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2018 DIGILAW 890 (MP)

SHYAMABAI v. STATE OF M. P.

2018-10-22

P.K.JAISWAL, VIRENDER SINGH

body2018
JUDGMENT VIRENDER SINGH, J. – The sole appellant, who is convicted under section 302 of Indian Penal Code for murder of her ex-husband Mangilal on 16-10-2009 in village Nandlai, Police Station- Industrial Area, Ratlam by 4h ASJ, Ratlam vide judgment dated 9-3-2011 passed in S.T. No. 06/2010 and sentenced for life imprisonment and fine of Rs. 500/- and in default, further to undergo 1 year R.I., has preferred the present appeal. 2. Relevant facts sans unnecessary details are that the appellant Shyamabai was wife of Bardu. Later, she left Bardu and married Mangilal. Punchayat resolved the dispute between both Mangilal and Bardu, adjudicating that Mangilal shall pay Rs. 45,000/- to Bardu. It was also resolved that if Shyamabai again comes back, then Bardu shall pay Rs. 1,00,000/- to Mangilal. After stay of a year or two, she came back to Bardu, but did not pay the money as settled between them, which spawned fractions between them. On 16-10-2009, Mangilal left his house, telling his family members and some other people that Shyamabai has called him to pay money due towards her, but thereafter, he never returned home or was seen alive. 3. On the same day i.e. 16-10-2009, Shyamabai (the appellant) lodged FIR No. 450/2009 under section 354 of Indian Penal Code at Police Station – Industrial Area, Ratlam alleging that at about 7:00 PM, when she was lightning the lamp at home, Mangilal covering himself in a blanket, came there, molested her, tried to catch her with her hands and then held her clothes. Sensing his ill intention, she inflicted axe twice or thrice on him; then he ran away. The police started investigation and searched for Mangilal at his home, but he was neither found at home nor in the village. 4. On 19-10-2009, about 10:00 AM in the farm land of Dalla in Village Nandlai dead body of Mangilal was seen. The police was intimated, who registered Merg No. 50/2009 and inquired. The Police reached on conclusion that, it was Shyamabai, who killed Mangilal, therefore, Crime No. 459/2009 under section 302 of Indian Penal Code was registered and after completing usual investigation, charge-sheet was filed, which ended in conviction and sentence of the appellant as stated above. 5. The appellant has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available onrecord. 5. The appellant has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available onrecord. The learned trial Court committed error in not considering the material contradictions and omissions appeared in the statements of prosecution witnesses. Eye-witnesses Tulsiram PW-1, Meera PW-16 and Chetan PW-17 have turned hostile and have not supported the case of the prosecution. The prosecution failed to produce any independent witnesses. All the witnesses examined are interested and inimical towards the appellant, except the statement of wife of Mangilal Mohni PW-5, nothing is available on record to prove that on 16-10-2009, the deceased Mangilal left home stating that he is going to take money from the appellant Shyamabai. Being wife of the deceased, Mohni is an interested witness, there was enmity between both the families on account of some money transactions; therefore, sole statement of Mohni cannot be relied upon. Besides, she has admitted that she met the deceased last on 16-10-2009, at about 5:00 in the evening, which shows that even after two days of alleged incident of outraging her modesty by the appellant, Mangilal was alive. FIR lodged by the appellant under section 354 dated 16-10-2009 is inadmissible under section 25 of the Evidence Act. The prosecution could not prove compliance of section 157 of Criminal Procedure Code. In the chemical examination, no human blood was found on the axe recovered from the appellant. The police could not establish identity of the dead body recovered as Mangilal. Photographs taken on the spot were not produced before the Court. Dead body was recovered from an open place about 800 meters away from the house of the appellant. Learned trial Court has not considered all these discrepancies and has convicted the appellant, which is not sustainable in the eyes of law and she is entitled for acquittal. 6. Learned Public Prosecutor has opposed the prayer of the appellant. Relying on the statement of Mohni PW-5, axe recovered from possession of the appellant and most importantly admission of the appellant before the police in the form of FIR of Crime No. 450/2009 under section 354 of Indian Penal Code, the learned Public Prosecutor has argued that this evidence alone is sufficient to hold the appellant guilty. Therefore, it is argued, that the learned trial Court has rightly held the appellant guilty and convicted her. 7. Therefore, it is argued, that the learned trial Court has rightly held the appellant guilty and convicted her. 7. Dead body recovered in the farmland of Dalla, though was partially decomposed, but father Jeewan PW/.... and other witnesses identified the same by the face as it was still in identifiable condition. Clothes and few other belongings also helped the identification. The learned trial Court has discussed this evidence in detail and has rightly concluded that the dead body was of Mangilal. 