Hama & Anr. vs State Of M.P.
2021 Latest Caselaw 6504 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 SHAILENDRA SHUKLA

                  CRIMINAL APPEAL No.183/2009

Appellants:                1.    Hama s/o Bhayla
(Accused in jail)                Age 21 years, Agriculturist

                           2.    Bhayla s/o Rupsingh
                                 Age 45 years, Agriculturist
                                 Both are R/o village Kamod
                                 District Barwani


                                    Vs.

Respondent:                State of Madhya Pradesh
                           through PS Sendhwa (Gramin)
                           District Barwani


             Shri Vivek Singh, Advocate for the appellant.
             Smt.Mamta Shandilya, Government Advocate for
             the State.


                           JUDGMENT

(Delivered on 08.10.2021)

Per Vivek Rusia J:

Appellants have filed this criminal appeal being aggrieved by the judgment dated 31.01.2009 passed by learned Additional Sessions Judge, Sendhwa, district Badwani in Sessions Trial No.09/2008 whereby they have been convicted for the offence punishable under sections 302/34 & 498A IPC and sentenced to undergo life imprisonment with fine of Rs.1000-1000/-, in default of payment of fine, further RI for one month; and RI for one year with fine of Rs.500-500/-, in default of payment of fine, further RI for 15 days respectively.

2. Facts of the case in short are as under:

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Jorsingh s/o Abhaysingh Bhadoriya lodged an FIR on 01.12.2007 against accused/appellants Hama & Bhayla at police station Sendhwa (Gramin), district Badwani alleging that the marriage of Nirshabai (deceased) took place with appellant No.1 Hama s/o Bhayla (appellant No. 2) four months ago and she was subjected to cruelty due to her short height and doubt over her character. On 29.11.2007 appellants closed her nose with a piece of cloth due to which she died by suffocating. On the basis of the said report police registered an FIR for the offence punishable under sections 302/34 & 498A of the IPC vide crime no.357/2007 and the matter was taken up for investigation. The police drew the Saffina Form Ex.P/4 in presence of five witnesses and prepared the Naksha Panchayatnama. The dead body of deceased Nirshabai was found lying on the bed (khatia) outside the house and blood was found on her right ear. Prima facie, the death was found to be homicidal, therefore, the dead body was sent for postmortem. As per the autopsy report, the cause of death in the opinion of the doctor was due to the closing of external orifice Ex.P/15. The dead body was received by Kishan, the father of the deceased vide Ex.P/6 and cremation was done. The police recorded the statement of Kishan, father of the deceased Ex.D/1, Smt.Sarjabai, mother of the deceased Ex.D/2, Prakash, Ida, Parashram, Mangilal & Gulabsingh. The police arrested accused Hama and Bhayla on 09.12.2006 vide arrest memo Ex.P/10 & P/11 respectively. The memorandum statement of Hama under section 27 of the Evidence Act was recorded Ex.P/12 in which he admitted smothering the nose and mouth of his wife by means of cloth because of doubt on her character in which his father helped him. On his disclosure, the piece of cloth was recovered from her house vide seizure memo Ex.P/13.

3. After completing the investigation, police filed the charge sheet on 16.12.2007 and vide order dated 02.01.2008 the trial was committed to the Sessions Court. Learned A.S.J, Sendhwa framed the charges under sections 302/34 & 498A/34 of the IPC against both the accused. However, they denied the charges and pleaded for trial. In

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the trial, the prosecution has examined 13 witnesses and exhibited 20 documents whereas the accused/appellants did not examine any witness in defence. After evaluating the evidence that came on record, learned Additional Session Judge has convicted and sentenced the appellants as stated above, hence the present appeal before this Court.

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

4. In order to establish the charges against the appellants the prosecution has examined Dr.Sunil Patel PW/12, the Medical Officer posted at PHC Sendwa who conducted the autopsy of the deceased on 29.11.2007 along with Dr.Jyothi Patel. He found as many as 10 antemortem injuries all over the person of the deceased and as per his opinion the deceased died due to suffocation within 75 hours of the postmortem. He also gave an opinion that smothering of the nose and mouth of the deceased could be done with the help of the cloth which was seized by the police. However, on the issue of injuries, no cross- examination was done, therefore, before committing her murder by suffocating deceased was subjected to cruelty. The bleeding from her nose, mouth, ear and bruises on her face, thigh, near the private part etc. of the deceased were also found. In absence of any challenge to the medical report on the aforesaid injuries, we have no option but to accept the report and the evidence of the doctor PW/12 that the death of Nirsiyabai was homicidal and before her death, she was subjected to cruelty. Since there is no challenge to the aforesaid findings in this appeal also, hence we uphold the same.

5. The only issue which remains for our consideration in this appeal is whether the appellant No.1 Hama being the husband of deceased Nirsiyabai and appellant No.2 Bhayla, the father-in-law of the deceased have rightly been convicted and sentenced for the offences under sections 302/34 & 498A/34 of the IPC or not.

6. Gulab Singh (PW/1) and Mangilal (PW/2) have turned hostile and did not support the case of the prosecution in respect of the cause of death. The father of the deceased Kishan has been examined as

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PW/3 and according to him after the marriage, Nirsiyabai used to visit his house and used to tell them that the appellants used to beat her on the issue of her short height. Kishan further states that 15 days before death, the deceased came to his house and stayed there for 8 days and thereafter he took her to the matrimonial house. He talked with the appellants regarding the harassment perpetrated by them with the deceased. However, after a few days, he received a telephone call from one Yadav that the appellants have murdered his daughter upon which he immediately rushed to her house and found injuries on her body. Thereafter he lodged the police report. The above testimony establishes. that the relationship between husband and wife was strained.

