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2019 DIGILAW 2337 (RAJ)

Sonu @ Sohan Ahir v. State

2019-08-29

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The appellant herein has been convicted and sentenced as below vide the judgment dated 25.04.2016 passed by learned Sessions Judge, Bhilwara in Sessions Case No.87/2013: Under Section 302 IPC Life Imprisonment and a fine of Rs.25,000/-, in default of payment of fine to further undergo five months' additional SI. Under Section 201 IPC Three years' RI and a fine of Rs.5,000/-, in default of payment of fine to further undergo one month's additional SI. (Both the substantive sentences were ordered to run concurrently.) 2. Being aggrieved of his conviction and the sentences awarded by the trial court, the appellant has preferred the instant appeal under Section 374 (2) Cr.P.C. 3. The facts involved in the case can be encompassed in a very short framework. The appellant herein was married to Smt. Keli D/o Shri Bherulal Ahir about 10 years before the incident. Both used to reside in a rented house of Nanda Kumhar at Bhilwara. Smt. Keli received a fatal injury on her head and passed away on 21.04.2013. Keli's father Bherulal (PW.11) received an information that his daughter had been killed. PW.18 Phool Chand, SI posted at Outpost Sanganeri Gate, PS Subhash Nagar, Bhilwara also got an information that Keli Devi, a tenant in the house of Nandlal Kumhar had died by hanging. On this, the Sub Inspector reached the place of incident and saw that the house of accused-appellant Sonu was locked. The complainant Bherulal (PW.11) met him outside the house alongwith 8-10 persons and told him that his daughter had been killed by accused-appellant Sonu and he had taken her dead body to village Baglo Ki Jhopadiya, Police Station Bigod so as to avoid postmortem and cremate the dead body secretly. The Sub Inspector Phool Chand (PW.18), thereupon informed the Police Control Room, Bhilwara as well as the Police Station Bigod and started for the village Baglo Ki Jhopadiya alongwith the complainant Bherulal. PW.14 Ram Kunwar, ASI of Police Station Subhash Nagar also reached their. The accused- appellant Sonu brought the body of the deceased to the village in a maruti van. The SI Phool Chand (PW.18), the ASI Ram Kunwar (PW.14) and the complainant Bherulal saw the dead body which was bearing marks of violence on the face and blood was coming out from the ear. The accused- appellant Sonu brought the body of the deceased to the village in a maruti van. The SI Phool Chand (PW.18), the ASI Ram Kunwar (PW.14) and the complainant Bherulal saw the dead body which was bearing marks of violence on the face and blood was coming out from the ear. Bherulal (PW.11) complained that his son-in-law Sonu had killed Keli and prayed that the dead body be subjected to postmortem. Upon this, the SI Phool Chand (PW.18) brought the dead body of Smt. Keli to Mahatma Gandhi Hospital, Bhilwara and gave a requisition for conducting postmortem of the dead body. A Medical Board comprising of Dr.Yogesh Sharma, Dr.Vinod Kumar Jingar and Dr.Farzana Siddiqui was constituted which conducted postmortem upon the dead body of the deceased and issued the postmortem report (Ex.P/12) noticing the presence of a single external injury ad measuring 2 x 1 cm on the head of the deceased. The injury was associated with a big hematoma. When the dead body was opened, the bones etc. of the head as well as the vertebra were found to be in a healthy condition. The brain membranes were unaffected. A subdural hematoma ad measuring 2.5 x 1.5 cm was seen on the left fronto-temporal region. The cause of death of Smt. Keli was opined to be coma induced by the head injury. Shri Bherulal submitted a report (Ex.P/14) to the SHO PS Subhash Nagar on 21.04.2013 alleging that his son-in-law Sonu had killed his daughter. He also alleged in the report that Sonu called him in the morning at about 5:30 am and informed that his daughter had died. 4. On the basis of the report aforesaid, FIR No. 123/2013 (Ex.P/19) was registered at the Police Station for the offences under Sections 302 & 201 IPC and investigation was commenced. The accused-appellant was arrested on 22.04.2013 vide arrest memo (Ex.P/13). A spade allegedly used by him for inflicting the fatal blow to the deceased was recovered (Ex.P/5) from inside the house of the accused in furtherance of the information provided by him to the IO under Section 27 of Indian Evidence Act. After concluding investigation, a charge sheet was filed against the accused for the offences mentioned above. A spade allegedly used by him for inflicting the fatal blow to the deceased was recovered (Ex.P/5) from inside the house of the accused in furtherance of the information provided by him to the IO under Section 27 of Indian Evidence Act. After concluding investigation, a charge sheet was filed against the accused for the offences mentioned above. Since the offence under Section 302 IPC was sessions triable, the case was committed and was transferred to the court of Sessions Judge, Bhilwara for trial who framed charge against the accusedappellant for the above offences. The accused-appellant pleaded not guilty and claimed trial. The prosecution examined 19 witnesses and exhibited 25 documents to prove its case. The accused, upon being questioned under Section 313 Cr.P.C. denied the prosecution allegations and claimed to be innocent. No evidence was led in defence. 5. After hearing the arguments advanced by the learned Public Prosecutor and the learned defence counsel and upon appreciating the material available on record, the learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment which is assailed in the instant case. Hence this appeal. 6. Shri Mangilal Bishnoi, Advocate representing the appellant submitted that no motive has been attributed by the prosecution to the accused-appellant for killing his wife Smt. Keli. As per him, Smt. Keli received the injury in a fall which unfortunately proved fatal. The appellant panicked and carried the dead body to the Village Baglo Ki Jhopadiya where he was apprehended. As per him, even if the prosecution case is accepted to be true on the face value, the offence attributed to the accused-appellant would not travel beyond Section 323 IPC or at the best Section 304 Part-II IPC. He thus, craves acceptance of the appeal to the extent of toning down of the charge. 