Anitabai vs The State Of Madhya Pradesh on 16 January, 2018

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
1 Cr.A. No.496/2010

Anitabai W/o Suresh Harijan Vs. State of Madhya Pradesh

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE

Division Bench: Hon’ble Shri Justice Prakash
Shrivastava and Hon’ble Shri Justice Virender Singh
Criminal Appeal No.496/2010

Anitabai W/o Suresh Harijan

Vs.
State of Madhya Pradesh

Coram:
Hon’ble Shri Justice Prakash Shrivastava
Hon’ble Shri Justice Virender Singh
—————————————————————————–
Shri S.K. Meena, learned counsel for the appellant.
Shri Mukesh Kumawat, learned Government Advocate for the
respondent/State.
————————————————————————-
Whether approved for reporting: Yes/No

JUDGMENT

(Delivered on 16/01/2018)
Per : Virender Singh, J. :

1. This is an appeal against judgment and order dated
19/04/2010 passed in S.T. No.262/2009 by ASJ, Bioara,
District-Rajgarh whereby the appellant held guilty under
Section 302 of IPC for causing death of her husband and has
awarded life imprisonment with fine of Rs.1,000/-, in default of
payment of fine amount further to undergo four months RI.

2. The prosecution case in brief is that the appellant –
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Anitabai W/o Suresh Harijan Vs. State of Madhya Pradesh

Anitabai got married with the deceased seven years prior to
the incident on 11/07/2009. After the marriage, she came to
her matrimonial home and after staying 2-3 days went back to
her maternal home. After 3 years of the marriage, following
tradition of Gauna, she came again to her in-law’s house and
used to stay there ordinarily but also used to visit her maternal
home occasionally. Before the incident, she was at her
maternal home and her husband brought her back 15 days
prior to the incident and since then she was staying at her
matrimonial house. On the fateful night, they both went to
sleep together in their room, but in the morning her husband
was found dead. Her brother sister-in-law (Jeth-Jhetani)
Ashok Kumar – Roopabai and mother-in-law Basantibai called
Village Chowkidar – Bapulal, who saw the dead body and
noticed that there was bleeding from the mouth, swelling on
the right cheek and tongue clenched between the teeth. He
informed the police on telephone. On receiving information,
Sub-Inspector of the police – M.L. Ghatia reached on the spot
and found the corpse was kept in the front court yard. He
inspected the corpse and the spot. He also noticed that tongue
of the deceased was clenched between the teeth, both lips
were swelled, eyes were swelled and closed, there was blood
on right cheek, three small size abrasions on right side of the
mouth and one abrasion over right eye were present and also
stains of semen like substance were present on underwear.
Half ate food was lying in the plate. Beddings (bed sheet etc.)
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Anitabai W/o Suresh Harijan Vs. State of Madhya Pradesh

were chaotic and scattered and there were signs of struggle.
He prepared spot map (Ex.P/3), seized blood stained and plain
soil, plastic mat and 3 pieces of plastic bangles, prepared
memo of corpse, scribed merg intimation, sent dead-body for
postmortem, recorded merg statement of Roopabai, Basantibai,
Lalita, Bapulal and Ashok. After completing merg inquiry,
registered FIR (Ex.P/17) under
Section 304 of IPC. The police
sent viscera for chemical examination and received reports
(Ex.P/19, P/20 and P/21) from FSL, Sagar, seized blood stain
blouse bangles on the information of the appellant, got it
chemically examined and arrested the accused. During merg
inquiry, it was revealed that the deceased was murdered,
therefore,
Section 302 of IPC was added to the charge-sheet.
The police obtained postmortem report and sent for FSL
examination and filed charge-sheet, after completion of the
investigation.

3. The appellant was charged, tried and convicted for the
offence under
Section 302 of IPC for committing murder of her
husband and awarded punishment as stated in para 1 above.

4. The appellant has preferred this appeal on the grounds
that the judgment of the learned trial Court is contrary to the
law and facts on record. Statements of witnesses are full of
contradictions, omissions and exaggeration. The learned trial
Court has not properly appreciated these statements.
Witnesses examined by the prosecution are interested
witnesses. The prosecution could not produce any cogent or
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reliable evidence. No incriminating evidence against the
appellant could be established. The evidence produced by the
prosecution is not sufficient to prove guilt of the appellant. She
is only convicted on the conjuncture and surmises.

