Praveen Kumar vs State of M.P.

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 28.08.2000 passed by learned Additional Sessions Judge, Narsinghgarh, Distt. Rajgarh (Biaora) convicting the appellant u/s 302 IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 25,000/-; in default further RI of 3 years, the appellant has knocked the doors of this Court by preferring this appeal u/s 374(2) Cr.P.C. 1973. Before narrating the facts of case it is relevant to mention here that 5 persons were made accused and they were tried by learned Trial court for the charges punishable u/s 302 IPC, in the alternative Sections 304 B, 177,498-A and 201 IPC however, the learned Trial Court did not find any of the charges to be proved against the accused Mishrilal, Surendra Kumar, Manju Mehta and Pradeep Kumar alias Mintu as a result of which they have been acquitted. Learned Trial Court also did not find the charge under Sections 304-B, 177, 498-A and 201 IPC to be proved against the appellant, however he has been found to be an uxoricide and holding him to be the guilty of the charge u/s 302 IPC convicted him and passed the sentence as mentioned herein above.

In brief, the case of the prosecution is that appellant got married to Rashmibai alias Reshma (hereinafter referred the deceased). The parents of the deceased according to their capacity gave the dowry. After his marriage the appellant along with the deceased went to his nuptial house where he stayed up to 24.2.91. During the period 22.2.91 to 24.2.91 the deceased told her mother that the items which were given to her they are not being liked by her in-laws. Thereafter on 25.2.91 appellant as well as the deceased again went back to Nagpur and from there they returned back to their home at Narsinghgarh. Thereafter on 11.3.91 the deceased again went to her parents house at Hinganghat(Mahardshtra), where she completed her annual examination which ended on 30.4.91. During this period she was not happy and all the time she was weeping. It is said that she was being ill-treated by her in-laws for and in respect of the dowry. On this, her mother told the deceased that because she has solemnised two marriages, therefore their economic condition has become weak and at present they are not in position to give more dowry. After 17.4.91 when the examination of the deceased was over, the mother of the deceased sent her along with her another daughter Sonali on 30.4.91 at Narsinghgarh. On 17.5.91 again deceased came back to her parental house at Hinganghat. At that juncture she again complained to her mother that her in-laws are disliking the items which they provided to her in the dowry.

It is the further case of the prosecution that on 21.6.91 at Raipur the maternal uncle of the deceased had gone to attend the marriage of his maternal uncle to Raipur, where she was also accompanied by the appellant and in Raipur also she made complaint to her mother that why she has been married at an early age and has been pushed from her parents house. She also told that she would like to undergo her studies further. It is said that on 22.6.91 the deceased insisted her mother to take her back to her parents house at Hinganghat and she do not want to go to her husbands house because she was being ill-treated there. It was also told by her that sometime her mother-in-law also co-operate with the appellant when the dowry demand was being made. However, the mother of the deceased did not think it proper to accompany the deceased with her and she was given understanding that on 14.7.91 she (the mother) had to go to Narsinghgarh in a marriage, but she will come two days earlier to the date of marriage and at that juncture she will interact with the in-laws of the deceased. Thereafter the deceased again came back to her in-laws house at Narsinghgarh.

It is further case of the prosecution that in the night of 6.7.91 on the occasion of the marriage of one Rajesh Bhandari a party was organised by Banshilal Gupta in the garden of one Prahalad Das Bihani which is known as Nazarbag. In this party the appellant and the deceased also assembled. The dance etc also took place in that party where appellant danced with a girl which was not liked by the deceased. After taking the dinner etc in the party the deceased came back to home in a car along with the appellant.

