Madhya Pradesh High Court
Shiv Kumar Mahara vs The State Of Madhya Pradesh on 22 October, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:52924
1 CRA-530-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 22nd OF OCTOBER, 2024
CRIMINAL APPEAL No. 530 of 2015
SHIV KUMAR MAHARA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Madan Singh, learned counsel for the appellant Shiv Kumar
Mahra.
Shri Nitin Gupta, learned Public Prosecutor for the State.
JUDGMENT
Per: Justice Vivek Agarwal This appeal is filed under Section 374(2) of the Code of Criminal Procedure being aggrieved of the judgment dated 01.11.2014 passed by learned Sessions Judge, Anuppur in Sessions Case No.96/2012.
2. Brief facts of the present case are that Indrakali (deceased) was married with the present appellant Shiv Kumar Mahra. She was grand daughter of the complainant Rambhan (PW-1). Shiv Kumar is son-in-law of Savitri (PW-2) and Vishram (PW-3), who are mother and father of deceased Indrakali. It is an admitted fact that Shiv Kumar had approached the Police Station Rajendra Gram, District Anuppur on 10.06.2012 and had given intimation of the fact that his marriage was performed with Indrakali @ Nanbai. From said Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 2 CRA-530-2015 marriage, he has two sons. He was residing separately from his parents along with his wife. He used to have dispute with his wife on some or the other pretext. Two-three days back he had an altercation with his wife Indrakali.
3. Savitri Bai i.e. mother-in-law of the appellant had visited their house a day prior to the incident, to take, Indrakali, with her when she had taken her to Samla. On the same day Shiv Kumar brought her back forcefully from 'Samla' to his own house. On account of such incident Indrakali out of anger had not consumed her food. When in the evening she did not consume her food, then Shiv Kumar also refused to have his food. On the date of the incident he asked his wife to consume food but when she refused and went inside her room to sleep, then Shiv Kumar out of anger had caused injury to Indrakali on her throat, as a result of which she died instantaneously.
4. It is submitted that FIR (Ex.P-13) was lodged by Shiv Kumar Mahra himself, registering Case Crime No.80/2012 at Police Station Rajendra Gram under Section 302 of IPC. Marg Intimation (Ex.P-14) was also lodged, and thereafter, upon investigation charge-sheet was filed in the Court of Judicial Magistrate, First Class, Rajendra Gram where Criminal Case No.257/2012 was registered. Matter was committed on 20.07.2012 to the Sessions Court. Charges were framed since appellant abjured his guilt, trial was conducted and impugned judgment was passed, convicting the appellant under Section 302 IPC and he has been sentenced to undergo life imprisonment with fine of Rs.1,000/- with default stipulation of 1 year R.I.
5. Shri Madan Singh, learned counsel for the appellant submits that appellant is innocent, he is falsely implicated. Report Ex.P-13 is not Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 3 CRA-530-2015 admissible in the eyes of law, therefore, it cannot be treated as confessional statement. It is submitted that there is no eye witness to the incident and since nobody saw him using an axe, merely recovery of an axe is not a sufficient circumstance to hold him guilty.
6. It is further submitted that evidence of Rambhan (PW-1), Ghirjiya Bai (PW-4), Ramraj (PW-5), Santosh Singh (PW-6), Nanvati (PW-7), Surtiya Bai (PW-8) and Dr. T.R. Chourasiya (PW-9) has not been appreciated by the Trial Court correctly, therefore, it is submitted that no offence under Section 302 of IPC is made out as neither there was any intention nor mens rea to cause that incident, therefore, prayer is made to set aside the judgment of conviction and record finding of acquittal.
7. Learned counsel for the appellant places reliance on the judgment of Apex Court in Laxman Prasad alias Laxman Vs. State of Madhya Pradesh, (2023) 6 SCC 399 to submits that when there is any break in the chain of circumstances and even if there is one missing link conviction cannot be upheld.
8. Shri Nitin Gupta, learned Public Prosecutor for the State, in his turn, submits that evidence of mother of the victim Savitri who was examined before the Trial Court as PW-2 is relevant, she is a witness of last seen. Coupled with the fact that Ramraj (PW-5) is also a witness of last seen. Therefore, conviction of the appellant as recorded by the Trial Court on the basis of recovery of an axe and blood stained clothes cannot be faulted with, inasmuch as Trial Court has rightly held that though the FIR (Ex.P-13) cannot be taken as a confessional statement against the appellant but Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 4 CRA-530-2015 memorandum under Section 27 of the Evidence Act as was given by the appellant and is available on record as Ex.P-1 on the basis of which an iron axe with a handle was recovered vide Ex.P-2 in front of witnesses Sukhau and Ramraj is sufficient to corroborate the incident especially when the dead body of Indrakali was recovered from the house of the appellant. It is pointed out that vide Ex.P-4, a sando vest of BOND company of 90 cms size was recovered with blood stains and FSL report (Ex.P-25) clearly points out that article 'A', 'B' and 'D' contained blood. No blood was found on article 'C'.
