Harinarayan @ Munna vs The State of M.P.

This appeal under Section 374(2) of Cr.P.C., is directed against the judgment and sentence passed by Sessions Judge, East Nimar, Khandwa in Sessions Trial No.226/2004 dated 1.10.2005, whereby the learned trial Court has found the appellant guilty for commission of offence punishable under Section 302 of IPC and sentenced to undergo R.I. for life and to pay fine of Rs.1,000/-, with default stipulations.

The case of prosecution in brief is that the deceased Sunder Bai was the wife of appellant Kashiram. The appellant was residing in village Jamanya Sarsari with his wife. His elder son Lakhan was also living in his neighbourhood. On 26.9.2004 at about 9 o''clock in the morning the appellant returned home after attending a function and asked his wife deceased Sunder Bai to give him food. The deceased told him that she had not cooked the meals. The appellant got angry and told the deceased that why she had not cooked the food and started beating her. On seeing the quarrel, his son Lakhan came in the house and tried to intervene. The appellant told him, if he would interfere in the quarrel he would also beat him. Thereafter, Lakhan came back in his house and went to his fields. The appellant assaulted his wife by fist and leg and killed her. Lakhan returned home at about 5 pm in the evening and again came to see his mother in her house. He saw his mother Suder Bai lying in the shed where the cattles are kept. She was dead. There were multiple injuries seen on her body. Lakhan informed the Kotwar and other witnesses about the incident and thereafter lodged FIR Ex.P-4 in Police outpost Roshni, Jamanya Sarsari, Police Station Khalwa, District Khandwa. The police registered the offence and also marg intimation and initiated the inquest. The Head Constable P.W.7 Babulal Soni conducted inquest, he prepared the spot map Ex.P-12 and Panchnama of the dead body Ex.P-11. He recovered red earth from the spot and sent the dead body for autopsy to Primary Health Centre, Roshni. Dr.Kamlesh Verma (P.W.2) performed the postmortem and found two contusions on the neck and one

contusion on the abdomen of the deceased. The spleen was ruptured and the wind pipe (trachea) was broken. The death of deceased was caused due to asphyxia and rupture of spleen.

The trial Court has framed the charge of the offences punishable under Sections 302 of IPC. Accused person abjured guilt. The trial Court on appreciation of evidence found the appellant guilty for commission of murder of deceased and punishable under Sections 302 of IPC and sentenced him as stated herein above, against this the appellant has preferred this appeal.

It is argued by learned counsel for the appellant that there is no eye witness to the incident. There is no evidence to show that the appellant had committed murder of the deceased. The trial Court on wrong appreciation of evidence has held that the appellant guilty. Thus the finding of guilt recorded by the trial Court is not sustainable. The alleged offence against the appellant is not proved beyond reasonable doubt. The trial Court has wrongly convicted the appellant. Therefore, appeal may be allowed and appellant be acquitted.

Per contra, learned Panel Lawyer for the State has supported the findings of the trial Court and submitted that the appellant has committed murder of the deceased. The trial Court has rightly convicted him for the same.

The appellant''s defence has not challenged the fact that deceased was wife of appellant, who was living with the appellant at the time of incident. The complainant Lakhan is their son, who was also living in their neighbourhood. It is not denied by the appellant that on 26.9.2004 the dead body of deceased was found in the house of appellant. Lakhan (P.W.5) deposed that after seeing the dead body of his mother, he has lodged report Ex.P-4 at Police Outpost Roshni, Jamanya Sarsari, Police Station Khalwa, District Khandwa. This fact is also corroborated by Head Constable Kapil Dev Shukla (P.W.3) who deposed that on 27.9.2004, he had recorded the FIR Ex.P-4 on the information given by Lakhan. Babulal Soni, Head Constable (P.W.7) deposed that he has conducted the inquest. He went on the spot and prepared the spot map Ex.P-12 and panchnama of the dead body of the deceased Ex.P-11. He seized the red earth from the spot vide seizure memo Ex.P-13 and sent the dead body for postmortem. Dr.Kamlesh Verma (P.W.2) has conducted the postmortem of the body of deceased. He deposed that on 28.9.2004 at Primary Health Centre, Roshini he has performed the postmortem of dead body of deceased Smt.Sunder Bai and found following injuries :

"1. Contusion 5 x 3 cm below the left side of cheek. 2. Contusion 4 x 2 cm over the neck. 3. Contusion 3 x 2 cm over the upper part of abdomen. 4. Abrasion over the left knee." On internal examination he found that trachea was partially broken. The spleen was ruptured. It is opined by the Doctor that the cause of death is asphyxia due to compression of trachea and also bleeding and shock caused due to rupture of spleen. In cross-examination the statement of Doctor remained unchallenged and it is duly corroborated by postmortem report Ex.P-2 prepared by the Doctor. Thus, it is rightly found proved by the trial Court that the deceased died due to injuries caused to her and the death is homicidal.

