DIVISION BENCH v. State of M.P

HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI YATINDRA SINGH, C.J. HON'BLE SHRI SUNIL KUMAR SINHA, J Criminal Appeal No. 1734 of 1996 Appellants In Jail -^

1. Deleted

2. Setram VERSUS Respondents State of M.P. Appea! under Section 374 of Cr.P.C. Appearance: Shri Awadh Tripathi, counsel for the Appellants. Shri UNS Deo, Government Advocate for the State. JUDGEMENT (OlstJanuary, 2013)

1. This appeal is directed against the judgement dated 06.09.1996, passed in Sessions Trial No. 297 of 1995 by the Second Additional Sessions Judge, Raigarh. By the impugned judgement, the two accused namely, Bhuri Bai and Setram were convicted under persons, Section 302/34 of the IPC and sentenced to undergo imprisonment for life. Bhuri Bai (Appellant-1) died during the pendency of the appeal, therefore, her name has been deleted from the cause-title and the appeal filed on behalf of Appellant-1 Bhuri Bai has abated.

2. The facts, briefly stated, are as under: Deceased Rajni Bai was wife of Appellant Setram. Bhuri Bai was mother-in-law of the deceased. The deceased was residing with her husband and in-laws in village Appellant Setram lodged a merg intimation Sanda. (Ex.P/10) on 08.09.1995 at about 3:30 pm that at about 8:00 am he had gone to market leaving the deceased in the house. His father had already gone to a different place. The deceased and his mother (Appellant-1) were present in the house. When he returned at about 10:30 am, he found that deceased Rajni Bai was lying dead in the veranda of the house. hle specifically mentioned in the merg intimation that the deceased had not sustained any injury, however her death may be enquired. The investigating officer reached to the place of occurrence; gave notice (Ex.P/1) to the Panchas and prepared inquest (Ex.P/2) on the dead-body of the deceased. The dead-body of the Centre deceased was sent (PHC), Baramkela. for post-mortem to Primary Health post-mortem was conducted by Dr. SS Sishodiya (PW-11). He found following external injuries: The

1. Abrasion of 3.5 x 3 cm on the front portion of right elbow.

2. Abrasion of 1.5 x 1 cm on the back portion of right shoulder.

3. Abrasion of 4 x 0.5 cm on the back over the third lumbar vertebrae. Jhere were also injuries on the neck.

4. There was a ligature mark 3.5 inches below the mustoroid passing front of the neck over the lower part of the thyroid reaching towards left side at the ligature mark was level of fifth cervical vertebrae; well defined. The autopsy surgeon found that the cause of death was asphyxia as a result of strangulation and death was homicidal nature. The post-mortem report is Ex.P/20. In further investigation, Appellant-1 was taken into custody and her memorandum statement Evidence Act was recorded and a rope was seized at her (Ex.P/3) under Section 27 of instance vide seizure memo Ex.P/4. Certain other articles were also seized. After receiving the post-mortem report, a case under Section 302 ofthe IPC was registered. Since the two appellants, 'y ^ \^^s^^, t %.'""' s .^.^ i.e. husband and mother-in-law of the deceased were present in the house at the relevant time, they were made accused and were prosecuted under Section 302/34 ofthe IPC.

3. Admittedly, there was no eyewitness to the incident and the case of the prosecution was based on the circumstantial evidence. Sessions Judge held that the appellants alone were residing with the The deceased in their house; the deceased died homicidal death; Appellant-2 made a false report to the police and even he did not mention about the injuries sustained by the deceased and no explanation was offered by the appellants as to how the deceased died homicidal death in their house, therefore, they were liable for punishment under Section 302 of the IPC. thus, were convicted and sentenced The appellants, as aforesaid.

4. Shri Awadh Tripathi, counsel for the appellants has argued that the circumstances set forth were not sufficient to hold the appellants guilty of offence punishable under Section 302 ofthe IPC. He took us to the various paragraphs ofthe impugned judgement.

5. On the other hand, Shri UNS Deo, Government Advocate opposed the arguments advanced on behalf of the appellants and supported the judgement passed by the Sessions Court.

