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Sunder Lal Mehra v/s State of Madhya Pradesh


Company & Directors' Information:- K R MEHRA & CO PRIVATE LIMITED [Active] CIN = U15410DL2012PTC234602

Company & Directors' Information:- SUNDER INDIA PRIVATE LIMITED [Strike Off] CIN = U17299DL1992PTC048191

Company & Directors' Information:- A. MEHRA AND COMPANY PRIVATE LIMITED [Active] CIN = U51109DL2000PTC105672

    Criminal Appeal No. 1538 of 2009

    Decided On, 27 February 2019

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE SUJOY PAUL & THE HONOURABLE MRS. JUSTICE ANJULI PALO

    For the Appearing Parties: Siddharth Sharma, Raj Bahoran Singh, Advocates.



Judgment Text


Sujoy Paul, J.

1. This appeal filed under Section 374(2) of the Code of Criminal Procedure is directed against the judgment of conviction dated 12.8.2009 passed in Sessions Trial No.165/2006 whereby appellant is convicted under Section 302 of IPC and directed to undergo sentence of life imprisonment and fine of Rs.2,000/- with default stipulation. In addition, he is found guilty under Section 201 of IPC and is directed to undergo three years RI alongwith fine with default stipulation.

2. Case of the prosecution is that the appellant Sunderlal and his brother Inder with a common intention killed appellant's wife Sunita. On 24.6.2006, between 3.00 to 11.00 p.m. in Gram Karaihya, Sunderlal murdered his wife and gave a false information to Police Station, Themi on 25.6.2006 that his wife died because of vomiting and dysentery.

3. As per the prosecution story, the appellant carried his wife Sunita in a tractor from Village Khurpa on 24.6.2006 at around 9 O' clock. He took a tractor on rent and brought his wife Sunita to Devnagar and consulted a doctor. The doctor expressed his inability to treat her considering her grave health condition because of which he took his wife to Village Dangidhana. At Dangidhana, his wife died. The appellant informed his in-laws about the death of Sunita. Appellant also informed Police Station, Themi where Marg No.8/6 was registered and investigation was initiated.

4. The Police Station, Themi sent the dead body of Sunita Bai for post-mortem to Government Hospital, Gotegaon. On 25.6.2006, Dr. V.K. Garg and Ms. Rajni Singh conducted the post-mortem. As per post-mortem report, Sunita died because of excessive bleeding in the abdominal cavity.

5. In turn, after investigation challan was filed before the Court. Both the accused appellant and Inderlal abjured the guilt and therefore they were put to trial. 18 witnesses deposed their statements on behalf of the prosecution. The appellant also deposed his statement under Section 313 of Cr. P.C. The Court below by impugned judgment acquitted the accused No.2 Inderlal and found the charges as proved against the present appellant.

6. Shri Siddharth Sharma, learned Amicus Curie for the appellant urged that conviction of the appellant is based upon the statement of Amit (PW/2) S/o appellant who was a child witness coupled with the medical evidence. The statement of child witness was not trustworthy and he categorically deposed that his grandfather (Nana) instructed him to inform the police that his father killed his mother. Thus, in the light of judgment of Supreme Court in the case of K. Venkateshwarlu v. State of Andhra Pradesh, (2012) 8 SCC 73, the said statement cannot be a reason for holding the appellant as guilty. Shri Sharma, learned counsel for the appellant has taken pains to contend that Dr. V.K. Garg (PW/4) categorically stated that he is unable to state the actual reason of death of deceased. In answer to Question No.3 wherein it was asked whether Sunita died because of homicidal, suicidal or accidental death, he expressed his inability to state anything with accuracy. Thus, the statement of child witness was not even corroborated by medical evidence and therefore it is not safe and prudent to uphold the conviction.

7. Learned counsel for the appellant by placing reliance on (Kirti Mahto and others v. State of Bihar, (1994) Supp2 SCC 569) urged that considering the nature of injuries found on the person of Sunita, it cannot be said that appellant had committed murder. Reliance is also placed on (Madho Singh v. State of Rajasthan, (2010) 15 SCC 588) to bolster the submission that as per medical evidence, it is clear that the nature of injuries sustained by Sunita could have been because of other reason. There is no clinching proof that Sunita was murdered by the appellant. The appellant took her to doctor for treatment which shows his bonafides. In this backdrop, it is not safe to uphold the judgment of Court below. At the cost of repetition, Shri Sharma argued that in view of judgment of Supreme Court in Kirti Mahto (supra), since no injury was found on the vital part of the body of Sunita, no case is made out under Section 302 IPC.