According to the prosecution immediately after the dawn hours at 7.30 AM on 7.7.91 acquitted co-accused Pradeep alias Mintu went to the house of Dr. U.K. Gujarati who was present at Narsinghgarh, although he was posted at Bhopal, and informed him that some unhappening has occurred to the deceased and insisted him to examine her. Resultantly, the said Dr. Gujarati along with acquitted co-accused Pradeep Kumar alias Mintu went to his house where in a room at second floor he found that the deceased was lying on a bed. On examining the deceased, Doctor found her to be alive but her condition was serious. Her pulse was quite weak. The said doctor advised to shift the deceased immediately to the hospital and thereafter he telephonically informed Dr. P.S. Pal who was posted in Civil Hospital at Narsinghgarh informing that one lady patient is in serious condition and she is being brought to him. Thereafter the appellant along with acquitted co-accused Pradeep Kumar alias Mintu carried the deceased in his car to Civil Hospital to Narsinghgarh where Dr. Pal tried his best to save the life of the deceased. Thereafter when she did not survive, the doctor sent an information to the Police Station Narsinghgarh.

On receiving information in the Police Station, the Sub Inspector V.S. Rajput immediately arrived at the Civil Hospital at Narsinghgarh and found the deceased to be dead as a result of which sent her dead body for the postmortem at Medical Legal Cell, Bhopal. The forensic medicine expert Dr. D.S. Badkur and the lecturer of Forensic Medicine Department of Gandhi Medical College, Bhopal Dr. B.P. Dubey on 8.7.91 at 11 AM conducted the postmortem of the deceased and according to these doctors, the deceased had died on account of hanging due to asphyxia.

The parents of the deceased arrived at Narsinghgarh in the night of 7.7.91 and after the cremation was over they went back to Hinganghat.

However on 14.7.91 i.e. after 7 days of the death of the deceased, the father of the deceased namely Nirmalchand Kothari created certain doubt that his daughter has been murdered as a result of which he lodged a written report at the P. S. Narsinghgarh. On the basis of this written report the criminal law was triggered and set into motion. The investigating agency registered the case under Sections 302 and 304-B IPC at Crime No. 186/91 and the matter was handed over to C.I.D. and the rest of the investigation was made by C.I.D.

After completion of the investigation the charge-sheet was filed before the committal court which committed the case to the Court of Session from where it was received by the Trial Court for trial.

The learned Trial Judge on the basis of the allegations made in the charge-sheet, framed charges for offences punishable under Sections 304 B, 177, 498-A and 201 IPC. In the alternative charge u/s 302 IPC was also framed. All the accused persons denied the charges and requested for the trial.

In order to bring home the charges, the prosecution examined as many as 26 witnesses (P.W. 1 to P.W. 26) and also proved some of the documents.

The defence of the accused persons including the appellant is of false implication which they also set forth in their statements recorded under Section. 313 Cr.P.C. and in support of their defence they examined 7 defence witnesses, they are Krishan Mohan Upadhyay (D.W. 1), Mahesh Kumar Soni (D.W. 2), Keshav Kumar Biyani (D.W. 3), Madan Mohan Nema (D.W. 4), Kushal Chaganraj Jain (D.W. 5), Anju Jain (D.W.6) and Amita Bhandari (D.W. 7).

The learned Trial judge on the basis of the evidence placed on record came to hold that charges are not proved against the other accused persons, resultantly they have been acquitted from all the charges. The learned Trial Court also came to hold that all the other charges except Section 302 IPC are also not proved against the appellant and he too has been acquitted from those charges. However on the basis of the evidence learned trial Court came to the conclusion that the appellant has committed the offence u/s 302 IPC and eventually convicted him and passed the sentence which is mentioned in the impugned judgment.

