Nannuu vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal against the judgment dated 4.4.2001 passed by the learned Sessions Judge Damoh in Sessions Trial No.31/2000, whereby he has been convicted of the offences punishable under Sections 307 & 302 of the IPC and sentenced to five years R.I. with fine of Rs.1000/- and life imprisonment with fine of Rs.2,000/-. In default of payment of fine, three months and six months R.I. respectively was imposed.

The prosecution''s case in short is that the appellant Nannuu @ Nannai was residing in a hut at village Kerbana (Police Station Batiyagarh, Tahsil Hata, District Damoh) with his family members including his wife Mathura Bai (PW-6), his daughter Saraswati (deceased) and son Moti (PW-3). The relations of the appellant and his wife Mathura Bai were strained and therefore they frequently quarreled with each other. On 1.1.2000 at about 4:30 p.m. Mathura Bai went to flour mill to get her wheat grained. And on her way back she was standing near Kerbana trivia. The appellant happened to pass from that place. Seeing Mathura Bai he questioned her as to why she was standing there. Thereafter, the appellant dragged her towards his hut and stabbed her twice with a knife to kill her. Some witnesses viz. Hariprasad, Rajesh etc. intervened and tried to save Mathura Bai. Thereafter, the appellant went inside the courtyard of his hut and took his daughter Saraswati Bai alongwith a Bichhua (knife) and ran towards the Aamghat culvert. The witnesses chased the appellant but they could not save the deceased/girl Saraswati Bai because the appellant killed her and threw her dead body near the culvert. Hari (PW-2) promptly lodged the FIR at Outpost Kerbana of Police Station, Batiyagarh. The injured Mathura Bai was sent for her medico legal examination and treatment, whereas dead body of the deceased Saraswati Bai was sent for postmortem. During investigation, the investigation officer collected various articles from the spot and also recovered a shirt from the appellant. The seized articles were received by the investigation officer from the hospital after postmortem of the deceased Saraswati Bai. All these articles were sent to the Forensic Science Laboratory for analysis. After due investigation, the charge sheet was filed before the JMFC Hatta, who committed the case to the Sessions Court, Damoh.

The appellant abjured his guilt. He did not take any specific plea but has stated that he had been falsely implicated due to enmity with the witnesses. However he did not examined any witness.

The learned Sessions Judge, Damoh after considering the prosecution''s evidence, convicted and sentenced the appellant as mentioned above.

Since no one had appeared for the appellant at the time of final hearing of the case therefore, Shri Saurabh Sundar, learned counsel who has good experience in criminal law was appointed by the High Court Legal Services Committee for the appellant and thereafter, we have heard the learned counsel for the parties at length.

In the present case, the incident took place in two parts. Firstly, it took place with the victim Mathura Bai (PW-6) and thereafter, second incident was caused when the appellant caught hold of his daughter Saraswati Bai in his house and took her away. Hence, the evidence relating to both the incidents shall be considered one by one. Rajesh (PW-1), Hariprasad (PW-2), Moti (PW-3), Tulsiram (PW-4), Raghuveer (PW-5) and Mathura Bai (PW-6), were examined as eyewitnesses relating to the first incident. However, the child witness Moti (PW-3) has turned hostile. Rajesh (PW-1) has stated that when he reached the spot, he found that Mathura Bai was lying unconscious. Hariprasad, Raghuveer, Mathura Bai and Tulsiram have stated that when Mathura Bai was coming back from the floor mill, she was stopped by the appellant near trivia and he tried to drag his wife. Thereafter, he gave 1-2 blows of knife on the neck of his wife Mathura Bai and also threatened the witnesses, not to intervene in the matter and thereafter, Mathura Bai fell down on the ground and became unconscious. Hariprasad had lodged the FIR Ex.P/12 soon after the second incident in which he mentioned about the entire incident. Dr. L.R. Kisniya (PW-10) had examined Mathura Bai and gave his report Ex.P/18-A. He found two incised wounds to the victim Mathura Bai and details of such wounds are as under :-

(1) Incised wounds 2 1/2 c.m. X 1/4 c.m. X 1/2 c.m. over right cheek near right angle of mouth, margin regular, clean cut, nature of injury was simple;

(2) Incised wounds 7 c.m. X 1/2 c.m. X muscle deep, over lower portion on the left side neck, margins were clean cut.

For further treatment and to assess the nature of injuries, she was referred to the District Hospital and hence, it was confirmed that Mathura Bai had sustained two injuries. Out of them, one was simple in nature. In this connection, Dr. A.K. Tiwari (PW-9) was examined, who brought the bed head ticket of the victim Mathura Bai and query report relating to the nature of injuries caused to the victim Mathura Bai. In query report Ex.P/17, he has opined that both the injuries caused to the victim Mathura Bai were simple in nature.

