Madhya Pradesh High Court
Vinod vs The State Of Madhya Pradesh on 7 March, 2022
Author: Subodh Abhyankar
1
Cr.A. No.446/2012
THE HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE SUBODH ABHYANKAR &
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
CRIMINAL APPEAL No.446 of 2012
Vinod S/o Ramlal Choukse
Age : 26 years, Occupation : Service
R/o Village Jamburdi Hapsi
District Indore (M.P.)
---------------Appellant
Versus
State of Madhya Pradesh
Through Police Station : Hatod
District - Indore (M.P.)
-------------Respondent
Presence :-
Shri Manish Yadav, learned counsel for the appellant.
Shri R. S. Bais, learned Government Advocate for the respondent -
State.
----------------------------------------------------------------------------------------------
Reserved on : 22.02.2022
JUDGEMENT
(Delivered at Indore on this 7th day of March, 2022)
Per : Satyendra Kumar Singh, J.
The appellant has preferred this appeal under Section 374(2) of the
Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."] against the
judgement dated 06.02.2012 passed by the Court of Sessions Judge, Indore
(M.P.) in S.T. No.769/2010, whereby the appellant has been convicted under
Section 302 of the Indian Penal Code, 1860 (in short "IPC") and sentenced
him to undergo life imprisonment with fine of Rs.5,000/- and in default of
payment of fine, additional rigorous imprisonment for 2 years.
Cr.A. No.446/2012
2. Prosecution story, in brief is as follows :-
a) The appellant and deceased Meerabai were husband and wife.
Their marriage was solemnized two years back and out of their
wedlock, a child was born, aged about five-seven months. The
deceased always threatened the appellant saying that she would go to
her paternal house and would solemnize second marriage (Nathra), due
to which, they always used to quarrel with each other. On the date of
incident i.e. on 22-23.06.2010, at about 8.00 PM, after taking dinner
with other family members, appellant and deceased went to their room,
which is situated on the first floor of the same house in Village
Jamburdi Hapsi, Indore where appellant's father, mother and other
family members reside. After that, in the intervening night of 22-23-
06.2010, a quarrel took place between the appellant and deceased. The
appellant assaulted and strangulated her, due to which she sustained
grievous injuries and died. The appellant, thereafter consumed
poisonous substance and attempted to commit suicide. At about 3.00 -
3.30 AM, appellant's mother Bhanwarbai, on hearing the sounds of
vomitting went to his room where she found the deceased lying on the
bed while appellant was found vomitting. On hearing her shrieks, her
husband Ramlal, son Vishal, daughter-in-law Sonu and other witnesses
reached there and took the appellant as well as the deceased to District
Hospital, Indore where deceased was declared dead while the appellant
was referred to the Choithram Hospital.
b) On the same day i.e. on 23.06.2010, at about 9.10 AM, on
being informed by the telephone operator of District Hospital, Indore,
Head Constable Bhagwan Singh Visen registered merg intimation
report bearing No.0/2010 (Exhibit-P/12) at Police Station Chandan
Nagar, Indore on the basis of which ASI Jayaram Basuniya registered
original merg intimation report bearing No.16/2010 (Exhibit-P/8) at
Police Station Hatod, Indore. The Executive Magistrate Tehsildar
Cr.A. No.446/2012
Indore Pratul Sinha, after getting information went to the District
Hospital, Indore and after drawing Safina form (Exhibit-P/1) called the
witnesses and prepared inquest report (Naksha Panchayatnama) vide
Exhibit-P/2 of dead body of the deceased and sent the same for post-
mortem examination. On the same day, at about 1.25 PM, Dr. Bharat
Vajpai alongwith Dr. Indu Sunil Verma conducted the post-mortem of
body of the deceased and found the following injuries on her body :-
1) Contusion abrasion measuring 2.5 x 1 cm on
right breast.
2) One contusion abrasion measuring 3 x 1 cm,
below right chest.
3) One contusion abrasion measuring 3 x 1.5
cm on left lateral mid neck.
4) One linear abrasion measuring 2.7 cm,
below left angle of mandible.
5) One contusion abrasion measuring 1/2 x 1/2
cm, below left mastoid bone.
6) Four crescentic abrasions just below mid
base of mandible.
7) Three crescentic abrasions on left lower
neck outlet.
8) One contusion abrasion measuring 3 x 2 cm,
below and left to thyroid.
9) Both sides thyroid muscles,
sternocleidomastoid muscle at mid on
both sides and thyrohyind glands injured
heavily.
broken, soft tissues and costal muscles
injured.
11) One crescentic abrasion below right chin.
