[email protected] vs The State Of Madhya Pradesh
2021 Latest Caselaw 7742 MP

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 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
 DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
  & HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH

                 CRIMINAL APPEAL No.1003/2010

Appellant:                Antarbai @ Pushpbai w/o Tejaram
(Accused in jail)         Age 60, R/o 23/28 Ambar Colony,
                          Ujjain.

                                    Vs.

Respondent:               State of M.P through P.S Neelganga
                          Ujjain


             Shri Nilesh Dave, learned counsel for the appellant.
             Smt.Mamta Shandilya, learned Government
             Advocate for the State.


                           JUDGMENT

(Delivered on 24.11.2021) Per Vivek Rusia,J:

This is an appeal filed under section 374 Cr.P.C against the judgment dated 20.08.2010 passed by Sessions Judge, Ujjain whereby out of four accused, the present appellant has been convicted and sentenced as under:

         Offence u/s Sentence             Fine Amount Default
                                                      sentence
         302 IPC       Life         Rs.1000/-           6 months
                       Imprisonment                     SI
         201 IPC       2 years RI         Rs.1000/-     6 months
                                                        SI

Both the sentences are directed to run concurrently.

2. The prosecution story in nutshell for final disposal of this criminal appeal is as under:

(i) The marriage of Santosh Kumar with deceased Madhu was solemnized on 07.04.2006 in Balai Samaj Samoohik Vivah Sammelan, Ujjain. After marriage, both have started living in the matrimonial

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house along with mother-in-law Antarbai (appellant), father-in-law Tejaram & brother-in-law Sunil in a rented two-room house situated at 23/28, Ambar Colony, Ujjain.

(ii) The duty compounder Mr. M.S Khan, Civil Hospital, Ujjain sent information to the police station on 02.07.2009 that Madhu w/o Santosh was brought dead at 11.30 hrs. and the dead body was lying in the mortuary room. A Marg No.50/2009 was registered at police station Neelganga, district Ujjain under section 174 Cr.P.C. The Investigating Officer immediately rushed to the City Hospital, Ujjain. In presence of 5 witnesses, after drawing the safeena form, prepared a Lash Panchayatnama at 13.25 hrs. He found ligature marks on the neck of the dead body and the death was found to be unnatural, hence advised for postmortem vide Ex.P/44. Vide Ex.P/8 the dead body was sent for postmortem. A panel of 3 doctors viz. Dr.Achala Mahajan, Dr.Ajay Nigam and Dr B.B.Purohit conducted the autopsy of the dead body at 3.00 p.m. After examination, the doctors found rigour mortis present all over the body from head to feet, face congested, eyes semi- closed, eyes congested, no external injury and hyoid bone was found fractured (inward compressed fracture) (antemortem injury). After internal examination, the right chamber of the heart was found full of dark red blood and the left chamber was found empty. Thereafter, a final opinion was given that the mode of death is asphyxia and the cause of death is as a result of throttling within more than 3 hours but within 12 hours from the time of postmortem. A specific finding has been given about the homicidal manner of death. In respect of ligature marks on the neck, the doctors have opined that the marks are postmortem in nature. The part of the final report given vide Ex.P/10 is reproduced below:

OFFICE OF CIVIL SURGEON CUM HOSPITAL SUPERINTENDENT DISTRICT UJJAIN (M.P) No.Q/ P.M No.404 July 2nd 2009, Ujjain Dated 2.7.2009 To, The Station Officer,

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P.S Neelganga, Ujjain Dist. Ujjain (M.P) Sub:- Short Post Mortem report.

Name of Deceased ---Madhu Chouhan. Husband Name - Sabtisg Chouhan Age 25 yrs. -Sex - Female Cast- Balai Address -R/o Ambar Colony, Ujjain, P.S Neelganga, Ujjain Referred By P.S -P.S Neelganga, Ujjain (Dist. Ujjain).

      Brought By           -P.C Vijay Tripathi, No.616, PS Neelganga, Ujjain
                           P.M -No.404        Dated 2.7.2009 (2 July 2009)
      P.M Conducted by
      A Panel of Doctors:-        Dr.B.B Purohit, MBBS DFM (PGMO Forensic

Medicine) , Dr.Ajay Nigam and Dr.Achala Mahajan WAS/LAS OPINION:

In our opinion deceased died of due to Asphyxia (Mode of death) as a result of THROTTLING (cause of death). Duration of death - more than 3 hrs. but (time of death) within 12 hrs. since PM (postmortem) Examination.

