(1) Cr.A.No. 341/05
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K.KAUSHAL
CRIMINAL APPEAL NO. 341/2005
APPELLANT: Ratan Singh, S/o Bamhan Singh Marawi
aged 56 years, Occupation Cultivation
R/o Village Khiksatand (Lalkhatitola), P.S.
Motinala, District Mandla (M.P.).
Versus
RESPONDENT: State of Madhya Pradesh through Police
Station Motinala District Mandla (M.P.).
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For the Appellant : Shri V.P.Singh, Advocate.
For the respondent/State : Shri Vijay Pandey, Dy. Advocate General.
Date of hearing : 01/03/2011
Date of judgment: 01/03/2011
(J U D G M E N T )
Per: Rakesh Saksena; J,
Appellant has filed this appeal against the judgment dated
31.12.2004, passed by Second Additional Sessions Judge, Mandla, in
Sessions Trial No. 24/2004, convicting the appellant under Section 302 of
the Indian Penal Code and sentencing him to imprisonment for life with
fine of Rs. 500/-. In default of payment of fine, further rigorous
imprisonment for three months.
2) Briefly stated, facts of the prosecution case are that appellant and
his wife Kulpat Bai resided in village Khiksatand. There was no population
in the locality. House of Dhandhu Singh (PW1), brother of appellant was
located at some distance from the house of appellant. Appellant and his
wife both were addicted of consuming liquor. Under intoxication, they
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frequently used to indulge in quarrel. Appellant used to become
aggressive and assault his wife. None used to intervene in their quarrel. It
is alleged that in the night intervening between 7-8th January, 2004, there
occurred a quarrel between appellant and his wife Kulpat Bai. Appellant
assaulted Kulpat Bai by fists and kicks. As a result of injuries on her ribs,
Kulpat Bai died. Next day morning, appellant ran away leaving dead body
of Kulpat Bai in the house. In the morning, when Dashri Bai (PW2), sister
of deceased went to the house of deceased and called her, she found her
lying dead. She went back to her house and informed her husband
Dhandhu Singh (PW1) and other people of village. Dhandhu Singh (PW1)
went to Police Station, Motinala and reported about the death of Kulpat
Bai. Police recorded merg intimation Ex. P/1.
3) Dead body of Kulpat Bai was sent to Community Health Centre,
Bichhiya, where Dr. P.D. Sahu (PW4) conducted postmortem examination
of the dead body. He found six injuries on the body of deceased. On
internal examination of the body, he found that her ribs were fractured
and lungs were ruptured. He also found alcoholic content in the abdomen.
According to his report Ex. P/5, the death of Kulpat Bai could be homicidal
or accidental.
4) After further investigation and arrest of appellant on 16.1.2004,
charge sheet in the case was filed and the case was then committed for
trial. Appellant abjured his guilt and pleaded false implication.
5) Learned Additional Sessions Judge, after trial and upon appreciation
of the evidence adduced in the case, convicted and sentenced the
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appellant under Section 302 of the Indian Penal Code, as aforesaid by the
impugned judgment, which has been challenged in this appeal.
6) We have heard the learned counsel for the parties.
7) It was not disputed that deceased Kulpat Bai died of injuries found
on her body. Dr. P.D.Sahu (PW4) deposed that dead body of Kulpat Bai
was brought to Community Health Centre, Bicchiya on 8.1.2004, and he
conducted postmortem examination of the same. He found following
injuries on her body:
(i) abrasion 2 cm x 1 cm in lateral margin of left ear,
(ii) abrasion 4 cm x 1 cm in posterior aspect of left
shoulder,
(iii) abrasion 1 cm x 1 cm in posterior aspect of right
shoulder,
(iv) abrasion 2 cm x 1 cm in left angle of mouth,
(v) abrasion 0.5 cm x 0.5 cm in left and right knee
joints &
(vi) abrasion 1 cm x 0.5 cm in middle toe of right foot.
On internal examination of the body, seven ribs of left side and six
ribs of right side were found fractured. Right and left lungs were also
ruptured. There was alcoholic content in the stomach of deceased. In his
opinion, the death of deceased could be either homicidal or accidental.
Her postmortem examination report Ex. P/5 written and signed by Dr. P.D.
Sahu (PW4) is also placed on record. It was thus clearly evident that
deceased Kulpat Bai died of injuries found on her body.
(4) Cr.A.No. 341/05 8) Learned counsel for the appellant, however, submitted that trial
Court erred in placing implicit reliance on the evidence of Dhandhu Singh
(PW1) and Dashri Bai (PW2). There was no evidence on record to show
that at the time of occurrence, he was present in his house. There was no
direct evidence in the case, but trial Court convicted the appellant on the
basis of surmises and conjectures. Learned counsel further submitted that
even if it was found proved that appellant assaulted the deceased, his act
did not fall in the ambit of the offence under Section 302 of the Indian
Penal Code. At the most, it could be a case under Section 304-Part II of
the Indian Penal Code. Learned counsel for the State, on the other hand,
justified and supported the conviction of the appellant.
