Madhya Pradesh High Court
Sewa Ram Ahirwar vs The State Of Madhya Pradesh on 31 January, 2019
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No. 2357 / 2009
Sewa Ram Ahirwar
Vs.
State of Madhya Pradesh
Present : Hon'ble Shri Justice P.K. Jaiswal; and,
Hon'ble Shri Justice C.V. Sirpurkar.
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Ms. Jyoti Agnihotri, amicus curiae, for the
appellant.
Mr. Vivek Mishra, Govt. Advocate for the State.
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Whether Approved for Reporting : Yes / No
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Judgment Reserved on : 30.01.2019
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JUDGMENT
31/01/2019 Per P.K. Jaiswal, J:-
This appeal has been filed by appellant Sewa Ram Ahirwar under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the judgment of conviction dated 27.08.2009, passed by Sessions Judge, Jabalpur in Sessions Trial No.612/2008 by which he has been convicted under section 302 of the Indian Penal Code (for short the 'IPC') and sentenced to rigorous imprisonment for life and fine of Rs.500/-, with default stipulation, for committing murder of his wife Smt. Savita Ahirwar.2
Criminal Appeal No :: 2357 / 2009 2- The prosecution story, in brief, is that in the intervening night of 22nd and 23rd August, 2008, PW/2 Mahendra Singh (son of accused appellant) accompanied with PW/1 Anuj Dubey, owner of the Factory, came to Police Station Adhartal to lodge a report stating that he resides at Ladiatola, Maharajpur and is a student of third standard. His father Sewa Ram Ahirwar is working in Ordnance Factory Khamariya. He is residing alongwith his father, mother Savita Ahirwar, brother Atul Singh aged 5 years and sister Amisha aged 3 years. His father invariably used to fight with his mother on issues relating to household work and cooking on account of which number of times their neighbours and his grandmother (Nani) used to ask his father not to fight with his mother, but all in vain. On 22.8.2008, at about 10.45 PM, his father was causing injuries on his mother by kicks and fists and his mother was crying. On hearing her shrieks, he got up and saw that his father came with an axe and inflicted axe injury on the neck of his mother, due to which she fell down and blood was oozing out from the wound. Thereafter his father inflicted several injuries on his mother till she died. After causing multiple injuries on his mother, his father took them on his bicycle and left them near a Factory at Suhagi in the night. All the three children started crying. Hearing their cries, one person came there and asked them as to why they were crying. They narrated the whole story and stated that their father after committing murder of their mother by causing axe injuries had left them. He came alongwith PW/1 Mahendra to lodge the report at Police Station Adhartal. PW/8 S.K. Seth, Sub Inspector registered Crime No.523/08 for offence under section 302 IPC 3 Criminal Appeal No :: 2357 / 2009 and recorded the statements of PW/2 Mahendra and PW/1 Anuj Dubey, the owner of the Factory. Thereafter PW/8 S.K. Seth proceeded with the investigation. In the morning in the presence of witnesses PW/3 Kamlesh, PW/2 Mahendra, and others he had inspected the place and prepared the Panchnama. Thereafter, the body was sent for post-mortem to Medical College, Jabalpur. In the presence of witnesses Vishnu Patel (not examined) and PW/6 Girish Kumar, PW/8 S.K. Seth prepared the spot map Ex.P/11, and thereafter from the place of occurrence broken pieces of bangles worn by deceased Smt. Savita Ahirwar were collected alongwith plain and blood stained earth vide Ex.P/16. The appellant was arrested on 23.8.2008 and on the basis of memorandum Ex.P/6, in the presence of witnesses Kamlesh and Girish, an axe was recovered at his instance vide Ex.P/7, which had blood stains on it. The clothes worn by the appellant also stained with blood, were seized. 3- The body was sent for post-mortem to Medical College, Jabalpur. PW/4 Dr. R.P. Pyasi conducted the post-mortem of deceased Savita Ahirwar and as per report - Ex.P/9A, the deceased had sustained the following injuries:
"(i) Incised wound 2½" x ½" x bone deep on right cheek.
(ii) Incised wound 3½" x 1" x bone deep on lower part of right side of neck, blood vessels cut and retracted.
(iii) Incised wound 2" x 1" x bone deep on right side of chin.
(iv) Incised wound 2½" x ½" x bone deep on left mandible region;4
Criminal Appeal No :: 2357 / 2009
(v) Incised wound 2" x ½" x bone deep on middle of left side of neck.
(vi) Incised wound 1" x ½" x muscle deep on right shoulder tip.
(vii) Incised wound 1" x ½" x bond deep on middle of upper part of chest.
(viii) Injury 1" x ½" x bone deep in front or right shoulder.
(ix) Incised wound 1½" x ½" x muscle deep on right side of chest upper part.
(x) Incised wound 2" x ½" x muscle deep on left shoulder tip.
Blood clots on all the wounds present."
All the injuries were ante-mortem in nature. The cause of death was haemorrhage and shock due to the neck injuries [Injury No.(ii) and
(v)], and the injuries are caused by hard and sharp weapon. Injuries No.(ii) and (v) are sufficient in the ordinary course of nature to cause death. The clothes of the deceased alongwith the other articles seized were sent for examination to Forensic Science Laboratory, Sagar vide Ex.P/5. After investigation into the matter, challan was filed for the above referred offence and thereafter the case was committed to Sessions for trial.
