Mamo vs State

The learned Sessions Judge, Saharanpur in S. T. No 419 of 1979, State v. Smt. Mamo and another, by his judgment and order dated 20280 held Smt. Mamo (appellant) guilty on a charge under Section 302, IPC and awarded life imprisonment to her. The coaccused Om Prakash was extended the benefit of doubt and acquitted.

The prosecution case started on the basis of a FIR lodged by Data Ram, PW 1 at the police station on 13879 at 6.10 a.m. The incident is said to have taken place in same night at about 3 am the distance of the police station is 5 Kms. He has alleged that he was sleeping in front of the house of Mangat Singh, his brother. Smt. Bhamuli (wife of the deceased Mangat Singh) who is his Bhabhi was also sleeping near the deceased Smt. Bhamuli started crying. Hearing which, Natthu Singh Chowkidar and Kjshan Pal also arrived. The complainant also got up. All the the saw that the accused Smt. Mamo was assaulting Mangat Singh with a Gandasa. Several persons later on arrived. After their coming, Smt. Mamo, appellant said that she had removed the thorn from her way (by killing the deceased Mangat Singh). There were illicit relations between Smt. Mamo and Om Prakash, coaccused (acquitted). The deceased had seen Om Prakash with the appellant in objectionable stages and had objected to that to Om Prakash. He also wanted to convene a Panchayat. Nay, he had prevented Om Prakash from meeting the appellant and that was why the appellant as well as the coaccused Om Prakash had conspired and murdered the deceased.

On the basis of the written FIR, a case was registered in the GD. The 1O reached the spot, completed the formalities of investigation and prepared the relevant documents and sent the deadbody for postmortem examination duly sealed.

The postmortem examination was conducted by Dr. M.N. Ansari, PW 6 on 14879 at 3 p.m. and he found the following injuries:

(1) Incised wound 11 cm. x 5 cm. x muscle deep on the right side of the neck in the middle part.

(2) Incised wound 9 cm. x 3 cm. x muscle deep on the left side neck just below the mandible.

(3) Two incised wounds 3 cm. x 1 cm. x muscle deep each on the left side neck 1 cm. below the anterior end of injury No. 2.

(4) Incised wound 3 cm. x 1/1 cm. x muscle deep on the front of the upper part of the chest in the middle.

(5) Incised wound 4 cm. 1/4 cm. x muscle deep on the mid back of the right upper arm.

(6) Incided wound 2 cm. x 1/2 cm. x muscle deep on the back of the middle right forearm.

The margins in relation to all these injuries were clean cut. Internal examination showed that the internal and the external jugular veins were cat underneath injury No. 1. In the medical opinion, the cause of death was shock and haemorrhage due to injury to the major vessels of the neck, which was sufficient in the ordinary course of nature to be fatal. Dr. Ansari testifies also that these injuries could be caused by some sharp cutting weapon, including the blade of the fodder cutting machine (Ex. 1). The postmortem examination; report drawn by him is Ex. Ka 2. In the opinion of the Dr. Ansari, the death could have been instantaneous and in the night as alleged at about 3a.m.

After completing the formalities, the I.O. submitted the charge sheet.

The prosecution has examined the following witnesses to prove its case.

PW 1, Sri Data Ram, is the complainant. He has narrated the prosecution version as contained in the FIR as noted above.

PW 2, Sri Nathu Singh is another eye witness, who has deposed about the ocular features of the case. In his presence, the appellant had assaulted the deceased Mangat Singh and went inside her room along with the weapon of attack i.e. Gandasa. Her house was surrounded, so she could not escape.

PW 3, Smt. Bhamuli, wife of the deceased deposed that she was sleeping nearby the deceased and after hearing the shrieks, she got up and saw the accused committing the offence.

PW 4, Prithi alleges that in the night of the occurrence, he was the accused Om Prakash (now acquitted) standing nearby the place of occurrence and he heard about the murder of Mangat Singh.

PW 5, Salok Chand has deposed that he had seen the accused Om Prakash going towards the place of occurrence. He also said that the deceased was putting an obstacle in his way of illicit relationship.

Other evidence is formal in nature.

PW. 6, Dr. M. N. Ansari has proved the postmortem report and opined as noted above.

PW 7, Sri Samaya Singh has deposed that in his present the I.O. collected the evidence from the spot, prepared Panchayatnama and other documents. He is also one of the Panchayas. In his presence, the I.O. recovered the bloodstained cloth of the deceased.

PW 8, Constable Sri Chauhal Singh conducted the dead body from the spot in duly sealed condition and identified it before Dr. Ansari.

PW 9, Head Constable Sri Kewal Singh has proved the writings in the G.D. and Chik. He has denied the allegation that the GD and the FIR were antetimed.