6. We have heard counsel for the parties and have also perused the records of the sessions case.

7. Appellant Setram, is the husband of the deceased. He lodged merg intimation (Ex.P/10) at about 3:30 pm on 08.09.1995. intimation, he has mentioned that on 08.09.1995 at about 8:00 am he had gone to village Baramkela for purchasing sorhe fruits, and when he returned at about 10:30 am, he found that his wife (the deceased) was lying dead in the veranda of the house. When he made cries, his mother In the merg (the co-appellant) also came there. Both of them tried to give water to the deceased, but the deceased did not take the water. Ultimately, the villagers told that the deceased had died. He specifically mentioned in the merg intimation that the deceased had not sustained any external injury. The contents of the merg intimation would show that Appellant-2 .=rST ^^w^ ^ had tried to lodge a simple report of death of his wife and he did not even mention about the injuries sustained by her on the neck.

8. Shri Tripathi has argued that the injuries were not so prominent, therefore, Appellant-2 may not have noticed the said injuries.

9. The argument advanced by Shri Awadh Tripathi, appears to be incorrect. We have gone through the post-mortem report as also the evidence of Dr. SS Sishodiya (PW11), who conducted the autopsy. He had noticed three big abrasions on different portions of the body of the deceased. He had also noticed a ligature mark over the neck. In normal circumstances, it cannot be said that the husband who lodged merg intimation that his wife has died would not have noticed the above injuries and even he did not mention about the injuries in the report which he lodged after about five hours. This goes to show the conduct of the Appellant- Setram. We are of the opinion that as per Section 106 of it was a duty cast on the appellant to tell the police the the Evidence Act, things which were in his special knowledge. Atleast, the appellant could have told the police that his wife sustained multiple injuries and the death appears to be homicidal, whereas the appellant has simply intimated the police as if it was a normal death. Therefore, not telling the police about the injuries sustained by the deceased and taking her death as normal would be one of the circumstances which shall be read against the appellant.

10. The two appellants were present in the house at the time of the incident. According to Appellant-2, his father had gone to a different village. The prosecution has also investigated the matter in this regard. When the report relating to homicidal death of the deceased came after the post-mortem examination, then a case under Section 302 of thelPC was registered. Since the two appellants were present in the house at or about the time of the incident, they were taken into custody and were prosecuted for the said offence. Admittedly, deceased was found in the house of the appellants and the deceased the dead-body of had died homicidal death. In these circumstances, it was incumbent on the appellants to explain as to how the deceased died homicidal death in their house. The appellants have not thrown any light in this regard. ^- ^1 •': ^ ^-:^ '^.&'"/f':"'"':''^ "^y;: g) Even in their examination under Section 313 of the Cr.P.C, appellants have not stated a single word as to how the deceased sustained above injuries or how she died homicidal death. The Sessions Judge has taken these circumstances to be incriminating against the appellants.

11. Shri Tripathi has also argued that it was a case of hanging.

12. The Sessions Judge has ruled out the possibility of suicidal death or death by hanging on various counts which are contained in paragraphs 17 to 20 of the impugned judgement. More over, if we look into the evidence of Dr. S.S. Sisodhiya, it would appear that the ligature mark found over the neck of the deceased was horizontal and it was about 3.5 inches below the mustoroid region, which completely rules out the possibility of a suicidal death by hanging. Apart from above, the deceased also sustained three big abrasions on different portions of the body which appears to be result of struggle suggesting homicidal death. The dead-body of the deceased was not found in hanging condition. There is also no evidence that some articles like rope etc. were found hanging anywhere in the house. Therefore, we are of the opinion that on these circumstances, the Sessions Judge was fully justified in recording the finding that it was not a suicidal death and the death of the deceased was homicidal.

13. Since both the appellants, who were inmates of the house and were present in the house at the time of the incident, failed to explain as the Sessions Judge has to how the deceased died homicidal death, rightly held them liable for commission of murder of the deceased.

14. That apart, the deceased was married to Appellant-2 Setram two years back. Dhanmati Bai (PW-3) is mother and Santosh Kewat (PW-4) is father of the deceased. According to their evidence, the deceased was being treated with cruelty by the appellants and the act of cruelty was on account of demand of dowry. additional circumstance adversely going against the appellants. This also appears to be an ,^;,::'^ ^ £% K 1 '^.

15. For the foregoing reasons, we do not find any substance in this appeal. The judgement and the findings recorded by the Sessions Judge are based on cogent, clinching and reliable evidence. The appeal is liable to be dismissed and is hereby dismissed. The bail is cancelled. The accused shall be taken into custody to serve out the remaining part ofthe sentence. Sd/- ChiefJustice SdA SunU Kumar Sinha Judge