Madhya Pradesh High Court
Dinesh vs The State Of Madhya Pradesh on 31 October, 2022
Author: Sujoy Paul
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 3rd OF NOVEMBER 2022
CRIMINAL APPEAL No.576 OF 2013
Between :-
DINESH, AGED ABOUT 37 YEARS, S/O
JAMNA PRASAD KOSHTHI, R/O
MAINPUR, P.S. MAINPUR, DISTRICT
MANDLA (MP)
....APPELLANT
(BY SHRI P.K. NAVERIYA- ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH STATION HOUSE OFFICER,
DISTRICT SAGAR (MP)
....RESPONDENT
(BY SHRI YOGESH DHANDE- GOVERNMENT ADVOCATE)
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This criminal appeal coming on for final hearing this day, Justice
Sujoy Paul, passed the following :
JUDGMENT
This appeal filed under Section 374(2) of the Code of Criminal
Procedure, 1973 (In short 'Cr.P.C') takes exception to the judgment dated
28.2.2013 passed in Sessions Trial No.107/12 by the learned 5 th
Additional Sessions Judge, Sagar whereby the appellant was held guilty
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Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
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for committing offences under Sections 302 and 498-A of Indian Penal
Code (IPC) and directed to undergo sentence of Life Imprisonment with
fine of Rs.5000/- for committing offence under Section 302 of IPC
whereas for committing offence under Section 498-A, the appellant was
directed to undergo sentence R.I. for three years with fine of Rs.1000/-
with default stipulation. The appellant was acquitted from the offence
under Sections 304-B and 306 of IPC.
FACTUAL BACKGROUND
2. The admitted facts between the parties are that the deceased Nitu
was wife of the present appellant. Their marriage was solemnized on
18.1.2008. On 31.10.2011, the deceased Nitu and her real sister Dolly
(PW-10) alongwith certain other persons attended a picnic. In the picnic,
the husband of deceased did not participate. After the picnic, the
deceased and her real sister Dolly (PW-10) came back to their residence
at Tirupatipuram, District Sagar. The appellant allegedly reached his
home on 31.10.2011 at around 11:00 PM. The appellant allegedly asked
his wife to put a mosquito net on the bed. Thereafter, the deceased went
to the washroom. From washroom, she cried and hearing the cry,
husband of deceased followed her to the bathroom. When the solitary
eye-witness Dolly (PW-10) reached there, she allegedly found that the
appellant is administering some liquid to his wife which looked like
water.
3. Nitu, the wife of the appellant was taken to hospital and found to
be dead. After investigation, the challan was filed and in due course, it
reached to the Sessions Court. The appellant abjured the guilt and prayed
for a full fledged trial.
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Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
11:38:29 AM
4. The Court below framed seven questions for its determination.
After recording the statement of witnesses and hearing the parties, the
impugned judgment was passed. The Court below on the basis of solitary
eye-witness Dolly (PW-10) came to hold that appellant has committed
offence under Sections 302 and 498-A of the IPC. The appellant was
exonerated from offences under Sections 304-B and 306 of the IPC.
Submissions :-
5. Shri Pradeep Naveriya, learned counsel for the appellant submits
that the statement of solitary eye-witness Dolly (PW-10) is not sufficient
to hold the appellant as guilty. The other family members of deceased
although became prosecution witnesses, they all are hearsay witnesses,
whose testimony is solely based on the information allegedly furnished
by Dolly (PW-10). Since the statement of Dolly (PW-10) itself is not
sufficient to establish the charges, the statement of other witnesses based
on it are also liable to be discarded.
6. Apart from this, it is canvassed that the incident had taken place on
30.10.2011. The Merg was registered on 31.10.2011. The site map was
prepared on 05.11.2011. The statements of family members and Dolly
(PW-10) under Section 161 of Cr.P.C. were recorded on 11.11.2011.
There is an unexplained and inordinate delay in recording the statement
of these material witnesses which creates serious doubt on the
prosecution story.
7. Apart from this, Dolly (PW-10) in Para-4 of her cross-examination
categorically deposed that she deposed her statement in Gopalganj, Police
Station on the next day of death of her sister. However, no such statement
of Dolly (PW-10) was placed on record which creates serious doubt on
the story of prosecution.
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Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
11:38:29 AM
8. The next reliance of Shri Naveriya is on the statement of Dolly
(PW-10) recorded under Section 161 of Cr.P.C. It is submitted that
during her cross-examination in the Court, she was confronted with her
previous statement Ex.D/6. She candidly admitted that she is not aware
as to how the portion 'B to B' was recorded by the prosecution. By
placing reliance on the said portion which was marked as 'B to B', it is
urged that even in this portion, Dolly (PW-10) stated that she fully
believes that the deceased had consumed poison because of problems
created by appellant Dinesh or in alternatively Dinesh perhaps
administered poison to her. This statement, submits Shri Naveriya,
Advocate is not sufficient to hold somebody guilty for committing
offence under Section 302 of the IPC.
9. The statement of Dolly (PW-10) was further relied on which she
was confronted with Ex.D/7 and she categorically admitted in Para-15 of
the cross-examination that she did not depose about 'C to C' portion of
Ex.D/7. The said portion was also relating to a doubt created by her that
her brother-in-law/appellant has administered poison to his wife.
10. It is further pointed out that a conjoint reading of Para-13 and Para-
26 of the impugned judgment makes it clear that appellant was held guilty
of committing offence under Section 302 of IPC solely on the basis of
statement of Dolly (PW-10). The said statement does not inspire
confidence. Apart from this, the statement of Ramprasad (PW-4), Ajay
Koshthi (PW-7), Nitin Koshthi (PW-8) and Ghaseti (PW-11) are also not
trustworthy on the strength of which appellant was held guilty for
committing offence under Section 498-A of IPC.
