Anitabai W/o Suresh Harijan vs State of Madhya Pradesh

This is an appeal against judgment and order dated 19/04/2010 passed in S.T. No.262/2009 by ASJ, Bioara, District-Rajgarh whereby the

appellant held guilty under Section 302 of IPC for causing death of her husband and has awarded life imprisonment with fine of Rs.1,000/-, in

default of payment of fine amount further to undergo four months RI.

The prosecution case in brief is that the appellant - Anitabai got married with the deceased seven years prior to the incident on 11/07/2009.

After the marriage, she came to her matrimonial home and after staying 2-3 days went back to her maternal home. After 3 years of the marriage,

following tradition of Gauna, she came again to her in-law''s house and used to stay there ordinarily but also used to visit her maternal home

occasionally. Before the incident, she was at her maternal home and her husband brought her back 15 days prior to the incident and since then she

was staying at her matrimonial house. On the fateful night, they both went to sleep together in their room, but in the morning her husband was found

dead. Her brother & sister-in-law (Jeth-Jhetani) Ashok Kumar - Roopabai and mother-in-law Basantibai called Village Chowkidar - Bapulal,

who saw the dead body and noticed that there was bleeding from the mouth, swelling on the right cheek and tongue clenched between the teeth.

He informed the police on telephone. On receiving information, Sub-Inspector of the police - M.L. Ghatia reached on the spot and found the

corpse was kept in the front court yard. He inspected the corpse and the spot. He also noticed that tongue of the deceased was clenched between

the teeth, both lips were swelled, eyes were swelled and closed, there was blood on right cheek, three small size abrasions on right side of the

mouth and one abrasion over right eye were present and also stains of semen like substance were present on underwear. Half ate food was lying in

the plate. Beddings (bed sheet etc.) were chaotic and scattered and there were signs of struggle. He prepared spot map (Ex.P/3), seized blood

stained and plain soil, plastic mat and 3 pieces of plastic bangles, prepared memo of corpse, scribed merg intimation, sent dead-body for

postmortem, recorded merg statement of Roopabai, Basantibai, Lalita, Bapulal and Ashok. After completing merg inquiry, registered FIR

(Ex.P/17) under Section 304 of IPC. The police sent viscera for chemical examination and received reports (Ex.P/19, P/20 and P/21) from FSL,

Sagar, seized blood stain blouse & bangles on the information of the appellant, got it chemically examined and arrested the accused. During merg

inquiry, it was revealed that the deceased was murdered, therefore, Section 302 of IPC was added to the charge-sheet. The police obtained

postmortem report and sent for FSL examination and filed charge-sheet, after completion of the investigation.

The appellant was charged, tried and convicted for the offence under Section 302 of IPC for committing murder of her husband and awarded

punishment as stated in para 1 above.

The appellant has preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and facts on record.

Statements of witnesses are full of contradictions, omissions and exaggeration. The learned trial Court has not properly appreciated these

statements. Witnesses examined by the prosecution are interested witnesses. The prosecution could not produce any cogent or reliable evidence.

No incriminating evidence against the appellant could be established. The evidence produced by the prosecution is not sufficient to prove guilt of

the appellant. She is only convicted on the conjuncture and surmises.

It is further submitted that the learned trial Court has convicted the appellant only on the pieces of bangles and without considering the evidence.

Prosecution has failed to prove that the said pieces of bangles belong to the appellant. The learned trial Court did not appreciate the defence of the

appellant.

The appellant has further, submitted that deceased was died due to consumption of poisonous liquor. This fact is very much corroborated by

Dr. Sorin Datta (PW/7), who found liquor in the stomach of the deceased. Viscera report Ex.P/9 given by the FSL also confirmed existence of

Ethyl Alcohol. Dr. Datta has stated that cyrosis found on the dead body was could be due to consumption of some poisonous liquor.

It is also contended that when last time the appellant came to her matrimonial home, she was living peacefully; there was no quarrel between

both husband and wife (the deceased and the appellant). Seizure of blood stained pillow and blouse was not in accordance with the law and

source of blood could not be ascertained by the FSL. The trial Court did not appreciate these facts correctly. The case of the prosecution is

doubtful, therefore, the appellant is entitled for acquittal.

Learned Public Prosecutor has opposed the appeal and has submitted that prosecution witnesses deposed before the trial Court that relations of

the appellant and deceased were strained. The appellant was of loose character and was not interested to live together with the deceased;

therefore, she was not regularly residing at her matrimonial home. In question No.45, 54, 78 and 82 of examination of the accused, she has

admitted that at the time of incident, she was alone in the room with the deceased. Blood stained articles were seized on her instigation. 3-4 pieces

of bangles were found on the spot, which matched with the bangles seized from the appellant. Injuries found on the person of the deceased, were

not explained by the appellant. As in the fateful night she was alone with the deceased, therefore, onus of explaining the cause of death comes on

the shoulder of the appellant but she failed to discharge this burden. Therefore, it is pleaded that the learned trial Court has rightly convicted and

sentenced the appellant.

