rs. 10,000/- u/s. 302 and RI for 2 years with fine of Rs. 500/- u/s. 498-A, IPC plus default stipulations. However, accused/appellants No. 2 and 3 namely Ram Raj Singh and Indu Bai have been convicted under Section 498-A, IPC and each of them sentenced to undergo RI for 2 years with fine of Rs. 500/- plus default stipulations. 2. In the present case, name of the deceased is Asha Devi-wife of accused/appellant No. 1 Bhupat Narayan Singh. Marriage of the deceased was solemnized with him on 19.5.1989. In the intervening night of 23/24.9.1993, body of the deceased was found in her room where she was sleeping with accused/appellant No. 1. Accused/appellant No. 2-Ramraj Singh is brother-in-law (Devar) of the deceased, whereas accused/appellant No. 3-Indubai is her mother-in-law. It is alleged that on 24.9.1993 at about 8.30 a.m., merg intimation was given by accused/appellant No. 1 informing the police that he was residing as tenant in the house of Dr. Choubey and was working as constable in 11th Batalian of SAF. It is stated in the merg that the deceased was the wife of accused/ appellant No. 1 and out of their wedlock, he had two issues and that his relations with the deceased were not cordial as she was stubborn. It is alleged that in the last night after taking food, both of them had slept and when he woke up at 6:00 a.m., his wife was found dead. Merg further mentions that on 21.9.1993, a report was lodged by his wife in Mahila Police Station against the accused/appellant No. 1, his brother and mother stating that they used to pick up quarrel and beat her. While lodging the merg, accused/appellant No. 1 had also disclosed that he suspected the deceased to have consumed some poisonous substance and sought for an enquiry to be made. Post-mortem examination on the body of the deceased was conducted on 25.9.1993 by Dr. S. Mandge (PW-7) along with Dr. Bansod who gave the report Ex. While lodging the merg, accused/appellant No. 1 had also disclosed that he suspected the deceased to have consumed some poisonous substance and sought for an enquiry to be made. Post-mortem examination on the body of the deceased was conducted on 25.9.1993 by Dr. S. Mandge (PW-7) along with Dr. Bansod who gave the report Ex. P-7 opining the mode of death as asphyxia but no definite opinion was given by him whether the death was homicidal, suicidal or natural. After merg inquiry, on 6.10.1993, FIR Ex. P-8 was registered against the accused/appellants for the offences punishable under Sections 302 and 498-A, IPC and after investigation, on 16.11.1993, charge-sheet was filed against them under the same sections. However, the Court below framed the charges against them under Sections 302/34 and 498-A, IPC. 3. In order to establish the guilt of the accused/appellants, the prosecution has examined 17 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely Harendra Singh (DW-1) and Dr. Pravin Agrawal (DW-2) have also been examined by the defence in support of its case. 4. After hearing the parties, the trial Court has acquitted accused/appellant Nos. 2 and 3 of the charge under Section 302/34 but convicted them under Section 498-A, IPC whereas accused/appellant No. 1 has been convicted and sentenced as mentioned above in paragraph No. 1 of this judgment. 5. Counsel for the accused/appellants submits as under: (i) That the accused/appellants have been convicted on the basis of circumstantial evidence but the circumstances are not as such which could lead to their conviction. (ii) That mere recovery of the body of the deceased from the bedroom of the accused/appellant No. 1, is not good enough to uphold the conviction because as per the post-mortem report, no definite opinion was given by the doctor whether the death was homicidal, suicidal or natural. (iii) That the deceased was a patient of asthma and she might have died because of asthmatic attack. (iv) That there is no evidence against accused/appellant Nos. 2 and 3 to bring home their guilt under Section 498-A, IPC and that the witnesses examined by the prosecution being the interested ones cannot be relied upon and their statements are required to be ignored. (iv) That there is no evidence against accused/appellant Nos. 2 and 3 to bring home their guilt under Section 498-A, IPC and that the witnesses examined by the prosecution being the interested ones cannot be relied upon and their statements are required to be ignored. (v) That viscera was sent for chemical examination but there is no such report on record and therefore the accused/appellants are entitled for acquittal. 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits as under: (i) That body of the deceased was found in the bedroom of the accused/appellant No. 1 and undisputedly on the date of incident, she was sleeping with the accused/appellant No. 1 and therefore it was for him to explain as to how she died but unfortunately no such explanation has been given by him in his statement recorded under Section 313 of the Code of Criminal Procedure. (ii) That two days prior to the date of incident, a report was lodged by the deceased in Mahila Police Station and entry was made in the Rojnamcha Sanha Ex. P-10 where she had informed of being apprehensive and afraid of the accused/appellants. (iii) That though in the post-mortem report, the doctor has not opined whether the death was homicidal, suicidal or natural yet if his statement is read as a whole, it reveals that the death was homicidal in nature. (iv) That symptoms shown in the post-mortem report clearly demonstrate that the death was homicidal in nature. According to the State counsel, these symptoms have been described in Modis Jurisprudence - 24th edition. (v) That had the deceased died because of asthmatic attack, while lodging merg intimation, accused/appellant No. 1 would have disclosed this fact to the police and would not have spelled out his suspicion that the deceased might have died after consuming some poisonous substance. 