The incident relating to the injuries caused to the victim Mathura Bai was seen by the witness Hariprasad (PW-2) and Tulsiram (PW-14) alongwith the victim Mathura Bai. Mathura Bai has clearly stated that the appellant assaulted her for twice with a Bichhua (knife). The eyewitnesses Hariprasad and Tulsiram have supported her version. However, in case diary statement Ex.D/4, the witness Tulsiram has admitted that when he reached the spot, he found that the appellant was running with his girl child Saraswati and therefore, it is clear that he reached to the spot when incident of assault caused to the victim Mathura Bai was over.

Initially, Rajesh (PW-1) has also claimed that he saw the incident in which the victim Mathura Bai sustained the injuries and a suggestion was given to the witness Rajesh that he often visited the house of Mathura Bai and his such conduct was objected by the appellant. However, there was no suggestion given to the witness Hariprasad (PW-2) that he had any enmity with the appellant. Hariprasad had lodged the FIR Ex.P/1 within 40 minutes of the incident. No material discrepancy is found in the evidence of witness Hariprasad. The testimony of the victim Mathura Bai and the independent witness Hariprasad is to be accepted hence, it is proved beyond doubt that the appellant assaulted the victim Mathura Bai twice with a Bichhua.

The facts as mentioned in the FIR Ex.P/1 told by Hariprasad and Mathura Bai, it would be apparent that when the appellant saw the victim Mathura Bai, she was standing near a trivia and the witness Rajesh was not present at the spot then, there was no reason with the appellant to quarrel with Mathura Bai. Hence, it is apparent that the appellant assaulted the victim Mathura Bai twice without any right of private defence or any provocation. It was suggested to witnesses that the appellant had suspected the character of his wife and her illicit relation with Rajesh. However, at the time of incident, neither he was present at the spot nor the victim Mathura Bai was found with anyone else therefore, there was no sudden or grave provocation caused to the appellant.

The appellant had a Bichhua and he ought to have known the result of his assault caused with such a sharp cutting weapon. Under these circumstances, it is established that the appellant had voluntarily caused hurt to the victim Mathura Bai with a sharp cutting weapon. It is true that the concerned doctor has opined that the injuries caused to victim Mathura Bai were simple in nature but, it is also clear that the appellant repeatedly assaulted Mathura Bai with a sharp cutting weapon on the vital part of her body. He left the injured Mathura Bai when she fell down on the ground believing that she was dead. Under such circumstances, though the injuries caused to the victim Mathura Bai were simple in nature but looking to the overt act of the appellant, it is clear that he had intended to kill the victim Mathura Bai and therefore, the offence committed by the appellant squarely falls within the purview of Section 307 of the IPC. The trial Court has rightly found the appellant to be guilty of offence under Section 307 of the IPC. There is no reason to make any interference in the conviction of the offence under Section 307 of the IPC as directed by the trial Court.

Now, so far as the second part of the incident is concerned, Rajesh (PW-1) has claimed that he chased the appellant and saw that the appellant assaulting the deceased Sarswati with a Bichhua more than once. Hariprasad (PW-2) has claimed that he chased the appellant prior to witness Rajesh but then, he admitted that he stayed back to attend victim Mathura Bai. Rajesh did not state before the police that he had witnessed the incident, which took place with the deceased Saraswati. In the case diary statement Ex.D/1, he has accepted that he was informed about the dead body of the deceased Saraswati lying near a culvert or Nala. Hence, it appears that he has improved his version and falsely claimed to be an eyewitness. Therefore, we hold that there is no ocular evidence relating to the death of the deceased Saraswati.

In the absence of any ocular evidence, the prosecution''s case hinges the circumstantial evidence. The first circumstance is of last seen. Witnesses Rajesh, Hariprasad, Mathura and Tulsiram have stated that after assaulting victim Mathura Bai, the appellant picked up his daughter Saraswati and ran towards Nala. As discussed above, it is established that the appellant assaulted the victim Mathura Bai with a Bichhua then, the witnesses must have seen that the appellant took his daughter towards Nala in continuation to the first incident in which the appellant assaulted the victim Mathura Bai. In absence of any contradiction, omissions or discrepancy in the evidence of the eyewitnesses Rajesh, Tulsiram, and Hariprasad, it is established beyond doubt that after causing the injuries to the victim Mathura Bai, the appellant carried his daughter Saraswati towards the Nala. Hence, the factum of last together is proved beyond doubt.

It is established by the defence itself that the appellant suspected about the illicit relations of victim Mathura Bai with the witness Rajesh. The defence therefore has itself established the motive of the appellant that he intended to kill Mathura Bai and her daughter Saraswati on the pretext that the child Saraswati was not his daughter. Hence, the motive of the appellant to kill Saraswati is also established.

