Madhya Pradesh High Court
Parsaram vs The State Of Madhya Pradesh on 29 February, 2024
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 1319 OF 2013
BETWEEN:-
PARASRAM S/O NAHARSINGH PATEL, AGED
ABOUT 35 YEARS, OCCUPATION - AGRICULTURE,
R/O - CHARIYA (ISMAL), FALIYA DASNAWAL, P.S.
GOGAWA, DISTRICT KHARGONE (MADHYA
PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
STATE OF M.P. THROUGH POLICE STATION
GOGAWA, DISTRICT KHARGONE (MADHYA
PRADESH)
....RESPONDENT
(BY MS. VARSHA SINGH THAKUR - GOVERNMENT
ADVOCATE)
---------------------------------------------------------------------------------------
Reserved on : 22/02/2024
Pronounced on : 29/02/2024
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA passed the
following:
JUDGMENT
1. Appellant has preferred the present Criminal Appeal under Section
374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") being
aggrieved by the impugned judgment dated 31.8.2013 passed by the 3 rd
Addl. Sessions Judge, Khargone (West Nimar) in S.T. No.78/13,
whereby the appellant has been convicted for the offence under Section
302 & 201 of IPC and sentenced to undergo Life Imprisonment with fine
of Rs.5,000/- and 7 years R.I. with fine of Rs.2,000/-, respectively, with
usual default stipulation.
2. The prosecution story, in brief, is that the deceased Bilati Bai was
the wife of the appellant Parasram. On 11.2.2013 at about 1 p.m. when
Mahriya was doing work in his field, at that time he saw that a dog was
digging out something in the field of Rameshwar. Then he saw that there
was a dead body of a lady inside the land. Then the matter was reported
to Police Station Gogawa and after obtaining permission of SDM,
Khargone the dead body was taken out from the field and Naksha
Panchayatnama was prepared. Dead body of the deceased was identified
by her daughter Kavita, then simple and blood stained soil and some of
the clothes of the deceased were seized from the spot and dead body of
the deceased was sent for postmortem, which was conducted by Dr.
Chetan Pathote (PW-20). The doctor found some antemortem injuries
over the chest, abdomen, right thigh, both the legs and 6 th & 7th ribs of
right side was found fractured. During the internal examination, right
lung was found ruptured and the doctor opined that death of the
deceased was due to the hemorrhage as a result of the fatal injuries on
the right lungs.
3. Further prosecution story is that during the Merg inquiry the
statements of deceased's daughter Kavita and son Anil were recorded
and they had informed the police that before them appellant murdered
their mother (deceased) by using kicks and fists and had assaulted upon
her by wooden stick and thereafter buried her dead body inside his field
by using Geti. Thereafter the accused was arrested and on the basis of
his discovery statement, his blood stained shirt and pant was recovered,
blood stained and simple soil was also recovered from his house. All the
seized articles along with the viscera of the deceased were sent to the
FSL for its chemical examination.
4. After completion of the investigation, charge sheet was filed
before the Judicial Magistrate First Class, Khargone, who has committed
the case to the Court of Sessions. Later on, the case was transferred to 3 rd
ASJ, Khargone. Thereafter the trial court on the basis of the allegation
made in the charge sheet, framed the charges under Section 302 & 201
of IPC against the appellant. The appellant abjured his guilt and pleaded
complete innocence. In order to bring home the charges, prosecution has
examined as many as 21 witnesses, while the defence did not examine
any witness. The trial court after appreciating the evidence available on
record, convicted the appellant for the offence under Section 201 & 302
of IPC and sentenced him as mentioned hereinabove. Hence, appellant
has preferred this appeal.
5. Learned counsel for the appellant contended that the judgment of
the trial Court is contrary to the law and facts on record. It is neither
legal, nor proper, nor correct. The trial court did not consider the facts
and depositions of the witnesses. Kavita and Anil are the child witnesses,
they are tutored, therefore, their statements cannot be relied upon in
view of the material contradictions and omissions in their depositions.
Deceased was murdered by some unknown person due to the election
and political enmity. The trial court was wrong in drawing unwarranted
inference and not considering the material contradictions and omissions
in the statement of the prosecution witnesses. Prosecution has failed to
prove its case beyond reasonable doubt. The conviction of the appellant
is bad in law. Hence, he prays that the appeal be allowed and the
judgment of conviction passed by the trial court be set aside and the
appellant be acquitted from all the charges.
6. Per contra, learned counsel for the respondent/State opposed the
prayer by submitting that the trial court after appreciating the entire
evidence available on record in detail, came to the conclusion that the
deceased was murdered by the appellant. Therefore, the trial court has
not committed any error in holding that the appellant is guilty of the
aforesaid offence. Therefore, the present appeal deserves to be
dismissed.
7. We have heard learned counsel for both the parties at length and
perused the entire record with due care.
8. Considering the plea raised at Bar, we are required to examine as
to whether the learned trial Court has committed any factual or legal
error in arriving at the finding of guilt against the appellant regarding the
aforesaid offence. We find that the following questions emerge for
consideration:-
(i) Whether, the death of the deceased was homicidal in nature or not?