7. Heard counsel for the parties and perused the material available on record. 8. Kanamma (PW-1) is the ASI of Mohan Nagar Mahila Police Station who on the report lodged by the deceased on 21.9.1993 had made the entry in the Rojnamcha Sanha Ex. P-10. 7. Heard counsel for the parties and perused the material available on record. 8. Kanamma (PW-1) is the ASI of Mohan Nagar Mahila Police Station who on the report lodged by the deceased on 21.9.1993 had made the entry in the Rojnamcha Sanha Ex. P-10. She has stated that while lodging the report, it was informed by accused/appellant No. 1 that he wanted to divorce the deceased because of her bad habits whereas it was disclosed by the deceased that accused/appellant No. 1 along with other accused persons used to beat and torture her and for that she was afraid of them. Anand Jain (PW-2) is the witness to inquest notice Ex. P-1, inquest Ex. P-2, Nazri Naksa Ex. P-3 and seizure memo Ex. P-4 by which bed sheet, pillow, mattress etc. were seized, who has duly supported the case of the prosecution. Ganesh Singh (PW-3) is the village Kotwar and witness to spot map Ex.P-3 and seizure memo Ex. P-4. Khem Das Sahu(PW-4) is the Patwari who prepared spot map Ex. P-5. R.S. Thakur (PW-5) is the witness who took the body of the deceased for post-mortem examination. G.R. More (PW-6) is the Naib Tehsildar who prepared inquest Ex. P-2. Dr. Suhas Mandge (PW-7) is the witness who along with Dr. Bansod conducted post-mortem examination on the body of the deceased and gave the report Ex. P-7 stating that eye balls of the deceased had protruded, dilated pupils and livid lips and nails were there, rigor mortis present in lower limbs only, decomposition not yet started, dark frothy fluid and blood was there in the stomach, right side of the heart was filled with blood whereas left side was empty. This witness has opined the cause of death to be asphyxial in nature. He, however, has stated that no definite opinion could be given regarding cause of asphyxia. In paragraph No. 4 of his deposition, this witness has stated that if a soft pillow is placed over a sleeping lady, it can cause asphyxia and if no resistance is offered by her, there will not be any external injury to her. He has further stated that he had preserved viscera and requested for sending the same for chemical examination. He has clarified that in normal course, a person would not die on account of asphyxia and it is the heart which first stops beating and then a person dies. He has further stated that he had preserved viscera and requested for sending the same for chemical examination. He has clarified that in normal course, a person would not die on account of asphyxia and it is the heart which first stops beating and then a person dies. This witness has further stated that the old patient of asthma can also die because of asphyxia but in the case in hand, there was no symptom of asthma with the deceased. In paragraph No. 13, he has stated that chances of sustaining injury while someone is smothered are there but it will depend as to with how much force the pressure was exerted with the pillow. Gajadhar Singh (PW-8) the father of the deceased has stated that after receiving information regarding death of the deceased, he immediately rushed to her house where he was informed that she had died on account of ailment. He has given various instances where the deceased was subjected to cruelty by the accused persons. According to this witness, accused/appellant No. 1 had left the deceased in his house and despite his requests, he did not take her with him. He has further stated that the deceased and the accused/appellant No. 1 were blessed with two issues but the accused/ appellant No. 1 never took care of them. Smt. Rajmati (PW-9) has made almost similar statement as has been made by Gajadhar Singh (PW-8). She has also categorically stated as to the manner in which the deceased was subjected to cruelty and torture by the accused/appellants. Sanjay Borkar (PW-10) is the witness who registered FIR Ex. P-1 against the accused/appellants. Parasram Tiwari (PW-11) is the witness who made entry in the Rojnamcha Sanha Ex. P-10. Ramnarayan (PW-12) is the witness who recorded case diary statement of some of the witnesses. Pradip Khicharia (PW-13) is the witness to inquest Ex P-2. Shrinath Singh (PW-14) is the brother-in-law of the deceased who has not supported the case of the prosecution and has been declared hostile. Sunil Singh (PW-15)-cousin of the deceased has stated that he had seen accused/appellant No. 1 beating the deceased. According to him, there used to be demands for dowry by accused/ appellant No. 1. Ramesh Pratap Sinha (PW-16) brother-in-law of the deceased has stated that the deceased was subjected to cruelty by the accused/appellants. Sunil Singh (PW-15)-cousin of the deceased has stated that he had seen accused/appellant No. 1 beating the deceased. According