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Madhya Pradesh High Court · body

2017 DIGILAW 1041 (MP)

Guman s/o Kekdiya Bhil v. State of M. P.

2017-09-26

P.K.JAISWAL, PRAKASH SHRIVASTAVA

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JUDGMENT : P. K. JAISWAL, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 13-8-2005 passed by the learned 1st Additional Sessions Judge, Alirajpur, District Jhabua (MP) in Sessions Trial No. 202/2005, convicting the appellant under section 302 of Indian Penal Code, 1860 and thereby passing sentence to suffer life imprisonment and fine of Rs. 5,000/-; in default, further rigorous imprisonment of one year, the appellant has assailed the impugned judgment by filing this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. Facts of the case, as per the prosecution story, are that on 3-4-2005 at 16:00 Hours Idalibai (wife of the present appellant) was sitting in her house along with his younger brother Nanla (PW-4). Appellant Guman (husband of Idalibai) came there and started abusing her over her character; in reply, she said that he is unnecessarily making false allegations against her, suspecting her character. On this, accused Guman, armed with Falia, inflicted multiple injuries to Idalibai. Complainant Rekha (PW-1), daughter of the accused, tried to save her mother Idlibai, but the appellant also tried to cause Falia injury to her, and therefore, she run away from the place of incident. Thereafter, she sent her younger brother Nanla (PW-4) to village Borkuwa for calling her brother. After causing injuries to Idalibai, the accused run away from the place of occurrence. After some time, Guddu (PW-2), Narayan and Dhekliya came at the place of occurrence. Patel Doom Singh (PW-3) was called and the incident was narrated. Doom Singh called tractor of Nurla and took Idalibai to Alirajpur, but on the way, she died. 3. First Information Report was lodged at Police Station Alirajpur District Jhabua vide Crime No. 95/2005 at 20:10 hours on 3-4-2005. After lodging the FIR, the deceased was taken by the Police to the local hospital. An inquest report was prepared and the dead body was sent for postmortem vide Ex.P/5. The appellant was arrested on 4-4-2005 vide Ex.P/8. 4. The Police investigated the matter, recorded the statement of the witnesses, prepared site map Ex.P/4, seized soil and blood stained soil from the spot vide Ex.P/7, seized Falia used in the incident upon pointing out of the appellant vide Ex.P/10 5. After investigation, on 2-8-2005, charge under section 302 of the Indian Penal Code has been framed against the appellant. The appellant abjured his guilt and prayed for trial. After investigation, on 2-8-2005, charge under section 302 of the Indian Penal Code has been framed against the appellant. The appellant abjured his guilt and prayed for trial. 6. It may be mentioned here that accused and the deceased are husband and wife. According to the defence of the appellant, the witnesses speaking against him are his own children and he used to insist them for study and go to school and therefore, they are falsely implicating him; and in-laws of Rekha did not give dowry upon asking for it, and therefore, he has been falsely implicated in the alleged crime. 7. The prosecution examined seven witnesses; Rekha (PW-1), Guddu (PW-2), Doom Singh (PW-3), Nanla (PW-4), Aishwarya Shastri (PW-5), Dr. N. S. Dawar (PW-6) and Dhan Singh (PW-7). PW-1, PW-2 and PW-4 are daughter and sons of appellant and deceased. PW-3 Doom Singh did not support the case of the prosecution and therefore, has been declared hostile. PW-5 is the Investigating Officer, who investigated the matter. PW-6 is the Autopsy Surgeon, who conducted the postmortem on the body of the deceased. PW-7, who is the witness of seizure, also did not support the case of the prosecution, and therefore, has been declared hostile. As per postmortem report Ex.P/13, deceased Idalibai sustained the following injuries :— External Examination :— 1. Incised would – 2½" x ½" x muscles deep – over Left lower third of upper arm 2. " 3" x ¼" x bone cut – On anterior lateral aspect of left forearm 3. " 3" x 1" x bone cut – On upper part of left side neck just below ear lobe 4. " 2" x ½" x Muscles deep – on back of left shoulder region. Internal Examination :— 1. Incised cut related structure of left side neck like big vessels, nerve, muscles etc. 2. Incised cut related structure of left forearm like big vessels, radius and ulna bone and other structure of forearm. Idalibai died due to shock and syncope due to excessive hemorrhage and death is homicidal in nature. 8. Rekha (PW-1) is an eye witness of the case. 2. Incised cut related structure of left forearm like big vessels, radius and ulna bone and other structure of forearm. Idalibai died due to shock and syncope due to excessive hemorrhage and death is homicidal in nature. 8. Rekha (PW-1) is an eye witness of the case. She in her statement has very categorically stated that when she was sitting along with her mother Idalibai, the present appellant armed with Falia came at the place of occurrence and inflicted multiple Falia injuries to her mother; when she and her brother Nanla (PW-4) tried to save her mother, he (the accused) run towards them to assault along with Falia, due to which, they run away from the place of occurrence. The incident was narrated to her maternal uncle and Patel of the village. Immediately after the incident, her maternal uncle, her brother and Patel of the village took Idalibai to Alirajpur, but on the way, she died; then they went to Police Station Alirajpur along with the dead body of her mother and lodged FIR Ex.P/1. She in paragraph No. 2 of her statement has deposed that her father (present appellant) was suspecting on her (Idalibai) character, and therefore, he caused injuries to the deceased. She in paragraphs No. 4 and 5 of cross-examination has deposed that her brother Nanla, at the time of occurrence, was sitting along with her mother. 9. Guddu (PW-2) is a hearsay witness. 10. Deem Singh (PW-3) has not supported the case of the prosecution. 