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2020 DIGILAW 1288 (MP)

Suresh Kumar Balmik v. State of Madhya Pradesh

2020-12-28

SANJAY YADAV, VIJAY KUMAR SHUKLA

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JUDGMENT : Sanjay Yadav, J. 1. This appeal is directed against the judgment dated 12.4.2012 passed in Sessions Trial No. 203/2010 by Special Sessions Judge, Bhopal. 2. Prosecution story reveals that on 26.12.2009 the Appellant brought his deceased wife Padma to Hamidia Hospital, Bhopal. Dr. Amit Nayeek (P.W. 16), Chief Medical Officer on duty attended the deceased and prepared Pre-MLC Report (Ex. P/21). The body was kept in Mortuary. Information was sent to Police Station Bairagarh, which was received by G.R. Patil, Head Constable (P.W. 11). Merg was registered vide No. 53/2009 (Ex. P/16). Statement of Dhruv, son of deceased was taken in presence of two witnesses, viz., Ramesh and Mohd. Ishaque by Shashikant Shukla (P.W. 13), S.D.O.P. Bairagarh on 26.12.2009 vide Merg No. 13/2009. Panchnama (Ex. P/18) was prepared. In Merg Inquiry after recording the statement of Anil (P.W.-5), Smt. Durgabai (P.W.-7), Sonu (P.W.-4) and Naresh (P.W. 5) and on post mortem report, Shashikant Shukla S.D.O.P. (P.W. 13) found that the cause of death of Padma was due to ante mortem injuries said to be caused by the accused persons, viz., Suresh Kumar, husband of the deceased and Sunil Kumar, Anil Kumar and Radhabai brothers and mother of Suresh Kumar. Accordingly. F.I.R. (Ex. P/19) was registered vide Crime No. 436/2009 for offences under Sections 498A, 302 I.P.C. against the accused persons who were arrested. During investigation statement of Santosh (P.W.-1), Ramesh (P.W. 3), Sonu (P.W. 4), Anil (P.W. 5), Naresh (P.W. 5), Bhagwandas (P.W. 8) were recorded under Section 161 Cr.P.C. respectively on 27.12.2009, vide Ex. P/1, P/4, P/5, P/7 and P/8. On memorandum statement of the present appellant, i.e., Suresh Kumar, a wooden stick (Danda) said to be used for commission of offence was discovered and along with other articles such as blood stained plastic box, blood stained plain earth, Jafrani box, blood stained half shirt of deceased's son Dhruv, deceased's clothes were sent for forensic science report on 11.3.2010 (Ex. P/20). The Post Mortem report (Ex. P/22) revealed following injuries on the body of deceased. "1. Pattern abrasion present on lateral aspect of right arm of size 5 x 2 c.m. reducing arterarly with healthy area inbet. 2. Lacerated wound present on right palm at the level of root of right thumb of size 3 x 1 c.m. transvers. 3. Rail Pattern bruise on right lateral of thigh upper aspect obliquely size 7. x 2 c.m. 4. 2. Lacerated wound present on right palm at the level of root of right thumb of size 3 x 1 c.m. transvers. 3. Rail Pattern bruise on right lateral of thigh upper aspect obliquely size 7. x 2 c.m. 4. Rail Pattern bruise on right antero lateral aspect of thigh size 4 x 2 c.m. 5. Contusion abrasion on right knee 6 c.m. in diameter. Multiple abrasion on the skin and dorsum of foot size vary from 3 x 2 c.m. to .5 c.m. in diameter. 6. Pattern abrasion transvers on left leg anterior aspect mid 4 in number with healthy gap in between vary from size 2 x .5 to 1 x .5 cms. The similar pattern abrasion obliquely transvers on left lateral of thigh mid four in number with healthy gap 1 c.m. on each size vary from 6 x .5 cm to 2. x .05 c.m 7. Contusion abrasion on left knee in an area 4 c.m. in diameter 8. Rail Pattern abrasion on lateral aspect of thigh overleaping diffuse in an area 20 x 15 c.m. Similar pattern abrasion four in number with healthy gap 1 to .5 c.m. transverse on left lateral aspect of arm size .5 x 0.4 c.m. to 1.5 x 0.5 c.m. 9. Bruise of left lateral aspect of arm forearm and dorsum of hand. 10. Lacerated wound (incised looking wound) on the right frontal sized 1 c.m. from mid line 5.5 x 0.2 c.m. It is scalp deep scalp ecchymosed on frontal left temporal region including left temporal muscles." 3. The cause of death as opined by Dr. (Smt.) Kelu Geerwal (P.W. 17) was due to shock and hemorrhage as a result of multiple injuries to the body caused by hard and blunt and heavy object which were self sufficient to cause death in ordinary course of nature. The death was opined to be homicidal and the duration of death was within 24 hours since Post Mortem, i.e., 26.12.2009. 4. The death was opined to be homicidal and the duration of death was within 24 hours since Post Mortem, i.e., 26.12.2009. 