Madhya Pradesh High Court
Parsadi vs The State Of Madhya Pradesh on 25 October, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:54022
1 CRA-421-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 25th OF OCTOBER, 2024
CRIMINAL APPEAL No. 421 of 2012
PARSADI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Smt. Saritha Achary - Advocate for the appellant.
Shri Manas Mani Verma - Public Prosecutor for the respondent/State.
ORDER
Per: Justice Vivek Agarwal This appeal is filed under Section 374(2) of the Cr.P.C. on behalf of appellant Parsadi S/o Veeranlal Inwati being aggrieved of the judgment dated 31st January, 2012 passed by the learned Sessions Judge, Seoni in Sessions Case No. 161/2011 convicting the appellant under Section 302 of I.P.C. for causing death of his wife Smt. Sushila Bai and has been sentenced for life imprisonment and fine of Rs. 2,000/- with default stipulation of six months additional R.I. Smt. Saritha Achary, learned counsel for the appellant submits that the appellant is innocent. He has been falsely implicated. It is submitted that a charge against the appellant that he murdered his wife by means of 'Kaichi' (pair of scissors) is not made out. There are no eye-witnesses to the Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 2 CRA-421-2012 incident. There are several discrepancies in the prosecution case and the learned trial court erred in convicting the appellant without there being any material substance against the present appellant.
It is submitted that since the prosecution failed to prove the charges, the appellant being innocent needs to be absolved of the charges and his conviction and sentence be set aside.
It is also submitted that there are several contradictions, omissions and embellishments in the testimony of the prosecution witness on which no reliance could have been placed but arbitrarily the trial court has placed reliance on the said material and has arbitrarily convicted the appellant holding him guilty.
Shri Manas Mani Verma, learned Government Advocate in his turn submits that the prosecution story in short is that on 14/04/2011, informant Nandkishore PW-3 received intimation over phone that his sister Sushila Bai was murdered at her matrimonial home in village Sagar by her husband Prasadi, as a result, he had hired a pick up vehicle and along with Ramnarayan, Kuber Singh, Ranjeet Singh, Ramnath Raghuwanshi, Kamlesh Dhurve, Sukruti Bai, Ramsila Bai, Siyaram reached Sagar where he found that dead body of his sister was lying on the road in front of her matrimonial home near the house of Bhap Singh. There were injury marks on her forehead. There were four injuries above her eye and four injuries below her right breast in the ribs and two injuries on the left ribs, besides that one injury on her back and two injuries on her left calf muscles. All these injuries were caused by a sharp object and they all were all stab wounds.
Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 3 CRA-421-2012 The injuries were bleeding and on account of those injuries, his sister Sushila Bai died.
He further stated that appellant Parsadi was having doubt on the character of his sister, as a result of which he committed murder.
After investigation, Police Station Khurai, District Seoni had filed a chargesheet in the court of Judicial Magistrate First Class, Seoni where criminal case no. 2548/2011 State of M.P. Vs. Parsadi was registered. The matter was committed to the Sessions Court on 27/07/2011. Charges were framed. The appellant abjured his guilt. Trial was conducted and appellant has been convicted under Section 302 of I.P.C.
After hearing learned counsel for the parties and going through the record, it is evident that PW-1 Ku. Kavita Dhurve is an independent witness. She is a resident of the same village Sagar, Police Station Khurai, District Seoni. She stated that her house is close to the house of appellant Parsadi. When Sushila Bai cried for help, she had gone there. She had seen Parsadi stabbing Sushila with the help of pair of scissors.
The injuries were caused to Sushila Bai in her stomach, hands, legs and her head. She had called Inder Singh Bhaiya for intervention.