In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

The contention of Shri Surendra Singh, learned Senior Counsel for the appellant is that if the entire case of the prosecution is considered in toto, since there is no definite evidence against the appellant therefore only on the basis of the conjecture, surmises and assumptions he cannot be convicted. By inviting our attention to the testimony of postmortem doctor D.S. Badkur (P.W.21) it has been submitted by Learned Counsel that if his testimony is considered in true perspective the entire scene would become clear like a noon day that the deceased breathed her last on account of suicide and there is no iota of evidence of the homicidal death. In this context Learned Counsel has also invited our attention to the postmortem report Ex. P/18 and has further invited our attention to the most important document Ex. P/3 which according to the learned Senior Counsel is the turning point of the case because in this document specifically it has been mentioned by Dr. Pal (P.W. 20) that when the deceased was brought to the hospital she was alive and was in gasping condition and if that would be the position why several queries were made by police to the doctor as a result of which Dr. Pal issued letters Ex. P/15, P/16 and P/17 on different dates to the police and therefore although the investigating agency tried its best to have favourable report in its favour that the death was not suicidal and was homicidal, but despite full efforts the hallmark of the naked truth that deceased committed suicide has not at all been somersaulted. Learned Senior Counsel further submits that although Dr. Pal (P.W.20) has stated in his testimony that the deceased already died 6 hours earlier when she was brought to him, but if his testimony is tested on the touchstone and the anvil of his own letter Ex. P/3 and other important evidence it would become clear that the deceased was alive and this witness tried his best to save her life, therefore it can be inferred that under pressure such statement has been given by this doctor in the Court and in this context Learned Counsel has invited our attention to para-7 of the cross-examination of this doctor. Hence, according to learned Senior Counsel if the statement of Dr. Pal is taken to be true that he examined the dead body of the deceased, no prudent man would accept his evidence. In this context, Learned Counsel has invited our attention to page 423 of Dr. Modi''s Medical Jurisprudence and Toxicology 23rd edition, wherein duration of a dead body and its condition etc are mentioned. To bolster his submission Learned Counsel has placed heavy reliance on the decision of the Supreme Court in the matter of Mayur Panabhai Shah Vs. State of Gujarat, and has argued that doctor always do not say the true version and hence Learned Counsel submits that after giving look to the entire gamut it would be difficult to say that the death was homicidal and was not suicidal.

By inviting our attention to the testimony of Damodar Bihani (P.W. 1) who is the person in whose lawn a party was arranged a day earlier to the incident, it has been submitted that because in the said party the appellant was dancing with another girl, the deceased became little jealous and it was a cause to commit suicide.

Learned Senior Counsel further submits that Dr. D.K. Satpathi (P.W. 22) on the basis of the postmortem report, other necessary information supplied by the police to him has opined in his report Ex. P/19 that the death was homicidal and not suicidal. According to learned Senior Counsel unless and until a dead body is seen by a doctor and was present through out during the autopsy, only on the basis of postmortem report and other material and even on the basis of photographs of the dead body, his opinion would be nothing but would be the guess work. According to learned Senior Counsel before arriving at the conclusion whether the death was homicidal it was incumbent to see the dead body and also should have conducted the postmortem. In this context heavy reliance has been placed on the Division Bench of this Court in the matter of Anil Kumar Singhal Vs. State of M. P. [2010(4) M.P.H.T. 386] wherein the situation arose that on the basis of certain photographs and the postmortem report etc it was opined that the death was not suicidal and it was partial hanging and was homicidal. The said opinion was turned down by the Division Bench by acquitting the accused.

Hence according to learned Senior Counsel since the prosecution has utterly failed to prove its case beyond all reasonable doubt that the death was homicidal, by allowing this appeal the appellant be acquitted from the charge u/s 302 IPC for which he has been convicted and sentenced.

Per contra, Shri Bohra, learned Public Prosecutor has argued in support of impugned judgment and submitted that for no rhyme or reason the testimony of Dr. Satpathi (P.W.22) and his report Ex. P/19 should be somersaulted. According to learned Public Prosecutor since the doctor is having long experience his report should be relied upon wherein he has opined that the death of the deceased was homicidal. By putting deep dent on the argument of learned Senior Counsel for the defence it has been put forth by the learned Public Prosecutor that the submission put forth by him that on account of jealousy the deceased committed suicide should be visualised, from another angle also that it was a cause for the appellant to become an uxoricide because she did not like his attitude dancing with another girl in the party, and therefore there was a motive for the appellant to kill her and looking to the material evidence of Dr. Satpathi the learned trial Court did not commit any error in convicting the appellant, hence it has been prayed that this appeal sans substance and the same be dismissed.

Having heard Learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed.

Damodar Bihani (P.W. 1) who organised the party has categorically stated that in his party dance was going on and the appellant was dancing with another girl although his wife (the deceased) was also dancing, but on seeing appellant dancing with the other girl she sat down.

The statement of this witness is further corroborated by another witness Shantilal (P.W.2) who was also present in the said party and was there up to late night. One more very important evidence is carved out from his testimony that on the next day when he come to know that in the night the deceased has fallen seriously ill and has been admitted in the hospital, this witness went to the hospital in the morning to see her and he found that the drip bottle was injected to her.

