Madhya Pradesh High Court
Prahlad vs The State Of Madhya Pradesh on 13 October, 2022
Author: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 13th OF OCTOBER, 2022
CRIMINAL APPEAL No. 1060 of 2012
BETWEEN:-
PRAHLAD S/O SHANKARLAL PARMAR, AGED
ABOUT 38 YEARS, OCCUPATION: LABOUR
KAMLA NAGAR, NEAR VETERINARY
COLLEGE P.S. KISHANGANJ TEH. MHOW
(MADHYA PRADESH)
.....APPELLANT
(BY SMT. SHARMILA SHARMA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU. P.S. MHOW DISTT. INDORE (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI AMIT SINGH SISODIYA, G.A. )
........................................................................................................
Reserved on 25.08.2022
Delivered on 13.10.2022
.......................................................................................................
This appeal coming on for judgement this day, JUSTICE
SUBODH ABHYANKAR passed the following:
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
2
JUDGEMENT
1] This criminal appeal has been filed under Section 374(2) of
Cr.P.C. against the judgement dated 31.07.2012, passed in Sessions
Trial No.1154/2009 by II Additional Sessions Judge, Mhow, District
Indore (MP) whereby finding the appellant guilty, the learned Judge
of the trial Court has convicted the appellant under Section 302 of
IPC and sentenced him to undergo rigorous imprisonment for life
with default clause.
2] In brief, the facts giving rise to the present appeal are that the
appellant Prahlad got married to the deceased Kiran in the year
2000 but as he started harassing her, she was brought by her cousin
Subhash to his house, where the deceased gave birth to a child. In
the mean time, the appellant got into an illicit relationship with
another woman, one Manju Bai and started residing at Pithampur.
On 26-27.12.2008, appellant's sister and brother Santosh went to
the house of Subhash and asked him to send Kiran back and they
will not harass her anymore to which Subhash sent Kiran to her in-
laws house and she started residing with the appellant Prahlad at
Kamla Nagar, but frequent quarrels took place because of Manju
Bai with whom the appellant had illicit relations. It is alleged that
on the date of incident at around 11:30 in the night, when the
deceased Kiran was sleeping in her house along with her son Pw/6
Yash, whereas her nephew Pw/24 Arun was sleeping in the next
room with his grandmother Pw/11 Janibai, at that time the appellant
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Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
came and attacked Kiran with knife. Appellant's mother Jani Bai
also tried to save Kiran, but appellant pushed her away because of
which Jaani Bai also suffered some injuries including a knife injury.
The incident was witnessed by Yash aged 8 years, the son of the
appellant and the deceased Kiran. Kiran was taken to Madhya
Bharat Hospital from where she was shifted to M. Y. Hospital,
where she succumbed to injuries. An FIR was registered at the
instance of Subhash and investigation ensued and charge sheet
filed. The learned Judge of the trial Court, after appreciating the
evidence recorded in the trial, has convicted the appellant as
aforesaid. Hence, this appeal.
3] Counsel for the appellant has submitted that the appellant has
been falsely implicated in the case only on the testimony of child
witness PW-6 Yash, who himself has not supported the case of the
prosecution, and who, in para 7 of his cross-examination has stated
that he has not witnessed any incident as he was sleeping along with
her grand-mother. Counsel has also submitted that the mother of the
appellant Jani Bai PW-11 has also not supported the case of the
prosecution. It is also submitted that the FSL report is also
inconclusive, hence, cannot be relied upon. And the other witnesses,
the Pw/4 Kanta bai, the mother of the deceased and Pw/5 Subhash,
the cousin of the deceased are not the eye witnesses hence are not
relevant.
4] Counsel for the State, on the other hand, has opposed the
prayer and it is submitted that no case for interference is made out
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Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
as the appellant has been rightly convicted for the murder of his
wife and thus, the appeal is liable to be dismissed.
5] Heard counsel for the parties and perused the record.
6] From the record, it is found that so far as the death of the
deceased Kiranbai is concerned, her postmortem has been
performed by PW-3 Dr. M.N. Unda, who found the following
injuries on her person:-
" Injury Nos.1 to 10 were the incised wounds on
her back, thigh, forearm, right forearm, shoulder,
on her left breast, left side of her abdomen and
injury Nos.11, 12 and 13 were the stab wounds
inflicted on her breast, abdomen and hip. Injury
No.14 was also an incised wound."