PW. 10, Sri Govardhan has proved the factum that Om Prakash had illicit relations with the accused appellants and he knew that the deceased was obstructing the movements of Om Prakash nearby her house and thus Om Prakash was angry with the deceased.

PW 11, Sri S.P. Rana is the Investigating Officer in this. He has proved the investigation process from beginning till end and the relevant documents collected therewith.

The accused Smt. Mamo has denied the allegations against her and has additionally stated that she had recently delivered a child. In fact, her fatherinlaw was himself responsible for the murder of the deceased. But unfortunately she has been lodged in Jail.

The accused Om Prakash also denied the allegations against him.

The learned Sessions Judge after a thorough scrutiny of the entire evidence and circumstances on the record concluded that the prosecution case is proved to the hilt against the appellant and he convicted her accordingly. Hence this appeal. Benefit of doubt was extended to the coaccused Om Prakash and he has been acquitted.

No appeal has been filed by the State against the order of acquittal of Om Prakash.

The appellant has felt aggrieved and has challenged the conclusions drawn by the learned trial Court against her.

We have heard learned Counsel for the parties at stretch and gone through the record. We find that there is absolutely no force in this appeal and it deserves to be dismissed.

The fact that Mangat Singh was done to death and died an unnatural death in the night of 3879 near the place as alleged by the prosecution, is not disputed. A look at the siteplan shows that Mangat Singh had a room facing east in the north of the house of the accused appellant. In the outer Sehan, the deceased was sleeping. The entire place of occurrence is within a space of 10 paces only from the house of the deceased as well as the appellant. It is an incident of night. Therefore, all the witnesses of fact, who reside in the same campus, were supposed to be at their houses and sleeping. Therefore, their presence on the spot becomes natural. Nay, since the entire incident took place so close by the places where the witnesses were sleeping, it was quite natural for them to have seen the occurrence with their own eyes.

Not only this, the accused had assaulted with a Pharsa and that way, she came very close to the deceased. That way, she unwittingly allowed the witnesses to identify her without any difficulty. Nay, it has come in the evidence of PW 3 Smt. Bhumali, in the crossexamination itself that it was a moonlit night. Hence there was no difficulty in identifying the known persons i.e. accused in that night from such a close range. Even in a starlit night, a known person can be identified easily. Not only this, it has been uniformly stated right from the stage of the FIR that the accused declared that she had removed the thorn from her way. So, this speech also helped the witnesses in correctly identifying her. Therefore, the broad features of the case are acceptable without any difficulty. Nay, the place of occurrence has not been challenged in this case. The only question is as to whether the appellant committed the murder or not.

Before analysing the evidence of facts, we wish to cursorily remark that it is alleged from the very beginning that Smt. Mamo, appellant was having illicit relations with Om Prakash (acquitted) and naturally, this was not liked by the deceased. He had objected to it and opposed the same, which is quite natural, because he was the brother of the complainant and also her fatherinlaw. So it was quite natural for him to object to this sort of illicit relationship.

Sri Data Ram, PW 1 has said that the appellant is the real daughterinlaw of the deceased and the deceased was his real brother. The deceased has his son Satya Lal, whose wife the appellant is. He was not present on the date and time of occurrence.

On the point of motive, there is a simple denial by Om Prakash. But there is evidence also. Nathu Singh, PW 2 has also said that Om Prakash used to visit the appellant. This was object to by the deceased.

PW 2, Sri Nathu Singh is an independent witness and PW 3 Smt. Bhamuli, wife of the deceased and motherinlaw of the accused, has also supported this fact that about a month or so earlier to the incident, she had seen the appellant and Om Prakash in compromising position. Om Prakash used to visit her quite often despite objections. She herself objected to Om Prakash for coming to the accused quite often. But he never relented nor stopped visiting. Once she saw the appellant as well as Om Prakash inside the room, which had been bolted from inside.

PW 4, Prithvi has said that he had seen the accused Om Prakash in the night of occurrence at the time of murder.

PW 5, Solak Chand was told by Om Prakash himself that the deceased was troubling him and preventing him from visiting the appellant.

This way, the point of motive is established and the learned trial Court has rightly come to the conclusion that there was abundant motive available to the accused appellant for committing the crime and Om Prakash too was resisting the obstructions caused by the deceased.

As observed earlier, the date, time and place of the occurrence and the weapon used by the appellant have not been disputed in this case. I.O. recovered the bloodstained articles from the spot and virtually there is no crossexamination on this point.

It is also not disputed that it was a moonlit night and the miscreants could be easily identified, of course, Om Prakash ran away and has been acquitted. But the appellant could not escape. She entered her room alongwith the Pharsa used by her, which was recovered from her room by the I.O. The clothes worn by the appellant were recovered from the spot, which also includes 4 bangles, one Kurta one Salwar, one ribbon, bloodstained earth etc. Hence the place of occurrence is fully established. As regards the recovery of weapon of attack also, there is no dispute of a serious nature. So all these things stand proved on the basis of oral and ocular testimonies.