In the present case certain evidence which have been carved out from the testimony of the witnesses, documentary evidence and the finding given by learned trial Court are as under:-

The deceased and appellant got married on 27.1.91;

a party was arranged by Damodar Bihani (P.W.1) in Nazarbag garden where the deceased and appellant were also invited;

while enjoying the party the appellant was dancing with a girl;

the appellant did not offer his own wife (deceased) to dance with him [see Damodar Bihani (P.W. 1) and Shantilal (P.W.2)].

in the late night the appellant and deceased came back to their home;

during dawn hours on 7.7.91 the condition of the deceased was found to be serious;

Dr. U.K. Gujarati (P.W. 19) was called but after examining the deceased he directed to shift her to the hospital.

On the basis of the aforesaid evidence the grain has been taken out from the chaff that the deceased was brought to the Civil Hospital at Narsinghgarh when she was alive and Dr. Pal (P.W.20) tried his best to save her life but failed and ultimately on account of her death the information was sent by him to the concerning police station.

Much emphasis has been put forth by the learned Public Prosecutor that indeed the dead body was brought to the Civil Hospital and Dr. Pal examined only a dead body and in this regard our attention has been drawn to Ex. P/15, P/16 and P/17 which are replies of the queries wherein doctor Pal (P.W.20) has stated that he examined only a dead body. How far his statement is correct, on close of the testimony of this witness the hidden truth is exposed that under pressure he has been forced to say so that he examined a dead body but before marshalling the testimony of this witness and examining the document Ex. P/3 dated 7.7.91 which is the turning point of the case, it would be relevant to mention here that this doctor is in medical line and is serving on the post of Assistant Surgeon for last 25 years. At this juncture only it would be condign to quote the entire document Ex. P/3 dated 7.7.91 written by this doctor which is as under:

To,

The T.L., Police Station Narsinghgarh.

Sub: Information about Smt. Rashmi W/o. Pravin Kumar Jain, R/o. Bada Bazar.

It is informed that a young woman Smt. Rashmi was brought to hospital for treatment in gasping condition.

She collapsed during treatment. It appears to be a suspected case.

You are requested for needful. Please in continuation of information already furnished by messenger at 10.15 A.M. Dt. 7/7/91.

11 A.M.

7/7/91 Astt. Surgeon C.H. Narsinghgarh.

If we accept the contention of the learned Public Prosecutor that according to Dr. Pal (P.W.20) he had examined only a dead body and whose testimony is also corroborated by Dr. Satpathi (P.W.22) and his opinion Ex. P/ 19, several big question marks are carved out creating heavy doubt to digest and swallow, this argument and these big questions are:-

Why Dr. Pal in its report Ex. P/3 dated 7.7.91 at.11 A.M. has stated that the patient was in gasping condition?

Was she alive and therefore messenger was sent to the Police Station at 10.15 AM as contained in Ex. P/3?

And if she was already dead for last 6 hours, whether this doctor injected the drip to a dead body? [See para-2 of Shantilal (P.W2)]

Why witness Shantilal (P.W.2) who is not a hostile witness is saying that when he came to the hospital in the morning he saw a drip was injected to the deceased and she was being treated by the doctor in the hospital?

Why the symptoms of the death of the deceased was not noticed by the same autopsy surgeon Dr. Pal (P.W.20) which are mentioned on pages 423 to 432 of Modi''s Medical Jurisprudence and Toxicology (23rd Edition) particularly to the changes in the eyes, changes in the skin, rigor mortis and muscular elasticity etc.