3. Dr. Bharat Vajpai (PW-12) prepared the post-mortem report
(Exhibit-P/10) as well as short post-mortem report (Exhibit-P/11) of the
deceased and opined that death of deceased occurred within 24 hours of the
post-mortem, due to asphyxia, as a result of strangulation. He opined that
injuries found over and inside deceased's body was anti-mortem and were
caused by hard and blunt object as well as hard and pointed object. He
Cr.A. No.446/2012
prepared vaginal swab slides, preserved and sealed the same alongwith viscera
and deceased's clothes and handed over the same to the concerned police
constable. On the next day i.e. on 24.06.2010, during merg enquiry, SDOP
Sanwer DSP Ramsingh went to the place of occurrence and prepared spot map
(Exhibit-P/19). He sealed the appellant's room in front of panch witnesses,
as per panchanama (Exhibit-P/20), recorded statement of the appellant and
thereafter on 25.06.2010 registered FIR bearing No.144/2010 (Exhibit-P/21)
against the appellant for the offence punishable under Sections 302 and 309 of
IPC.
4. During investigation, SHO Police Station Hatod, Indore R. S. Aumb
recorded statements of the witnesses, arrested the appellant as per arrest memo
dated 29.06.2010 vide Exhibit-P/4 and found bite marks on the thumb of his
left hand alleged to be caused by the deceased at the time of incident.
Thereafter, vide letter (Exhibit-P/13) sent the appellant for medical
examination to Primary Health Centre, Hatod, Indore where Dr. K. L. Mehra
medically examined the appellant and prepared MLC report (Exhibit-P/9) and
said injury was found on the body of the appellant. On 30.06.2010, recorded
his disclosure memo (Exhibit-P/5) and on his instance, seized bed-sheets
containing stains of vomitting as per seizure memo (Exhibit-P/6). Vide letter
(Exhibit-P/14 and Exhibit-P/16) sent the seized articles for chemical
examination.
5. Learned Trial Court considering the material prima-facie available
on record, framed the charges under Sections 302 and 309 of IPC against the
appellant, who abjured his guilt and prayed for trial. In his statement recorded
under Section 313 of Cr.P.C., he stated that in the intervening night of the
incident, deceased Meerabai herself gave poisonous substance to him, due to
which appellant started vomitting and became unconscious. The appellant
pleaded his false implication in the matter, but in support of his defense, he
did not examine any witness.
6. Learned Trial Court after appreciating the oral as well as
Cr.A. No.446/2012
documentary evidence available on record, acquitted the appellant from
charges framed under Section 309 of IPC, but found him guilty for the offence
punishable under Section 302 of IPC and sentenced him to suffer as
aforementioned. Being aggrieved with the said judgement of conviction and
order of sentence, appellant has preferred this appeal for setting aside the
impugned judgement and discharging him from the charges framed against
him.
7. Learned counsel for the appellant submits that Trial Court has
committed a legal error while appreciating the evidence available on record.
There is no direct evidence in the case and the whole prosecution story is
based on circumstantial evidence. In the intervening night of the incident, due
to consumption of poisonous substance, appellant started vomitting and was ill
and therefore, the circumstance that appellant was all alone in the company of
the deceased at the time of incident is not proved. Appellant's relations with
the deceased was cordial and there was no dispute between them. As the
quarrel occurred in a spur of moment, therefore, it cannot be said that
appellant assaulted and strangulated the deceased with an intent to kill her.
Hence, conviction of the appellant under Section 302 of IPC is bad in law,
therefore, the impugned judgement of conviction and order of sentence may
be set aside and the appellant may be acquitted from the charges framed
against him.
8. Per contra, learned Public Prosecutor for the respondent-State, while
supporting the impugned judgement of conviction and order of sentence
submits that the judgement was passed by the Trial Court after proper
appreciation of evidence available on record. Same is well reasoned
establishing the guilt of the appellant beyond reasonable doubt. It is an
admitted fact that in the intervening night, after taking dinner, appellant
alongwith the deceased and their 5-7 months old child went to his room.
Appellant's mother Bhanwarbai as well as father Ramlal and other witnesses
have specifically deposed that at the time of incident, when they went to
Cr.A. No.446/2012
appellant's room, they found the deceased lying on the bed while the appellant
was found vomitting and no one else was there in their room. Several
grievous injuries were found on the vital part of the body of the deceased.
Appellant has no where explained as to when and how the aforesaid injuries
were caused on the body of the deceased, therefore, learned Trial Court has
not committed any error in holding the appellant guilty for the offence
punishable under Section 302 of the IPC. The prosecution has proved its case
beyond reasonable doubt and therefore, confirming the impugned judgement
of conviction and order of sentence, the appeal filed by the appellant may be
dismissed.