7] The cause of death is said to be excessive bleeding and shock
and the injuries was homicidal in nature.
8] So far as the culpability of the appellant is concerned, the
only eyewitness is PW-6 Yash, who happens to be the appellant's
son. PW-6 has stated in his examination-in-chief that his father the
appellant initially hit his mother on her head with a stick and when
she fell down, appellant assaulted her with a knife. He has stated
that the time was around 11 O' clock in the night and he was lying
on the bed with a quilt on his face and as he was too afraid, he slept
after taking cover of the quilt. He has also stated that after
committing the crime, his father ran away from the spot. He has
also stated that his grand-mother also tried to save his mother, but
she was also injured.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
9] It is true that in his cross-examination, which took place on
09.09.2010 i.e., after around 22 days of his examination-in-chief
which took place on 17.08.2010, he has also stated that his maternal
grand parents have apprised him about what is to be stated in the
Court. He has also admitted that he has not seen the incident.
However, in para 12 of his cross-examination he has denied that he
has given his statement on being tutored by his maternal uncle and
his maternal grand parents. It is apparent that this witness is won
over by the defence during the period of 22 days which the learned
judge of the trial court allowed to elapse between his examination-
in-chief and his cross-examination. This practice of adjourning the
case for the purposes of cross examination of the witness is highly
deprecated and has also been criticized by this court in the case of
Hirdesh Sahu vs. State of M.P. In M.Cr.C.No.29219/2021 vide
order dated 24/06/2021 has taken note of the non compliance of the
provisions of s.309 of Cr.P.C. and has held as under:-
"11. This court had also called for the proceedings of the Trial
court to see as to why after the victim child witness's
examination-in-chief on 04.10.2019, he was cross examined only
on 18.12.2019 i.e. after more than two months, and it was found
that on 04.10.2019 the examination could not be completed due to
end of court hours and the case was fixed on 13.11.2019 i.e. after
more than 39 days and there after on 13.11.2019 and 28.11.2019,
the child witness remained absent and finally on 18.12.2019 he
was cross-examined and took a somersault from his earlier story
by denying everything. It is apparent that in the meantime, he was
won over by the accused persons. At this juncture it would be
necessary to refer to sub-section (1) of s.309 of Cr.P.C. which
reads as under:-
"Section "S. 309 (1) In every inquiry or trial, the
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Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
proceedings shall be held as expeditiously as
possible, and in particular, when the examination
of witnesses has once begun, the same shall be
continued from day to day until all the witnesses in
attendance have been examined, unless the Court
finds the adjournment of the same beyond the
following day to be necessary for reasons to be
recorded."
(emphasis supplied)
12. This court is well aware of the time constrains of the trial
courts for myriad of reasons but it appears that the aforesaid
provision of law has been given a complete go-by by the learned
judge of the trial court while fixing the date for cross-
examination. The relevant excerpts of the order dated
04.10.2019 read as under:-
04.10.2019
**..................................................
izdj.k vfHk;kstu lk{; gsrq fu;r gSA
vfHk;kstu lk{kh jksfgr tSu ,oa v{kr tSu mifLFkrA
vfHk;kstu lk{kh jksfgr tSu v-lk-&1 dks 'ks"k izfrijh{k.k mijkar
mUeqDr fd;k x;k rFkk vfHk;kstu cky lk{kh v{kr tSu ls iz'u iwNs x;s
mlds }kjk fn;s x;s mRrj dks n`f"Vxr j[krs gqos lk{kh iz'uksa dks le>dj
mudk mRrj nsus esa l{ke izrhr gksus ds dkj.k mldk eq[; ijh{k.k izkjaaHk
fd;k x;k rFkk U;k;ky;hu le; lekIr gksus ds dkj.k lk{kh dk
izfrijh{k.k Lfkfxr fd;k tkdj vkxkeh is'kh rkjh[k dh lwpuk nsdj
mUeqDr fd;k x;kA
izdj.k vfHk;kstu lk{kh v{kr tSu ds izfrijh{k.k gsrq fnukad
[email protected]@2019 dks is'k gksA**"
13. This court is at pains to see the casual manner in which
the next date is fixed in this case. In the considered opinion of
this court the learned judge ought to have seen the sensitivity of
the matter and should not have given such long date for no
apparent reasons for the purposes of cross-examination which
has led to the material witness turning hostile, seriously
jeopardizing and undermining the efforts made by the police
officers to bring home the charges against the accused persons,
and to say the least, of the cost involve in the rescue operation
which is always borne by the State.