It be seen that Autopsy Surgeon doctor Pal (P.W.20) is an Asst. Surgeon serving for last 25 years in the hospital and therefore since he did not notice the condition of the changes in the eyes, skin, rigor mortis and muscular elasticity etc on the dead body which normally is found after 6 hours of the death, therefore the statement of this doctor saying that he examined only a dead body cannot be accepted. In his postmortem report Ex. P/18 the duration of death 6 hours has not at all been stated. If we further scrutinise para 7 of the testimony of this we find that 15 to 20 queries were made to him by the Police one after the other, after he submitted his postmortem report and not only this the S.D.O.(P.) also summoned him to the Police Station and asked several questions there. Normally a doctor is never summoned in the Police Station to give answers and if any doubt is carved, out in the mind of Investigating Agency it should be clarified by queries and its reply which is given by the doctor. Thus it appears and it could be inferred that the doctor was pressurised to say that indeed he examined a dead body and the death had occurred 6 hours earlier when he examined the deceased. According to Dr. Modi, in India the changes in the eyes, skin, rigor mortis, muscular elasticity etc takes place within 1 and 2 hours after the death, but no such symptoms were noticed and opined by the doctor in the postmortem report. Apart from this in the postmortem report Ex. P/18 also it has not been opined that the death was homicidal. On the internal page-7 of the postmortem report it has been opined that death was due to asphyxia as result of hanging.

At this juncture it would be relevant to place ''reliance on the decision of the Supreme Court Mayur Panabhai Shah vs. State of Gujrat (supra) wherein it has been held that there cannot be any presumption that the doctor is always a witness of truth and the judgment of the Gujarat High Court was reversed. At this juncture it would also be profitable to place reliance on another decision of the Supreme Court in the matter of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd. and Others, wherein the Apex Court has laid down the law that the query report should be supported by the documents. Undisputedly no such material was sent along with the queries put by the police and therefore whatever clarification he has given can not be accepted and if it is accepted it would only be the conjectures and surmises.

Now we shall examine the testimony of Doctor Satpathi (P.W.22) and his report Ex. P/19 as well as the contention made by the learned Senior Counsel and learned Public Prosecutor. Admittedly this Doctor has not conducted the Postmortem nor he was present when the postmortem was going on and only on the basis of the postmortem report and the other material sent to him, he straightway gave opinion that the death was homicidal and not suicidal. According to us in absence of the examination of the dead body and in absence of conducting the postmortem it would be hazardous for a Doctor to say only on the basis of the postmortem report and other material or even on the basis of the photographs of the dead body that the death was not suicidal but it was homicidal. On this point at length the Division Bench of this Court in the matter of Anil Kumar Singhal Vs. State of M.P. (supra) has dealt the point. In that case also on the basis of the report of the doctor who did not conduct the postmortem or even did not see the dead body on the basis of the material placed to him, opined that death was homicidal and his opinion was not accepted by the Division Bench and the same was turned down by acquitting the accused of that case. The decision of the Division Bench (supra) is based on Supreme Court decision Mafabhai Nagarbhai Raval v. State (1992 SC 2186) and in the matter of Mohan Singh Vs. State of Punjab, In the decision of Mafabhai (supra) the Supreme Court has held as under:-

It is needless to say that the Doctor who has examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the Court cannot substitute its opinion to that of the Doctor.

Similarly in Mohan Singh (supra) the Supreme Court has laid down the law in para 7 as under:-

The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gun-fire only. It must first of all be noted that he is not categorical about it. The reason for his conclusion are the dimensions of the injuries. He had not seen the injuries and it would need super-human ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors.

What has been held by the Division Bench of this Court in Anil Kumar Singhal (supra) is fully applicable in the present case. True certain minor injuries are found on the person of the deceased, but on account of those injuries the deceased did not die. At the most it can be inferred that on the point of dancing with a girl some marpit might have taken place but no stretch of imagination it can be inferred that the death was homicidal particularly when the two doctors jointly performed the postmortem and did not give any opinion about the homicidal death and the duration of the death. Even otherwise looking to the symptoms found by two autopsy surgeons on the dead body it cannot be said that the death was homicidal.

Judging from all the angles the oral evidence and documentary evidence, we unable to uphold the conviction of the appellant since the charge of Section 302 IPC is not at all proved by any cogent evidence and it is hereby held that appellant is not an uxoricide. By allowing this appeal the judgment of conviction passed by the Trial Court for convicting the appellant u/s 302 IPC is hereby set aside. Appellant is on bail. His bail bonds are hereby discharged. Fine amount if deposited, be refunded to appellant.