(ii) Whether, the appellant has committed murder of the deceased?
(iii) Whether, the appellant has hidden the dead body of the deceased
with the intention of screening himself from legal punishment?
9. Dr. Chetan Pathote (PW-20), who has conducted the postmortem
of the deceased on 12.2.2013, on examination of the dead body of the
deceased Bilati Bai, he found that the teeth and vagina were protruded,
the teeth had fallen and kozeny of its socket seen. Rectum and vagina
were protruded. Multiple contusions were found at the Chest, abdomen,
right thigh, hip and both the legs. Contusions were antemortem in nature.
Rigormortis was over and maggots was found on the eyes. Antemortem
injury was found on the chest of 2x2 c.m., 6 th & 7th ribs of right side
were found fractured and left lung was also found ruptured. The doctor
opined that cause of death is cardio respiratory arrest due to the asphyxia
caused by hypovolemic shock, due to the injuries on the lungs. Time of
death was more than 7 days prior. The postmortem is Ex.P/33.
10. From perusal of the entire evidence, it appears that there is no
evidence available on record, which shows that the injuries sustained by
the deceased were caused by herself or sustained in any other accident.
Thus, there is no reason to disbelieve the cogent findings given by Dr.
Chetan Pathote (PW-20) that the cause of death of the deceased was
homicidal in nature.
11. In the instant case Kavita (PW-1) and Anil (PW-2) have been
examined by the prosecution as eyewitnesses. Kavita (PW-1) who was
aged about 11 years at the time of incident and daughter of the deceased,
has categorically deposed in her statement that at the time of incident,
she along with her brother and sisters were inside their home. Her father/
appellant Parasram demanded some money from her mother/deceased
for consuming liquor. When her mother denied, then appellant gave
repeated blows of stick upon her. Then again at 10 p.m. appellant started
Marpit with her mother by means of stick and kicks & fists and
thereafter at the night time her father took her mother into the field and
at about 2.00 A.M. her father returned to home. On the next morning she
went to the Mohammadpur at her grand-father's home. Kavita (PW-1)
also deposed that her father also demanded Rs.3,000/- for repairing
work in the house from her grand-father and she narrated the whole
incident to her brother Anil and grand-father Nahar Singh and the police
recovered the dead body of her mother from a pit found in their
agricultural field.
12. The other eyewitness Anil (PW-2), who was 17 years old at the
time of incident, also deposed that his father committed Marpit with his
mother and buried her dead body in a pit in their agricultural field and
his sister Kavita also informed him that on the date of incident, his father
has taken Rs.3,000/- on the pretext of repairing work in the home and
Kavita told him that on the last night his father came to the house in
drunken condition and demanded money from his mother and when his
mother denied for it, then his father committed Marpit with his mother
by using kicks and fists and thereafter took her on his shoulder.
Statement of both these eyewitnesses are well supported by Nahar Singh
(PW-3) who happens to be father of the appellant, who has also
corroborated that his son/appellant Parasram used to beat his daughter-
in-law (deceased) and also broken her teeth. He doubted upon the
character of the deceased and on the date of incident they have sold out a
bull for consideration of Rs.11,000/- and Parasram had taken Rs.3000/-
from the possession of Anil and his grand-daughter Kavita informed him
that her father is demanding more money from her mother and when she
denied, then the appellant has beaten the deceased by using kicks and
fists as well as wooden stick and took her mother outside the house at
the night time. Mahariya (PW-4), Pinjari Bai (PW-5), Sangita Bai (PW-
6), Kunwar Singh (PW-7), Bhairam (PW-8), Nansingh (PW-9), Menga
Bai (PW-10), Salim (PW-11) and Jogilal (PW-13) also supported the
statement of Kavita and Anil. Mahariya (PW-4) has also lodged Dehati
Nalishi (Ex.P/3) at the police station.
13. Learned counsel for the appellant contended that Kavita (PW-1)
and Anil (PW-2) both are the child witnesses and have been tutored by
the police. Then did not immediately informed the police regarding the
said incident. Their police statements have been recorded after 7-8 days
of the incident, therefore, their statements cannot be relied upon. But
Kavita (PW-1) and Anil (PW-2) both have categorically denied in their
cross-examination that they have falsely implicated the appellant after
being tutored by the police.
14. In the instant case, the statements of Kavita (PW-1) and Anil (PW-
2) have been found trustworthy by the trial Court. We have carefully
gone through their statements, which are clear, cogent, consistent and
free from any material infirmity or anomaly. Despite being subjected to
the searching cross-examination, the defence has not been able to shake
their credibility. Being minor son and daughter of the deceased and the
fact that they are residing with the deceased and the appellant in the
same house, where the incident took place, their presence on the spot
cannot be doubted. Apart from the above, nothing has been emerged in
their cross-examination to indicate that they have any motive to falsely
implicate the appellant, who happens to be their father in a case of
causing murder of their mother.
