00006231 6 NIH/l llllllilmlllflmlllll j (Q Dwmon Bench ( x nnnnal) IN THE HxGH COURT ow JUDICATURE AT JABALPUR, MP. Criminal A22eal NOJQ‘SQ‘Zx [99. Arun Shran Singh 5/ Rdshwar Sharan Singh, §ed ao 32 ears R/o. illage Gond, Ps- Prapuistrt- Sarga, W. ~Vs- erusu he Stae of M. through S- Pratappur strct- P Dil Sargua, MP. RESPOENT ND . CRMN U 32 THE COD RN . CNVION z SNTEN . LA 1. u. 302 IPC Lie f Rs Irsonment 5 ooo In and de£au f of aymet months RI m R 5 ears oo/- RI and n deat ne o of pament nt Ro ENTENCE TO RUN RT S‘CE R a f 0. a ahe € but y, V— a tapr/I51c uJ / T t P/ J IIAL APPEAL /E. 74() OF E OF CIMIAL ‘ PROCEDURE OCTI ECE d. /s / o f . mpi / i 1t/ pn 5 ore. .2. u/s. Ipc 316 s. y s I ful f / y 1 mohs lmre. SS CONCURENLY AND ENIEN ALEADY UNDERGONE TO BE ADJUSTED. XI—HC—22 mum; \ DB: HON’BLE MR L.C.B'I!ADOO, & HON’BLE MR. DILIP RAOSAHEB DESHMHKH, JJ 22.6.2005 Mr. Abhay Tiwan', cuunsei for the appellant. Mr. U.N.S. Deo, Goxt. Advocate for the State. Oral. In View of Suprsme‘ Court’s order datai 17.12.2004 passed in S.L.P. (Criminal) No.3@96/ 2004, this appeal is heard for iinal disposal. Anm Sharan Singh has preferred this criminal appeal under Secltion 374(2) of the Cr.P.C. being aggrieved by the judgment of con 'cu'on and sentence dated 10.0Q ,. 1999 } 4 M5. \ Accused] appellant fiassed by learned Ad itional Sessions Judge, . ' in S.T.No.113{98 whereby .arned Additional Sessions Judge after homing the accused/app Hant guilty for commission of oEence under Sections 302 85 31 of the Indian Penal Code, sentenced him to undergo imprisonment‘for life and to pay nne of Rs.5000/-,' Ln default of payment of line to further undergo R.I. for 05 months, and to undergo RI. for years and to pay nne of RS500] —, in default further undergo SJ. for 01 month respectively. It was further directed that both the sentences shall run concurrently. In brief, the prosecution case is that on 22.8. 1997 at about 7 to 10 aJn. in the moniing the accused/appellant committed murder of his wife Pratim Singh by pressing her neck 8:. chest and thereafter, he took her fir treatment to Primary Health Centre, I (slaéfia'ii) of payment of nne to i 9 i M m ............................. mm Wm mn’3511'%'d WWW ‘ WW wW %aw%ts'an%n.: XLHC-zz Vaméwm mm 3W?)W Pratappur and disclosed to the doctor‘that she has consumed Kaner fruit. The doctors declared Pmtima Singh as brought dead and infarmed the police s1ation Pratappur visit Ex.P-14. .011 receiving the information, >Sub—Inspeotor Shri Anand Ram LohvanShi (PW- 1 1) registered the merg intimation (EX.P- 13),7 left for the scene of occurrence and requested the doctor to conduct the post mortem examination of the dead body. Dr. Smt. Subhadra Paikra (PW- 1) conducted the post mortem ozi the body of Pratima. Singh and prepaxed the post moztem report EXP‘l in which she opined That cause of death is asphyida due to messing of neck 6a chest and natuxe of death is ‘ omicidai. On dissection she noticed that thyroid cartilage was ctured, brain was congested, both heart chambers were full of d k fluid blood; {spleeiL kidney, lungs & liver wem congested At th time of postmoxtem the doctor also noticed that deceased Pratim Singh was pregnant, the chiid was found dead and the cause of eath of the child was asphyxia due to blood circulation and oxygénation of bIOOd is block. The doctor had. further mentioned that feius was well develeped, weight of the child was about 3 kilogram and report to this ejfect is EX.P—2. On ieceiving this report, the Station House Officer, registered Crime No. 116/97 During investigation, the hives tigating Officer found that deceased Pratima Singh was at the stage of advance pregnancy as slie was having a male child aged about Platappur