8. The prosecution has relied on the circumstances that the post mortem revealed that the deceased sustained fractures of right humerus and left parietal bone and the cause of death was fracture of left parietal bone. Duration of death was 48 to 72 hours from the time of the post mortem and the post mortem was conducted on 19-10-2009 at 12:00 P.M. The appellant lodged FIR No. 450/09 on 16-10-2009 at 20:40 stating that she inflicted injuries to the deceased by axe at about 19:30 hours. An axe was recovered from possession of the appellant (Ex.P/12). On chemical analysis, FSL confirmed existence of blood stains on the axe. The dead body was found hardly 5-800 meters away from the house of the appellant. It is argued that all these evidences reasonably co-relate the appellant with the alleged crime and show that the chain of circumstances is complete and indicates involvement of the appellant. 9. Though the argument appears to be attractive and tempting, but its an illusion and our mind cautious us that this alone is not sufficient to hang a person to gallows. Not only it requires a careful scrutiny and appreciation of evidence before recording conviction but also the law requires many more things to be proved by the prosecution, which we will discuss in the forthcoming paras. 10. The prosecution tried to establish the guilt of the appellant through direct evidence but could not succeed as all three eyewitnesses Tulsiran PW/1 and Meera and Chetna PW/16 and 17, both daughters of the appellant, turned hostile and did not support the case of the prosecution. 11. The only thing remained in the hands of the prosecution to establish complicity of the appellant was circumstances appeared in the investigation. Two sets of circumstances were brought on record. 11. The only thing remained in the hands of the prosecution to establish complicity of the appellant was circumstances appeared in the investigation. Two sets of circumstances were brought on record. First, the deceased left home telling his family and some other persons that the appellant has called him to pay the money due towards her on account of decision of the Panchayat. Wife of the deceased Mohnibai PW/5, father Jeewan PW/7, real brother Gopal PW/9, mother Dhapubai PW/10 have supported this tale, but this appears to us beyond reality, as the Police Statements of all these witnesses have been recorded only after recovery of the dead body after three days of missing of Mangilal, while it is the case of the prosecution that after registration of FIR No. 450/2009 under section 354 of the Indian Penal Code on the instigation of the appellant, the Police searched for the deceased and for that purpose visited his house and also the village on the same day i.e. 16-10-2009 but nothing is on record to show that at that time the police came to know that the deceased had gone to the house of the appellant to collect money. Only two inferences can be drawn in this situation and that are either no one revealed before the police at that time that while leaving home, Mangilal told them that he is going to collect money from the appellant on her call or the prosecution has withheld the truth revealed by the witnesses at that time as no statements recorded at that time have been produced on record. It confirms our doubts that the story brought before the Court is distorted one or is concocted by the police only after recovery of dead body. Parrot type statements of all these witnesses further strengthens our doubts, particularly in the backdrop of the facts that the deceased was living separately from all other family members and it is unnatural that at the time of leaving the house, he went to everyone and specifically mentioned that the appellant has called him and he is going to her house to collect the money. Therefore, no reliance can be placed upon such statements. 12. Now remains the confession of the appellant made in the form of FIR No. 450/2009 under section 354 Indian Penal Code. Therefore, no reliance can be placed upon such statements. 12. Now remains the confession of the appellant made in the form of FIR No. 450/2009 under section 354 Indian Penal Code. First of all this is not admissible as is hit by section 25 of the Evidence Act, 1872 and second if it is considered as admission, it has to be considered as a whole. Before analyzing this confession/admission, it would be apposite to go through it in its original, which is as follows : 13. Simple reading of this entire statement explicitly reveals three things; (i) this is not an inculpatory statement, (ii) there was no intention of the appellant to kill the deceased and (iii) the appellant exercised her right of private defence, which as per third clause of section 100 of the Indian Penal Code extends up to voluntary causing death if the assault is with intent to commit rape. In such situation, the conviction more precisely the conviction under section 302 of the Indian Penal Code cannot be recorded on the basis of this exculpatory or explanatory admission. 