9. Article 'A' is the axe recovered at the instance of accused Shiv Kumar, article 'B' is the soil from the place of incident and article 'D' is the sando vest of the Shiv Kumar Mahra.
10. Thus presence of blood itself on these articles fortifies the case of the prosecution that appellant is the assailant and, therefore, the judgment of conviction does not call for any interference.
11. After hearing learned counsel for the parties and going through the record, Trial Court has meticulously dealt with evidence of various witnesses. Satish Dwivedi (PW-13) is the I.O. of the case, he was posted as S.H.O., Police Station, Rajendra Gram on 10.06.2012. Appellant Shiv Kumar Mahra had appeared at Police Station and lodged FIR that he had on account of dispute with his wife killed Indrakali @ Nanbai. It has come on record and is properly appreciated by the learned Trial Court that in the light of the law laid down by the Apex Court in the case of Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119, that where accused had himself lodged FIR, then admission made in such FIR shall not be admissible but in case appellant has Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 5 CRA-530-2015 given his memorandum under Section 27 of the Evidence Act, then said memorandum can be used against him.
12. In the present case, Savitri Bai (PW-2) has stated that she is mother of the deceased and mother-in-law of the appellant. She stated that her daughter was married with the present appellant Shiv Kumar Mahra. Thereafter, Indrakali had given birth to a son. Shiv Kumar used to beat her and used to throw her out from her matrimonial home. Time and again villagers use to intervene and a compromise used to be affected. For some time, appellant kept Indrakali properly but again started beating her when second son was born. Her daughter had come back to her parental home where she stayed for some time but on assurance of Daduram and Kailash who had visited her she was sent to her matrimonial home but Shiv Kumar did not stop beating her daughter Indrakali. She stated that she had gone to the matrimonial home of Indrakali where she had met Indrakali and found her to have sustained bruises on whole of her body. She wanted to take her daughter to the hospital but appellant came there and started beating her daughter as a result of which she had also followed the appellant and Indrakali where he saw that Indrakali was attacked by the appellant with an axe when she came back running.
13. Trial court has accepted this fact that Savitri is not an eye witness to the incident but is the witness of last seen, that is admittedly, Shiv Kumar had snatched Indrakali from the custody of Savitri and had dragged her to his home on the fateful day.
14. Vishram (PW-3) father of Indrakali and husband of Savitri (PW-2) stated that Shiv Kumar is his son-in-law and Indrakali was his daughter. He Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 6 CRA-530-2015 corroborated the statements of Savitri (PW-2) and stated that on the guarantee of Kailash and Daduram he had sent his daughter to her matrimonial home. He further states that he had sent his wife Savitri to take note of whereabouts of Indrakali when she had seen the injuries on her body, then Savitri (PW-2) wanted to take deceased to the hospital when she was beaten.
15. Thus, evidence of this witness PW-3 has remained unrebutted, that, from the date of the marriage, Indrakali was physically and mentally tortured by the present appellant.
16. Rambhan (PW-1) is the grand-father of the deceased Indrakali. He has supported the statement of other witnesses in regard to cruel behaviour Shiv Kumar towards Indrakali.
17. Ramraj (PW-5) is the neighbrour of Shiv Kumar. He has stated that Indrakali had come to his house and said that she is hungry for last three days. He had offered food to Indrakali but in the meanwhile Shiv Kumar Mahra came to his house and dragged Indrakali. This witness is also witness of memorandum under Section 27 of the Evidence Act. In front of him axe was recovered vide Ex.P-2 along with Khoonalooda and Sadi Mitti vide Ex.P-3 and a sando vest was recovered vide Ex.P-4. Shiv Kumar was arrested in front of this witness PW-5 and, then notice of seeing the dead body Ex.P-6, Lash Panchayatnama (Ex.P-7) were prepared in front of this witness. This witness is not only witness of the memorandum and recovery but has stated that there was a dispute between Indrakali and Shiv Kumar and he had seen Indrakali, dead.
Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 7 CRA-530-2015
18. Surtiya Bai (PW-8) is another important prosecution witness who has stated that both Shiv Kumar and Indrakali are known to them. One day prior to the incident Savitri (PW-2) had come to her house and stayed with Suratiya Bai (PW-8). Savitri (PW-2) had informed her that Shiv Kumar was beating and torturing Indrakali. On next day morning Ramraj and Savitri had gone to the house of the accused to get Indrakali. Then Indrakali had come to her house from where Shiv Kumar had dragged Indrakali in a forceful manner, then Savitri gone back to her own house. Next day it was revealed that Shiv Kumar had killed Indrakali. Evidence of this witness has also remained unrebutted.
19. Nanvati (PW-7) is a witness to support the prosecution case that there were frequent quarrels between Indrakali and Shiv Kumar.
20. Santosh Singh (PW-6) is Sarpanchpati and he had at the instance of S.H.O., Satish Dwivedi, had called Vishram to give him information as to the death of Indrakali in the hands of his son-in-law Shiv Kumar.
