Smt.Sanubai vs State Of M.P.
2021 Latest Caselaw 6706 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.1337/2008

Appellant:                Smt.Sanubai w/o Shri Navalsingh Bhilala,
(Accused in jail)         Age-30 years, R/o Gram Masara,
                          At Present -Gram Kutedi, P.S Tanda,
                          Distt. -Dhar (M.P)

                                   Vs.

Respondent:               State of M.P,
                          Through P.S Tanda,
                          Distt. Dhar (M.P)


             Ms.Purnima Kanungo, Learned Counsel for the
             appellant.
             Shri Sudanshu Vyas, Learned Government Advocate for
             the State.


                           JUDGMENT

(Heard and reserved on 20.10. 2021) (Delivered on 23.10.2021)

Per Vivek Rusia, J:

This is an appeal filed by the appellant against the judgment dated 25.09.2008 passed in Sessions Trial No.77/2008 whereby Additional Sessions Judge, Kuskhi, district Dhar has convicted her for the offence punishable under section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.100/-; in default of payment of fine, further additional RI for one month.

2. As per the prosecution story, Malsingh lodged an FIR on 25.01.2008 in the police station Tanda, district Dhar that this appellant has killed her stepson Kalamsingh s/o Navalsingh by hitting a stone on his headand thereafter she ran away after seeing him. He saw Kalamsingh bleeding from the head, immediately went to the house of Navalsingh(father of Kalamsing) and informed the aforesaid incident.

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Thereafter Navalsingh, Gajman, Mangiliya, Akram reached the spot and found Kalamsingh lying dead on the agricultural field. He has also alleged that after the death of the first wife Navalsingh married the appellant, however, she was not liking her stepson and step- daughter due to which he has killed Kalamsingh by means of stone. The FIR was registered for the offence punishable u/s 302 IPC against this appellant vide crime no.7/2008. The matter was taken up for investigation. The I.O has drawn the Safina form by calling 5 witnesses viz. Malsingh, Akram Mangiliya, Ganpat and Navalsingh. He has also drawn a Naksha Panchayatnama vide Ex.P/6. As per Panchnama the deceased Kalamsingh was lying on a bed (khat) covered by shawl. His dead body was naked. From the backside of the head, he was bleeding from the wound. Prima facie, the death was found to be homicidal, therefore, he has sent the dead body for postmortem. The postmortem was carried out by the doctor PW/1 and submitted a report vide Ex.P/2 . he opined that the cause of death of Kalamsingh was a tranmatic head injury causing asphyxia and died due to cardiorespiratory arrest. The I.O drawn-up the spot map Ex.P/9 and recovered a stone containing bloodstains . On a query the Medical officer, Primary Health Centre, Tanda has answered that there is a possibility of causing an injury by stone seized by the police vide Ex.P/5. The I.O drawn-up the spot map Ex.P/9 and recovered a stone containing bloodstains.

3. The appellant was arrested on 27.1.2008 at 12.15 hrs. vide arrest memo Ex.P/7. An injury on her nose is mentioned in the arrest memo. On her disclosure, a pink colour sari containing bloodstains was seized vide Ex.P/8. The blood-stained soil, plain soil, stone weight 7.7 kg, shirt, baniyan and nikkar of deceased Kalamsingh, sari of the appellant were sent to the FSL vide draft memo dated 31.1.2008 vide Ex.P/12.

4. Without waiting for the report of the FSL, the I.O has filed the charge sheet on 8.2.2008 i.e. within 12 days from the date of commission of the crime. The trial was committed to the sessions court vide order dated 10.3.2008. The learned court framed the charge u/s

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302 IPC against the appellant on 5.2.2008. The appellant denied the charges and pleaded for trial. Vide order dated 2.5.2008 Additional Public Prosecutor submitted a 3-days trial programme and the court has directed to issue a summons. As per the trial programme, the learned Public Prosecutor has submitted a list of 6 witnesses viz. Malsingh, Gulab, Mangaliya, Akram, Dr.Shoukat Khan and K.R Parmar. Out of which only 5 witnesses were examined as PW/1 to PW/5 and exhibited 12 documents.

5. In defence, the appellant pleaded that on the date of the incident she was returning from the agricultural field with Kalamsingh then her ex-husband who lives in village Gumanpura came there and tried to grab her. After living Kalamsingh, she ran towards the house and he threw a stone on her which hit Kalamsingh and he died. He got exhibited 3 documents, viz statement of Malsingh Ex.D/1, statement of Akram Ex.D/2 and statement of Gulab Ex.D/3 recorded u/s 161 Cr.P.C. She examined herself u/s 315 of the Cr.p.C.

6. After evaluating the evidence that came on record vide judgment dated 25.9.2008 learned Court has held that the prosecution has proved the charge under section 302 IPC beyond reasonable doubt and convicted her u/s 302 IPC and sentenced her to undergo life imprisonment, hence the present appeal before this court.

We have heard the learned counsel for the appellant engaged through State Legal Aid Services Authority and Government Advocate for the State at length and perused the record.