under Section 3132 of the l.P.C. 8 months in his womb. it was also came to the notice of investigating Officer that accusediappellant was in the habit of drinking alcohol and thereafter, used to beat a ‘ i d’ ‘(qiaWY X1—HC-22 }g g{ mmaf‘w and abuse his WifeV The accusediappeliant also used m threafnn hisl wife that he will finish her and on tbs fateful day also accustd/agqmnant assaulted! his Wife Prah'ma 'Singh and after ailing her down on thc amt]; he pressed her neck after sitting on her chest. After completion f mvesiigation, charge sheet was filed t for commission of offence under Section 498—A, 302 85 316 (if the LRC. in the Court of Juoicial tum committed the case to learned om where learned 1“ Additional Sessions Judge, Sumjpur 1ec ived the case on mmsfer. ‘ssions Judge, after hearing the counsel for the accused/appellant and perusal of the papers available on record, was of the opinion that prima-facie casefor commission of on'ence under Sections 302 $3 316 of the IPC was madeiout, accordingly, he framed the charge, However, the accusedjappellant pleacied not guilty. in order to prove the charge the pros cution examined as many as 11 witnesses against the accused/'appe Magistrate, Surajpur, who ' Sessionx Judge, Smajpur Learned Addiiionai Additional Public Prosecutor and thereafter, amed Additional Sessions Judge recorded the statement of ace sed/ appellarit under Section 313 of the CLPC. in which he de ed the evidence of prosecution and stated that he never assaul' d his wife, his daughter has given evidence against him becaus she is residingrwith his maternal uncle and in the last he stat d that he is nnocent and has been faisely implicated in the crimé. Learned Additional S ssions Judge after hearing the arguments of Additional P blic Prosecutor, counsel for the l A v ins ant) i XI—HC—zz' ma Wm arm-m W WWW g > agmm appenant @é perusal of accused/appeliant as ment judgment. We hava heard Mr. accused] appellant 65 Mr. U.N. As far as the zieath concerned as homicidai, coun disputed this fact. Dr.‘ S11 conductegi the post mortem Singh, has stated that on dis beneath the skin of throat the was reddish, thyroid bone v ' Chambers biack colour hlood were congested, eight month Abhay ‘I‘iwari, counsel for the S. Deo, Govt. Advocate for the State. of deceased Pratima Singh being sel for the accused] appellant has not 1t. Subhadra Paikra (PW—1), who on the body of deceased Pratima section of the body she noticed that clotted blood was present, Wind—pipe vas found fractured, in both heart was present, kidney, lungs and liver ‘ dead maie child was found in the womb and the cauSe of dea pressing of neck 3r. chest of th: was homicidal in nature. Sh‘ male child which was found cad in the wouib on account of non- supply of oxygen and her rep rt to that edect is EX.P—2. Therefore, in View of the above evidence and evidence of PW—éKiun. Rami- daughter of accused, who has stated that his father has assaulted her mother and also pressed ‘ V {evidence on record“ convicted the ioned in the earlier part ofi this of that child was asphyxia due to 3 deceased and the death of deceased has further stated that O8 months e neck, it is proved that nature of death of deceased was homici a1. New coming to the in'olvement of accusedfappellant in committing the murder of dece ased Pratima Singh. The conviction of the accused]appellant is based on the evidence of‘ PW—6 s a nasaaE-ain,’) i t f v‘ I XI—HC—22 Knm. Ranu, who is the daulghter of deceased and accused. Knm. Ranu has stated in her evide‘nce that her mothex’s name is Pfatima Singh, in those days she alm‘lg with her mathsr, father, sister-(30111 . house of one Gouda, on the date of incident her father assaulte her mother with