11. By placing reliance on Supreme Court judgments in the cases of
Dibaker Nunia and Another Vs. The State of Assam 2022 (3) Crimes
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SHRIVAS
Signing time: 11/5/2022
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274 (SC) and The State of Odisha Vs. Banabihari Mohapatra and
Another (Special Leave Petition (Crl.) No. 1156/2021, Shri Naveriya
urged that the prosecution has not established its case beyond reasonable
doubt. The appellant could not have been held guilty merely on the basis
of suspicion. In view of said Supreme Court judgments, the appellant
deserves to get the benefit of doubt. Appellant is in custody since
27.12.2011. The impugned judgment may kindly be interfered with.
12. Shri Yogesh Dhande, learned public prosecutor opposed the
contention and supported the impugned judgment. Shri Dhande submits
that Dolly (PW-10) was admittedly present in the residence of appellant
when incident had taken place. Her statements recorded under Section
161 of Cr.P.C. i.e. Ex.D-6 and D-7 are in tune with her court statement.
In all the statements, she deposed that appellant was administering some
water like substance to the deceased and thereafter she died. Thus, no
fault can be found in the impugned judgment.
13. The parties confined their arguments to the extent indicated above.
14. We have heard the parties at length and perused the record.
Findings :-
15. A combined reading of Para-13 and 17 of the impugned judgment
shows that the Court below has answered question No. 3 in affirmative
and opined that appellant has committed offence under Section 302 of
IPC. The conviction is solely based on the statement of Dolly (PW-10).
This is evident from Para-26 of the impugned judgment.
16. The incident had taken place on 30.10.2011. The investigating
agency recorded Merg on the next day and prepared a 'site map' on
05.11.2011. The map was prepared in the presence of a senior officer i.e.
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Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
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City Superintendent of Police (CSP). The statements under Section 161
of Cr.P.C. of Dolly (PW-10) and other witnesses were recorded only on
11.11.2011. No plausible and justifiable reason is available on record to
justify the delay of almost 11-12 days in recording the said statement.
Similarly, there exists nothing on record to show that when Dolly (PW-
10) deposed that her statement was indeed recorded on the next date of
incident in Gopalganj Police Station, why said statement was not placed
on record.
17. Thus, we find substance in the argument of Shri Naveriya that this
inordinate and unexplained delay in recording the statement aforesaid
creates a doubt on the prosecution story.
18. The statement of Dolly (PW-10) became the sole reason for
conviction of appellant under Section 302 of IPC. Pertinently, in her
statement, recorded under Section 161 of Cr.P.C. (Ex. D/6), she deposed
that she believes that her sister has either consumed poison because of
sufferings caused by appellant Dinesh or Dinesh had administered poison
to her. In her cross-examination in Paragraph-11, she deposed that she
had not stated what has been recorded in Ex.D/6 between 'B-B'.
19. Similarly, with regard to Ex.D/7, wherein she deposed that she had
doubt that her brother-in-law had administered poison to her sister, she
stated in Paragraph-15 of cross-examination that she did not depose any
such statement. Thus, there are serious contradictions in her court
statement and the statements recorded under Section 161 of Cr.P.C.,
which causes serious dent to her court statement. This is trite that
suspicion, however strong may be, cannot take place of the proof. The
Apex Court in catena of judgments has taken this view. In Kaliram Vs.
State of Himachal Pradesh, AIR 1973 SC 2773, the Apex Court had
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SHRIVAS
Signing time: 11/5/2022
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taken the said view. Similar view was taken in Sujit Biwas Vs. State of
Assam, AIR 2013 SC 3817.
20. The ratio-decidendi of these judgments was followed by the Apex
Court in the cases of Banabihari Mohapatra (supra) and Dibaker Nunia
(supra). In view of foregoing analysis, in our opinion, the vague
statement of Dolly (PW-10) was not sufficient to hold the appellant as
guilty for committing offence under Section 302 of IPC. In our
judgment, the prosecution could not establish its case beyond reasonable
doubt so far offence under Section 302 of IPC is concerned. So far
offence under Section 498-A is concerned, the appellant was held guilty
and was directed to undergo sentence of three years, which period is
admittedly over. Since this appellant has already suffered this sentence
and Shri Naveriya informs that fine has already been deposited, no
serious arguments were advanced to assail conviction under Section 498-
A of IPC.
21. So far as the report of Doctor (PW-2) and postmortem report is
concerned, no doubt, cause of death is consuming poisonous substance.
FSL report also corroborates the same. In our opinion, unless it is
established with accuracy and precision that said poisonous substance
was indeed administered by appellant to the deceased, merely because
cause of death is existence of the said substance, appellant cannot be held
guilty on the basis of suspicion.
22. In view of foregoing analysis, the impugned judgment dated
28.02.2013 deserves to be and accordingly set aside to the extent
appellant was held guilty under Section 302 of IPC. Appellant is
acquitted by giving him benefit of doubt for committing offence under
Section 302 IPC. Since appellant has already undergone sentence under
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Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
11:38:29 AM
Section 498-A and even completed the extended period relating to non-
deposit of fine, we need not interfere with the impugned judgment in this
regard. If appellant's presence is not required in the prison for any other
offence, the appellant be released forthwith.
23. The appeal is partly allowed.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
bks
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 11/5/2022
11:38:29 AM