Now the question arises, who has killed the deceased. Lakhan (P.W.5) deposed in his statement that at the time of incident at about 9 o''clock in the morning he and appellant both returned home after seeking Langdi programme. Thereafter a quarrel took place between the appellant and his wife Sunder Bai. In cross-examination para 4 this witness has categorically deposed that after seeing the quarrel, he went in the house of the appellant and tried to save his mother, but his father i.e., appellant told him that if he would try to intervene, he would beat him. Lakhan came back to his house and went to his field. In the evening when he came back he saw the appellant was sleeping in the house, his mother was lying dead in the shed. The blood had come from her mouth and nose and there were swelling on her neck. He informed the witness Sabulal, Onkar and Jagdish and thereafter he went to lodge the FIR Ex.P-4. In the cross-examination para 7 he had deposed that the appellant had killed his mother by giving blows of fist and leg. The defence has not challenged the testimony of Lakhan which shows that in the evening when Lakhan returned home and went to see his mother, he found the appellant at home and his mother was lying dead in the shed. This fact is also corroborated by the FIR Ex.P-4 and statement of Head Constable Devi Das (P.W.6).

Although this witness Lakhan (P.W.5) has been declared hostile by the prosecution as he is not directly giving statement against his father, the appellant, but merely on this ground alone his entire testimony cannot be rejected. This is settled law that declaring a witness hostile does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by the other reliable evidence.

Hon''ble Apex Court in the case of Attar Singh Vs. State of Maharashtra [(2013) 11 SCC 719] in para 14 observed as under :-

"This compels us to consider as to whether the conviction and sentence recorded on the basis of the testimony of the witness who has been declared hostile could be relied upon for recording conviction of the appellant-accused. But it was difficult to overlook the relevance and value of the evidence of even a hostile witness while considering as to what extent their evidence could be allowed to be relied upon and used by the prosecution. It could not be ignored that when a witness is declared hostile and when his testimony is not shaken on material points in the cross-examination, there is no ground to reject his testimony in toto as it is well settled by a catena of decisions that the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto and can be relied upon partly. If some portion of the statement of the hostile witness inspires confidence, it can be relied upon. He cannot be thrown out as wholly unreliable. This was the view expressed by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30 whereby the learned Judges of the Supreme Court reversed the judgment of the Karnataka High Court which had discarded the evidence of a hostile witness in its entirety."

Head Constable Babulal Soni (P.W.7) deposed that on 26.9.2004 he had conducted the inquest. The dead body of deceased was found inside her house. He prepared the spot map Ex.P-12 and Panchnama of dead body Ex.P-11 and sent the body for postmortem to hospital. In cross-examination the defence has not challenged the above statement.

Therefore, the statement of Lakhan is also corroborated by the statement of Babulal Soni (P.W.7).

Thus the statement of Lakhan (P.W.5) is reliable as to the facts that at the time of incident there was a quarrel between appellant and his wife. The dead body of wife was found in the house of appellant. Appellant was present in the house at that time.

The postmortem report reveals that the deceased died due to asphyxia and injuries caused to her. Her spleen was ruptured and it was categorically opined by the Doctor that asphyxia was caused due to throttling. Since the appellant was present in the house at the time of death of his wife, therefore, he has to explain how his wife had died or who had inflicted injuries to her. The appellant had given no explanation in this regard. Knowing the fact that his wife was lying dead in the cattle shed of house, neither he had made a cry to call the neighbours, nor he tried to take his wife for treatment. The conduct of appellant clearly establishes his involvement in commission of crime.

Section 106 of Evidence Act lays down that "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." The Hon''ble Apex Court in case of State of Rajasthan Vs. Thakur Singh, [(2014) 12 SCC 211 held that:-

"The burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."

In the present case, the statement of Lakhan (P.W.5) clearly shows that there was a quarrel of deceased with the appellant on account of cooking the food. Thereafter, the deceased was found dead inside the house. The appellant was present during this period. Appellant had not given any explanation regarding injuries of his wife or who has killed her. Therefore, we can easily infer that the appellant had killed his wife. The trial Court on proper appreciation of the evidence has rightly held appellant guilty for commission of murder of his wife.

Thus, the appellant has been rightly held guilty under section 302 of IPC and sentenced to suffer R.I., for life and to pay fine.

Consequently, the appeal is devoid of merit and hereby dismissed.