5. It is further submitted that the learned trial Court has
convicted the appellant only on the pieces of bangles and
without considering the evidence. Prosecution has failed to
prove that the said pieces of bangles belong to the appellant.
The learned trial Court did not appreciate the defence of the
appellant.

6. The appellant has further, submitted that deceased was
died due to consumption of poisonous liquor. This fact is very
much corroborated by Dr. Sorin Datta (PW/7), who found liquor
in the stomach of the deceased. Viscera report Ex.P/9 given by
the FSL also confirmed existence of Ethyl Alcohol. Dr. Datta has
stated that cyrosis found on the dead body was could be due
to consumption of some poisonous liquor.

7. It is also contended that when last time the appellant
came to her matrimonial home, she was living peacefully; there
was no quarrel between both husband and wife (the deceased
and the appellant). Seizure of blood stained pillow and blouse
was not in accordance with the law and source of blood could
not be ascertained by the FSL. The trial Court did not
appreciate these facts correctly. The case of the prosecution is
doubtful, therefore, the appellant is entitled for acquittal.
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8. Learned Public Prosecutor has opposed the appeal and
has submitted that prosecution witnesses deposed before the
trial Court that relations of the appellant and deceased were
strained. The appellant was of loose character and was not
interested to live together with the deceased; therefore, she
was not regularly residing at her matrimonial home. In
question No.45, 54, 78 and 82 of examination of the accused,
she has admitted that at the time of incident, she was alone in
the room with the deceased. Blood stained articles were seized
on her instigation. 3-4 pieces of bangles were found on the
spot, which matched with the bangles seized from the
appellant. Injuries found on the person of the deceased, were
not explained by the appellant. As in the fateful night she was
alone with the deceased, therefore, onus of explaining the
cause of death comes on the shoulder of the appellant but she
failed to discharge this burden. Therefore, it is pleaded that the
learned trial Court has rightly convicted and sentenced the
appellant.

9. We have considered rival contentions of the parties and
have gone through the evidence and also the documents
produced by the prosecution before the learned trial Court.

10. It is the prosecution case that just after the incident,
Mother-in-law Basantibai, brother sister-in-law (Jeth-Jhetani)
Ashok Kumar – Roopabai and Village Chowkidar – Bapulal had
seen the dead body and noticed that there was bleeding from
the mouth, swelling on the right cheek and tongue was
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clenched between the teeth. Bapulal informed the police on
telephone. On receiving information, Sub-Inspector of the
police – M.L. Ghatia reached on the spot and found the corpse
was kept in the front court yard. He inspected the corpse and
the spot. He also noticed that tongue of the deceased was
clenched between the teeth, both lips were swelled, eyes were
swelled and closed, there was blood on the right cheek, three
small size abrasions on right side of the mouth and one
abrasion over right eye were present and also stains of semen
like substance were present on underwear. Half ate food was
lying in the plate. Beddings (bed sheet etc) were chaotic and
scattered and there were signs of struggle.

11. Dr. Sorin Datta (PW/7), who performed post-mortem
alongwith Dr. J.K. Shakya had observed that face of carcass
was cyanosed with both eyes closed, conjunctiva was
congested, both pupils were dilated, both lips were swelled
with teeth protruding and sandwiched under teeth of both
jaws. Dried up blood stain on right side of face including right
eye on left angle of mouth was present. Both lips had with
evidence of blood and serous fluid from nostril and mouth.
Both fists were semi Clenched with finger nail cyanosed.
Postmortem lividity had developed on dependent parts of
anterior aspects and on face, chest, upper abdomen, both
thighs, upper arms, also on posterior parts on back of chest.
Rigor Mortis had developed on muscles on face, neck and
upper and lower extremities with evidence of seminal fluid
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from penis. There were stains of semen on underwear. Dr.
Datta also found following external injuries:

(i) Superficial abrasion of 1 cm x 0.05 cm in upper
hand.

(ii) 4 nail marks abrasions of 0.4 cm length laternal
to right side of mouth.