8. The alternative submission of Shri Siddharth Sharma is that as per statement of solitary eye-witness i.e. Amit (PW/12) appellant had given the blows with the help of hands and one blow was given on the stomach of Sunita with lathi. By placing reliance on (Kusha Laxman Waghmare v. State of Maharashtra, (2014) 10 SCC 298), it is argued that in a case of this nature, the conviction of appellant may be altered to Section 304, Part II, IPC. Appellant has already undergone the sentence of ten years.

9. Per contra, Shri Raj Bahoran Singh supported the impugned judgment and urged that no interference be made. Learned Government Advocate by taking this Court to the medical evidence urged that there are injuries on vital part and a complete reading of statement of doctor shows that nature of death is the blows given by a hard object.

10. No other point is pressed by learned counsel for the parties.

11. We have heard the learned counsel for the parties at length and perused the record.

12. The Court below considered the statement of Amit (PW/2) in great detail. No doubt, Amit (PW/2) in cross-examination he deposed that at the time he approached the police station, his grandfather told him to inform the police that his father killed his mother, however, this solitary statement cannot be divorced from his entire deposition. If his complete deposition is examined meticulously, it will be crystal clear that he narrated about the incident with accuracy and precision. The Court below has asked certain questions to examine the reliability of child witness as per the requirement of Section 118 of the Evidence Act. The Court below rightly recorded its satisfaction that child witness is able to understand the question and give answer thereto. Thus, necessary precaution was taken by the Court below. In the light of judgment of Supreme Court reported in (Dattu Ramrao Sakhare and others v. State of Maharashtra, (1997) 5 SCC 341), we do not see any procedural impropriety in the manner statement of child witness was recorded and appreciated. Amit (PW/12) narrated about the nature of assault, place of incident, time of incident and about other attendant circumstances. During the course of cross-examination, the defence could not demolish his statement wherein he narrated that his father assaulted his mother. The nature of blows and consequent injuries narrated by him are tallying with the medical evidence. In this view of the matter, judgment of K. Venkateshwarlu (supra) cannot be pressed into service. In (Bhagwan Singh and others v. State of M.P., (2003) 3 SCC 21), it was held that law recognized the child as a competent witness. However, the evidence of child is required to be evaluated carefully. If adequate corroboration from other evidence is there, it is safe to accept his testimony. Dr. V.K. Garg (PW/4) gave a categorical opinion about the reason of death. He deposed that in his and other doctors opinion the reason of death is because of internal bleeding in abdominal cavity. In his statement, he found following injuries on the body of the deceased:

(1) Contusion 2cm x 1.75cm found on left temple.

(2) Contusion 0.5cm x 0.5cm found on left corner of mouth.

(3) Contusion 16 in No. of size 1cm x 1cm to 5cm x 5cm found on left side and auxiliary portion of chest.

(4) Minor abrasion on left elbow.

(5) Contusions 10 in No. of size 1cm x 5cm found on right thigh.

(6) Contusion 2cm x 2cm found just above right iliac crest.

(7) Contusion 13cm x 6cm found on right pariental region.

(8) Contusion 9cm x 6cm found from back to front on right thigh.

(9) Contusion 4cm x 4cm found on posterior one third portion of right forearm.

(10) Contusion 1cm x 5cm found on posterior side of joint of right wrist.

(11) Abrasion 2cm x 1.5cm found on right knee.

(12) Abrasion 05.cm x 0.5cm found on both knees.

(13) Abrasion 2x1 cm found on posterior side of right blow.

The nature of injuries and cause of death of Sunita Bai shows that statement of child witness is trustworthy. Thus, when statement of child witness is corroborated by medical evidence, his statement cannot be discarded.

13. The nature of injuries mentioned herein above shows that there were certain injuries on vital part of the body. Thus, judgment of Kirti Mehto (supra) is of no assistance to the appellant. In Madho Singh (supra), as per the facts and circumstances of that case, the evidence produced by prosecution fell short of proof of homicidal death of deceased and possibility of accidental death could not be ruled out. Hence, in the facts situation of that case, the appellant therein was acquitted. The said case has no application in the factual matrix of the present case.