7. Learned Public Prosecutor, on the other hand vehemently and fervently opposed the submissions advanced by Shri Bishnoi and urged that the accused-appellant inflicted the fatal spade blow on the head of his wife and then tried to destroy the evidence by carrying the dead body to the village for cremating the same secretly. He thus, urged that the trial court was perfectly justified in convicting and sentencing the appellant as above. 8. He thus, urged that the trial court was perfectly justified in convicting and sentencing the appellant as above. 8. We have given our thoughtful consideration to the submissions advanced at Bar and have gone through the impugned judgment and minutely re-appreciated the evidence available on record. 9. The following undisputed facts emerge from the material available on record: 1. That the appellant was married to Smt. Keli about 10 years before her death. 2. That both used to reside in the house of Nanda Kumhar at Bhilwara on rent. 3. That the appellant gave an information to his father-in-law Bherulal (PW.11) on 21.04.2013 at about 5:30 am that his daughter had died. 4. That when Bherulal and police officers reached the house of accused Sonu, it was locked and dead body of Smt.Keli had been carried away to the Village Baglo Ki Jhopadiya. 5. That the appellant was apprehended by SI Phool Chand (PW.18) while carrying the dead body of Smt. Keli in a maruti van. 10. Hardly any allegation was levelled by any witness during investigation that the accused-appellant were ever found harassing or humiliating the deceased for any reason whatsoever. Thus, apparently the accused-appellant had no motive at all to murder his own wife. 11. As the sole argument of Shri M.L. Bishnoi, Advocate representing the accused-appellant was centered around the nature of offence, we proceed to examine the medical evidence led by the prosecution regarding the cause of death of Smt. Keli. 12. Dr. Vinod Kumar Jingar (PW.9), one of the members of the Medical Board who conducted postmortem upon the dead body of Smt. Keli deposed that the deceased was having a single bruise ad measuring 2x1 cm on forehead. The left eye was blackened. The injury was associated with a big hematoma. The bones etc. of the head (skull) as well as the vertebra were found to be intact and in a healthy condition. The brain membranes was intact. A subdural hematoma ad measuring 2.5x1.5 cm was noticed on the left fronto-temporal region. The Board opined that the cause of death of Smt. Keli was coma associated with head injury. In crossexamination, the doctor admitted that the injury could have been caused by a fall. The injury was a bruise and was not a visible wound. A subdural hematoma ad measuring 2.5x1.5 cm was noticed on the left fronto-temporal region. The Board opined that the cause of death of Smt. Keli was coma associated with head injury. In crossexamination, the doctor admitted that the injury could have been caused by a fall. The injury was a bruise and was not a visible wound. Neither the doctor made any attempt to state that the injury noticed on the head of the deceased was sufficient in the ordinary course of nature to cause death nor did the Public Prosecutor make any effort to elicit such an answer. Similar story emanates from the evidence of Dr. Farzana Siddiqui (PW.15). Thus, from the evidence of both the medical jurists examined by the prosecution, it is clear that the sole head injury found on the forehead of Smt. Keli was not associated with any damage to the skull region. The impact caused a subdural hematoma which resulted into coma leading to death of Smt. Keli. The appellant, of-course did not offer any explanation regarding the manner in which Smt. Keli received the injury. However, even if for a moment, the conjectural theory of the prosecution that the accused-appellant inflicted the solitary blow to the deceased by a spade, is accepted then also, the nature of injury was not such, which can satisfy the Court that the same was inflicted with the intention to cause death. From the fact that the underlying bones as well as the brain membranes were intact, it is clear that the injury was not inflicted with any significant force. Unfortunately, hematoma developed underneath the injury leading to the death of Smt. Keli. No motive has been attributed to the accusedappellant for killing his own wife. 13. In this background, we feel that the trial court has fell into a grave error while appreciating the medical evidence and holding that the appellant was responsible for committing the murder of his wife Smt. Keli. We are of the firm opinion that the offence attributable to the accused would be culpable homicide not amounting to murder, as defined under Section 299 IPC and he has to be punished under Part II of Section 304 IPC instead of Section 302 IPC. 14. As a consequence, the appeal is partly allowed. The conviction of the appellant is converted from the offence under Section 302 IPC to that under Section 304 Part-II IPC. 14. As a consequence, the appeal is partly allowed. The conviction of the appellant is converted from the offence under Section 302 IPC to that under Section 304 Part-II IPC. The appellant is in custody since 22.04.2013 and has served actual imprisonment of more than 6 years and 5 months. We thus, feel that the substantive imprisonment already suffered by the appellant shall serve the ends of justice. However, the conviction and the sentence awarded to the appellant by the trial court for the offence under Section 201 IPC is maintained. In addition thereto, a fine of Rs.5,000/- for offence under Section 304 Part-II IPC and Rs.2,000/- for offence under Section 201 IPC is imposed upon the appellant. In default of payment of fine, the appellant shall further undergo two months' imprisonment on each count. The impugned judgment dated 25.04.2016 passed by learned Session Judge, Bhilwara in Sessions Case No.87/2013 is modified to the extent noted above. The appellant is in custody. Upon depositing the amount of fine, he shall be released from prison, if not wanted in any other case. 15. However, keeping in view the provisions of Section 437-A Cr.P.C., the accused-appellant is directed to furnish personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a special leave petition against the present judgment on receipt of notice thereof, the appellant shall appear before the Supreme Court. Record be returned to the trial court forthwith.