We have considered rival contentions of the parties and have gone through the evidence and also the documents produced by the prosecution

before the learned trial Court.

It is the prosecution case that just after the incident, Mother-in-law Basantibai, brother & sister-in-law (Jeth-Jhetani) Ashok Kumar -

Roopabai and Village Chowkidar - Bapulal had seen the dead body and noticed that there was bleeding from the mouth, swelling on the right

cheek and tongue was clenched between the teeth. Bapulal informed the police on telephone. On receiving information, Sub-Inspector of the

police - M.L. Ghatia reached on the spot and found the corpse was kept in the front court yard. He inspected the corpse and the spot. He also

noticed that tongue of the deceased was clenched between the teeth, both lips were swelled, eyes were swelled and closed, there was blood on

the right cheek, three small size abrasions on right side of the mouth and one abrasion over right eye were present and also stains of semen like

substance were present on underwear. Half ate food was lying in the plate. Beddings (bed sheet etc) were chaotic and scattered and there were

signs of struggle.

Dr. Sorin Datta (PW/7), who performed post-mortem alongwith Dr. J.K. Shakya had observed that face of carcass was cyanosed with both

eyes closed, conjunctiva was congested, both pupils were dilated, both lips were swelled with teeth protruding and sandwiched under teeth of both

jaws. Dried up blood stain on right side of face including right eye on left angle of mouth was present. Both lips had with evidence of blood and

serous fluid from nostril and mouth. Both fists were semi Clenched with finger nail cyanosed. Postmortem lividity had developed on dependent

parts of anterior aspects and on face, chest, upper abdomen, both thighs, upper arms, also on posterior parts on back of chest. Rigor Mortis had

developed on muscles on face, neck and upper and lower extremities with evidence of seminal fluid from penis. There were stains of semen on

underwear. Dr. Datta also found following external injuries:

(i) Superficial abrasion of 1 cm x 0.05 cm in upper hand.

(ii) 4 nail marks abrasions of 0.4 cm length laternal to right side of mouth.

(iii) Abrasion 0.5 cm x 0.5 cm on inner aspect of lower lip right side.

(iv) Bruise 3 cm x 1 cm on inner aspect of upper lip.

(v) Bruise 3 cm x 1 cm on inner aspect of lower lip.

After this physical observation, both the doctors opined that the mode of death of the deceased was asphyxia caused by smothering and was

homicidal in nature.

After postmortem, the team of Doctors preserved viscera and sent for chemical analyses to rule out any possibility of intoxication.

Dr. Sorin Datta (PW/7) who was one of the Doctor who performed postmortem, examined before the trial Court. In his cross-examination, he

ruled out any other cause of death except asphyxia caused by smothering. He ruled out possibility of injuries found on the dead-body being self

inflicted or been caused by falling or smashing. Though, he admitted that there was some smell of liquor which showed that the deceased might

have consumed liquor and lividity might have been caused due to poisonous liquor but he strongly ruled out that asphyxia may be caused due to

excessive consumption of poisonous liquor. Dr. Datta (PW/7) admitted in his crossexamination that some time unconsciousness and vomitting

caused due to consumption of poisonous liquor may lead to the vomiting of the patient entering in the trachea and causing asphyxia. However in the

present case, there is nothing to show that there was any vomiting or something had gone in the trachea of the deceased. No such finding has been

recorded by the team of Doctors who performed postmortem and this issue has not been raised during the crossexamination of the Dr. Datta

(PW/7).

Viscera has been sent to FSL and as per FSL report (Ex.P/19) no poisonous substance was found in viscera, therefore, this report further

ruled out the possibility of death of deceased by some poisonous substance or by asphyxia caused by some poisonous intoxicant. Thus, from all

the evidence discussed above it is established that the death of the deceased was due to asphyxia caused by smothering. All other possible modes

of death have been ruled out by Dr. Datta (PW/7). The opinion of the doctors is also confirmed by making a reference to Modi?s Jurisprudence.

Thus, no doubt remains that the death of the deceased was homicidal and was caused by asphyxia due to smothering by some external force.

Admittedly (as replied by the prosecutrix in question No.24, 54, 45, 78, 82 and 99 of the examination of accused) the appellant had come

back to her husband''s house 15 days prior to the incident and at the time of incident she and deceased were together alone in the room, preceding

night of the incident. Therefore, the onus shifts on the appellant to explain unnatural death of the deceased and no such explanation was offered by

her.

