Radheshyam vs The State Of Madhya Pradesh
2022 Latest Caselaw 5814 MP

                                 -1-

The High Court of Madhya Pradesh : Bench At Indore
DIVISION BENCH:      HON'BLE MR. JUSTICE VIVEK RUSIA &
                     HON'BLE MR. JUSTICE AMAR NATH (KESHARWANI)



               CRIMINAL APPEAL No. 300 of 2015

        Between:-
        RADHESHYAM S/O AMAR SINGH , AGED ABOUT 35
        YEARS, OCCUPATION: AGRICULTURE CHITAWAD,
        DISTT. DHAR (MADHYA PRADESH)
                                             .....APPELLANT


        AND

        THE STATE OF MADHYA PRADESH STATION HOUSE
        OFFICER THRU. P.S. SADALPUR (MADHYA
        PRADESH)
                                           .....RESPONDENTS
Presence:
        Ms. Sharmila Sharma, learned counsel for the appellant.
        Shri Kamal Kumar Tiwari, learned Government Advocate
for the respondent / State.
                               ********
                       JUDGMENT

Delivered on this Day of 21st April, 2022 As per Vivek Rusia, J:

Today this appeal is listed on an application for suspension of jail sentence and grant of bail, but with consent of the parties, the appeal is heard finally.

The appellant has filed the present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 against the

judgment of conviction and sentence dated 11.02.2015 passed by the Additional Sessions Judge, Dhar in Sessions Trial No.321/2011, whereby he has been convicted for the offences punishable under Sections 302 & 498-A of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.500/- and 3 years' rigorous imprisonment along with fine of Rs.500/-. With default clause to further undergo 15 months' rigorous imprisonment under each section.

02. As per the prosecution story, a Dehati Nalishi was registered on 2.7.2011 by Ms Laxmi Setia Station House Officer on information received from unknown persons that Krishna Bai W/o Radheshyam Bheel is lying dead in her house. Acting on such information, M.L Rana SI along with two Constables reached the village. Smt. Sugna Bai (P.W-2) W/o Amar Singh, who is the mother-in-law of Krishna Bai informed that her son (appellant) and her daughter-in-law are living separately for the last few months, and her son has gone to Dhar for work and his wife Krishna Bai was in the house. At about 5:00 pm, her granddaughter - Archna (P.W-8) informed her that her mother is not talking, she immediately went and saw Krishna Bai lying unconscious with vomit on the bed and odour of medicine is there in the room and she immediately called the deceased's brother Kalu and Goba. They took her to Nagda but on the way she died hence they brought her back. Thereafter, they called the mother and father of the deceased. On the basis of said information, Merg No.0/2011 (Ex-P/2) was registered. Copy of this information was sent to SDM, Dhar vide Ex-P/11. A Safina Form (Ex-P/13) was prepared,

followed by vide Ex-P/9, Lash Panchayatnama in the presence of five witnesses on 03.07.2011. No injury was found on the body of the deceased, despite that in order to know the cause of death, postmortem was advised. An autopsy was carried out at 12:30 pm by Dr. Shailendra S. Solanki and he opined that the cause of death of the deceased is asphyxia due to throttling. He advised the preservation of viscera for further analysis. At the same time, he conducted an autopsy of Kumari Ritika aged 8 months', a daughter of the appellant and deceased Krishna Bai he did not give a definite opinion about the cause of death and viscera was also collected and sent for examination (Ex-P/14). While conducting the autopsy of the deceased, the neck was dissected with a V-shape incision layer by layer and found haemorrhage. Both the corner of the thyroid bone were seen fractured and reported as fractures of the conical vertebra. However, there was no x-ray or CT Scan was done before giving such an opinion.

03. In merg investigation (Merg No.18/2011), a spot map was prepared (Ex-P/4). A mattress containing vomit was recovered vide Ex-P/5. Nazri Naksha was prepared by Tehsildar vide Ex-P/7. The dead body was sent to District Hospital Dhar with an application (Ex-P/14) and viscera was obtained.

04. After the expiry of 10 days the police have registered an F.I.R. on 12.07.2011 at 10:10 am under Section 302 of the IPC against the appellant. It is mentioned in the F.I.R. that during merg intimation, the daughter of the deceased and appellant, Archna (PW-8) has informed that after the marriage, the father was not happy with the mother due to her dark complexion and he used to

assault her. On 02.07.2011 at 10.:00 am he assaulted the deceased and caused the injury to her head and leg, due to which she died. No such merg statement of Archana(P.W.-8) is on record. After registration of F.I.R., the police recorded statements of Sugna Bai(PW-2)(mother) on 12.07.2011 (Ex-P/3) and Goba on 13.07.2011. The statement under section 161 Cr.P.C. of Archna (PW-8) was also recorded vide Ex-D/1. The appellant was arrested on 13.07.2011 vide arrest memo Ex-P/8. On his disclosure memorandum statement recorded under section 27 of the Evidence Act, a wooden log was recovered when it was nobody's case that such a wooden log was used for the throttling of the deceased. After completion of the investigation, charge-sheet was filed before the JMFC, from where the trial was committed to the Sessions Court. The appellant denied the charges and pleaded for trial. During the trial, no investigation has been done in respect of the cause of death of the daughter of the appellant who was 8 months old.

