Madhya Pradesh High Court
Sonulal @ Sonelal vs State Of Madhya Pradesh on 9 August, 2007
Author: K.S. Chauhan
Bench: Arun Mishra, K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 19.06.1998 passed by II Additional Sessions Judge, Jabalpur in Sessions Trial No. 151/97, whereby the appellant has been convicted under Section 302 of Indian Penal Code and sentenced to life imprisonment for committing the murder of his wife Kaushalya Bai.
2. The admitted facts are that Kaushalya Bai was the wife of appellant Sonulal @ Sonelal. Lakkhu @ Lakhanlal (PW-5) and Tulsa Bai (PW-6) are their children. Chanda Bai (PW-1) is the mother, Nokhelal (PW-2) is the brother and Dulari Bai (PW-4) is the Bhabhi (wife of elder brother) of deceased Kaushalya Bai. They were residing in the same village Laudi.
3. The facts of the case in short are that Nokhelal lodged the report on 28.01.1997 at 9:30 a.m. at police station Bargi wherein it was stated that his nephew Lakkhu came at about 6:00 a.m. in his house and apprised him that his mother Kaushalya Bai is lying on the door putting her head downward and excessive bleeding was there. He asked as to what has happened on which he narrated the story that at night 1:00 p.m. his father-appellant entered in house after pushing the door and quarreled with his mother Kaushalya Bai. He inflicted the Lota blows and other something to his mother. At that time, the chimni was burning. He became frightened and slept. He went to the spot and found that his sister is dead. On this information the Crime No. 34/97 under Section 302 of Indian Penal Code was registered. The spot map was prepared. Blood stained, controlled soil, bangles, bracelet and two teeth were recovered from the spot. Panchnama of dead body was prepared. The dead body was sent for postmortem examination and found the cause of death due to haemorrhage, shock as a result of injuries. The postmortem report was submitted. The packet of sealed clothes of deceased was also seized. The appellant was arrested. His statement under Section 27 of Indian Evidence Act was recorded and in pursuance thereof one Lota(bowl) was recovered. The baniyan and kurta were seized from appellant. These articles were sent for chemical examination from where the report was received. According to F.S.L. report all articles except article-B were containing blood stains. The statements under Section 161 Cr.P.C. were recorded. After completing the investigation, the charge sheet was filed in the Court of Judicial Magistrate First Class, Jabalpur wherein the Criminal Case No. 23/97 was registered thereafter on 06.03.1997 the case was committed to the Sessions Court for trial.
4. The appellant stood charged under Section 302 of Indian Penal Code that on 28.01.1997 at night at village Laudi he committed the murder intentionally or (knowingly) causing the death of his wife Kaushalya Bai thereby committed an offence punishable under Section 302 of Indian Penal Code.
5. The appellant abjured the guilt and claimed to be tried mainly contending that he is innocent and falsely implicated in the case.
6. The prosecution examined as many as 12 witnesses and the defence did not examine any witness. After considering the evidence, the trial Court found that the guilt was proved against the appellant and convicted under Section 302 of Indian Penal Code and sentenced thereunder as stated in para 1 of this judgment. Being aggrieved by the judgment, finding and sentence passed by the trial Court, the instant appeal has been preferred under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned therein.
7. The learned Counsel for the appellant has submitted that the trial Court found the evidence of Lakkhu @ Lakhanlal and Tulsa Bai unreliable and also not found the seizure of Lota(bowl) at the instance of appellant in spite of convicted the appellant and thus committed an illegality, therefore, the appellant is entitled for acquittal.
8. On the other hand, Shri S.K.Rai, learned G.A. appearing on behalf of the respondent/State submitted that prosecution has proved the case beyond reasonable doubt and the trial Court has rightly convicted the appellant hence it does not call for any interference.
9. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellant under Section 302 of I.P.C. for committing the murder of his wife Kaushalya Bai?
10. We have perused the entire case and the evidence adduced therein.
11. Lakkhu @ Lakhanlal (PW-5) has deposed that in the night appellant came in the house, put off the chimni, inflicted Lota(bowl) blows to her mother, dragged her to the door and then ran away. He has further stated that since the appellant always used to beat his mother, he became frightened and watched the incident silently.