club, chapped and slaps, at that time she 3r. father guessed the neck of stoyped. In order to ascertain the fact whether this witness understands the questions ahd whether she is wise enough to give reply of the same, learned and Babu were leaving in iu were pmsent near the door, her her mother and thereafter, quarrel Additional Sessions Judge put hve questions to her and after considering the answe1s given by this Witness reached to the concl usion that this witness was intelligent enough to understand the questions and to give reply, therefore, he recorded the evidence of this We have gone throu 'tness. the evidence of PW-6 and whatever has been stated by this litness stands corroborated by the evidence of Dr. Smt. S. aikra (F‘Wvl), who conducted the postmortem on the body of eceased Pratima Singh in which she has stated that on dissec on she found that thyroid bone of deceased Pratima Singh was ctuied and evidence of PW-6 was to the effect that his father pie ed the neck of her mother; theiefoxe, this medical evidence corrob rates the evidence given by this child witnessr Even a letter was ‘tten by deceased Pra!‘ a Singh to his brother Dr. Girdhar S‘ gh (PW-8), who has stated in his evidence that. Pratima Sin was his younger sister, she was married to the accusedfapilwllant and after marriage she gave (new) \ I i i \ i 1/ XI—HC-zz W851 WW birth to two female child. He has furtimr stateti that decease& Pratima Singh used to comé to his place and used to tell him that ‘ ‘ accused] appellant is harasaing and baating her by saying that her brother has not given aliy dowry item in me maniage and \‘ thereafter, she used t Show the injuries caused by accused} appeHHnt‘ on her 1ody. She used to sent letters t0 him ( and in those lettere als she used to mention about the threatening and bean'ng g‘ en by me accused/appellant and in this reSpect one letter (EXQ -7), whieh was written by deceased to this person, was produce by him before the police which was taken into possession by the police under EXP-8. Now coming to the on the point regarding value and reliability, which can be iattached to the evidence of a Child Witness. The Hon’ble Ape Court in the matter of Pmchhi and‘ i V others V. State of ILP. rtcd in 1998 Cri. Law Journal 4044 hem that ewaence of a chm: waness must be evaiuated more aarefuliy and with Great r arcumspeczwn because a child is susceptibie fa be swayed b what others teli them and thus a chlid witness is an easy prey to wring.” in the matter of Ratan Singh : l Eelsukhbhai Nayak Vs. State of Gujatat mported in '3004 E Supreme Court Casee (é: J '7 the Hon’ble Apex Court has held t that " conviction can be b ed piacing reliance on me evidenw of chiid wimess provided s witness is found oompetent to testy‘y and the Court after care l scrutiny of its evidence is convinced ‘ about the quaiity and relia iiity of the same. The court. has further ' the intelligence of the child wimess : ~1<§§jfe51> 1 x v r l held that in order to asc u e XI—HC—22 5113mm WW the child can he ailowed to tnst’jiy if it has inteilectual capacity to understand the questions and give rational answers thereto; th couzt further 116M that mere to what she. saw did not amount to tutoring. Therefore,we are o the View that the evidence given by this child witness (PW—6) ins ital the c0r£dence of the trial court, the court has rightly believeél the evidencg of this child witness (PW-6), and placed its reliance on the same. m \view of tix above iscussion, we are of the CGnsidered e trial court to the effect that th accusediappellaut was the au fhor of the crime and responsihie for the death of Prafima Singh, a$ also as per the evidence of Dr. Smt. FP-2) at the *irne of incident Pratima