9. We have heard learned counsel for the parties at length and perused
the record.
10. This is an admitted fact that appellant and deceased Meerabai were
husband and wife, their marriage was solemnized about two years back and
since then, deceased was living with the appellant in his house situated in
Village Jamburdi Hapsi, Police Station Hatod, Indore alongwith appellant's
parents and other family members jointly. Appellant's room was on the upper
portion of the house where he alongwith his wife deceased and son aged about
5-7 months usually sleep. Appellant's mother Bhanwarbai (PW-5), sister-in-
law i.e. brother's wife Sonu (PW-6) and father Ramlal (PW-7) all deposed that
on the date of incident i.e. on 22.06.2010 at about 8.00-9.00 PM after taking
dinner, appellant and deceased went to their room. Bhanwarbai (PW-5)
deposed that in the same intervening night, at about 3.00-3.30 AM, when she
woke up to answer nature's call, she heard noise of vomitting from upper
portion of the house. She then went towards appellant's room and found that
appellant was vomitting. Appellant's sister-in-law Sonu (PW-6) deposed that
after hearing the screaming of her mother-in-law Bhanwarbai, she alongwith
her husband Vishal went to appellant's room and saw that appellant was
vomitting while deceased was lying on the bed in unconscious state.
Appellant's father Ramlal (PW-7) also deposed that after hearing the
Cr.A. No.446/2012
screaming of her wife, when he reached appellant's room, he saw that
appellant was vomitting and deceased was lying on the bed in unconscious
state.
11. All the above witnesses are appellant's close relatives and their
aforesaid statements have not been challenged by the appellant instead he in
his statement recorded under Section 313 of Cr.P.C. had admitted the
aforesaid facts therefore, this is not disputed that on 22.06.2010, at about 8.00-
9.00 PM, appellant and deceased went to their room situated on the upper
portion of the house and in the same intervening night at about 3.00-3.30 AM,
appellant was found vomitting while his wife deceased was found lying on the
bed in unconscious state.
12. Appellant's father Ramlal (PW-7) further deposed that at that time,
Omprakash, Krishna and other people of Mohalla also reached at the spot and
they took the appellant as well as the deceased to the District Hospital, Indore
where deceased was declared dead while appellant was referred to the
Choithram Hospital. Head Constable Bhagwan Singh Visen (PW-13) deposed
that on 23.06.2010, at about 9.10 AM, telephone operator of the District
Hospital, Indore informed him about the deceased and it was told by him that
deceased Meerabai had been brought dead in the hospital and he on the
aforesaid information registered merg intimation report (Exhibit-P/12) at zero
about death of the deceased at Police Station Chandan Nagar, Indore.
Executive Magistrate Tehsildar Indore Pratul Sinha (PW-15) deposed that on
the same day, after getting information about death of deceased, he went to the
District Hospital, Indore and called the witnesses through Safina form
(Exhibit-P/1) and prepared naksha panchayatnama (Exhibit-P/2) of body of
the deceased in front of panch witnesses and sent her body for medical
examination. Dr. Bharat Vajpai (PW-12) deposed that on the same day, at
about 1.25 PM, he alongwith Dr. Indu Sunil Verma conducted post-mortem of
the deceased and prepared post-mortem report (Exhibit-P/10). He deposed
Cr.A. No.446/2012
that during post-mortem examination, he found following injuries on the body
of the deceased :-
1) Contusion abrasion measuring 2.5 x 1 cm on
right breast.
2) One contusion abrasion measuring 3 x 1 cm,
below right chest.
3) One contusion abrasion measuring 3 x 1.5
cm on left lateral mid neck.
4) One linear abrasion measuring 2.7 cm,
below left angle of mandible.
5) One contusion abrasion measuring 1/2 x 1/2
cm, below left mastoid bone.
6) Four crescentic abrasions just below mid
base of mandible.
7) Three crescentic abrasions on left lower
neck outlet.
8) One contusion abrasion measuring 3 x 2 cm,
below and left to thyroid.
9) Both sides thyroid muscles,
sternocleidomastoid muscle at mid on
both sides and thyrohyind glands injured
heavily.
broken, soft tissues and costal muscles
injured.
11) One crescentic abrasion below right chin.