15. It is relevant to note that merely because a witness is a child
witness, his testimony cannot be discarded. Section 118 of the Evidence
Act, which provides that all persons shall be competent to testify unless
the Court considers that they are prevented from understanding the
questions put to them or giving rational answers to those questions, by
tender years, extreme old age, disease, whether of the body or mind, or
any other cause of same kind. In the present case, on perusal of the
deposition-sheet of Kavita and Anil, it is evident that the learned trial
Court has put certain questions and tested their intelligence to answer
those questions and has satisfied itself with regard to their competence to
depose and therefore, we do not find any force in said argument raised
by the counsel for the appellant.
16. Another serious challenge has been made to the testimony of
Kavita (PW-1) and Anil (PW-2), who are the child witnesses aged about
11 and 17 years respectively, hence, at the very outset it has to be
examined whether their testimony inspire confidence. The law is well
settled that a reasonable degree of caution and circumspection is
required while dealing with the evidence of a child witness (See:
Rajaram Yadave Vs. State of Bihar reported in JT 1996 SC 140),
however, if the same on a close and careful scrutiny is found to be
reliable, the Court can act upon such an evidence.
17. Similarly, in the case of Dattu Ramrao Sakare Vs. State of
Maharashtra reported in (1997) 5 SCC 341, Hon'ble Supreme Court
has held as under:-
"A child witness if found competent to depose to the facts and
reliable on such evidence could be the basis of conviction. In
other words even in the absence of oath the evidence of a child
witness can be considered under Section 118 of the Evidence
Act provided that such witness is able to understand the
questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the Court should bear in mind while assessing
the evidence of a child witness is that the witness must be
reliable one and his/her demeanour must to like any other
competent witness and there is no likelihood of being tutored".
(See also Ranjeet Kumar Ram @ Rajeet Kumar Das Vs. State
of Bihar (2015) SCC Online SC 500), State of Rajasthan Vs.
Chandgi Ram and Ors. (2014) 14 SCC 596)."
18. In the instant case, the trial Court has rightly recorded its
satisfaction that the child witnesses are able to understand the questions
and give the answers thereto. Thus, necessary precaution was taken by
the court below in the light of the judgment of the Hon'ble Apex Court
in the case of Dattu Ramrao Sakare (supra). We do not see any
procedural impropriety in recording the statement of child witnesses.
Kavita (PW-1) narrated the nature of assault, place of incident, time of
incident and about other attendant circumstances. During the course of
the cross-examination, the defence could not demolish her statement,
wherein she narrated that her father was assaulted by the appellant. The
nature of blows and consequent injuries narrated by her are tallying with
the medical evidence. In this view of the matter, we are of the considered
view that statement of above child witness, who is the eye witnesses
appears to be trustworthy and her evidence cannot be discarded. Though
there is certain discrepancies, but they are minor and trivial in nature and
do not dent the prosecution case at all.
19. Apart from the aforesaid evidence, Sub-Inspector Suraj Nagvanshi
(PW-19) deposed that he has arrested the appellant on 12.2.2013 through
arrest memo Ex.P/9 and on the basis of his discovery statement
(Ex.P/10), he recovered the wooden stick and Geti through seizure
memo (Ex.P/13). He also recovered blood stained and simple soil, blood
stained shirt and pant of the appellant from his house through seizure
memo (Ex.P/11 & P/14) and thereafter he sent all the seized articles to
the FSL for its chemical examination. Investigation report is Ex.P/30 &
P/31. Accordingly human blood was found on the seized articles.
Bhairam (PW-8) also corroborated that the police has seized blood
stained and simple soil and blood stained shirt and pant of the appellant
from his possession and also arrested him.
20. Therefore, we do not find any reason to disbelieve the testimony
of the investigating officer. In the instant case, it is established beyond
reasonable doubt that the appellant has doubted upon her wife/deceased
about her character. Kavita (PW-1), Anil (PW-2), Nahar Singh (PW-3),
Pinjari Bai (PW-5) and Sangita Bai (PW-6) also corroborated the same
fact. Therefore, motive has been duly proved by the prosecution. It is
also proved that at the time of incident appellant gave repeated blow of
wooden stick and kicks and fists over the vital parts of the body. The
statement of the eyewitnesses Kavita (PW-1) and Anil (PW-2) are well
supported by the statements of other prosecution witnesses and also duly
corroborated by the medical evidence as well as Dehati Nalishi.
Therefore, their statement appears to be trustworthy and on the basis of
the aforesaid ocular and medical evidence available on record, it is
established that the appellant inflicted grievous injuries to the deceased
over her vital parts. Therefore, we do not find that the trial Court has
committed any illegality or irregularity in assessing the statement of the
prosecution witnesses. The prosecution has proved its case beyond
reasonable doubt. Therefore, the conviction and sentence of the appellant
under Section 302 & 201 of IPC is accordingly upheld.
21. For the reasons stated above, this appeal is devoid of any merit
and substance and is hereby dismissed. The judgment of conviction and
sentence passed by the trial Court is hereby affirmed.
22. The order regarding disposal of the property as pronounced by the
trial Court is also affirmed.
23. A copy of this judgment be communicated to the concerned trial
Court for necessary action.
C.C. as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Trilok/-
TRILOK SINGH SAVNER
2024.03.01 10:29:36 +05'30'