Findings suggestive Homicidal Manner of death, hence circumstantial evidence should be considered. Ligature mark found on the neck (on thyroid) having No vital signs underneath i.e. the mark postmortem in nature.

(Dr,B.B Purohit) PGMDForensic Medicine

(iii) Pankaj Pandey, CSP, Madhav Nagar filled the crime detail form and drew a spot map at 14.45 hrs. and according to which the deceased was living along with other family members in the rented house of Mr. Harshdev Awasthy. (i) Six families including the landlord were residing in the said house. (ii)Two rooms are in possession of the deceased and other family members. (iii) In one room father-in-law, mother-in-law and brother-in-law used to sleep. (iv) There is a door of fibre fitted in the iron frame between two rooms which were found broken. (v) In another room there is a kitchen and a bed was found

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there. (vi) The almirah and ceiling fan were found with dust in it (Ex.P/45). The police have recorded the statement of the witnesses and accordingly registered an FIR at 21.45 hrs. u/s 302, 304-B, 498A and 34 of the IPC against (i) Husband-Santosh Chouhan s/o Tejaram, (ii) Brother-in-law (Devar)-Sunil Chouhan s/o Tejaram, (iii) mother-in-law Antarbai @ Pushpabai w/o Tejaram and (iv) father-in-law Tejaram Chouhan. All the accused were arrested on 3.7.2009 vide Ex.P/47 to P/50. The statement of Sunil under section 27 of the Evidence Act was recorded vide Ex.P/53 and on his disclosure, a red colour saree was recovered from the almirah vide seizure memo Ex.P/52. The colour photographs of the spot/house and deceased were taken vide Ex.P/15 to Ex.P/43. The red colour saree was sent to the Medical Officer by CSP Madhav Nagar and a query was sought vide letter dated 23.7.2007 by sending the red colour saree Ex.P/11. Dr.B.B. Purohit vide Ex.P/12 has opined that the ligature marks are postmortem and possible from the rope, dupatta, saree etc. He has specifically mentioned that the deceased died due to throttling means strangulation of the neck with force due to asphyxia. During the investigation, the police have collected the marriage card Ex.P/3, photographs Ex.P/3A to P/3E vide seizure memo Ex.P/2.

3. Upon completing the investigation, a charge sheet was filed on 27.7.2009. The trial was committed to the Sessions Court and on 8.9.2009 the Sessions Judge framed the charges against all the four accused persons which they denied and pleaded for trial, hence the Sessions Judge has called upon the prosecution to prove the charges by examining the witnesses.

4. The prosecution has examined 13 witnesses viz. Kashiram PW/1, Archana PW/2, Ganeshlal PW/3, Mahesh PW/4, Rajesh Malviya PW/5, Dr.Mahesh Marmat PW/6, Sanjay PW/7, Kavita PW/8, Dr.B.B.Purohit PW/9, Shankarsingh PW/10, Radheshyam Choursia PW/11, Hariom Joshi PW/12 & Pankaj Pandey PW/13 and exhibited 53 documents as Ex.P/1 to P/51.

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5. In defence, the accused have examined 3 witnesses viz. Shivram DW/1, K.L.Parashar DW/2, Kailash DW/3 and got exhibited statements of Ganesh as Ex.D/1, Mahesh D/2, Rajesh Malviya D/3 & Kavita D/4.

6. After evaluating the evidence came on record learned Sessions Judge vide judgment dated 20.8.2010 has acquitted the accused Santosh Chouhan, Sunil Chouhan and Tejaram under section 302, 201, 304-B r/w 34 of the IPC and convicted the appellant alone under section 302 & 201 IPC and sentenced as stated above, hence the present appeal before this Court.

7. Shri Nilesh Dave, learned counsel appearing for the appellant has referred the statement of Archana PW/2 who states that the deceased was living in the house of in-laws happily, she never heard about any dispute but she wanted to live separately with them along with her husband. It is further stated that she saw the deceased lying on the bed at 9.30 in the morning and she gave smile to her. Near about 10.00 AM she heard a blast like blasting of a tube light. The appellant-Antarbai came to her room, but she was unable to speak. She took her to the room where the deceased was lying on the bed. She indicated towards the fan and said that Madhu has hanged herself. She found a maroon colour cloth hanging on the fan. She was alone in the room but called her son on the telephone. She demanded money and when she brought money Sunil was pumping Madhu and Santosh has also reached there and taken her to the hospital. It is further submitted by the learned counsel that on this sole testimony the appellant has wrongly been convicted by the learned Additional Session Judge.