14. Touching the subject, the Hon’ble Supreme Court analyzed the law in Bandlamuddi Atchuta Ramaiah vs. State of A. P., (1996) 11 SCC 133 = 1997 SCC (Cri) 128 at page 136 as under : 14. It is necessary to point out that the statement attributed to the first accused (Atchuta Ramaiah) in Ext. P-24 was completely disowned by him when he was questioned by the learned Sessions Judge under section 313 of the Code of Criminal Procedure. Even assuming that this was truly recorded by the police, its utility in evidence is very much restricted by law. A statement in an FIR can normally be used only to contradict its maker as provided in section 145 of the Evidence Act, 1872 or to corroborate his evidence as envisaged in section 157 of the Act. Neither is possible in a criminal trial as long as its maker is an accused in the case, unless he offers himself to be examined as a witness (vide Nisar Ali vs. State of U. P., AIR 1957 SC 366 = 1957 SCR 657 = 1957 Cri.L.J. 550). Kapoor, J. speaking for the three-Judge Bench in that decision has observed : 16. Kapoor, J. speaking for the three-Judge Bench in that decision has observed : 16. In Babulal Bhagwan Khandare vs. State of Maharashtra, (2005) 10 SCC 404 = 2005 SCC (Cri.) 1553 at page 413 Hon’ble the Supreme Court held that the right of private defence is a question of fact to be determined on the facts and circumstances of each case. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. [See Munshi Ram vs. Delhi Admn., AIR 1968 SC 702 = 1968 Cri.L.J. 806, State of Gujarat vs. Bai Fatima, (1975) 2 SCC 7 = 1975 SCC (Cri) 384 = AIR 1975 SC 1478 , State of U. P. vs. Mohd. [See Munshi Ram vs. Delhi Admn., AIR 1968 SC 702 = 1968 Cri.L.J. 806, State of Gujarat vs. Bai Fatima, (1975) 2 SCC 7 = 1975 SCC (Cri) 384 = AIR 1975 SC 1478 , State of U. P. vs. Mohd. Musheer Khan, (1977) 3 SCC 562 = 1977 SCC (Cri.) 565 = AIR 1977 SC 2226 and Mohinder Pal Jolly vs. State of Punjab, (1979) 3 SCC 30 = 1979 SCC (Cri.) 635 = AIR 1979 SC 577 .] The burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. 17. The Division Bench of Bombay High Court in Shivaji Ganu Naik vs. State of Maharashtra, 1999 Cri.L.J. 471 has observed that it is well-settled that the right of private defence need not be specifically pleaded. Its benefit can be given to the accused if circumstances show that he may have acted in exercise of it. A division bench of Allahabad High Court has also taken the similar view in State of U. P. vs. Haripal Singh and others, 2000 Cri.L.J. 3023 that the legal position is well settled that the right of private defence need not be specifically pleaded. 18. Thus, the plea of right of private defence can be taken for the first time even at appellate stage and that the accused need not to prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea. 19. In the case in hand, it is clear from the FIR lodged by the appellant that at the time of the incident when she was lightening lamp at her house, the deceased came and tried to hold her hand with ill intention, started squabbling and also held her clothes. Sensing his ill intention, she inflicted axe twice or thrice on him and he ran away from the spot. Sensing his ill intention, she inflicted axe twice or thrice on him and he ran away from the spot. She further stated that she does not know where or on which part of the body, he sustained injury. This FIR, which is being heavily relied on by the prosecution itself shows that not only the appellate acted in her private defence but also that she has not exceeded her right. 20. So far as the question falling for consideration regarding the nature of the offence as to whether it would fall under section 304 Part-I or Part-II Indian Penal Code or not is concerned, we have to go to the third clause of section 300 Indian Penal Code, which consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. As discussed earlier, the deceased Mangilal assaulted on the appellant first. She apprehended danger on her chastity or modesty and, therefore, acted in self defence. She reacted spontaneously and caused injury as per natural reflexes. She neither targeted any particular part of the body not intended to cause injury on any vital part of the body. Her intention was not to kill but was to keep him away. In such situation, her act does not fall (under) any of the part of section 304 of the Indian Penal Code. 21. Keeping in view the above principles, when we have examined the facts of the present case, find ourselves unable to agree with finding of the learned trial Court, who in our considered opinion missed to appreciate all this evidence in its right perspective. We are not persuaded, despite adroit labour and vehement arguments by the learned Public Prosecutor to hold the appellant guilty. The evidence adduced by the prosecution falls short and unsafe to record the conviction of the appellant. Considering the totality of the facts and the evidence, in our view, the circumstances relied upon by the prosecution are not sufficient to hold the accused guilty of the offence charged with. We have reasons to differ from the conclusions of the learned trial Court. Hence, the appeal filed by the appellant is allowed. Impugned judgment and order of sentence is hereby set aside. We have reasons to differ from the conclusions of the learned trial Court. Hence, the appeal filed by the appellant is allowed. Impugned judgment and order of sentence is hereby set aside. The appellant Shyamabai is acquitted from the charge under section 302 of the Indian Penal Code. She be set at liberty forthwith, if not required in any other case. 22. The order of the trial Court regarding disposal of the case property is hereby confirmed. 23. Consequently, I. A. No. 6809/2018 also stands closed.