12. No doubt, some contradictions and omissions have been brought from his previous statement Ex.D/1 but his statement is intact on the material fact that he saw the appellant causing marpeet to his mother. His presence on the spot can not be doubted. He was living with his mother in that house. His statement is quite natural because the appellant always used to beat his mother and hence this witness was also fearful of his father.
13. Tulsa Bai (PW-6) has also stated that she and her brother Lakkhu @ Lakhanlal were studying. Mother was sleeping. Chimni was burning. The appellant after pushing the door entered the house, put off the chimni, started beating to her mother and ran away. She has also stated that her father always used to beat her mother.
14. No doubt some contradictions and omissions have also been brought from her police statement Ex.D/2 but her statement is intact regarding causing of marpeet by her father to her mother. Her presence also can not be doubted on the spot. She was of 10 years at that time and living with her mother in that house. Her statement is also quite natural and reliable.
15. Thus, the son of appellant Lakkhu @ Lakhanlal (PW-5) and daughter Tulsa Bai (PW-6) have deposed against him. There is no reason of giving the false evidence against their father. Their statement is intact that appellant caused marpeet of their mother and it was in habit that he always used to beat their mother.
16. Nokhelal (PW-2) has stated that Lakkhu @ Lakhanlal came to him weepingly and stated that the appellant has killed his mother. He went immediately at the spot and saw injuries on face and mouth of his sister. The teeth were broken and was profused bleeding. He lodged the report Ex.P/2 and marg intimation Ex.P/1 was also registered.
17. Chanda Bai (PW-1) has also stated that her grandson Lakkhu @ Lakhanlal (PW-5) told her that the appellant has killed his mother. She also went there and found her daughter dead.
18. Smt. Dulari Bai (PW-4) has also stated that Lakkhu @ Lakhanlal told her that appellant has killed his mother. She also went there and saw the injuries on the body of her sister-in-law Kaushalya Bai.
19. Thus, from the evidence of these witnesses, it is manifestly clear that Lakkhu @ Lakhanlal told them about the incident. They have also corroborated that Lakkhu @ Lakhanlal told them that appellant has caused the marpeet of his mother.
20. The trial Court has put the several questions to the child witness Lakkhu @ Lakhanlal (PW-5) and Tulsa Bai (PW-6) and has certified that they were competent to answer rational questions put to them.
21. Section 118 of the Indian Evidence Act runs as follows:
All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
22. In the case of State of Karnataka v. Shariff , the Apex Court has held thus:
Sleeping of the boy at night near his mother was natural and as such, on facts, his presence in the house at the time of occurrence not doubtful-There was also no reason why he would give a false statement against his own father-Held on facts, his testimony fairly reliable on the factum of the incident and the same can not be discarded only on account of a stray sentence in his cross examination that when his mother caught fire he was in his grandmothers house.
23. In the case of State of U.P. v. Ranjha Ram , the Apex Court has held thus:
Testimony of minor eyewitness aged 11 years not at variance with testimony of grown-up persons Trail court finding his testimony to be truthful and consistent Held, High Court erred in rejecting his testimony on trivial reasons and even doubting his presence at 2.30 p.m. with his parents at home when his parents were murdered there.
24. In the case of Sita Ram v. State of M.P. , the Apex Court has held thus:
Can be relied on for conviction of murder when testimony consistent and corroborated by her own conduct, discrepancies minor and situation related by her corroborated by several independent witnesses.
25. In the case of Prakash v. State of M.P. , the Apex Court has held thus:
Boy aged 14 years Can give a proper account of the occurrence His testimony should not be rejected simply on ground that because of his tender age he was likely to be tutored.
26. In the case of State of U.P. v. Anil Singh 1998 Supp SCC 686, the Apex Court has held thus:
Boy of Class IV in a school near which the incident of murder took place Trial court opining that the boy was intelligent and was able to give rational answers to questions put to him Boy deposing in favour of prosecution in spite of his father being a defence witness Presence, conduct and version of the boy found to be normal Held, his testimony reliable and cannot be rejected merely because of non-mention of his name in FIR.
27. In the light of the aforesaid pronouncements and in the facts and circumstances of the case, the statements of the child witness Lakkhu @ Lakhanlal (PW-5) and Tulsa Bai (PW-6) are reliable and may be acted upon safely against the appellant. The conclusion regarding their unreliability of trial Court is not based on sound reasonings and hence not acceptable.