7. Shri Vivek Singh, learned counsel appearing for the appellants has drawn attention to para-4 of the cross-examination of Kishan in which he has admitted that after seeing her daughter before the marriage, the appellants gave the consent for marriage, therefore, there was no motive behind the murder of Nirsiyabai. The prosecution has examined Sarjabai PW/4 i.e. the mother of the deceased and according to her after the marriage, the deceased came to her parental house and she was not willing to go back to the matrimonial house. She also noticed the bruises on her body on various parts of the body of the deceased. Prakash PW/5 also visited the place of occurrence after receiving the news of death. In his cross examination he has admitted that 15 days before death, he met Nirsiyabai but she did not inform him that the appellants used to taunt her because of her short height. Another witness Ida (PW/6) has also noticed the injuries and bleeding on the body of the deceased but he has been declared hostile because he did not know about the cause of death. Yadav (PW/10) states that after the marriage the deceased used to visit his house and told him that her husband and father-in-law used to harass her because of her short height and he also asked them not to do so. He also noticed various injuries on the body of the deceased after her death. The rest of the witnesses were formally examined on the issue of seizure and

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arrest of the appellants. Shri Vivek Singh learned counsel submits that all those witnesses are related to the deceased and none of the villagers or neighbours was examined to establish the culpability of the appellants, hence the conviction and sentence of the appellants are bad in law.

8. Smt.Mamta Shandilya learned Government Advocate appearing for the State submits that the credibility of the related witnesses cannot be doubted merely because of the relationship with the deceased as there is a corroboration with the postmortem report. After receiving the news of the death of Nirsiyabai all those witnesses reached the spot, the appellants were not found on the spot as they fled away from their house after committing her murder and after two days of the incident they were arrested by the police. Had they been innocent, they would not have run away from the house, hence prays for dismissal of criminal appeal.

9. We have carefully examined the statement of the witnesses and we have no reason to disbelieve them or discard their testimony merely because they are close relatives of the deceased. In the case of the offence related to the unnatural death of a married woman within 7 years of her marriage, the related witnesses are the crucial witnesses who can depose whether she was subjected to cruelty or not after the marriage. At times, the atrocities perpetrated on the wife, the facts remain within the knowledge of close family members and they don't disclose the same to the neighbours due to various reasons. According to the father, mother and uncle of the deceased -Nirsiyabai was subjected to cruelty because of her short height, however, there is no evidence on record to establish that the appellants used to doubt her character also. The dead body of the deceased was found lying outside the house of the appellants. The antemortem injuries on her dead body have been established by the postmortem report. As per the evidence except for the appellants, nobody was in her house at the time of the incident and immediately after her death they were not found on the spot as per the Naksha Panchayatnama and the version of the

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witnesses. Apart from that, the appellants have failed to explain the cause of the death of the deceased which is supposed to be in their knowledge.

10. Shri Singh, learned counsel has placed reliance on the recent judgment passed by the Supreme Court of India in the case of Nagendra Sah Versus the State of Bihar [ Criminal Appeal No. 1903 of 2019] in which the conviction based on autopsy report has been set aside when circumstances established by the prosecution do not lead to only one possible inference regarding the guilt of the accused. In this case, the husband was charged under section 302 IPC for committing the murder of his wife and none of the witnesses has supported the case of prosecution and the husband has been convicted on the basis of the doctor's opinion in the autopsy report and the accused husband has come up with the false plea about the cause of death. The apex court has held that the false plea will not give additional ground to the prosecution to establish the guilt. The facts of the case in hand are different because the prosecution has established a strained relationship between husband and wife by examining parents and relatives, in addition to it the appellants fled away from the house after committing the crime. The appellants did not come up with any defence. Thus, section 106 of the India Evidence Act will apply as the prosecution has established the facts for which a reasonable inference can be drawn that appellant No. 1 had knowledge about the cause of death of his wife. Since appellants have failed to give any valid explanation, an adverse inference is liable to be drawn against them.

10. It is a case of circumstantial evidence as no one saw the appellant murdering Nirsiyabai. Appellant No.1 Hama was married to the deceased and if there was any issue in respect of her height which is related to her husband Hama only. So far as appellant No.2 Bhayla is concerned, he is the father-in-law of the deceased and he has been made accused only on the basis of the memorandum statement of husband/appellant No. 1 recorded under section 27 of the Evidence Act. According to him, Bhayla caught hold of legs of the deceased and

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he put clothes on the nose and mouth due to which she died due to suffocation. It is settled law that the statement of a co-accused recorded under section 27 of the Evidence Act cannot be used as a piece of evidence against another accused for conviction, therefore, there is no evidence on record to the effect that appellant No.2 Bhayla has committed any overt act in the murder of Nirsiyabai. The appellants have rightly been convicted under section 498A /34 of the I.P.C. as there is enough evidence that the deceased was subjected to cruelty after marriage.

11. In view of the foregoing discussion, in our considered view, the trial Court has rightly convicted and sentenced appellant No.1 : Hama for the offence punishable under sections 302& 498A/34 of the IPC which is hereby affirmed. Hence, his appeal is hereby dismissed. So far as appellant No.2 Bhayla is concerned, his appeal is allowed in part and while setting aside his conviction under section 302/34 IPC, his conviction and sentence for the offence punishable under section 498A IPC are affirmed. The appellant No.2 Bhayla be released forthwith, if not required in any other case.

The original record of the Session court be sent back with a copy of this judgment.

            (VIVEK RUSIA)                       (SHAILENDRA SHUKLA)
               JUDGE                                   JUDGE



       Digitally signed by HARI
       KUMAR C G NAIR
       Date: 2021.10.08 18:25:49
hk/    +05'30'