9) We have gone through the entire evidence on record.
10) Dhandhu Singh (PW1) deposed that appellant was his younger
brother. He lived at a short distance from his house with his wife. His
two sons had gone to Delhi for labour work. Appellant and his wife
(deceased) used to consume liquor and hurl abuses under intoxication.
On the day, on which Kulpat Bai died, at about 7-8 O’ clock in the night,
appellant and deceased talked to each other after consuming liquor. He
did not hear any quarrel between them. Next day at about 11 O’ clock
when his wife Dashri Bai went to the house of Kulpat Bai, she found
Kulpat Bai sleeping with a quilt over her. Dhasri Bai was real sister of
Kulpat Bai. When she tried to wake her up, she saw Kulpat bai lying dead.
She informed Dhandhu Singh about the death of Kulpat Bai. Dhandhu
Singh (PW1) stated that he had seen appellant warming up in the ` Badi’ of
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his house in the early morning.
11) Dashri Bai (PW2) too deposed that her sister Kulpat Bai used to
drink liquor excessively. Appellant also consumed liquor and used to
quarrel with Kulpat Bai. In the morning at about 11 O’ clock when she
went to the house of Kulpat Bai, she found her lying dead under her quilt.
She informed her husband about the death of Kulpat Bai. Appellant was
not present in the house.
12) Tulsiram (PW5) deposed that Kulpat Bai and her husband on the
day when she died, lived in the same house. Kulpat Bai died in the night
and on the next day morning, he saw appellant on the road going towards
the house of his brother Dhandhu. Thereafter, he returned to his house.
He too stated that appellant and the deceased used to consume liquor and
quarrel with each other.
13) From the evidence of aforesaid witnesses, it is established that
appellant lived in his dwelling house with the deceased. His presence in
the house in the evening, before the death of deceased is established by
the evidence of Dhandhu Singh (PW1) and in the next morning by the
evidence of Tulsiram (PW5). There appeared nothing in their statements
to indicate that they were speaking false.
14) In Trimukh Maroti Kirkan Vs. State of Maharashtra-(2006) 10
SCC 681, Apex Court observed that “where an accused is alleged to have
committed the murder of his wife and prosecution succeeds in leading
evidence to show that husband and wife were last seen together or the
offence was committed in the dwelling house, where the husband also
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resided, and if the accused husband offers no explanation as to the
injuries received by his wife or if the explanation is false, there is strong
circumstance which indicates that he committed the crime.”
15) From the evidence of Tulsiram (PW5), it is proved that after the
death of Kulpat Bai appellant did not come to his village for 1-2 days.
Investigating Officer Indresh Tripathi (PW7) arrested appellant only on
16.1.2004 i.e. about seven days after the death of his wife. According to
appellant, as he stated in his statement under Section 313 of the Code of
Criminal Procedure, on Sunday he had gone to house of his nephew at
village Khuriabandh and on getting information about the death of his
wife, he returned on Wednesday of second week, but he was arrested by
the police on way. Neither such suggestion was made by the accused to
prosecution witnesses in the trial, nor any evidence was produced by him
to substantiate this fact.
16) From the evidence adduced by the prosecution, it appears that the
explanation furnished by the appellant was neither reasonable nor truthful
and it was clearly established that in the night intervening between 7th-8th
of January, 2004, he was present in his house with the deceased, who
died due to injuries found on her body. He remained absconding till
16.1.2004 when he was arrested by the police. In this fact situation, the
only possible inference is that he caused injuries to deceased which
resulted into her death.
17) The next question before us is that whether conviction of appellant
under Section 302 of the Indian Penal Code was justified. From the
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evidence of Dhandhu Singh (PW1), Dashri Bai (PW2) and Tulsiram (PW5),
it is established that appellant and deceased were liquor addict. Under
intoxication, they used to quarrel and none interfered in this routine.
There is absolutely no evidence on record to indicate that relations
between them were strained or appellant had any motive to commit
murder of deceased. According to Dr. P.D.Sahu (PW4), the death of
deceased could have been homicidal as well as accidental. In these
circumstances, the possibility that in a sudden quarrel under spell of
liquor, appellant assaulted deceased causing injuries to her, which resulted
into her death, could not be ruled out. Thus, in our opinion, the conviction
of appellant under Section 302 of the Indian Penal Code does not appear
correct, but, since, it can be safely held that appellant assaulted deceased
with the knowledge that it was likely to cause her death or to cause such
bodily injury as was likely to cause her death, he deserves to be convicted
under Section 304-Part-II of the Indian Penal Code.
18) Accordingly, the conviction of appellant under Section 302 of the
Indian Penal Code and sentence of life imprisonment awarded by the trial
Court is set aside. Instead appellant is convicted under Section 304 Part II
of the Indian Penal Code and sentenced to rigorous imprisonment for
seven years.
19) Appeal partly allowed.
(RAKESH SAKSENA) (T.K.KAUSHAL)
JUDGE JUDGE
AD/