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2015 DIGILAW 33 (CHH)

Mannu Lal v. State of Madhya Pradesh

2015-01-28

NAVIN SINHA, P.SAM KOSHY

body2015
JUDGMENT Navin Sinha, Actg. C.J. 1. On the Appeal being called for hearing no one appeared on behalf of the Appellant to press the appeal. Considering that the appeal was of the year 1999, we did not consider it proper to adjourn the matter further awaiting appearance of the Counsel and requested Shri Tarik Haidar, Advocate, who was present in the Court and is also a Panel Lawyer of the High Court Legal Services Committee, to assist us in hearing and deciding the appeal. Learned Counsel Shri Haider and the State Counsel have ably and fairly assisted us with regard to the materials and evidence on record. 2. The Appellant stands convicted under Section and 302 IPC to life imprisonment and fine of Rs. 2,000/-. In the event of failure to pay the fine he was required to undergo two years further rigorous imprisonment as ordered by the Sessions Judge, Bilaspur in Sessions Trial. No. 479 of 1997 on 26.3.1999. 3. Merg, Exhibit P1, was lodged by CW1, Dr. U.S. Kodapurkar for the death of the deceased, who was the wife of the Appellant, at the Hospital where she was brought in an Ambulance by the Appellant himself who was also in an injured condition. The FIR, Exhibit P5, was then lodged by the Police Constable Anujram, PW9. Exhibit P7 was the inquest report proved by PW10, the Investigating Officer. Exhibit P10, the spot map was also proved by PW10, as inside the bedroom of the Appellant. The postmortem, Exhibit P11 was conducted by PW11, Dr. R.S. Kanwar who found five incised wounds on the occipital region, bone deep, right side of the middle of the neck, right side of the thoracic region, over the back of the left shoulder cutting the artery and veins and over middle third and back of left rib. The injuries were opined to have been caused by hard and sharp object. The sixth, seventh and eighth ribs on the right side were fractured. There were chips of fracture on the left shoulder joint which was also dislocated. 4. Learned Counsel for the Appellant submitted that the deceased was his own wife. He did not assault her. The injuries were opined to have been caused by hard and sharp object. The sixth, seventh and eighth ribs on the right side were fractured. There were chips of fracture on the left shoulder joint which was also dislocated. 4. Learned Counsel for the Appellant submitted that the deceased was his own wife. He did not assault her. The assault on the deceased was made by two intruders, a defence also taken by him under section 313 Cr.P.C. His minor son, Vijay, PW7 also stated that two unknown intruders had entered the house and killed his mother. They had also assaulted his father. PW7 had denied having given any statement to the Police under Section 161Cr.P.C., marked Exhibit P3 that his father had assaulted his mother. Merely because the deceased may have died inside the bedroom cannot shift the burden straightaway on the Appellant under Section 106 of the Evidence Act unless the prosecution first establishes a prima facie case. Merely because he may not have lodged a police report with regard to the intruders having assaulted his wife and him cannot lead to completely disbelieving his defence. His conduct in taking his wife to the hospital was incompatible with the allegations if he had desired to kill her. The defence taken by the Appellant was a plausible one which has not been considered properly. He is therefore entitled to acquittal on the basis of benefit of doubt. 5. Learned Counsel for the State opposing the appeal submitted that the Appellant was the assailant. Prosecution witnesses have stated that he would often quarrel with his wife. That he may have attempted to assault himself also after having realized his folly in having assaulted his wife or that he took her to the hospital thereafter cannot detract from his guilt as being the assailant of the deceased. The prosecution has established a prima facie case by an unnatural death inside the house with no evidence whatsoever of any intruders. The onus therefore lies on the Appellant under Section 106 of the Evidence Act to prove how and in what manner the deceased was murderously assaulted inside his bedroom. 6. We have considered the submissions on behalf of the parties and perused the evidence on record also. The onus therefore lies on the Appellant under Section 106 of the Evidence Act to prove how and in what manner the deceased was murderously assaulted inside his bedroom. 6. We have considered the submissions on behalf of the parties and perused the evidence on record also. PW1, Jaikaran, employed in the Dispensary as a Dresser and a resident of the same village as the Appellant, deposed that on the date of occurrence the Appellant came to him at 6.00 am in the morning with a bleeding stomach injury and told him that his wife was unwell and asked him to accompany the Appellant to his house. The witness first took the Appellant to the Doctor at the hospital. He then accompanied the Appellant on the Ambulance to his house. The deceased was put in the Ambulance along with the two children. The witness then accompanied them to the hospital. The witness further stated that the Appellant would often trouble his wife after consuming liquor. The Appellant never told him how his wife and he himself had suffered the injuries. The witness further stated that the Appellant would often fight with co-villagers after consuming liquor. In cross-examination no question whatsoever was asked to the witness on behalf of the Appellant. PW2, Firatram also a co-villager of the Appellant was the Driver of the Ambulance. 