8. Shri Nilesh Dave, learned counsel for the appellant has further submitted that as per prosecution story the appellant strangulated daughter-in-law and after her death, she was hanged on a ceiling fan to make it as a suicide but from the evidence of PW/2 it cannot be believed that the appellant being a lady could get down the dead body of a lady of average health and height from the ceiling fan alone and thereafter call PW/2. A lady can't break the gate also which was fitted

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in an iron frame, therefore, the story of the prosecution is unnatural. No sign of force or external injury was found, therefore, the learned trial court ought to have held that Madhu herself committed suicide as the ligature marks were found on her neck. It is further submitted by the learned counsel that on the same set of evidence, the other 3 co- accused have been acquitted from all the charges. Since the charge in respect of demand of dowry has not been established, therefore, there was no motive for the appellant to murder daughter-in-law-Madhu. It is a case of suicide as ligature marks are visible in the photographs but a panel of doctors have wrongly held that marks are antemortem. In support of his contention learned counsel has relied on the judgment passed by the Apex Court in the case of Subramaniam vs. State of Tamil Nadu and another reported in (2009) 14 SCC 415 in which in similar facts and circumstances the husband has been acquitted who was charged for the murder of his wife by way of strangulation. The Apex Court has held that the opinion of the doctor regarding the death due to asphyxia not satisfying the tests laid down in Modi's Medical Jurisprudence- no mark of violence present and the husband cannot be held responsible for the death of the deceased because he was living with the wife in one room. Learned counsel has concluded his arguments by submitting that the appellant being a lady has undergone more than 14 years of incarceration. She has no criminal past. There is no allegation of cruelty towards the daughter-in-law/deceased on account of the demand for dowry. The prosecution has not proved the charges beyond a reasonable doubt. This case is based on circumstantial evidence, hence the appellant is entitled to the benefit of doubt as has been given to the other three co-accused.

9. Per contra, Smt.Mamta Shandilya, learned GA for the State has vehemently opposed the aforesaid prayer by submitting that as per the opinion of the team of 3 doctors the ligature marks are postmortem in nature. No sign of hanging was found in the room. Except for the appellant, no one was in the room. The hyoid bone was found fractured, the presence of the appellant has been established by PW/2

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in the house at the time of death. The appellant tried to create false evidence about the suicide of Madhu after committing the murder, hence she has rightly been convicted u/s 302 & 201 of the IPC. No case for interference in the impugned judgment is made out, hence the appeal is liable to be dismissed. It is further submitted that against the acquittal of Santosh, Sunil and Tejaram the State Government had filed an application seeking leave to appeal which was registered as MCRC No. 7501/2011 and vide order dated 11.1.2011 this court had declined to grant leave, hence the acquittal of 3 other co-accused have attained finality.

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

10. The investigation agency set into motion after receipt of the information from the civil hospital that the Madhu w/o Santosh was brought dead by the husband and inlaws. As per the Naksha Panchayatnama, the ligature marks were found on the neck of the dead body, hence it was found to be unnatural death, therefore, the dead body was sent for postmortem. A team of three doctors conducted the autopsy and opined that there was an inward compressed fracture of hyoid bone which is an ante-mortem injury. The cause of death was as a result of throttling within 3 to 12 hours and she died due to asphyxia. So far the ligature marks are concerned, a specific opinion has been given that the marks are having no vital sign underneath i.e. marks are postmortem in nature. The prosecution has examined Dr B.B Purohit, who was posted at the district hospital, Ujjain and was one of the members of a panel of doctors who conducted the autopsy. According to him, on the neck, there was no vital sign in the internal part of the ligature marks. The laryngeal cartilage and windpipe were found fractured. So far as the internal parts are concerned, he states that thyroid cartilage was found broken. The compression was inward. The lungs were congested. The left chamber of the heart was filled with dark red colour blood and the right chamber was empty and according to his opinion, the cause of death was asphyxia due to

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throttling of the neck by hand. He has also explained the reply given to the query report that the ligature mark was created after the death. In cross-examination, he has admitted that except injury of throttling, no other injury was found. He did not find any blood on the nose, ear and mouth. He was confronted with the postmortem report of Dr.Rakha in which the postmortem was carried out again but he was not aware of the conclusion, therefore, the opinion and findings given by the panel of doctors in respect of the cause of death establish that Madhu died because of asphyxia due to throttling of neck by hand and thereafter the ligature marks were created in order to give a nature of death by hanging.

