Dheerendra Mishra vs The State Of Madhya Pradesh
2023 Latest Caselaw 21748 MP

Madhya Pradesh High Court

Dheerendra Mishra vs The State Of Madhya Pradesh on 19 December, 2023

Author: Anuradha Shukla

Bench: Anuradha Shukla

                                 1
 IN     THE        HIGH COURT OF MADHYA PRADESH
                        AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 19 th OF DECEMBER, 2023
                   CRIMINAL APPEAL No. 877 of 2015

BETWEEN:-
DHEERENDRA MISHRA S/O SHRI MOHANLAL MISHRA,
AGED ABOUT 35 YEARS, R/O ANANTPUR, POLICE
STATION VISHWAVIDYALAYA, DISTT. REWA (MADHYA
PRADESH)

                                                               .....APPELLANT
(BY SHRI PRAKASH UPADHYAY - ADVOCATE)

AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION  VISHWAVIDYALAYA, DISTRICT REWA
(MADHYA PRADESH)

                                                              .....RESPONDENT
(BY SHRI D. K. SHUKLA - PANEL LAWYER)

      Heard on        : 30.11.2023
      Pronounced on: 19.12.2023

      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
                                JUDGMENT

T his criminal appeal has been preferred against the judgment dated 16.03.2015 passed by the Third Additional Sessions Judge, Rewa in S.T. No.85/2014, whereby the appellant was convicted for the offence under Section 498-A of IPC and sentenced to undergo RI for 2 years alongwith fine of Rs.1,000/- with a further direction to undergo RI for 3 months in case of non- payment of fine.

2. Brief facts of the prosecution case are that deceased Sandhya Mishra was the wife of appellant. Their marriage was solemnized somewhere in the year 1996-1997. Appellant was working in CRPF. About a year prior to the incident, appellant developed illicit relationship with another woman and was living with her. This information reached to his wife who shared it with her parental relatives. They discussed the matter with appellant and his family members and asked him not to behave irresponsibly. Having considered the family reputation, no report was lodged. On 09.09.2013 appellant brought that another lady to his house, to which his wife Sandhya Mishra objected. The parents and other relatives of appellant did not support Sandhya Mishra and instead asked her not

to raise any hue and cry. They also scuffled with Sandhya Mishra. Father of Sandhya namely Lalmani Pd. Dwivedi went to the house of appellant on receiving this information and soon after his return, information about death of Sandhya Mishra on 12.9.2003 was received. Her relatives arrived at her matrimonial place. Merg was instituted and upon postmortem it was revealed that Sandhya died of consuming poison. Her viscera was sent to FSL Bhopal for chemical analysis, which also confirmed presence of poisonous substance. On the basis of statements recorded during merg inquiry, offence under Section 306/34 of IPC was registered at Crime No.415/2013 against appellant, his parents Mohanlal and Indrawati, his brother Virendra @ Mahendra and wife of Virendra namely Kokila @ Aarti Mishra. The trial was held for the charge of Sections 498-A and 306 of IPC against all the five persons, but only appellant was convicted under Section 498-A of IPC and was sentenced as detailed above.

3. The grounds raised in this criminal appeal are that three witnesses

namely Phoolmati (PW5), the mother of deceased, Lalmani (PW4), father of deceased and Ramesh Kumar Dwivedi (PW6), the brother of deceased were declared hostile by the prosecution, still the Court held the appellant guilty. The verdict of Court was primarily based on statement of Chandrabhushan Prasad (PW7), but his Court testimony was full of contradictions and improvements. Further, his statements were only of hearsay nature. It was observed by the Court below that there was no direct evidence against the appellant and further there was no circumstantial evidence to hold the appellant guilty of offence of Section 306 IPC, still the Court below acted on conjectures and surmises and held him guilty on the basis of same evidence under Section 498-A IPC. The trial Court failed to appreciate the evidence in correct perspective and gave a perverse finding. The sentence awarded to the appellant was also very harsh and excessive. It is, therefore, prayed that the appeal be allowed and the appellant be acquitted.

4. On the other hand, learned counsel for the State has vehemently opposed the present appeal and has prayed for its rejection.

5. Both the parties have been heard and the record has been perused.

6. To prove its case, prosecution has primarily relied upon the statements of parental relatives of deceased Sandhya Mishra. Lalmani (P.W.4) is the father, Phoolmati (P.W.5) is the mother, Ramesh Kumar Dwivedi (P.W.6) and

Chandra Bhushan Prasad (P.W.7) are the brothers while Rekha Dwivedi (P.W.9) is the sister-in-law of deceased. Dr. S. K. Pathak (P.W.1) conducted the post-mortem and Dr.Yatnesh Tripathi (P.W.3) gave information to police about the death of Sandhya Mishra. Ramesh Pandey (P.W.2) and Rajendra Choubey (P.W.8) are the witnesses relating to investigation proceedings. Defence examined the daughter of appellant and deceased, namely Preeti Mishra

(D.W.1).

