PATHANIYA S/O BADIYA BAARELA vs STATE OF MADHYA PRADESH

[1] THE present criminal appeal has been filed against the judgment of conviction and sentence dated 21.05.2004 passed by Second Additional Sessions Judge, Badwani in Sessions Trial No.350/2003 by which the appellant has been convicted under Section 302 of IPC and sentenced to Life Imprisonment with fine of Rs.200-00, in default of payment of fine, 3 months'' additional RI.

[2] As per the prosecution case, an investigation commenced after registration of FIR (Ex.P/8) on 13.12.2003 in a Crime No.149/2003 lodged by Mangilal (PW-5) that theappellant has committed murder of his wife Surgali Bai by blow on her head by chisel-plows (Kusle) in his house. After registration of FIR, police reached the spot on 13.12.2003 at night and prepared the spot map (Ex.P/3). The property/ clothes of Surgali Bai, were seized by memo dated 13.12.2003 (Ex.P/11) and kept in the sealed packet. A Merg was recorded under Section 174 of IPC No.34/2003 (Ex.P/12).

[3] The body of the deceased was sent for the medical examination and as per the postmortem report (Ex.P/13), the following injuries were found on the body of the deceased :-

"(1) Incised wound 1 1/2 '''' x 1/2 '''' x skin (muscle with shin) bone deep.

(2) Incised wound 1/2'''' x 1/2'''' x fu;; lower lip cut.

(3) Broken upper 2 (Teeth) Teeth (Rt - Incisor & Canine).

(4) Incised would (huge) bleeding (clotted) adjacent to (Rt) & back side of hair with neck and wound size 2 1/2 '''' x 2'''' x muscle with bone broken many pieces with brain deep. All injuries caused by sharp cutting object."

[4] The appellant was arrested on 13.12.2003 at 1.15 AM (Ex.P/7) in presence of two witnesses. On his statement recorded under Section 27 of the Evidence Act, a chisel- plows (Kusle) was recovered from his house which contained blood stained and same was kept in the sealed packet (Ex.P/15). The police has also collected blood stained soil (Ex.P/6). All the seized articles were sent to Forensic Science Laboratory, Rao, Indore by letter dated 16.12.2003 (Ex.P/14). After completion of investigation, final report was filed against the appellant under Section 302 of IPC and trial was committed to Sessions Court vide order dated 26.12.2003.

[5] As per the prosecution story the appellant and his wife deceased Surgali Bai are residents of Village Junapani Faliya-Haatbavdi, Pati, District Badwani. In the night of 12.12.2003 the appellant has caused injuries to his wife by chisel-plows (Kusle). Immediately Ramabai (PW-7), daughter of appellant, after hearing her mother''s yelling immediately reached there and saw that the appellant was badly assaulting her mother Surgali Bai. She immediately shouted and called her grand-mother, maternal uncle, brother - Jamasya (PW-1), Lohariya (PW-3) and Padam. They all caught the accused and found that Surgali Bai died due to the said assault. The report was lodged by Mangilal PW-5) in the police station (Ex.P/8). The police reached on the spot in the night itself and the appellant has admitted that he put to death his wife. The FIR was recorded as Ex.P/8 in Crime No.149/2003.

[6] In support of case, the prosecution examined Jamasya (PW-1) who deposed that Surgali Bai is his mother and 2 - 3 months back his father has killed his mother. His younger sister shouted near about 12.00 in the night. When he entered in the house, he found that his father is assaulting his mother by chisel-plows (Kusle).

[7] Prosecution examined Dr. G.S.Baarela as PW-2 who conducted the postmortem of the deceased and found 4 injuries on her body and opined that she died due to brain haemorrhage and excessive bleeding and the period of death is 12 to 20 hours before postmortem.

[8] Lohariya (PW-3), who is elder brother of the deceased and at the time of incident he was also present in the house and witnessed the incident. Bihari (PW-4) was examined who deposed that he accompanied Mangilal (PW- 5) to lodge the FIR in the police station. PW-5 Mangilal was examined as a Panchnama witness and Vijay Singh Chauhan (PW-6) was examined as a seizure witness.

[9] Ramabai, who is daughter of deceased and appellant as well aged about 18 years at the time of incident, was examined as PW-7 who witnessed the entire incident and specifically deposed that his father i.e. appellant has killed his mother by causing injury on her head by chisel- plows (Kusle).

[10] Investigating Officer - K.P.David was examined as PW-8 who conducted the investigation and proved all the exhibits.

[11] The appellant recorded his statement under Section 313 of Cr.P.C. before the Court and denied all the questions asked by the Public Prosecutor and stated that he is innocent and he has been falsely implicated.

[12] After appreciating the entire evidence on record, the learned Sessions Judge vide judgment dated 21.05.2004 has convicted the appellant under Section 302 of IPC and sentenced him to Life Imprisonment. Hence, the present appeal before this court.

[13] The appellant has filed the present appeal on the ground that the prosecution did not examine any independent witness and PW-7 Ramabai who is daughter of the deceased, therefore, her evidence is not credit worthy. Other witnesses are also related witnesses. It is further pleaded in the appeal that there was no motive to commit the offence and prayed for acquittal.

[14] We have heard arguments of Shri Amitabh Upadhyay, counsel for the appellant and Shri Umesh Gajankush, Deputy Advocate General for the Respondent/State.

[15] Ramabai (PW-7) who is not only the daughter of deceased but she is daughter of the appellant as well. She sturdily stated before the Court that near about 12.00 when she was sleeping then suddenly she heard screaming voice of his mother and saw that his father is assaulting her by chisel- plows (Kusle). She immediately shouted and called her brother Jamasya (PW-1), maternal uncle Lohariya (PW-3) who tried to caught the accused but by that time her mother has died. She was cross-examined by the defence counsel but her version remain unshattered. Jamasya (PW-1) who is also a son of deceased and the appellant as well has deposed in continuation with the statement of Ramabai (PW-7) and stated that when he entered into the house, he saw that his father is assaulting her mother by chisel-plows (Kusle) and she died because of that. His statement has also remain firmed in cross-examination. He stated in the cross- examination that his father was residing in the house of her mother. He has also confirmed the present of his sister at the time of incident. The version of PW-1 and PW-7 was supported by PW-3 who is a real brother of the deceased. Immediately after the incident, he called the villagers and immediately FIR was lodged and police reached the spot.

[16] The presence of PW-1 Jamasya and PW-7 Ramabai in the house being son and daughter are quite natural. Hence, their testimony in the Court cannot be discarded. They cannot be termed as interested and related witnesses because they are related to accused/appellant and deceased (mother) as well.

[17] So far as the absence of motive behind the said incident is concerned, the apex Court in the case of Arjun Marik v/s State of Bihar [1994 Supp (2) SCC 372] has held as under :-

"It may be pointed out that mere absence of motive for commission of crime cannot be ground to presume the innocence of the accused if the involvement of the accused is otherwise established."

[18] The dead body of deceased was examined and postmortem was done and the doctor gave the opinion that she died because of the injury received and which are fatal in nature. The articles which have been recovered by the police were human blood stained.

[19] In view of the above, we have no hesitation to hold that the appellant is a guilty of offence punishable under Section 302 of IPC and rightly been convicted and sentenced by the learned Additional Sessions Judge. Consequently we do not find any illegality in the finding recorded by the learned Trial Court which may warrant any interference in the present appeal. The appeal fails and is hereby dismissed.