4- The accused appellant abjured his guilt and pleaded false implication. He denied the allegation of cruelty and stated that his in- laws were demanding money as he was employed and on his refusal, he has been falsely implicated. But no witness has been examined in defence. After appreciating the statement of eye-witness PW/2 Mahendra, PW/3 Kamlesh Ahirwar - brother of the deceased, PW/5 5 Criminal Appeal No :: 2357 / 2009 Tulsa Bai - mother of the deceased, PW/6 Girish Kumar - another brother of the deceased, neighbour Smt. Sheela Bai PW/7, and the medical evidence available on record, the learned trial court has convicted the appellant for the aforesaid offence. 5- Ms. Jyoti Agnihotri, learned amicus curiae appearing for the appellant, has drawn our attention to the statement of the eye-witness PW/2 Mahendra and submitted that appellant was innocent and he has been falsely implicated by the prosecution agency. No independent witness was examined and the conviction of the appellant is based only on the said child witness, who is only 11 years of age and is a tutored witness. She further submitted that the weapon of offence was seized from an open area and not from the possession of the appellant. In view of the above, she submitted that the learned trial court has committed error in not appreciating the evidence properly and prayed for acquittal of the appellant.
6- Learned counsel submitted that the appellant is in jail since his date of arrest on 24.8.2008 till his conviction on 27.8.2009 and has continued in jail since then, as such he has completed more than 11 years of jail sentence and placing reliance on the decision of the Apex Court in the case of Budhi Singh Vs. State of Himachal Pradesh, (2012) 13 SCC 663, prayed that the offence be altered to one under section 304 of the IPC.
7- Per contra, Mr. Vivek Mishra, learned Government Advocate, has drawn our attention to the cross-examination of child witness PW/2 Mahendra and submitted that his statement is trust-worthy and he was 6 Criminal Appeal No :: 2357 / 2009 not tutored. The conduct of PW/2 Mahendra is natural and the learned trial court has properly appreciated the material available on record and has not committed any error in convicting the appellant. 8- We have heard learned counsel for the parties and have perused the record.
9- PW/4 Dr. R.P. Pyasi conducted the post-mortem of deceased Savita Ahirwar and gave his report - Ex.P/9A. Apart from the ten injuries found on the body of deceased, the third vertebra of the neck was cut and there was fracture. The cause of death was excessive bleeding and shock, on account of injuries to the neck. All the injuries were ante-mortem and were caused by hard and sharp cutting object. Blood clots were present on the injuries. The nature of death was homicidal. PW/8 S.K. Seth had sent a query report - Ex.P/10, after seizure of the weapon of offence, to inquire whether the injuries found on the deceased could be caused by the said axe. In paragraph 6 of his statement, Dr. R.P. Pyasi vide Ex.P/10-A had opined that the injuries found on the deceased were possible by the said weapon and had sought forensic examination of the same. Nothing could be brought out in the cross-examination of this witness which may discredit his evidence. 10- PW/2 Mahendra, son of deceased Savita Ahirwar and the appellant, is an eye-witness to the incident. He informed that the accused present in the Court is his father and that name of his mother is Savita. He is the eldest, Atul Singh is the younger brother and Amisha his sister is the youngest. He states that earlier they used to live with their parents at Maharajpur but after death of his mother they live with their maternal 7 Criminal Appeal No :: 2357 / 2009 uncle at Tighra. He further states that his father had assaulted his mother with an axe and thereafter his father had left them out near the Factory on Suhagi road. He has recounted the incident in detail and nothing has been left out. In his cross-examination, he stated that he and his brother and sister were awake and had witnessed the assault on their mother. Though this witness was aged only 11 years, but he stood firm in his cross-examination. Learned counsel for the appellant submitted that he being a child witness has been tutored, but there is nothing in his cross- examination to suggest that he was tutored. The statement of PW/2 Mahendra is trust worthy and his conduct is natural. The learned trial Court has not committed any error in believing him for convicting the appellant.
11- On due consideration of the entire material available on record, including the medical evidence of PW/4 Dr. R.P. Pyasi, it is clear that the appellant acted in a cruel manner and mercilessly inflicted multiple injuries on his wife, leading to her death. Injuries as reflected in the post-mortem report also suggest that each of the injury sustained, particularly injury No. (ii) and (v), were sufficient in the ordinary course of nature to cause death.
12- In view of the law laid by the Apex Court in the case of Virsa Singh Vs. State of Punjab, AIR 1958 SC 465, the case of the present appellant would not fall under any of the exceptions carved out under section 300, of the Indian Penal Code. The judgment relied upon by the learned counsel for the appellant is of no help. In the case in hand, the appellant had caused repeated blows by axe on the neck and head of his 8 Criminal Appeal No :: 2357 / 2009 wife Savita Ahirwar. The number and nature of the injuries sustained by the deceased do not leave any room for doubt that the appellant intended to commit murder of his wife Savita Ahirwar.
13- Accordingly, the appeal filed by the appellant being devoid of any substance, is hereby dismissed. The conviction of the appellant under section 302 of the Indian Penal Code and sentence of rigorous imprisonment for life with fine of Rs.5,000/- is maintained.
(P.K. JAISWAL) (C.V. SIRPURKAR)
JUDGE JUDGE
Digitally signed
by ANIL KUMAR
Aks/-
SHIVARAMAN
Date: 2019.01.31
23:04:20 -08'00'