Apart from this, the appellant has admitted in question No.45 of the examination of accused that the blood stained blouse was seized from her

possession, pieces of bangles were found on the spot and some bangles were seized from the possession of the prosecutrix and on comparison

both were found of the same set of bangles (FSL report Ex.P/20). This evidence coupled with the injuries found on the face of the deceased also

indicates that there was some struggle and use of force before the death of the deceased.

The learned trial Court has also considered all defences taken by the appellant, like death was due to poisonus substance or it was accidental

due to inhaling of vomiting in trachea. The learned trial Court has also considered and concluded that there is no evidence that someone else had

entered in the room of the deceased.

All signs found on the dead-body only and only indicate that the death of the deceased was due to asphyxia caused by smothering. Admittedly,

at the time of the death, the appellant was alone with the deceased. She has not offered any explanation regarding unnatural death of her husband,

therefore, in view of the judgment of Hon''ble Supreme Court in the matter of Amit vs. State of Maharashtra (2003) 8 SCC 93 and Babu vs. Babu

(2003) 7 SCC 37, we are also in full agreement with the conclusion of the learned trial Court that the death was caused by the appellant. We do

not find any ground for interference in this finding of the learned trial Court.

In the present case motive of the incident could not be established by the prosecution. In fact there is total lack of motive of murder and also

there is no evidence of any intention, preparation and premeditation for the offence. The prosecution witnesses have stated that relations between

both of them (the deceased and the appellant) were not cordial but nothing is there to fortify their averments. On the contrary, circumstances show

that they were living peacefully. The appellant have stayed in the matrimonial home, used to visit her maternal home also. The deceased brought her

back from maternal home 15 days prior to the incident. No such evidence is produced by the prosecution that during this period they ever fought

on any issue or there was any domestic discord or dispute between them. Only general and omnibus allegations have been made by the witnesses

that the appellant was not liking her husband and was not interested to live with him but no specific allegations have been that on what account she

was not interested to live with him. On the contrary witnesses have admitted that after coming back to the matrimonial home, the appellant and the

deceased lived peacefully for last 12-13 days.

Conduct of the accused/appellant is also note-worthy here. She slept in the night with the deceased, in the morning she woke-up, asked her

Jhethani to accompany her for relieving herself and on her refusal to accompany her, she went alone and after relieving herself she came back to

the room, made tea, she tried to wake-up her husband, when he did not react, she noticed that some blood were coming out from his nose and

mouth, she immediately informed her Jeth Jhethani that her husband is not reacting to her call and some blood is coming out from his nose and

mouth. During this period, she was having all opportunity of fleeing away from the spot but she did not, instead her conduct shows that she herself

was not aware about the death of her husband. When she noticed something abnormal even then instead of escaping from the spot she called her

Jhethani and other family members. It also does not appears that even after finding her husband dead in the presence of her in-laws she ever tried

to run away from the spot. This conduct very strongly and firmly indicates lack of ill intention.

It has come on record that the deceased was alcoholic. It is not disputed that liquor was found in the stomach of the deceased in the

postmortem, which means that in the preceding night also he drank. Sub Inspector Ghatia; who visited the spot first, noticed and recorded the facts

that half eaten food was lying in the plate. Beddings (bed sheet etc.) were chaotic and scattered and there were signs of struggle. This shows that

when the deceased came in the night in drunken condition, in that situation something had happened and the deceased had died due to something

happened in that moment. It does not appear that the accused was having any intention to kill the deceased. No evidence is there to show any

preparation or premeditation for the offence the appellant is charged with. The appellant has no criminal antecedent. The incident happened

suddenly. Therefore, we are of the opinion that the case of the appellant qualifies all parameters i.e. (i) it was a sudden fight; (ii) there was no

premeditation; (iii) the trigger for the incident was momentous; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner

and therefore, his act does not fall under the purview of the offence punishable under Section 302 of IPC but falls under the purview offence

punishable under Section 304 Part-II of IPC.

In view of the aforesaid discussion and also the law laid down by the Hon''ble Supreme Court in Madhvan and others V/s. State of Tamil

Nadu reported in AIR 2017 SC 3847 , Sikander Kali V/s. State of Maharashtra reported in 2017 SC 1150 , Elavarasan V/s. State reported in

AIR 2011 SC 2816 the appeal is partly allowed. The judgment passed and sentence awarded by the learned trial Court are set aside to the extent

that we hold the appellant guilty for committing the offence under Section 304 part II of IPC instead of the offence under Section 302 of IPC.

The appellant is in jail since 13/07/2009 and she has served imprisonment of approximately nine years. Considering the nature of incident and

keeping in view the facts and circumstances of the case, in our considered opinion, ends of justice would be served if the appellant is awarded

punishment for the period of jail sentence already undergone. Hence we award the sentence accordingly. The appellant be set at liberty forthwith, if

not required in any other case.

Order of the trial Court regarding disposal of property stands confirmed.