05. The prosecution has examined Goba (P.W-1) and according to him, he was informed by Sugna Bai (P.W-2) that the deceased has consumed a tablet and started vomiting. While taken to the hospital, the deceased told that she was suffering from fever, therefore, she took medicine and on the way she died. Archna (PW-

8) did not tell him anything about the assault by the appellant. Accordingly, he has been declared hostile. He has denied the statement given to that effect Ex-P/1.

06. As per the merg intimation Archna (PW-8) came back from the school and took Sugna bai(P.W.-2) to the room

complaining that her mother is vomiting. She went there and saw that the deceased is vomiting. In her deposition she admits that Archna (PW-8) did not tell her about the assault by Radheshyam. She has also been declared hostile. Likewise, Mahesh (P.W-3), Hemraj (P.W-4) and Rustam Khan (P.W-6) have turned hostile.

07. Head Constable Dayaram Goyal (P.W-7), who recorded Merg No.18/2011 and Merg No.19/2011 after the death of the deceased and her daughter Ritika and denied any inquiry on both the merg.

08. Archna (PW-8) has been examined as a minor witness. She came to the Court along with her maternal grandfather and grandmother (Nana & Nani) and deposed against the present appellant. According to her, near about 12:00 pm, the appellant sat on her mother and strangulated her neck, she shouted and hide and came out after reaching her Nana there. She further deposes that at the time of the incident, her grandmother was also present but she did not do anything. Her Nana - Nani took her mother to the hospital. In cross-examination, she admits that she went to the school and came back at 5:00 pm. She is confirming that after the incident she went to inform her grandmother and brought her to the house, therefore, in the cross-examination, she has narrated the same facts which are in the merg recorded at the instance of Sugna Bai(PW-2). She was confronted with Ex-D/1, her statement recorded under Section 161 of the Cr.P.C., in which she admits that she told her Nana that her father has killed her mother but such statement has not been written in Ex-D/1 by the police. She has also admitted after the death of her mother on the next day her

younger sister has also died. After the incident, she was residing with her Nana - Nani at Village - Kalsara and neither police went there nor she was called to the police station. We are shocked how she has been believed by the learned trial court to convict the appellant.

09. The prosecution has examined IO Laxmi Sethia (P.W-9) and she has admitted that she lodged an F.I.R. only on 12.07.2011 and in order to explain the delay she has stated that she was conducting a marg investigation. She has also admitted that she did not find any sign of scuffling in the house. She did not find injury or abrasion on the dead body. Nothing is mentioned in the case diary about the statement of Archna (PW-8) during merg intimation. She has not attached the merg statement of Archan in the F.I.R. Since merg investigation was not completed, delay was caused in the lodging the F.I.R. She has admitted the recording of the statement of Archna (PW-8) Ex-D/1. She has further admitted that had Archna (PW-8) told about the throttling of her mother by the appellant, she would have recorded it in the statement. She has also not stated that she has narrated the incident to her maternal grandfather. She has also not stated that her grandmother was standing there at the time of the incident. Therefore, in view of the aforesaid statement, it is clear that the statement of Archna (PW-8) cannot be believed and the trial Court has committed an error in believing the aforesaid statement. Archna (PW-8) is not a trustworthy witness. The entire conviction is based on the deposition of Archna (PW-8).

10. After evaluating the above evidence came on record the

learned Additional Session Judge has convicted the appellant under section 302 of the I.P.C. and sent him to undergo life imprisonment. Hence this criminal appeal.

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

12. Initially, Devkaran(father-in-law) and Kastura Bai(mother- in-law) were not included in the list of witnesses. The prosecution has filed an application for their examination which came to be allowed despite objection by the defence counsel. According to Devkaran (P.W-1), he received information at 3:00 pm about the death of her daughter Krishna Bai, he went and saw that she is lying dead. Archna (PW-8) told him that her father kicked her and strangulated her neck by leg due to which she died. He did not call any Panchayat. In cross-examination, he admits that in Ex-D/2, he did not tell the police that Archna (PW-8) had been informed about throttling by the appellant by means of his leg. We find the same contradictions and omissions in the statement of mother-in-law Kastura Bai (P.W-12). They have admitted that they received the dead body after postmortem and cremated it. They could have lodged an FIR against the appellant if Archna (P.W.-8) had told them about the incident that took place in front of her The defence sought permission to cross-examine the I.O. and Dr. Shailendra S. Solanki.

13. So far as the cause of death is concerned, the doctor has conducted a postmortem and found a fracture of the cervical vertebra and the cause of death was suffocation due to throttling. As per the Investigation Officer while drawing naksha

panchayatnama she did not find any injury on the body of the deceased as well as her eight months daughter. She has also not found bruises which are normally found in the case of throttling. The meaning of throttling is to press the neck with hands.