7. PW7, Vijay was the nine year old minor son of the Appellant. He deposed that two unknown intruders entered the house at night and assaulted his mother and father inside the room. His sister, Aarti was also present. No explanation was given why his sister Aarti had not been examined. He denied having given any statement to the Police under Section161 Cr.P.C., Exhibit P3, that the Appellant had assaulted his mother. PW10, the Investigating Officer stated that he had recorded the statement of the witness correctly exactly as made to him. No cross-examination of PW10 was done on the aspect. 8. CW1, Dr. U.S. Kodapurkar, the Court witness deposed that the Appellant had brought his wife to the hospital and made an extra judicial confession that he had assaulted her and then injured himself in the stomach attempting to commit suicide. The witness then sent information to the police marked Exhibit P1. 8. CW1, Dr. U.S. Kodapurkar, the Court witness deposed that the Appellant had brought his wife to the hospital and made an extra judicial confession that he had assaulted her and then injured himself in the stomach attempting to commit suicide. The witness then sent information to the police marked Exhibit P1. In cross-examination no question whatsoever was put by the Appellant to the Court witness neither did the Appellant deny having made the extra judicial confession or that it was made under any coercion or duress. It was therefore a voluntary extra judicial confession. The confession was made to none other than the Doctor who attended the Appellant at the hospital. The extra-judicial confession is also corroborative evidence against the Appellant. 9. In Kumar v. State of T.N. (2013) 12 SCC 699 , on extra judicial confession it was observed:-- "16. The law is well settled as to what extent extra-judicial confession can be relied on. If the same is voluntary and made in a fit state of mind, it can be relied upon along with other materials. It is true that the extra-judicial confession is a weak type of evidence and depends upon the nature of circumstances like the time when the confession was made and the credibility of the witnesses who speak to such a confession." 10. The prosecution has been able to establish that the deceased was killed at home in an unnatural manner. The occurrence was at 9.00 pm in the night. If as contended, the assault was by an intruder, the Appellant offers no explanation why he did not go to the police at night itself or in the morning. The Appellant went to PW1 in the morning at 6.00 am but never told him of any intruders having come and assaulted him and his wife. Despite this statement of PW1 no questions were asked in cross-examination. His daughter, Aarti has not been examined for which no explanation at all has been given. The mother having already been deceased. PW7, the minor son has obviously deposed with the intention to save his father. PW10 was not cross-examined on this aspect. The Appellant took-a lame defence of two intruders under Section 313 Cr.P.C. but did not make a whisper of any suggestion that they had come with an intention to steal or that he had enmity towards anybody who may have engineered the incident. PW10 was not cross-examined on this aspect. The Appellant took-a lame defence of two intruders under Section 313 Cr.P.C. but did not make a whisper of any suggestion that they had come with an intention to steal or that he had enmity towards anybody who may have engineered the incident. Once the prosecution has established a prima facie case, the onus shifts to the Appellant under Section 106 of the Evidence-Act to explain the manner, circumstances under which his wife died an unnatural death inside the bedroom. The Appellant has offered no defence. 11. In Trimukh Maroti Kirkan v. State of Maharashtra (2006) 10 SCC 681 , death having taken place inside the house, it was observed:-- "15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation." 12. In conclusion, considering that the prosecution established a prima facie case against the Appellant, his failure to discharge the onus under Section 106 of the Evidence Act, the failure to cross-examine PW1 and the Court witness before whom he is stated to made extra-judicial confession, leaves us satisfied that the order of conviction requires no interference. The Appellant may have been under the influence of liquor and attacked his wife. He probably realized his folly and then assaulted himself or alternately did so to weave a story of intruders with no evidence in support of the same. The nature and number of injuries caused on the deceased reveal his intention. We therefore find no merit in the appeal. 13. The appeal is dismissed. Appeal dismissed.