(iii) Abrasion 0.5 cm x 0.5 cm on inner aspect of
lower lip right side.

(iv) Bruise 3 cm x 1 cm on inner aspect of upper
lip.

(v) Bruise 3 cm x 1 cm on inner aspect of lower lip.

12. After this physical observation, both the doctors opined
that the mode of death of the deceased was asphyxia caused
by smothering and was homicidal in nature.

13. After postmortem, the team of Doctors preserved viscera
and sent for chemical analyses to rule out any possibility of
intoxication.

14. Dr. Sorin Datta (PW/7) who was one of the Doctor who
performed postmortem, examined before the trial Court. In his
cross-examination, he ruled out any other cause of death
except asphyxia caused by smothering. He ruled out possibility
of injuries found on the dead-body being self inflicted or been
caused by falling or smashing. Though, he admitted that there
was some smell of liquor which showed that the deceased
might have consumed liquor and lividity might have been
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Anitabai W/o Suresh Harijan Vs. State of Madhya Pradesh

caused due to poisonous liquor but he strongly ruled out that
asphyxia may be caused due to excessive consumption of
poisonous liquor. Dr. Datta (PW/7) admitted in his cross-
examination that some time unconsciousness and vomitting
caused due to consumption of poisonous liquor may lead to
the vomiting of the patient entering in the trachea and causing
asphyxia. However in the present case, there is nothing to
show that there was any vomiting or something had gone in
the trachea of the deceased. No such finding has been
recorded by the team of Doctors who performed postmortem
and this issue has not been raised during the cross-
examination of the Dr. Datta (PW/7).

15. Viscera has been sent to FSL and as per FSL report
(Ex.P/19) no poisonous substance was found in viscera,
therefore, this report further ruled out the possibility of death
of deceased by some poisonous substance or by asphyxia
caused by some poisonous intoxicant. Thus, from all the
evidence discussed above it is established that the death of the
deceased was due to asphyxia caused by smothering. All other
possible modes of death have been ruled out by Dr. Datta
(PW/7). The opinion of the doctors is also confirmed by
making a reference to Modi’s Jurisprudence.

16. Thus, no doubt remains that the death of the deceased
was homicidal and was caused by asphyxia due to smothering
by some external force.

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17. Admittedly (as replied by the prosecutrix in question
No.24, 54, 45, 78, 82 and 99 of the examination of accused)
the appellant had come back to her husband’s house 15 days
prior to the incident and at the time of incident she and
deceased were together alone in the room, preceding night of
the incident. Therefore, the onus shifts on the appellant to
explain unnatural death of the deceased and no such
explanation was offered by her.

18. Apart from this, the appellant has admitted in question
No.45 of the examination of accused that the blood stained
blouse was seized from her possession, pieces of bangles were
found on the spot and some bangles were seized from the
possession of the prosecutrix and on comparison both were
found of the same set of bangles (FSL report Ex.P/20). This
evidence coupled with the injuries found on the face of the
deceased also indicates that there was some struggle and use
of force before the death of the deceased.

19. The learned trial Court has also considered all defences
taken by the appellant, like death was due to poisonus
substance or it was accidental due to inhaling of vomiting in
trachea. The learned trial Court has also considered and
concluded that there is no evidence that someone else had
entered in the room of the deceased.

20. All signs found on the dead-body only and only indicate
that the death of the deceased was due to asphyxia caused by
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smothering. Admittedly, at the time of the death, the appellant
was alone with the deceased. She has not offered any
explanation regarding unnatural death of her husband,
therefore, in view of the judgment of Hon’ble Supreme Court
in the matter of
Amit vs. State of Maharashtra (2003) 8
SCC 93 and
Babu vs. Babu (2003) 7 SCC 37, we are also
in full agreement with the conclusion of the learned trial Court
that the death was caused by the appellant. We do not find
any ground for interference in this finding of the learned trial
Court.