Inder Singh had also asked Parsadi to not to beat Sushila, then several persons had collected. Sushila Bai died. In the cross-examination, she stated that she had given intimation to the police through Secretary Rameshwar Sanodiya who had inturn called the police. The police had come. She had given complete description of the incident to the police. The police had recorded her statement and had prepared lash Panchnama. She has studied Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 4 CRA-421-2012 upto Class-V. She had signed the lash Panchnama. The police had come to the village on two to three occasions. Within two to five days, the police had taken her statements. Thereafter, Parsadi was sent to jail and then police never came to village. She admitted that she knows Nandkishore. He had come on the previous dates also and has come today also. However, she denied a suggestion that she had come at the instance of Nandkishore or along with Nandkishore. She categorically stated that today also, she came on her own and on the last date also, she came on her own. She denied another suggestion that Nandkishore had given her Rs. 25,000/- and on getting such payment, she had given statements before the court. She has also denied a suggestion that she was not present at the place of the incident. She denied the suggestion that she had not seen the incident. She categorically stated that she had seen the incident. Therefore, PW-1 is the eye-witness to the incident.
PW-2 Dr. Bindu Kusram Rafil is a Doctor from Community Health Center, Khurai, District Seoni. She has stated that she was working as a Medical Officer at CHC Khurai. Constable 165 Manmohan Mishra brought Sushila Bai wife of Parsadi aged about 27 years for postmortem. Postmortem was conducted by her. She had found the following injuries :-
3-ब पर ण पर िन न चोट पाई थीं :-
दा हने गाल पर सतह रगड क खरोच, चेहरे व हाथ पर धूल लगा हुआ था। दा हने आंख के उपर घूपा हुआ घाव था जो 2.5 इं च X 5 सेमी, इसी घाव के उपर आइ ो के उपर दो घाव ह 3 इं च X 5 सेमी। माथे पर एक घूपा हुआ घाव जो 2 इं च X.5 सेमी का था। नाक के बेस पर टे प वु ड जो क 2.5 X 5 से.मी. का था। माथे के Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 5 CRA-421-2012 दा हने तरफ 3.5 इं च X 2से. मी. का ड प बोन, ह ड क गहराई तक था एवं ह ड दखाई दे रह थी और उसके पास म ह इसी चोट से लगकर एक और टे प वु ड 2 इं च X 2 से०मी० का था जो ह ड क गहराई तक का था। माथे के बाँये तरफ 3 टे प वु ड थे जो क उइं चX.5 से.मी. के थे जो पास-पास थे। बांयी भुजा के अ भाग पर लेटरल आ सपेट (बाहर तरफ) कलाई के जोड़ के पास एक टे प वु ड था जो क 1 से.मी. X.5 से.मी. का मौजूद था। दाँयी भुजा के अ भाग पर इं ट रयल आ सपेट (सामने तरफ) के भाग पर एक टे प वु ड था जसका आकार 4 इं चx2 इं च एवं 2.5 से०मी० तक ह ड तक गहरा घाव मौजूद था। इसी दाँयी कोहनी के नीचे पो टे रयल आ सपेट पर (पीछे क तरफ) एक टे प वु ड 4 इं चX2 इं च एवं 2 से.मी. क गहराई तक का मौजूद था।
4- छाती के दाँयी ओर े ट तन के ठ क नीचे 4 टे प वु ड मौजूद थे जो पास-पास म थे। जसम से पहला घाव 3.5x2 इं च एवं 2.5 से०मी० गहराई का था। दस ू रा घाव 3इं चx2 इं च एवं उसे०मी० गहराई का मौजूद था। तीसरा घाव 5 इं चX1 इं च एवं 2 से०मी० गहराई का था। चौथा घाव 4 इं चx2 इं च का 2 स० मी० गहराई का मौजूद था। पीठ पर 4 टे प वु ड थे जो पास-पास मौजूद थे। इसम से पहला घाव उइं चx.5 इं च एवं 2 से०मी० गहराई का था। दस ू रा घाव 3.5 इं चx.5 इं च एवं 2 से०मी० गहराई का था। तीसरा घाव 3.5 इं चx.5 इं च एवं 1 से०मी० गहराई का था। चौथा घाव 2.5 इं चx.5 इं च एवं 1 से०मी० गहराई का मौजूद था। हप वा ट म बॉय तरफ एक टे प वु ड 3इं चx.5 इं च एवं 2 से०मी० गहराई का मौजूद था। दाँयी जॉघ पर इं ट रयर आ सपेट पर (सामने क ओर) घुटने के ज ट उपर एक टे प यु ड 3 इं चx.5 इं च एवं 2 से०मी० गहराई का मौजूद था। दाँयी जॉघ के ह लेटरल साईड पर (बाहर क ओर) घुटने के ज ट उपर 5 इं चx.5 इं च एवं 2.5 से०मी० गहराई का टे प वु ड मौजूद था।
She opined that death had occurred within 24 hours of postmortem due to hemorrhagic shock on account of excessive bleeding. She had given postmortem report Ex. P-1 to that effect.