14. Indisputably, soon before the death of Sunita, she was with appellant (husband) and son (Amit -P.W.12). The defence of appellant is that Sunita was suffering from vomiting and dysentery and in a critical condition she was taken to the doctor. Since on the body of Sunita more than dozen injuries were found, the Court below in consonance with legislative intention behind of Section 313, Cr.P.C., interacted with the appellant. The attempt of the Court below was to offer an opportunity to the appellant to explain his conduct and secondly, to use denials of established facts as incriminating evidence against him. This procedure adopted by the Court, in our view, is in consonance with the law laid down in (Munna Kumar Upadhyay v. State of A.P., (2012) 6 SCC 174). In (State of U.P. v. Mohd. Iqram, (2011) 8 SCC 80) it was held that Section 313, CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him.

15. The appellant did not avail this opportunity which was provided to him and did not offer any explanation as to how Sunita sustained aforesaid injuries.

16. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681, the Apex Court held as under:

"22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime ."

[Emphasis Supplied]

17. Similarly in Ravirala Laxmaiah v. State of A.P., (2013) 9 SCC 283, the Apex Court held as under:

"6....... when an incriminating circumstance is put to the accused and the said accused either offers no explanation [for the same,] or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

[Emphasis Supplied]

18. In Sunil Mahadeo Jadhav v. State of Maharashtra, (2013) 15 SCC 177, the Apex Court held as under:

"36. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Since it was Accused 1 who had arrested the deceased at 00.45 a.m. on 17-12-1985 and kept the deceased in police lock-up after his arrest was complete, it was for Accused 1 to explain the injuries on the body of the deceased other than those which were noticed in Ext. 76. Accused 1 has not stated anything in this regard in his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short "CrPC") nor adduced any evidence in defence to explain these injuries. In the absence of any explanation by Accused 1 or any evidence adduced on behalf of Accused 1 to explain these injuries on the body of the deceased, there can be no escape from the conclusion that these injuries have been caused on the body of the deceased by Accused 1 and no one else."

[Emphasis Supplied]

19. Furthermore, in Anjanappa v. State of Karnataka, (2014) 2 SCC 776, the Apex Court held as under:

"30. Besides, the conduct of the appellant speaks volumes. He was absconding and could be arrested only on 19-2-1992. Moreover, in his statement recorded under Section 313 of the Code he has not explained how the deceased received burn injuries. He did not set up the defence of alibi. It was obligatory on him to explain how the deceased received burn injuries in his house. His silence on this aspect gives rise to an adverse inference against him. It forms a link in the chain of circumstances which point to his guilt."

[Emphasis Supplied]

20. Similar view is taken in State of Rajasthan v. Thakur Singh, (2014) 12 SCC 211.

21. In this view of the matter, we are unable to hold that Sunita died because of vomiting and dysentery. Indeed, the prosecution has satisfactorily and beyond reasonable doubt established that reason of death is the injuries sustained by her and the appellant is guilty for the same.

22. We will be failing in our duty if alternative argument of learned counsel for the appellant is not considered. As noticed above, as per statement of solitary eyewitness Amit(PW/12), the appellant assaulted his wife with hands and gave one blow on stomach with lathi. Thus, the question emerges for consideration is whether Sunita was beaten by appellant with an intention to cause her death or n

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ot? In the case of Kusha Laxman Waghmare (supra), as per prosecution story, appellant killed his wife by means of wooden bar, hit her very severely on the chest and at the back. Because of said beating, there was internal bleeding and as a result, she died. The Apex court opined that the weapon used by appellant is a wooden stick and as per the prosecution case, the deceased was severely beaten by the said stick. In absence of any cogent evidence to show that appellant had beaten the deceased with an intention to cause her death, the conviction of appellant therein under Section 302, IPC was modified under Section 304, Part II, IPC. The present appellant, in our opinion, has a better case. Except one blow with lathi, other blows on the body of deceased was with the use of hands. There is no iota of evidence to show that appellant had beaten his wife with an intention to cause her death. Thus, in our opinion, the conviction of present appellant under Section 304, Part II, IPC will be just and proper. Needless to mention that Court below has convicted the appellant under Section 201 and directed to undergo RI for three years. No fault can be found in the said part of the judgment. 23. In the result, the conviction of appellant under Section 302, IPC is altered to Section 304, Part II, IPC. If appellant has already undergone the said sentence and his presence in the prison in any other matter is not required, he be released forthwith. 24. We record our appreciation for the assistance provided by learned amicus curiae. 25. The appeal is partly allowed.
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