to him, there used to be demands for dowry by accused/ appellant No. 1. Ramesh Pratap Sinha (PW-16) brother-in-law of the deceased has stated that the deceased was subjected to cruelty by the accused/appellants. Manoj Kumar Singh (PW-17) - brother of the deceased has made similar statement as by Gajadhar Singh (PW-8) and Rajmati (PW-9). Harendra Singh (DW-1) - neighbour of the accused/appellant has stated that the deceased died because of heart attack and that the relations between the accused/appellants and the deceased were cordial. Dr. Pravin Agrawal (DW-2) has stated that on 5.7.1993 and 10.8.1993, he had treated the deceased who was suffering from allergic bronchitis and that the death could be because of that. 9. Having thus gone through the evidence of the witnesses, it becomes apparent that in the night of 23.9.1993 after taking food, the deceased was sleeping in her bedroom with accused/appellant No. 1 and in the morning of 24.9.1993, her body was found in the same room. Evidence on record goes to show that while lodging merg intimation, it was disclosed by accused/appellant No. 1 that the deceased might have died by consuming poison whereas in the Court his defence was that the deceased was suffering from asthma and she might have died because of asthmatic attack. Had her death been from asthmatic attack, accused/appellant No. 1 would have disclosed to the police that the deceased was suffering from asthma and he could not have said that she might have died after consuming some poisonous substance. This dual defensive posture regarding the cause of death of the deceased adopted by the accused/appellant No. 1 creates doubt in the mind of this Court. Though the doctor conducting post-mortem examination has not given any definite opinion regarding the exact cause of death but if entire statement of Dr. S. Mandge (PW-7) is seen, it becomes clear that the death of the deceased was homicidal in nature. In Modis Medical Jurisprudence 24th Edition 2011, under the heading Appearance due to asphyxia, it is described that in such cases, the lips are livid, tongue sometimes protruded, blood froth comes out of the mouth and the nostrils, the right side of the heart is often full of dark fluid blood, and the left empty. In Modis Medical Jurisprudence 24th Edition 2011, under the heading Appearance due to asphyxia, it is described that in such cases, the lips are livid, tongue sometimes protruded, blood froth comes out of the mouth and the nostrils, the right side of the heart is often full of dark fluid blood, and the left empty. All these symptoms are very much present in the present case too and thus it becomes apparent that the death of the deceased was homicidal in nature. 10. In a case of circumstantial evidence where no eye-witness account is available, the principle to be applied by the Court is that in case an incriminating circumstance is put to the accused but if he either offers no explanation or offers a false explanation, an additional link is created to make the chain of circumstances complete. Furthermore, where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime, they were seen together or the offence takes place in the dwelling home where the husband also normally resided but he did not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. That is what is the position in the case in hand also because in his statement recorded under Section 313 of the Code of Criminal Procedure, he did not offer any satisfactory explanation as to how the body of the deceased was found in the room where nobody except him and the deceased was there. On the contrary, while lodging merg intimation it was disclosed by accused/appellant No. 1 that the deceased might have died by consuming poison whereas in the Court, his defence was that the deceased was suffering from asthma and she might have died because of asthmatic attack. It has also come on record that two days prior to the date of incident, deceased had approached Mahila Police Station and expressed fear of dire consequences from the accused/appellants. 11. Thus in view of the aforesaid discussion, this Court has no hesitation to say that it is the accused/appellant No. 1 who committed the murder of the deceased. It has also come on record that two days prior to the date of incident, deceased had approached Mahila Police Station and expressed fear of dire consequences from the accused/appellants. 11. Thus in view of the aforesaid discussion, this Court has no hesitation to say that it is the accused/appellant No. 1 who committed the murder of the deceased. Court below has been fully justified in convicting the accused/appellant No. 1 under Sections 302 and 498-A, IPC and accordingly the same is maintained. 12. As regards accused/appellants No. 2 and 3, their conviction under Section 498-A is also maintained. However, it is reported that accused/appellant No. 2 has remained in jail for about two months and the accused/appellant No. 3 for 14 days, keeping in view the fact that the incident had taken place about 21 years back and after such a long period, it would not be in the interest of justice to send them to jail, the sentence imposed on them is reduced to the period already undergone by them. 13. Accused/appellant No. 1 is reported to be on bail. His bail is cancelled and he is directed to be arrested and sent to jail forthwith to undergo remaining part of the sentence imposed on him. Order accordingly.