She further stated that S.H.O. Khurai had sent her pair of scissors for query. She had seen the scissors and found its length to be 10.5 inches and Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 6 CRA-421-2012 width of one inch. Length of the sharp edged portion was 5.5 inches and width was one inch. The holder of the scissors was about 5 inch long. She had given a finding that injuries could have been caused with the said pair of scissors. The query report is Ex. P-2.
She had preserved a white Dupatta, green saree, white blouse, white panty, orange petticoat and had given to the Constable in a sealed cover.
Similarly, she had also sealed full shirt (pink colour) of accused Parsadi, his green lining pant and nails of the accused and had given to the same Constable. She had examined appellant Parsadi and found that mentally, he was healthy and was capable of understanding everything. His blood pressure was 120/80 mm Hg. Pulse was 76 per minute. There was abrasion on his left hand ring finger measuring 0.5x0.5 cm. This injury was close to his nails. Another abrasion was on his right hand ring finger measuring 1 x 0.5 cm. Her report is Ex. P-3 containing her signatures from A to A part. She had sealed clothes and nails of the deceased and given to the Constable for F.S.L. examination.
In the cross-examination, she admits that in Ex. P-3, she has not mentioned that clothing of the accused were stained with blood. She further admitted that abrasions on the fingers of the appellant could have been caused on account of friction or fall and they were simple in nature.
On further cross-examination, she admitted that the scissor which was examined by her was already available in the market as well as household. She admitted that she had received the pair of scissors in a sealed condition. In para 22, she admitted that there were several injuries which resulted in Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 7 CRA-421-2012 excessive blood loss resulting in death.
PW-3 Nandkishore Uike is brother of Sushila Bai. Admittedly, he is not the eye-witness and had reached the village Sagar upon receiving intimation from others. However, his evidence is crucial on account of his statement that marriage of Sushila Bai with Parsadi had taken place three years prior to the incident. Parsadi used to doubt character of Sushila Bai, as a result of which this incident took place. Parsadi had started beating Sushila Bai soon after marriage. He used to demand cash and motorcycle. He also admitted that Sushila Bai was blessed with a daughter Muskan but Parsadi used to say that Muskan is not his daughter. On four occasions, this witness had counseled Parsadi. Even senior citizens of the village had counseled Parsadi to not to harass and beat Sushila but Parsadi did not concede to their counseling. He also stated that ten days prior to the incident, a report was lodged at the police station when police too had counseled Sushila Bai and Parsadi. At that time, a compromise was entered into, as a result of which Sushila Bai was sent with Parsadi from the police station on fourth and on fourteenth, Parsadi committed murder.
There is no material contradiction in the evidence of this witness. His suggestion was given to this witness that he had won over prosecution witness Kavita Dhurve but he has vehemently denied this suggestion.
PW-4 Ram Prasad Choudhary is Headconstable No. 410. He had recorded Dehati Nalishi Ex. P-4. Zero merg intimation Ex. P-5 brought by Constable Subhash Tiwari. On the basis of Ex. P-5, he recorded actual merg intimation Ex. P-6 containing his signatures from A to A part. On behalf of Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 8 CRA-421-2012 zero Dehati Nalishi Ex. P-4, he had lodged F.I.R. Ex. P-7 which contains his signatures from A to A part.