11. Nanla (PW-4) is a child witness and son of the appellant and deceased. He in his statement very categorically stated that his father caused Falia injuries to his mother. Nothing has come in his cross-examination to disbelieve the statement of this witness. 12. Investigating Officer Aishwarya Shastri (PW-5) has investigated the matter at the instance of Rekha (PW-1), who lodged FIR against the appellant. Ex.P/5 is letter written to the District Hospital, Alirajpur for postmortem of the deceased Idalibai. He also supported the fact that complainant Rekha (PW-1) came at Police Station along with the dead body of her mother in tractor trolley. He has further deposed that Ex.P/9 is the memorandum of the appellant and at his instance Falia has been recovered. 13. Autopsy Surgeon Dr. He also supported the fact that complainant Rekha (PW-1) came at Police Station along with the dead body of her mother in tractor trolley. He has further deposed that Ex.P/9 is the memorandum of the appellant and at his instance Falia has been recovered. 13. Autopsy Surgeon Dr. N.S. Dawar (PW-6) in his statement has deposed that on 4-4-2005, when he was posted as Medical Officer at Civil Hospital, Alirajpur, Constable Wal Singh of Police Station, Alirajpur came along with the dead body of Idalibai. He has deposed that all the injuries of the deceased were caused by hard and blunt object. Ocular evidence of Rekha (PW-1) and Nanla (PW-4) is medically corroborated. 14. Shri Raman Singh Solanki, learned counsel for the appellant has drawn our attention to cross-examination of Rekha (PW-1) and submitted that at the time of incident, she was lifting water from well, which is about half kilometer away from the place of occurrence. He has also pointed out that Nanla (PW-4) was out of his house and both are interested witnesses. Their statement is doubtful. He also submitted that there is no independent eye witness of the incident except Rekha (PW-1) and Nanla (PW-4), who were examined as eye witnesses and in absence of any independent witness, corroboration and testimony of such witnesses cannot be relied. There are material discrepancies and omissions; and prayed for acquittal of the appellant. 15. Per contra, Shri Mukesh Kumawat, learned Public Prosecutor for the respondent/State of Madhya Pradesh has drawn our attention to statement of Rekha (PW-1) and Nanla (PW-4) – daughter and son of the appellant and deceased, and submitted that the present appellant caused injuries to the deceased and they were present and witnessed the incident. He has also drawn our attention to statement of other prosecution witnesses and submitted that it is not a case of the appellant that PW-1 and PW-4 were having any enmity with the present appellant, who is their father, or they were not having any good relation with him, and therefore, he has been falsely implicated in the alleged offence. The law on the subject is well settled. At the time of occurrence, no independent witness was present and only Rekha (PW-1) and Nanla (PW-4) were present, and therefore, the prosecution has rightly not recorded statement of any independent eye witness; and prayed for dismissal of the criminal appeal. 16. The law on the subject is well settled. At the time of occurrence, no independent witness was present and only Rekha (PW-1) and Nanla (PW-4) were present, and therefore, the prosecution has rightly not recorded statement of any independent eye witness; and prayed for dismissal of the criminal appeal. 16. We have heard learned counsel for the appellant and the learned Public Prosecutor for the State of Madhya Pradesh. 17. The question is whether conviction of the appellant under section 302 of the Indian Penal Code, 1860 is on the evidence adduced before the learned trial Court is justified. Our answer to that question is in affirmative. There is, in our opinion, sufficient evidence on record to prove that the appellant had committed the murder of his wife. Rekha (PW-1) and Nanla (PW-4) are daughter and son of the present appellant as well as the deceased. At the time of occurrence, they were present at the place of occurrence and they had witnessed the incident of causing Falia injuries to the deceased. The fact of death of the deceased Idalibai was homicidal in nature is also beyond dispute, keeping in view the deposition of Dr. N. S. Dawar (PW-6) and the certificate as to the cause of death issued by him. To that extent, there was no challenge even before us. 18. On the day of incident, when Rekha (PW-1) and Nanla (PW-4) were in their house along with their mother (the deceased – victim), at that time, the appellant armed with Falia attacked her with intention to kill her, which resulted in eventful death of the deceased. Learned trial Court, after appreciating the ocular and medical evidence, came to the conclusion that ocular version of Rekha (PW-1) and Nanla (PW-4) daughter and son of the deceased, that the appellant had inflicted Falia injuries on the deceased with his weapon (Falia) corroborated by the medical evidence. PW-1 and PW-4 are daughter and son of the present appellant, and therefore, there is no reason whatsoever to disbelieve their statement. The statement of Rekha (PW-1) fairly corroborated by the statement of Nanla (PW-4) (another eye witness). Nothing has come out in their examination-in-chief and/or cross-examination, which creates doubt on the veracity of their statements. Moreover, they have been consistent in their version and fully supported the prosecution story. The statement of Rekha (PW-1) fairly corroborated by the statement of Nanla (PW-4) (another eye witness). Nothing has come out in their examination-in-chief and/or cross-examination, which creates doubt on the veracity of their statements. Moreover, they have been consistent in their version and fully supported the prosecution story. Place of occurrence is proved beyond any doubt, in the light of evidence of PW-1 and PW-4. Investigating Officer had recovered the blood stained roll of the clay, the plain clay and other material from the place of incident. 19. Thus, considering the overall facts and circumstances of the case, no case to interfere with the well reasoned findings recorded by the learned trial Court in the impugned judgment, as prayed for, is made out. 20. Criminal Appeal No. 1128/2005 is accordingly dismissed.