According to the witnesses Hariprasad, Tulsiram and Rajesh when, they chased the appellant and reached near Nala, they found the dead body of the deceased child Saraswati lying there. In this context, the FIR Ex.P/1 is an important document in which it is mentioned that the incident took place at about 4:30 p.m. and FIR was lodged at about 5:10 p.m. In the FIR, it is mentioned that the witnesses saw the dead body of the deceased. The time taken by the complainant in lodging the FIR, indicates that when the appellant took the child Saraswati with him and ran towards Nala within few minutes after that incident, the dead body of the deceased Saraswati was found and looking to the small gape of interval in these events, a presumption will be made out that, it was the appellant, who killed the deceased Saraswati and it was for the appellant to rebut the presumption. Dr. K.L. Aadarh (PW-11), who performed the postmortem on the body of the deceased/child Saraswati had found following injuries to her:-

"(1) Incised wound 3 1/2 c.m. 1/4 c.m. X muscle deep on middle of right side neck.

(2) Incised wound 3 1/2 c.m. X 1/2 c.m. X upto cervical vertebrae on upper portion of front left side of neck."

According to him, the death of the deceased was homicidal and such injuries were sufficient to cause her death. Dr. Aadarsh did not opine that any rape was committed with the deceased. Also, it was not a case that any robbery etc. was committed with the deceased Saraswati and therefore, there was no possibility that any stranger would kill the deceased Saraswati.

When the appellant took the child Saraswati with him, it was his duty to explain as and when he left the child Saraswati before her death. If the appellant had not committed that offence then, he would have explained as to when he left the place. On the contrary, he left the dead body of the deceased Saraswati and fled from the village and took shelter in his sister''s house from where, he was taken into custody. Under these circumstances, when the appellant did not give any explanation as to when he left the deceased Saraswati and as to why he left his house and village soon after the incident then, it is a circumstance against the appellant that he killed the child Saraswati. Sub-Inspector S.K. Seth (PW-15) has stated that the appellant gave an information about the Bichhua, which was used in the offence and it was seized vide seizure memo Ex.P/9. Munna (PW-7), who was declared partly hostile has admitted that the appellant gave an information about Bichhua and a memo Ex.P/8 was recorded. Thereafter, according to his information, he was taken near Nala and he had shown the Bichhua, which was buried in a pit and Bichhua was seized thereafter, vide seizure memo Ex.P/9. Though, he has accepted in the cross-examination that Bichhua was not sealed at the spot. However, in Ex.P/9, it is mentioned that Bichhua was sealed at the spot and impression of seal was also affixed on the seizure memo Ex.P/9. Under these circumstances, where the witness Munna has admitted everything clearly and he did not accept the seizure of clothes of the appellant then, looking to his evidence, it appears that he is a truthful witness, who can be relied upon. Hence, it is proved beyond doubt that on information given by the appellant a Bichhua was recovered from him. In the Forensic Science Laboratory''s report Ex.P/23, blood was found on said Bichhua. Though, the report of Serologist could not be filed in the case but it is proved that a Bichhua was recovered from the appellant, which was stained with blood.

If all the circumstances are considered simultaneously, that the appellant had a motive to kill the child Saraswati and the witnesses saw him when he took Saraswati with him and ran towards Nala, the dead body of the deceased Saraswati was found near Nala soon after the fact of last seen, the death of the deceased Saraswati was homicidal, the appellant did not give any explanation as to when, he left his daughter Saraswati, there was no chance that any third person would have killed the deceased Saraswati. Also after the incident, he disappeared from the spot and he had also left his house and village. One blood stained Bichhua was also found with him then, the chain of circumstantial evidence is complete. There is no possibility of any reasonable doubt in the case. Hence, it is proved beyond doubt that the appellant killed his daughter Saraswati.

The appellant did not claim any right of private defence or any fact of sudden or grave provocation. A small girl child, who was helpless before her father could not react in such a manner so that the appellant would have any hurdle from her side. The appellant gave two forceful blows with a Bichhua on the vital part of her body and left her when he expired. Hence it is established that the appellant intentionally killed his daughter. Therefore, the trial Court has rightly convicted the appellant of the offence under Section 302 of the IPC.

So far as the sentence is concerned, the trial Court has imposed a minimum sentence of the offence under Section 302 of the IPC, whereas the sentence under Section 307 of the IPC has already been undergone by the appellant and therefore, there is no reason to reduce the sentence imposed upon the appellant by the trial Court.

On the basis of aforesaid discussion, the appeal filed by the appellant is not acceptable either on merits or on question of the sentence, it deserves to be dismissed and consequently, the appeal filed by the appellant is hereby dismissed.