4. During investigation it was found that the appellant, i.e., Suresh Kumar was on parole for 15 days from 21.12.2009 was undergoing life imprisonment being convicted for an offence under Sections 302/149,148, 323, 324 IPC in ST No. 250/1991 vide judgment dated 10.2.1998 and was in Jail since 28.7.1991 and from 13.1.2007 till 21.12.2009 when he was released on parole for 15 days and was to report on 4.1.2010 but was arrested for the subject offence and was admitted to Central Jail, Bhopal on 29.12.2009 along with warrant on 28.12.2009. 5. After necessary investigation, the charge-sheet was filed. The case was committed for trial; wherein while Sunil Kumar, Anil Kumar and Smt. Radhabai were charged for an offence under Section 498-A, 302 I.P.C., whereas present appellant was charged for offence under Sections 498 A, 303 I.P.C. 6. The accused persons abjured their guilt. 7. The prosecution examined 17 witnesses to bring home the charges. P.W. 1 and P.W. 2, viz., Santosh and Ishaque were examined as eye-witnesses. P.W.-1 though initially did not support the prosecution, however, in cross-examination he narrated of having seen the accused Suresh Kumar who had come on parole beating his wife Padma at 11.30 p.m. and tried to pacify Suresh but was told to keep away and nobody shall come forward to protect her. Thereafter the accused Suresh told him to bring his auto to take Padma, the deceased, to hospital as she had fainted. P.W./2 in his statement said that he was called from home and was told by the accused Suresh at 11 p.m. that his wife, i.e., Padma is bitten by the dog and is to be taken to hospital. She was initially taken to Rajdeep Hospital from where she was referred to Hamidia Hospital where it was informed by accused Suresh of having died. P.W./3, P.W./4, P.W./5, P.W./6, P.W./8 did not support prosecution story. The accused person in their statement denied of having committed the offence and pleaded of being falsely implicated. 8. The Trial Court on the basis of the cogent material evidence on record found that the prosecution failed to bring home the charge under Sections 498/A and 302 I.P.C. against Sunil Kumar, Anil Kumar and Smt. Radhabai, accordingly recorded their acquittal. The accused person in their statement denied of having committed the offence and pleaded of being falsely implicated. 8. The Trial Court on the basis of the cogent material evidence on record found that the prosecution failed to bring home the charge under Sections 498/A and 302 I.P.C. against Sunil Kumar, Anil Kumar and Smt. Radhabai, accordingly recorded their acquittal. However, Trial Court found cogent material evidence on record against present appellant of having caused murder of his wife Padma. 9. Learned Trial Court found the evidence of P.W. 1, P.W./2, who were independent witnesses having evidenced the incident to be credible and corroborative with medical evidence: hindi pending 10. True it is that initially P.W./1 did not support the prosecution story; however, on being cross-examined by the prosecution P.W./1 narrated the entire incident which he witnessed. Contention on behalf of the Appellant that the evidence of P.W./1 was not worth credit because of his first being non-supportive of the prosecution story, therefore, in cross-examination supported the prosecution is of no consequence in view of the settled principle of law that even such part of evidence which support the prosecution is admissible in evidence. Since the ocular evidence of PW/1 corroborated with the medical evidence, the Trial Court is justified in holding the appellant guilty of the offence of committing murder of his wife. 11. It was argued that the intention was not to kill. The contention when tested on the anvil of the injuries sustained by the deceased cannot be accepted. In Virsa Singh v. State of Punjab ( AIR 1958 SC 465 ) it is observed: "(11) In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, be cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad based and simple and based on common sense: the kind of enquiry that " twelve good men and true could readily appreciate and understand. (12) To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. (13) Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300, thirdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional. 12. In the case at hand the nature of injuries inflicted on the victim may be with a hard and blunt object is found to be sufficient to cause death. The causing of injuries by the Appellant being established by the prosecution leaves no possibility for the appellant being inflicted with lesser sentence from life imprisonment. 13. In the result appeal fails and is dismissed.