7. So far the injury and cause of death are concerned the postmortem was carried out by Dr.Shoukat Ali (PW/1) on 26.1.2008 and submitted a report vide Ex.P/1. As per the report, 3 injuries were found on the body of the deceased which are as under:

1. Lacerated wound back Head - 2" x 1/2"

2. Lacerated wound Rt. Parietal Reg. 1" x 1/2"

3. Lacerated wound Lt. Forehead 1" x 1"

Kalamsingh died because of asphyxia and cardiac arrest because of the aforesaid injury. According to the accused-appellant also, the

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stone thrown by her ex-husband hit on the head of Kalamsingh due to which he sustained injury and fell on the field, hence there is no challenge to the finding recorded by the trial court that Kalamsingh died because of the injury sustained on his head by means of stone, therefore, the death is homicidal in nature.Accordingly, we affirm the same.

Now the only issue which requires consideration in this appeal is whether the appellant has rightly been convicted u/s 302 IPC for murdering stepson Kalamsingh on 26.1.2008 or not?

8. In order to prove the sole charge, the prosecution has examined Malsingh as PW/2, who lodged the FIR. He claims himself to be an eyewitness of the incident. According to him, two months ago near about 11.00 hrs. while he was going towards his agricultural field saw that the appellant was running towards Kalamsingh for hitting him by stone. After seeing him, she ran towards the house and he followed her. Thereafter he informed Navalsingh that appellant Sanubai has fled after killing his son. Navalsingh, Mangaliya, Akram and he went to the field saw Kalamsingh lying injured. They were taking him to the hospital but he died on the spot, hence he brought him to the house. As per the Naksha Panchayatnama report, Kalamsingh was lying naked and as per the spot map his clothes were lying there but nothing has been said by Malsingh and no investigation was carried out by the I.O as to why the naked body of Kalamsingh was found on the spot. Malsingh was cross-examined by the defence counsel in which he admits that when he was going to the house of Navalsingh to give information the appellant was running before him and, he reached after 8 to 10 minutes. If he saw the appellant running towards Kalamsingh to kill him then he should have made an effort to save him and if appellant had already hit and thereafter ran towards the house then he should have taken care of the child because he was lying injured. The deceased was aged about only 5 to 6 years. He could have taken him to the house of Navalsingh which is only half kilometer from the place of the incident, therefore the presence of

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Malsingh becomes doubtful on the spot. His testimony cannot be relied upon as an eyewitness.

There are other reasons to doubt his testimony because the prosecution has also examined Gulab as PW/4 and according to him he also saw the appellant Sanubai hiting Kalamsingh by means of stone and he immediately informed the family members of Kalamsingh. Neither Gulab nor Malsingh are confirming the presence of each other on the spot. Gulab has also did not make any effort to take Kalamsingh to the house or hospital. A specific query was made by the court as to whether he saw the appellant hitting Kalamsingh which he denied and said that he saw the deceased only hiding Kalamsingh, therefore, Gulab cannot be said to be a reliable eyewitness who is not confirming the presence of Malsingh on the spot.

9. Learned trial court has convicted the appellant only on the basis of the testimony of PW/2 and PW/4, but as discussed above, we are not impressed by the aforesaid findings as the presence of both the witnesses are doubtful on the spot. Their conduct seems to be unnatural and instead of saving the child or taking him to the hospital, they rushed to the house of Kalamsingh to inform his father Navalsingh.

10. There is one more facet that came to our knowledge while seeing the record that the dead body of Kalamsingh was naked. His clothes were found on the spot. He was brought to the house naked covered with the shawl as per the Naksha Panchayatnama. This mystery has not been investigated by the I.O which creates doubt over his investigation.

11. The appellant examined herself in the court and according to her on the date of the incident when she was returning home along with Kalamsingh, her ex-husband came there and tried to grab her. When she ran from the spot he threw a stone at her which hit on the backside head of Kalamsingh. She ran towards her house and because of this Kalamsingh suffered the injury. No investigation has been done on this aspect because in the arrest memo there is an injury mentioned on the

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nose of the appellant by falling. She was not medically examined and prima facie the statement of the appellant seems to be convincing because she might have fallen while running to the house and the stone thrown by her ex-husband hit on the back side of the child. But no investigation has been carried out in this regard, therefore, the appellant is entitled to the benefit of the doubt.

12. The prosecution has also not examined the husband, father-in-law and neighbour, relatives of the appellant to establish that the appellant being step mother was not happy with the presence of the step-son and step-daughter in the house and wanted to eliminate them. As per PW/2, PW/3 & PW/4, Navalsingh is having a son and daughter from his first wife and there was no reason for the appellant to kill only one child. There cannot be a presumption that being a step mother she was not happy with the presence of step-son and step-daughter in the house. The name of the husband and father-in-law of the appellant were included in the list of witnesses but surprisingly, as per the trial programme, they have been dropped. No FSL report has been received to confirm the bloodstains on the stone as well as on the sari of this appellant.

13. In view of the foregoing discussion, we allow this appeal and set aside the impugned judgment of conviction and sentence passed against the appellant. The appellant be released forthwith, if not required in any other case.

Record of the trial court be sent back with a copy of this order. State Legal Aid Services Authority is directed to send a copy of this order to the concerned jail authority.

           (VIVEK RUSIA)                          (SHAILENDRA SHUKLA)
              JUDGE                                      JUDGE

      Digitally signed by HARI
hk/   KUMAR C G NAIR
      Date: 2021.10.26 13:38:38
      +05'30'