Sushil Kumar Verma PW-5 is a witness of seizure of pair of scissors vide Ex. P-9. He is also the witness of memorandum Ex. P-8. He is also the witness to arrest memo Ex. P-10. PW-6 G.E. car is the Inspector who had carried out the investigation. He has proved the F.S.L. report Ex. P-17 in which it is mentioned that human blood was found on Ex. D, E-1, E-2, E-3, E-4 and F-1. They are respectively a pair of scissors recovered at the instance of appellant Parsadi (Ex. D), saree, blouse, gamcha and clothing of the deceased and F-1 is the shirt of Parsadi and F-2 is the trouser of Parsadi. Blood stains were found to be disintegrated on Khoon Alooda Mitti A and pant of the appellant F-2 but human blood of B group was found on Ex. D i.e. the pair of scissors and E-1 i.e. the saree of the victim.
PW-6 had given intimation for Shav Panchnama vide notice Ex. P-12 and then had prepared Shav Panchnama Ex. P-13. He had sent the dead body for postmortem and then on 14/04/2011 had recovered khoon alooda mitti and simple soil, ear ring and pieces of bangles from the place of the incident vide Ex. P-14. He had also recorded the memorandum of the accused in custody on 15/04/2011 and had recovered pair of scissors at his instance from a window sill in the kitchen of the appellant hidden behind utensils. The memorandum is Ex. P-8 and seizure memo is Ex. P-9. Then he had affected arrest vide Ex. P-10 and had sent the appellant to C.H.C. Khurai for examination. He had also sent query report to the C.H.C. Khurai. Then on 23/04/2011 recorded statements of witnesses Kavita Dhurve, Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 9 CRA-421-2012 Kishanlal, Majelal, Sonilal, Sipatlal and Nandram. He had also prepared seizure memo Ex. P-15 containing clothes of the deceased and Parsadi. Vide Ex. P-16, he had sent the seized materials for F.S.L. examination through Superintendent of Police, Seoni and exhibited F.S.L. report Ex. P-17.
The defence examined two witnesses namely Bisonlal DW-1 to suggest that on that day, appellant was going to his fields in a vehicle as it was time for harvesting of wheat. He had sent the dead body between 9-10 A.M. in front of his house and he had given intimation to Parsadi at his field. He had come back with Parsadi when after seeing the body of his wife, he started crying. Thereafter, Parsadi had gone to the Police Station, Khurai to lodge the report. Then his family of in-laws had come.
Similarly, DW-2 Guru Prasad has given identical statements as given by Bisonlal. However, it is evident that Dehati Nalishi Ex. P-4 was lodged at the instance of Nand Kishore S/o Govardhan Uike and not at the instance of Parsadi.
Similarly, merg intimation Ex. P-5 was recorded at the instance of Nand Kishore and not at the instance of Parsadi. The F.I.R. Ex. P-7 was lodged by Subhash Tiwari Constable No. 26 when he had received intimation on 14/04/2011. Name of the informant is mentioned as Nandkishore S/o Govardhan Uike resident of village Bamnilal Police Station Chand, District Chhindwara. Thus, plea of defence witnesses that Parsadi had no knowledge about the incident and he was working in his fields and when DW-1 had given intimation, then he was brought back to his house where he started crying and had gone to the police station to lodge a report is Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 10 CRA-421-2012 contrary to the documents available on record.
The recovery of dead body is from the place in front of the house of Parsadi as is evident from the spot map Ex. P-11. Human blood was found on not only the scissors but also the clothing of the victim and shirt of the appellant. A blood was found on Khoon Alooda Mitti Ex. A, ear ring of the victim Ex. C-1, seven pieces of bangles Ex. C-2, pair of scissors Ex. D, Ex. E-1, E-2, E-3, E-4, F-1 and F-2. The plea of alibi that appellant was not present in his home and was working in the fields could not be established by appellant Parsadi. After having taken a plea of alibi that he was working in his fields and on getting information through DW-1 and DW-2, he had lodged a report needs to be corroborated.
The law laid down by the Calcutta High Court in Yusuf S.K. and others Vs. The State AIR 1954 Calcutta 258 is clear where it is held that illustration of Section 103 especially mentions that in a case of plea of alibi, it is for the accused who pleads alibi to prove it. Same is the ratio of law laid down by the Supreme Court in State of Haryana Vs. Sher Singh AIR 1981 SC 1021 wherein it is held that burden to prove plea of alibi is on the accused pleading it.