14. So far the deposition of the autopsy surgeon Dr. Shailendra S. Solanki he did not find any sign of throttling by means of a stick. In further cross-examination after the permission of the Court, he has admitted that there is no possibility of vomiting due to throttling. It is very surprising that without any x-ray or CT Scan report the autopsy doctor has seen a fracture on the hyoid bone. Initially, the merg has registered that cause of death was due to vomiting. There was no complaint of any throttling or assault. Therefore, it is very surprising that on what basis the doctor has given an opinion about the fracture on the neck. Usually, in strangulation, there is a fracture of the superior horn of the thyroid cartilage and hyoid bone. There may also be a fracture of the cricoid cartilage and tracheal rings if more force is applied. Fracture and dislocation of the cervical vertebra are seen in judicial hangings or in hangings associated with a long drop but it is not reported in ligature strangulation.

15. All of a sudden after ten days, the police has registered an F.I.R. under Section 302 of the IPC without there being any inquiry and investigation. After registration of F.I.R., the statement of Archna (PW-8) was recorded. The delay in lodging the F.I.R. has not been explained.

16. The Apex Court in the case of Rajeevan & Another v/s The State of Kerela reported in 2003 SCC (Cri) 751 has given the

importance of lodging an F.I.R. without any delay. It has been held that F.I.R. in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of F.I.R. to the police in respect of the commission of the offence is to be obtained early information regarding the circumstances in which the crime was committed, the nature of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. The delay in lodging the F.I.R. quite often results in embellishment which is a creature of an afterthought. Para - 12 of the aforesaid judgment is reproduced below:-

"12. Another doubtful factor is the delayed lodging of FIR. The learned counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulika Kali v. State of Tamilnadu. , wherein the delayed filing of FIR and its consequences are discussed. At Para 12 this Court says -

"...First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after- thought. On account of delay, the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained."

17. In the case of Ramaiah @ Rama v/s The State of Karnataka reported in 2014 Cr.L.R. (SC) 907, it has been held that there is no hard and fast rule that any delay in lodging the F.I.R. would automatically render the prosecution case doubtful. However, what is emphasised is that if that was so, it was necessary for the prosecution to at least come forward with an explanation as to why the complainant kept quiet and why he did not report the matter to the police immediately. Para - 28 of the aforesaid judgment reproduced below:-

"28. We may hasten to add here that many times in such type of cases, there can be reasons for keeping quite at the given time and not reporting the matter immediately. Therefore, we are conscious of the legal position that delay per se may not render prosecution case doubtful as there may be various reasons for lodging the FIR with some delay (see Sahebrao and another v. State of Maharashtra, (2006) 9 SCC 794. Thus, there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. However, what is emphasised is that if that was so, it was necessary for the prosecution to at least come forward with the explanation as to why the complainant kept quite and why he did not report the matter to the Police immediately. No such explanation is coming forward in the present case. Moreover, in the instant case, the delay is seen as fatal when examined in juxtaposition with other material that has come on record and discussed above, which shakes the veracity of prosecution case, bringing it within the four corners of doubtful prosecution story."

18. In the present case, the merg was registered on 02.07.2011, the investigation was carried out on 03.07.2011, the dead body was received by the deceased's parents, they took the body for cremation. They did not make any complaint about the assault by

the present appellant. They remained silent for 10 days. There is no merg statement on record. Statements of Archna (PW-8), Sugna Bai(PW-2) and Goba were recorded after the registration of F.I.R. According to them, Archna (PW-8) informed them about the throttling of the deceased by the appellant i.e. same day 02.07.2011. They should have informed these facts to the police for lodging the FIR on the same date.

19. The most important fact, in this case, is that no investigation has been carried out in respect of the death of the second infant daughter of the deceased. The prosecution has not called the viscera report when there was sufficient evidence that the deceased vomited and the daughter also died due to unknown reasons. The trial court ought to have insisted on the prosecution for calling the viscera report in order to know the cause of death of the deceased as well as her daughter. There is a serious lapse on the part of the learned Trial Judge for not calling the viscera reports of both the death during the trial. The conduct of the Investigation Officer is under a cloud and that needs to be looked into by the superior Police officer. We are unable to uphold the judgment of conviction of the appellant.

20. In view of the above discussion, we pass the following order:-

(i) Criminal Appeal filed by the appellant is hereby allowed;

(ii) Judgment of conviction and sentence dated 11.02.2015 passed by the Additional Sessions Judge, Dhar in Sessions Trial No.321/2011 convicting the appellant under Sections 302 & 498-A of the Indian Penal Code is hereby set aside;

(iii) Appellant - accused be set at liberty, if not required in any other case.

The Registry is directed to send back the Trial Court's record forthwith along with the copy of this judgment.

Copy of this order be also sent to Director General of M.P.

Police.

    (VIVEK RUSIA)                               (AMAR NATH (KESHARWANI))
      JUDGE                                             JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2022.04.21 16:54:05 +05'30'