7 . Merg intimation, marked as Ex.P-9, was written on the basis of information received from Dr. Yatnesh Tripathi of S.G.M.H., Rewa. In this Merg intimation, only the fact of death of Sandhya Mishra was reported without naming any person responsible for this death. Therefore, Merg enquiry was held and on its basis FIR, marked as Ex.P-12, was registered against five persons. As discussed earlier, four accused have been acquitted and only appellant is convicted in this case.

8. FIR, Ex.P-12, reveals that during Merg enquiry, statements of relatives of deceased were recorded including the statements of parents and brother Ramesh Kumar Dwivedi. Undoubtedly, the statements of parents were relevant to prove the offence but Lalmani (P.W.4), who was the father of deceased, and Phoolmati (P.W.5), who was the mother of deceased, have been declared hostile by the prosecution itself as they claimed that their daughter was never harassed in her matrimonial house. Similar are the statements of brother Ramesh Kumar Dwivedi (P.W.6), who too was declared hostile by the prosecution.

9 . Chandra Bhushan Prasad (P.W.7) is the other brother of deceased who has claimed in his statements that appellant was having illicit relationship with another woman and had also brought her to the house but seeing the resentment of family members, he took her back to the place where he was working. It has also been claimed by this witness that appellant used to physically assault the deceased and even prior to the death of Sandhya, appellant had beaten her. When this witness was cross-examined, he has clarified that all these facts were not in his personal knowledge and they were narrated to him either by his wife or by one Vivek, whose sister was married in

the same village where Sandhya had her matrimonial house. Thus, statements of Chandra Bhushan Prasad (P.W.7) are only of hearsay nature, which cannot be the basis of conviction as neither his wife nor informant Vivek were examined by the prosecution.

10. Chandra Bhushan Prasad (P.W.7) has also claimed that after hearing about the incident, he came to the matrimonial house of Sandhya, who was alive by then, and she told about the physical assault made on her, but he did not remain stable on these facts during his cross-examination. In para 6, he has admitted that she arrived at the matrimonial house of his sister Sandhya at around 5:00 p.m. and when he reached there, Sandhya was unconscious, although she was alive. It has also been admitted by him that he stayed there only for 2-3 minutes, therefore his claim that he was informed by Sandhya about the physical assault loses credibility. An unconscious person cannot narrate the incident. He did not try to explain that at any time during his stay at the matrimonial house of Sandhya, she gained consciousness and talked to him. In the absence of any such explanation, the narrative given by this witness is not found worthy of credit.

11. Rekha Dwivedi (P.W.9) is another relative of deceased who has claimed that Sandhya was being treated with cruelty but her statements are also not worthy of credit. According to her, all the family members of Sandhya had physically assaulted her when she objected to the act of appellant of bringing another woman to the house but Chandra Bhushan Prasad (P.W.7) has claimed that this act of appellant was opposed not only by Sandhya but also by all the family members of appellant. Thus, statements of Rekha Dwivedi on this point is contradictory.

12. Rekha Dwivedi (P.W.9) has claimed that all the persons who faced

trial had forced Sandhya to leave the house upon which Sandhya came to her parental house but this is a totally new story and its reference is not found in the statements of any other witnesses, including their police statements, nor it is mentioned in the FIR.

13. According to Rekha Dwivedi (P.W.9), Sandhya was beaten and was murdered. The source of this information was not revealed in the entire testimony of this witness. The defence has contradicted her against earlier statements, Ex.D2, which were given by her to the police. The cross- examination reveals that she has denied a major part of her police statements, marked as Ex.D-2. During her cross-examination in the court, no explanation was offered by this witness about the contradictions and omissions surfaced in statements. Although she is claiming that Sandhya was murdered but Dr. S. K. Pathak (P.W.1) found only one abrasion on her left hand and he has admitted that this abrasion was very minor in size and could have been caused while doing the house chores or having struck against a rough surface.

14. Having considered the statements of family members of deceased, who have either not supported the prosecution case or have given unreliable and contradictory testimony, this court is of the opinion that there is no convincing evidence available on record to sustain the conviction of appellant under Section 498-A IPC. His conviction and sentence are, therefore, set aside and he is acquitted.

15. The appeal is accordingly disposed of.

16. The appellant is on bail. His bail-bonds are discharged. The fine amount, if any, deposited by him be refunded to him.

17. Let a copy of this judgment along with its record be sent to the trial

court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2023.12.19 17:53:49 +05'30'