I n Gurcharan Singh Vs. State of Punjab AIR 1956 SC 460 and Narendra Singh Vs. State of M.P. AIR 2004 SC 3249 , it is held that burden is on the accused who is setting up defence of alibi to prove it but even so, the burden of proving the case against the accused is on the prosecution respective of whether or not the accused had made out plausible defence. In State of U.P. Vs. Sughar Singh AIR 1978 SC 191, it is held that onus is on Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 11 CRA-421-2012 the accused to substantiate the plea of alibi and make it reasonably probable.
In the present case, when facts are taken into consideration, then DW- 1 and DW-2 have stated that appellant was working in his fields when he was given intimation by DW-1 and DW-2, then he started crying upon seeing the dead body and had given intimation to the police. This intimation to the police in the hands of the appellant as stated by DW-1 Bisonlal and DW-2 Guru Prasad is not available on record.
Guru Prasad after saying that Parsadi was in his fields along with him and upon receiving the intimation, they had returned back to the village from the fields, admitted in the cross-examination that he has no fields of his own. He did not receive any land in partition. He admitted that Parsadi is of his community. He narrated that fields of Parsadi are about 150 metre away from his house whereas DW-1 Bisonlal stated that house of Parsadi is 2 kms. away from his fields. Thus, creditworthiness of this witness Guru Prasad becomes doubtful.
In Amin and another Vs. The State AIR 1958 Allahabad 293 , it is held that in order that a 'Discovery' may come under the provisions of this Section 27 of the Evidence Act, the place from which the incriminating article was recovered must be a place of concealment which would be difficult or impossible for the police to discover without some assistance from the accused.
In the present case, a pair of scissors were recovered from the kitchen of the appellant which were hidden behind some utensils. There is an eye- witness account of PW-1 Kavita Dhurve who had seen the appellant stabbing Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 12 CRA-421-2012 his wife Sushila. There is no material to doubt her testimony despite several suggestions given to her. Thus, in view of the evidence of Kavita Dhurve, as her testimony has remained unimpeachable and she being an eye-witness to the incident and her testimony when subjected to the test of objectivity as is the requirement of law as held by the Supreme Court in Hallu Vs. State of M.P. AIR 1974 SC 1936 and when further examined on the principle of two considerations, namely :-
(I). Whether, in the circumstances of the case, it is possible to believe his presence at the scene of occurrence or in such situation as would make it possible for him to witness the fact deposed by him and ;
(II). Whether there is anything inherently improbable or unreliable in his evidence as the principles laid down by the Supreme Court in State of U.P. Vs. Noorie AIR 1996 SC 3073 , then it is evident that Kavita Dhurve stays in close proximity of the house of the appellant. She has stated that she had heard cries of Sushila Bai and had gone to the house of the appellant where she had witnessed the appellant assaulting his wife with a pair of scissors.
Thus, it is evident that the first principle that it was possible for Kavita Dhurve to be present at the scene of occurrence is made out. The second principle of inherent improbability or unreliability in her evidence gets discarded in view of the fact that she had seen the appellant assaulting Sushila Bai with a pair of scissors and those pair of scissors were recovered at the instance of the appellant on his memorandum Ex. P-8 in pursuance of which seizure memo a pair of scissors Ex. P-9 was prepared by the Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 08-11-2024 12:46:02 NEUTRAL CITATION NO. 2024:MPHC-JBP:54022 13 CRA-421-2012 Investigation Officer of the case PW-6.
Thus, in view of the said testimony of sole eyewitness coupled with the circumstances of the appellant having doubt over the character of his wife as narrated by PW-3 Nandkishore Uike and there being corroboration of injuries found on the body of Sushila Bai with the help of pair of scissors recovered at the instance of the appellant by PW-2 Dr. Bindu Kusram Rafil, the prosecution proved its case beyond reasonable doubt and, therefore, the judgment of conviction recorded by the learned trial court does not call for any interference.
Accordingly, the appeal fails and is dismissed.
Case property be disposed of in terms of the orders of the trial court. Record of the trial court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 08-11-2024
12:46:02