28. R.D.Dwivedi (PW-11) has stated that he recorded the FIR Ex.P/2 and also marg intimation Ex.P/1. Prepared the map Ex.P/5. After giving the notice of Ex.P/3 he prepared panchnama of dead body Ex.P/4. He has sent the dead body of Kaushalya Bai to Medical College, Jabalpur vide Ex.P/7-A, seized blood stained and controlled soil etc vide Ex.P/6 and also seized the sealed packet of clothes of deceased vide Ex.P/13.
29. Dr.J.L.Sahgal (PW-7) has conducted the postmortem examination on 28.01.1997 and found the following injuries on her body:
(i) Incised wound 3x1x2 starting from the mid of Pinna of right ear downwards cutting the ear lobule downwards to the right angle of mandible and then to the neck, underlying ear cartilage, mandible bone, muscles and blood vessels (carotid) are cut.
(ii) Incised wound 4x1x starting from right mastoid process downwards and backwards to the posterior aspect of neck.
(iii) Incised wound 1 x x1 just below and back of the right ear.
(iv) Incised wound 2x x over the right occipital region.
(v) Incised wound 1 x x1 over the upper lateral aspect of right scapula underlying bone and tissue cut.
(vi) Incised wound 2 x x1 over the right supra scapular region.
(vii) Incised wound 1x 1/3x over the medial aspect of right scapula.
(viii) Incised wound 1x x through & through lower lip midway, mandible fracture & teeth descolid lower incisors.
(ix) Incised wound 1x x left side of the chin.
(x) Incised wound 1xx through & through from left angle of mouth going outside and laterally right all upper teeth broken with of maxilla.
(xi) Incised wound xx it is 1 above the left angle of mouth.
(xii) Incised wound x 1/5 x 1/5 over the left cheek.
(xiii) Incised wound x x over the lateral aspect of left eye.
30. According to his opinion, these injuries were anti mortem and caused by heavy sharp cutting objects. The cause of death was haemorrhage shock as a result of injuries. Duration within 24 hours. The postmortem report is Ex.P/7 which contains his signature.
31. Thus, the ocular evidence adduced by prosecution finds support from medical evidence.
32. R.D.Dwivedi (PW-11) arrested the appellant vide arrest memo Ex.P/12, recorded the disclosure statement Ex.P/10 and in pursuance thereof he recovered the Lota (bowl of brass) vide Ex.P/11. However, Ram Loat (PW-12) is not corroborating him on this fact. There is no reason to disbelieve the statement of R.D.Dwivedi (PW-11) who has clearly stated that the Lota (bowl) was recovered at the instance of the appellant. The seized articles were sent for chemical examination vide Ex.P/15. The reports Ex.P/16 and Ex.P/17 have been received therefrom wherein it was found that all the articles except article-B were containing the blood stains. Thus, the blood contents were found on the articles baniyan and kurta which he was wearing. The blood was also found on his nails. Lota(bowl) was also containing the blood stains. Thus, the circumstances also supports the prosecution case.
33. The appellant has set up the defence that he was working on crasher in village Nalikheda on 28.01.2007. Thus, he has taken the plea of alibi but the same has not been proved by evidence. He has taken the defence that his wife and brother-in-laws have turned him out from the house, therefore, he was living in the another village but no evidence has been adduced. On the contrary, it has been brought on record by the prosecution that before 15 days of the incident he gave beating to Kaushalya Bai by Dukkan which was made of iron by which she sustained the injuries in her leg. This is the reason why he was not residing with his wife at the time of incident.
34. All these circumstances clearly indicate that he committed the murder of his wife. The prosecution has proved the case beyond reasonable doubt and trial Court has rightly convicted him under Section 302 of Indian Penal Code and sentenced thereunder. We affirm such finding and sentence but on the different reasons relying upon the statements of Lakkhu @ Lakhanlal (PW-5) and Tulsa Bai (PW-6).
35. It is expected from the judges of the trial Courts to appreciate the evidence of child witness in the proper perspective. The trial Court was not right while discarding the evidence of Lakkhu @ Lakhanlal (PW-5) and Tulsa Bai (PW-6) eyewitnesses who were present at the spot at the time of incident. They were quite natural and truthful witnesses.
36. We find no merit in this appeal and hence deserves to be dismissed.
37. Consequently, the appeal fails and is dismissed accordingly.
38. The order regarding the disposal of criminal properties is also hereby affirmed.