Madhya Pradesh High Court
Babu & Ors. vs The State Of M.P. on 10 August, 2021
Author: Vivek Rusia
-1- CRA NO.1066/2003
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK
RUSIA & HON'BLE SHRI JUSTICE SHAILENDRA
SHUKLA
CRIMINAL APPEAL No.1066/2003
(1) Babu Khan s/o Shabbir @ Sabir Nilgar,
Aged 26 years, Occ: Service
(2) Hussainibai w/o Shabbir Nilgar
Aged 70 years, Occ: House hold work
(3)Femida w/o Salim Khan, Aged 32 years, Occ: House hold work
All R/o Nilgar Mohalla Khanpura, Mandsaur
(4)Halima w/o Md. Rafique Nilgar Age: 42 years Occ: House hold
work R/o Raywal Gali Khanpura Mandsaur
vs.
State of M.P through PS Mandsaur City, Mandsaur
******
Ms.Purnia Kanungo, learned counsel for the
appellants.
Shri Sudanshu Vyas, learned Govt. Advocate for the
State.
Judgment
(Delivered on 10.08.2021)
Appellants have filed the appeal being aggrieved by the
judgment dated 24.9.2003 passed by First Additional Sessions Judge,
Mandsaur in Sessions Trial No.28/2003 whereby they have been
convicted under section 302/34 and sentenced to undergo life
imprisonment and discharged u/s 201 IPC and sentenced to undergo
life imprisonment with fine of Rs.500-500. The appellant Babu Khan
has been convicted under section 201 IPC and sentenced to 2 years RI
with fine of Rs.1000/; 6 months RI in default. During pendency of this
appeal Babu Khan has withdrawn this appeal and Hussaini Be expired.
2. As per prosecution story Suraiya d/o Munnat and Munnan and
Jubeta was married with accused Babu 7 years ago from the date of
incident. It was second marriage of Babu Khan. After the marriage
Babu Khan has started torturing her. Hussaini-mother-in-law, Femita-
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Nanad and Halima-Jetani used to quarrel with her on petty issues and
assaul her. Two years ago, from the date of incident Babu Khan left
Suraiya to her maternal house. On 9.12.2002 Suraiya came to her
house of father and mother along with children. At 2 p.m P.W.-12
Nadira the younger sister of Suraiya went along with her to the house
of appellant where the appellants have again started quarrel with her.
Babu Khan assaulted her by way of iron pipe and Nadira tried to save
her. After hearing the voice of quarrel the local residents gathered
there. Chhotibai saw that Suraiya was caught hold by Halima,
Hussainia and Famida. Lalima had administered something in the
Suraiya's mouth and she was shouting "save me, save me" . Thereafter
Babu Khan admitted Suraiya in the District Hospital with an
information that she has consumed poisonous substance. During
treatment she died. Dr.S.K. Mehta PW/8 gave an information to the
police station City Kotwali, Mandsaur. On the basis of such
information Ex.P/5 a Marg 77/2002 was registered. The investigation
was assigned to CSP Awadesh Goswami. After investigation these
appellants were found committing the offence. Accordingly, FIR was
registered at crime No.70/2002. The postmortem was conducted, and
viscera was preserved and as per the viscera report Suraiya died
because of consumption of organo phosphorous pesticide. After
completing investigation charge sheet was filed u/s 302 & 201 I.P.C.
against all the accused . The appellants denied the charges and pleaded
for trial.
3. In order to prove the charges the prosecution examined as many
as 13 witnesses and got exhibited 21 documents as Ex.P/1 to P/21. In
defence the accused appellants did not examine any witness but got
exhibited statement of Munan and Jubeta as Ex.D/1 & D/2 in cross
examination of prosecution witness.
4. After evaluating the evidence vide judgment dated 24.9.2003
learned Sessions Judge has convicted all the accused u/s 302/34 of IPC
and in addition to Babu Khan has been convicted u/s 201 IPC, hence
this criminal appeal before this Court. Since Babu Khan has withdrawn
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the appeal and Hussaibi Bee expired, therefore, this appeal is being
decided only for appellant No.3 Famida and appellant No.4 Halima i.e.
We have heard learned counsel for the parties at length.
5. Learned counsel for the appellants has drawn our attention to
para-30, 31, 32, 33 & 34 of the judgment and submitted that this
appellants have been convicted only on the basis of statement of
Nadira PW/12 who was minor at the time of incident as well as
deposition. Learned trial court has also observed that there is no such
evidence brought by the police as to who has actually administered the
poisonous substance to Suraiya and since there is an evidence of
quarrel of this appellants with the deceased, therefore, on the basis of
evidence of PW/12, PW/5 & PW/6 all have been wrongly convicted
under section 302 of I.P.C.
6. Learned Government Advocate appearing for the State has failed
to point out any material collected by the police to establish as to who
has actually administered the poisonous substance in the mouth of
deceased. Except PW/12 no other witness has supported the case of
prosecution.
7. It is not in dispute that FIR was lodged against all the appellants
by Anil Singh Rathore upon receiving information of death of the
deceased. The postmortem was carried out and the viscera was
preserved and sent to the FSL and as per the FSL report Ex.P/18 the
poisonous substance organo phosphorous pesticide was found in her
stomach, therefore, the cause of death of Suraiya is not in dispute. The
only issue which requires consideration whether these two appellants
have administered the poisonous substance in the mouth of Suraiya in
order to kill her. Munnat and Jubeta, father and mother of the
deceased were examined as PW/1 & PW/3 and they have only stated
that the appellants used to commit atrocity with Suraiya after the
marriage. They have been told by Nadira about the incident. The
other independent witness Lal Mohammad PW/5 & Chhoti Bee PW/6,
Mubarik PW/7 have turned hostile. PW/8 Dr.S.K.Mehta who
immediately attended the deceased in the hospital to whom the
-4- CRA NO.1066/2003
deceased did not tell anything against the appellants, therefore, there is
no evidence produced by the prosecution to convict the appellants u/s
302 by establishing that they administered the pesticide in the mouth
of the deceased. The only evidence of PW/12 Nadira, aged 12 years
has made the basis of conviction of these appellants. According to her
mother-in-law Hussainia, Nanad Faida and Jethani Halima were
administering the poisonous substance in the mouth of Suraiya and
thereafter she told to ran away and she narrated the entire incident to
her parents. In cross examination she has admitted that in 161
statement nothing is there about the administration of poisonous
substance in the mouth of deceased Suraiya by appellants in Ex.D/5..
The trial Court has, however, disbelieved her statement and said that
she is a tutored witness and held that there is no evidence that who has
actually administered the pesticide to Suraiya but the common
intention has been established. The police has also not recovered any
bottle, pouch, glass etc. from the spot or house of the appellants.
8. We are surprised that how these appellants have been convicted
under section 302 by Additional Session Judge when there was
absolutely no evidence produced by the police . PW/12 Nadira is an
unreliable witness who has not stated anything to the police in her
statement u/s 161 in respect of administration of poisonous substance
to Suraiya. Only on the basis of petty quarrel in the house the
appellants have been convicted under section 302 IPC. We are not
ready to uphold the findings of conviction and sentence, therefore, the
appeal is allowed. The impugned judgment is quashed, and the
appellants Femida and Halima are acquitted from all the charges. If
they are in jail, they be released forthwith, if not required in any other
case.
9. The appeal is allowed. The trial court record be sent back
forthwith.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
hk/ Digitally signed by HARI KUMAR C G NAIR
Date: 2021.08.10 18:17:36 +05'30'