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
14. In such circumstances, lest it is again forgotten, it is
hereby directed to all the judges of the trial court, to ensure the
compliance of Section 309 of Cr.P.C. and specially in sensitive
cases like murder, abduction and rape, it should be observed
religiously, without fail and cases should not be adjourned on the
drop of a hat.
Let a copy of this order be forwarded to the Registrar General for
its proper compliance."
(emphasis supplied)
10] A perusal of the aforesaid order also reveals that this problem
of granting adjournments to the defence counsel after a witness's
examination-in-chief is recorded, is rampant in the trial courts and
has to be discouraged at every level.
11] PW-11 Jani Bai, happens to be the mother of the present
appellant, who has also suffered injuries in the incident, however,
she has not supported the case of the prosecution and has been
declared hostile. She has also denied that during the scuffle when
his son was assaulting his wife, he had pushed her and that she had
also suffered a knife injury. PW-22 Dr. D. Haritwal Medical Officer
at Civil Hospital, Mhow had examined PW-11 Jani Bai and had
found the following injuries on her person vide Ex.P40 :-
"1- ,czs'ku 1**x4** cka;s gkFk ds fupys Hkkx esa ¼QksjvkElZ½A
2- iqV~Bksa esa dkQh nnZ FkkA"
12] It is also found that the defence or Janibai has not explained
the injuries suffered by her on the same day which otherwise stand
proved by the treating Doctor Pw/22, who has no reasons to give a
false report, thus, it can be safely presumed that Pw/11 Jani bai was
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
very much present on the spot which is her house only and suffered
injuries while trying to save her daughter-in-law, the deceased
Kiran bai.
13] It is also found that in the FSL report the knife article 'G'
seized from the appellant had blood stains on it, however, the report
is inconclusive in nature. It is true that the result of the FSL report is
inconclusive, but still it cannot be discarded on this ground only as
has also been held by the Supreme Court in the case of Ramnaresh
v. State of Chhattisgarh, (2012) 4 SCC 257 :-
"18. PW 1, PW 6 and PW 12 had substantially supported
the case of the prosecution and we are unable to notice any
substantial conflict or contradiction in their statements. The
semen, blood and bloodstained clothes, which had been
seized during the investigation, had been sent for
examination. The report of the FSL had been placed on
record as Ext. P-23. Such evidence would be admissible in
terms of Section 293 CrPC.
19. The merit or otherwise of this report was examined by
the High Court as follows:
"(8) During trial, report of the Forensic Science
Laboratory, Raipur, Ext. P-23 dated 31-7-2007 was
produced and admitted in evidence under Section 293 of the
Code by which the presence of blood on Articles A, B, C,
D, E, F1, F2 and presence of seminal stains and human
spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and
K1 was confirmed. Seminal stains and human spermatozoa
was not found on Articles A and B. The seminal stains on
Articles C, D, E, F1 and F2 were not sufficient for
serological examination. The slides Articles G2, H2, I2, J2
and K2 were preserved if DNA test was felt necessary. The
prosecution examined as many as 16 witnesses. The
appellant-accused examined Samelal, DW 1 and Kamla,
DW 2, wife of Ranjeet to establish that the appellant-
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
accused had slept in their respective houses between 9 to 10
p.m. on 9-8-2006."
20. As is evident from the above findings, the report of
the FSL was inconclusive but not negative, which would
(sic not) provide the accused with any material benefit."
(emphasis supplied)
14] When tested on the anvil of the aforesaid dictum of the
Supreme Court, the facts of the case at hand also reveal the similar
situation where although the blood has been found on the knife
seized from the appellant but the report is inconclusive which
would not ensure any material benefit to the appellant.
15] The injuries (total 13 in numbers) appear to have been caused
with a vengeance and with brutal force which, in the considered
opinion of this court, they can be caused by someone having deep
repulsion towards the deceased and considering the depositions of
Pw/4 Kanta bai, the mother of the deceased and Pw/5 Subhash, the
cousin of the deceased, both of whom have stated that the appellant
used to beat his wife, his motive to remove his wife from his life is
not far to see.
16] In such facts and circumstances of the case, this court does
not find any error in the findings recorded by the trial court.
Resultantly, the impugned judgment is affirmed and the appeal is
hereby dismissed.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Pankaj
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 13-10-2022
17:40:32