13. Dr. Bharat Vajpai (PW-12) further deposed that all the above
injuries found on the body of deceased were caused prior to her death by hard
and blunt object as well as by hard and pointed object and her death occurred
due to asphyxia, as a result of throttling of her neck within 24 hours of the
post-mortem. He although admitted in his cross-examination that injury
Nos.1, 2 and 10 can be caused due to falling down from the stairs but he
specifically stated that no one can cause her death by strangulation. In this
regard, it is pertinent to mention here that it is not the case of the appellant that
in the intervening night of the incident, deceased fell down from the stairs of
her house, as during cross-examination of any of the prosecution witnesses,
except Dr. Bharat Vajpai (PW-12), it is nowhere suggested on behalf of the
Cr.A. No.446/2012
appellant that in the intervening night of the incident, deceased fell down from
the stairs of her house. From the statements of Dr. Bharat Vajpai (PW-12) and
post-mortem report (Exhibit-P/10), there is no doubt that deceased died due to
asphyxia, as a result of strangulation of neck and her death was homicidal in
nature. Considering the number and nature of injuries found over and inside
the body of the deceased specifically injury Nos.9 and 10 itself shows that the
same were caused with an intent to commit the murder of deceased as in
normal course, it is not possible that four ribs can be broken in a sudden
quarrel. Therefore, it is found proved that in the intervening night of the
incident, the aforesaid injuries were intentionally caused to the deceased to
commit her murder and she was murdered.
14. It has already been found proved that in the intervening night before
the incident, appellant and deceased, after taking dinner went to their room
and thereafter at about 3.00-3.30 AM, he was found vomitting while the
deceased was lying on the bed in unconscious state. The appellant has
nowhere given any explanation about the injuries found on the body of the
deceased instead, he in his statement recorded under Section 313 of Cr.P.C., in
answer to question No.11 has stated that deceased herself gave him some
poisonous substance due to which he started vomitting and became
unconscious. The appellant himself has neither produced any witness nor has
given any suggestion in this regard to any of the prosecution witnesses.
Appellant's mother Bhanwarbai (PW-5), sister-in-law Sonu (PW-6) and father
Ramlal (PW-7) have nowhere stated that they found the appellant in
unconscious state. There is nothing on record on the basis of which the
aforesaid facts can be doubted or disbelieved. Therefore, the defense taken by
the appellant that in the intervening night, he became unconscious is not
acceptable at all. There was no one else apart from the appellant with the
deceased and the appellant has nowhere given any explanation as to how the
injuries found on the body of the deceased were caused, therefore, learned
Cr.A. No.446/2012
Trial Court has not committed any error in holding this fact proved that it was
none else other than the appellant who had caused injuries on the body of the
deceased. This fact also found support from the statement of Dr. K. L. Mehra
(PW-11) and appellant's MLC report (Exhibit-P/9) prepared by him, wherein
it is stated that on 29.06.2010 i.e. about 6-7 days after the incident, a healed
injury was found on appellant's left thumb, which is alleged to be caused by
the deceased at the time of incident.
15. In this regard, it is appropriate to rely on the observations made by
the Hon'ble Supreme Court in the case of State of Rajasthan vs. Kashi Ram
(2006) 12 SCC 254 as follows:
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 explanation as to how and when he parted
company. He must furnish an explanation which appears
to the Court to be probable and satisfactory. If he does so
he must be held to have discharged his burden. 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 circumstances 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 hypothesis 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 Re.
Naina Mohd. AIR 1960 Madras, 218.
16. It has been argued on behalf of the appellant that the incident took
Cr.A. No.446/2012
place all of a sudden and injuries found on the body of deceased were not
caused with an intent to commit her murder, therefore, appellant's act is
punishable under Section 304-II of IPC instead of 302 of IPC. As already
discussed above that about 10-11 injuries were found on the body of deceased
and injuries found on her neck and chest are not of such nature which can be
sustained in a normal quarrel specially, injuries found on right chest i.e.
fracture in rib Nos.4, 5, 6 & 7. Thus, in our considered opinion, the
circumstances from which inference of guilt is sought to be proved are
cogently and firmly established in this case. The circumstances proved are
unerringly pointing towards guilt of the appellant and chain is so complete that
there is no escape from conclusion that within all human probability, the crime
was committed by the appellant and no one else. In such circumstances, we
found no fault in the impugned judgement of conviction and order of sentence
passed by learned Trial Court. There is no merit in the appeal, the appeal thus
is liable to be dismissed and is hereby dismissed.
17. The Registry is directed to send back the Trial Court record
forthwith alongwith the copy of this judgment.
Certified copy, as per Rules.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
07.03.2022 07.03.2022
gp
GEETA
Digitally signed by GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, postalCode=452001, st=Madhya Pradesh,
2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb325
01850a4984b5b63f6d7a38,
PRAMOD
pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874
D434,
serialNumber=41554F8E701AEEB833278B4FDD900CBED72
CCF299EA61E33BBE6175289BA0390, cn=GEETA PRAMOD
Date: 2022.03.08 10:24:55 +05'30'