21. In the present case motive of the incident could not be
established by the prosecution. In fact there is total lack of
motive of murder and also there is no evidence of any
intention, preparation and premeditation for the offence. The
prosecution witnesses have stated that relations between both
of them (the deceased and the appellant) were not cordial but
nothing is there to fortify their averments. On the contrary,
circumstances show that they were living peacefully. The
appellant have stayed in the matrimonial home, used to visit
her maternal home also. The deceased brought her back from
maternal home 15 days prior to the incident. No such evidence
is produced by the prosecution that during this period they
ever fought on any issue or there was any domestic discord or
dispute between them. Only general and omnibus allegations
have been made by the witnesses that the appellant was not
liking her husband and was not interested to live with him but
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no specific allegations have been that on what account she was
not interested to live with him. On the contrary witnesses have
admitted that after coming back to the matrimonial home, the
appellant and the deceased lived peacefully for last 12-13 days.

22. Conduct of the accused/appellant is also note-worthy
here. She slept in the night with the deceased, in the morning
she woke-up, asked her Jhethani to accompany her for
relieving herself and on her refusal to accompany her, she went
alone and after relieving herself she came back to the room,
made tea, she tried to wake-up her husband, when he did not
react, she noticed that some blood were coming out from his
nose and mouth, she immediately informed her Jeth Jhethani
that her husband is not reacting to her call and some blood is
coming out from his nose and mouth. During this period, she
was having all opportunity of fleeing away from the spot but
she did not, instead her conduct shows that she herself was
not aware about the death of her husband. When she noticed
something abnormal even then instead of escaping from the
spot she called her Jhethani and other family members. It also
does not appears that even after finding her husband dead in
the presence of her in-laws she ever tried to run away from the
spot. This conduct very strongly and firmly indicates lack of ill
intention.

23. It has come on record that the deceased was alcoholic. It
is not disputed that liquor was found in the stomach of the
deceased in the postmortem, which means that in the
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preceding night also he drank. Sub Inspector Ghatia; who
visited the spot first, noticed and recorded the facts that half
eaten food was lying in the plate. Beddings (bed sheet etc.)
were chaotic and scattered and there were signs of struggle.
This shows that when the deceased came in the night in
drunken condition, in that situation something had happened
and the deceased had died due to something happened in that
moment. It does not appear that the accused was having any
intention to kill the deceased. No evidence is there to show
any preparation or premeditation for the offence the appellant
is charged with. The appellant has no criminal antecedent. The
incident happened suddenly. Therefore, we are of the opinion
that the case of the appellant qualifies all parameters i.e. (i) it
was a sudden fight; (ii) there was no premeditation; (iii) the
trigger for the incident was momentous; and (iv) the assailant
had not taken any undue advantage or acted in a cruel manner
and therefore, his act does not fall under the purview of the
offence punishable under
Section 302 of IPC but falls under
the purview offence punishable under
Section 304 Part-II of
IPC.

24. In view of the aforesaid discussion and also the law laid
down by the Hon’ble Supreme Court in Madhvan and others
V/s. State of Tamil Nadu reported in AIR 2017 SC 3847,
Sikander Kali V/s. State of Maharashtra reported in 2017
SC 1150, Elavarasan V/s. State reported in AIR 2011 SC
2816 the appeal is partly allowed. The judgment passed and
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Anitabai W/o Suresh Harijan Vs. State of Madhya Pradesh

sentence awarded by the learned trial Court are set aside to
the extent that we hold the appellant guilty for committing the
offence under
Section 304 part II of IPC instead of the offence
under
Section 302 of IPC.

25. The appellant is in jail since 13/07/2009 and she has
served imprisonment of approximately nine years. Considering
the nature of incident and keeping in view the facts and
circumstances of the case, in our considered opinion, ends of
justice would be served if the appellant is awarded punishment
for the period of jail sentence already undergone. Hence we
award the sentence accordingly. The appellant be set at liberty
forthwith, if not required in any other case.

26. Order of the trial Court regarding disposal of property
stands confirmed.

(Prakash Shrivastava) (Virender Singh)
Judge Judge
Aiyer*

Jagdish
Digitally signed by Jagdishan Aiyer
DN: cIN, oHigh Court of Madhya
Pradesh, ouAdministration,
postalCode452001, stMadhya
Pradesh,

an Aiyer
2.5.4.20a447e9805af75a6ef46d497
5800dabec4b062d9acd7546137cc7
40fb3cea1603, cnJagdishan Aiyer
Date: 2018.01.19 02:47:48 +05’30’

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