pregnancy and the male child died in 1-supp1y of oxygen duo to death of Pmh‘ma Singh for which the accused/appellant was msponsibie. accusedlappellant placing reliance 1e Agex Court in the matter of Uday ted in 2002 Cri. L.J. 4655 argued accuseo messed the neck 8:, chest of :t falls under the mischief of Section Lt does not fall under the mischief of e was 110 intention to cause death. We have perused the judgment cited by leaned counsel for the accused] appeliant, but on facts the above judgment is of no _he1p ho the accusedfappellanit for the reason, in that case facts ~ \meeew‘n e about me occurrence and as fact that thc child was asksd to sav S. Paikra (PW- 1) {is report (Ex Singh was can'ying 8 mouths the womb on account of no; Learned counsel for the on the judgment of the Hon’h Siagh V State of U.P. repor that in a suddeo quanel if the the deceased even then his a; 804 Part-H of the IPC and the Section 8‘32 of the IPC, as 111:1 opinion that the finding of e I XI—C-zz' H mam mm were diEerent. The facts of ttat casérwere that ail of a suddex; two parn‘es started fighting, aa ‘a result of obstruction caused for digging of thc foundation in tl‘ht partiml fallen in Share of deceased and there was no evidence 110 show‘that the accused attacked the deceased with deadly or dangcrous arms a11d it Was on1y a handio fist fight and in that the two accused heid neck of the deceased with such force that it ultimately lesulted'in strangulation and death 0f the deceased, comm‘on intention to kill deceased cannot be inferred; More so, when it was V613: dimcult to ccnceive as to how much pressure was applied by which accused 011 the deceased’s neck so as t0 causle death. But if we look into the facts of the present case, the evidence of PW-8 Dr. Girdhar Singh— brother 0f deceased makes it clear that even pn'or to the date of incident the accusedlappellamt used to. beat and halass the deceased on account of not bringing the dow1y alticles in the marriage and the’deceased us‘ed to disclose this fact as and when she used to come to his place deceased also wrote letter to him in which she expl‘ahled the cond ct of the accused. Gne of‘such letter wntten by her {is EX.P—7. Th child witness {PW—6)- daughter of accused and deceased in he‘ evidence has stated that on the fateful day fnst of all accuse jappellant assaulted the deceased, thereafter, he pressed the eck of deceased and the medical evidence shows that the neck as pressed to the extent that even thyroid bone was fractured. The cumulative eiTect of all these things is that it can safe} be infeued from the facts and A circumstances of the case tha‘ the ‘accusedjappellant did that act (LL \ _1 3W) I (J 7’ \/ XLHC-22 mm mm WWW T Reshanz- *‘Mw r in order to iinish hiQ Wife, conduct of the accusedfap considFrgd opinion that an facts, it is a ckar case in which accuseMappallan" was mg tly held gmltv for vommxssmn of murder of ms Wlfe and was ughtiy commted Lor we same by the ; mal court. As far as the otfence under Section 816 of the IPC is e cc also accueed has heeu nohllv canvmtcd, 101‘ the reason the at the Wne oi mcxdent the deceased was canymg 8 montho adv ce pmgndncy and dacto: hes epmed mat male ch11d med m the vomb on accounl ol non supply of oxvgen due to death Pranma Smgh %1b1c In the “esult we do n t imd any Substance m thls appeai same 1s hable to bc d151msscd and 1t is, Lonsequently, Sd/~ L.C BHADOO Jud ge concanmd undar that n at‘cLscdi nppPllant was msp Sd/- Dlllp Raosaheb Deshmukh Judge I l (qEa‘hEir) mam,rm,m mm Wm CYXQ‘ 50§/H% 200 m hich can be inferred it‘om ihe past Hant also. Therefore, we are of the v ) \ r WW%WW ‘%af%qm agcoxdmgly, gilamxssed M (Cm )P No 886/03 also standS d1sm1ssed Ior winch the %