21. Kailash Prasad (PW-10) and Shobhit (PW-11) are witnesses to the affect that Shiv Kumar use to torcher his wife Indrakali and a Panchayat was convened in this behalf. They have also stated that on 09.06.2012, a day prior to the incident Savitri (PW-2) and Ramraj (PW-5) had visited the house of Shiv Kumar Mahra and, then accused had beaten Indrakali. Shobhit (PW-
11) has stated that Savitri wanted to take back Indrakali to her parental home but Shiv Kumar did not allow her to take Indrakali with her.
22. Satish Dwivedi (PW-13), I.O. of the case, has stated that he had seized sando vest of the accused vide Ex.P-4. He had arrested the accused vide Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 8 CRA-530-2015 Ex.P-5 and given intimation of arrest to his father Govind vide Ex.P-18. He further stated that he had seized an axe, khoonalooda and sadi mitti and one sando vest which were sent to the FSL vide draft Ex.P-23. Receipt was obtained vide Ex.P-24 and FSL report obtained from FSL, Sagar is Ex.P-25 which reveals that on axe, khoonalooda mitti and sando vest, there was blood.
23. Satish Dwivedi (Ex.PW-13) also stated that the axe which was recovered from the memorandum of Shiv Kumar and is marked as article 'A' was lying by the side of the dead body. There is no effective cross- examination to dispute in regard to recovery of an axe close to the dead body on the memorandum of the appellant Shiv Kumar.
24. It is also settled law as held in case of Baldev Soni Vs. State of Madhya Pradesh, (2012) Cri.LJ, 282, that where any recovery is made is pursuance of the memorandum under Section 27, then that recovery can be used to connect the chain of events.
25. Thus, when examined then factum of marriage of Indrakali with Shiv Kumar is not disputed. Fact of Shiv Kumar torturing Indrakali from time to time is also not disputed. Fact of convening of Panchayat for settlement between Indrakali and Shiv Kumar is also an admitted fact. It is also admitted as per the evidence of Savitri and Ramraj that Indrakali had come to the house of Ramraj and had informed him that she had not taken any food for last three days when Shiv Kumar had dragged her back to his home.
26. As per Dr. T.R. Chourasiya (PW-9), it is stated that on external examination he had found three injuries on the body of Indrakali namely, Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 9 CRA-530-2015 injury measuring 8 x 3 cm on the left hand side of the neck. Second injury measuring 6 x 2 cm and third measuring 7 x 2 cm were seen below each other on the left hand side of the neck, as a result of which head was connected only with some skin and cervical bone was almost cut. Cause of the death was shock on account of severing of spinal bone. Death was homicidal in nature caused within 24 hours of the postmortem.
27. It is also on record that the time of death of Indrakali matches with the postmortem report and fact of severing of neck causing death and that death being homicidal in nature is proved beyond doubt.
28. Thus, evidence of last seen corroborated with evidence of recovery of axe and then presence of blood stains not only on axe but also on the vest of appellant Shiv Kumar coupled with the fact that there was frequent discord between deceased Indrakali and Shiv Kumar and Shiv Kumar had dragged Indrakali to his house from the house of Ramraj (PW-5), completes the chain of circumstances inasmuch as the place of incident is within the house of the appellant as is evident from Ex.P-17, spot map. Therefore, when examined in the light of the aforesaid facts, then in view of the judgment of Apex Court in the case of Prahlad Patel Vs. State of Madhya Pradesh, AIR 2011 SC 961, when weapon of offence namely axe was seized at instance of accused, then evidence of close relation will not affect the credibility of said witness.
29. Similarly, in Kulvinder Singh & Anr. Vs. State of Haryana, AIR 2011 SC 1777, it is held that when accused was seen immediately before occurrence at place of occurrence and deceased had come there shortly thereafter and they had an opportunity to kill deceased, then after occurrence Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 26-10-2024 15:49:23 NEUTRAL CITATION NO. 2024:MPHC-JBP:52924 10 CRA-530-2015 accused were seen running together from place of occurrence by prosecution witness, such a conduct if examined with another circumstance of extra judicial confession it will complete the chain of circumstances. Thus, judgment in Laxman Prasad alias Laxman (supra) has no application in the present case as there are no missing links, therefore, no indulgence can be shown.
30. We are conscious that FIR cannot be treated as extra judicial confession but there is evidence of recovery of weapon of offence on disclosure of and memorandum of the appellant. There is evidence of last seen and also the evidence of appellant dragging Indrakali from the house of Ramraj (PW-5) to his house and there being evidence of torture being made out to the deceased in the hands of the appellant, coupled with recovery of axe and blood stained clothes, since completes the chain of circumstances and there is no other material to point out towards the guilt of any other person accept for the appellant, impugned judgment of conviction cannot be faulted with. Appeal fails and is dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
MTK
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 26-10-2024
15:49:23