11. In the case of Subramaniam (supra) the Apex Court has considered the nature of death due to asphyxia, it may be due to smothering on the basis of Modi's Medical jurisprudence and toxicology, 23rd edition. In the case of death due to smothering, the external appearance due to suffocation or asphyxia has been explained in which it has been said that there may be bruises and abrasions on the cheek and on the molar region or the lower jaw if there has been a struggle. Mere fracture or dislocation of the cervical vertebra may occur if the neck has been forcibly wrenched in an attempt of smothering with hands . No local sign of violence will be found if a soft cloth or pillow has been used to block the mouth and nostril.

12. In the case in hand as per the spot map, no rope or cloth was found hanging on the fan. There was dust on the fan which is visible in the photographs Ex.P/26. All the movable things in the kitchen and room like bed, bed sheet, utensils, TV etc are seen at their respective places in the photographs. No sign of any violence was seen in the room. No stool was found in the room. The span between the fan and the floor or bed to describe the available space for hanging is not mentioned on the map. As per PW/2, only the appellant noticed the dead body in the bed. Had Madhu committed suicide by hanging, this appellant couldn't remove the body alone from the ceiling fan after breaking the door, therefore, it is not a case of suicide by the deceased

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herself. She was killed by strangulating her neck with the help of soft clothes or pillow and thereafter ligature marks were created to give a picture of a suicide.

13. Learned counsel has relied on the statement of PW/2 in which she states that that the deceased was living in the house of in-laws happily. She never heard about any dispute. She only wanted to live separately with his husband. She saw her lying on the bed at 9.30 in the morning. Near about 10.00 AM she heard the sound of a blast like blasting of a tube light. Antarbai came to her but she was unable to speak. She took her to the room where the deceased was lying on the bed. She indicated towards the fan and said that Madhu has hanged herself. She found a maroon colour cloth hanging on the fan. The appellant was alone in the room but calling her son on the telephone. According to PW/2 she asked the appellant as to who has removed the dead body of Madhu from the ceiling fan and who broke the door, she replied that she was alone and she did it herself. Thereafter the appellant left the house for two minutes to give a call and requested her to give some money. When P.W-2 came back with the money from the nearby room, Sunil was pumping and Santosh came with his friends and took her to the hospital. There is no cross-examination on this deposition, therefore, it remained uncontroverted, hence the appellant can not dispute that she was alone in the house along with deceased Madhu but her conduct appears to be unnatural because a lady of age of 50-60 years can't break the entire door fitted in iron frame and bring down the dead body of Madhu from hanging alone and thereafter call the neighbour PW/2. Santosh and Sunil in their memorandum statement recorded under section 27 of the Evidence Act have stated that they have kept the maroon colour saree in the almirah which was recovered by the police. There was no justification for them to hide the said dupatta in the almirah when according to them Madhu used the said dupatta for hanging.

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14. It would be appropriate at this stage to refer to the judgment passed by the Apex court in the case of State of Rajasthan v. Kashi Ram, reported in (2006) 12 SCC 254:

23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explana- tion as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satis- factory. If he does so he must be held to have discharged his bur- den. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of cir- cumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothe- sis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 : 1960 Cri LJ 620]

15. The appellant came up with the story of suicide to hide the murder committed by her. Ligature marks on the neck of the deceased are antemortem, no signs of suicide were found inside the room. The kitchen has access from the other side also, hence there was no need to broke the door, therefore, learned Additional Session Judge has rightly held that it was not a case of suicide by the Madhu. She was alone in the house with the deceased, hence burden is on the appellant to establish how her daughter-in-law died in suspicious circumstances, which she has failed to discharge.

16. In view of the above discussion, we do not find any ground to interfere with the impugned judgment of conviction and sentence. Accordingly, the appeal fails and is hereby dismissed and the

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conviction and sentence of the appellant, as stated above, passed by the trial court are hereby affirmed.

         (VIVEK RUSIA)                   (SATYENDRA KUMAR SINGH)
            JUDGE                                  JUDGE



        Digitally signed by HARI
        KUMAR C G NAIR
        Date: 2021.11.26 10:36:12
hk/     +05'30'