Thus on these points, we agree with the learned trial Court's observations and do not want to go into details. The accused has not been able to explain as to how these bloodstained articles, including her personal wearing apparels, were recovered from the spot, if not done in the manner in which the prosecution alleges the same to have happened.

Not only this, the appellant does not deny her presence on the spot on the relevant night. She says in her statement under Section 313, Cr. P.C. towards the end, that she was ill and had recently delivered a child. In fact, her fatherinlaw himself had committed the murder. It means that she admits the factum of murder. But transfers the responsibility upon her fatherinlaw.

As observed earlier, all the witnesses have uniformly deposed about the manner in which and the weapon with which the accused committed the murder of the deceased. The FIR in this case was lodged without delay, in the same morning after a lapse of 23 hours only. On this point except the mere allegation that the FIR is antetimed, nothing has been extracted. So, it cannot be said that the FIR is not prompt. The learned trial Court has given reasons for treating the FIR in this case, as very prompt and we ditto his finding.

Another beauty of this FIR is that it contains everything upon which the prosecution has based its case i.e. motive of crime, the weapon of attack, the date time and place of occurrence, the name of the witnesses, the name of the accused and soon.

These are the pillars of the prosecution case, which have their foundations in the FIR itself. Such a prompt FIR can be safely used for the corroboration of the prosecution case. That is what has been done in this case.

PW 1, Sri Data Ram could easily see the spot at which the murder was committed without difficulty and he has specifically said that he saw the incident with his own eyes. He also saw Om Prakash running away and the appellant entering her room alongwith the weapon of attack and also that she boldly replied to the queries of the witnesses on the spot, to a query as to why she had committed the murder, she had said that she had removed the obstacle from her way. On this point, PW 1 Sri Data Ram remained unscathed despite very grueling crossexamination.

The appellant was a young lady of about 30 years. Her marriage with Sri Satya Pal had taken place hardly 89 years prior to the incident. Minor and insignificant details had been pointed out by way of omissions and contradictions in the statement under Section 161, Cr.P.C. of this witness. No significance could be attached to these things as it is established beyond doubt that the witness was present there and they could see the incident with their own eyes. Further, the FIR cannot be expected to be an encyclopedia of all the facts, containing the replies to the question thereof, which the learned crossexaminer puts in the course of crossexamination. The complainant is an illiterate person. Therefore, if he has succeeded in giving a truthful version not in a parrot like manner, we should appreciate it that he had not tried to eschew the truth.

After a threadbare analysis of the statement given by PW 1 aforesaid, it is established that (in his own words) there is hardly a distance of 45 paces between his and the deceased cots. Therefore, all the activities of the accused could be easily seen by this witness (Data Ram) with naked eyes in the moonlit night. We find that the statement given by Sri Data Ram is quite natural. He is, no doubt, the brother of the deceased, but also related to the accused in equal manner, having no enmity with her at all. His presence on the spot is established. Therefore, his evidence cannot be rejected on account of flimsy attacks. The learned lower Court has rightly adjudged this witness as a truthful and has intensively scrutinized the evidence given by him. We agree with the findings recorded by him.

P W 2, Sri Nathu Singh is a witness of close vicinity. His presence at the time of occurrence was also natural. He was going towards his tubewell and passing through the only passage, which goes through the spot. He saw the incident with his own eyes. He is also the village Chowkidar. He did not go to the police station for lodging the report because he thought his primary duty to secure the deadbody and also the accused, so that she might not escape. That is why Sri Data Ram alone went to the police station for lodging the report. After a very close and lengthy crossexamination also, it is not established that the witness had any thing against the accused appellant. There might be some enmity with Om Prakash, as admitted by him. But so far as the appellant is concerned, he is totally an independent witness and no objection can be raised towards the description of the place of occurrence as well as the murder, as done by him. Of course, every witness cannot give a pictorial description and that should not be encouraged. We agree with the learned trial Court's observations that PW 2 Sri Nathu Singh is a truthful witness and his statement can be safely used as a basis of conviction.

Smt. Bhamuli, PW 3 is the real wife of the deceased and real motherinlaw of the accused. No enmity with her has been stated or proved. Her presence on the spot is quite natural. At that time, she was sleeping at a distance of 45 paces from the deceased. Therefore, she could easily see the appellant murdering her husband with a Gandasa. She also heard the bold assertion of the accused that she had removed the obstacles by murdering the deceased. A very bald and lowkey suggestion was made to her in the crossexamination that there was a friction between, her and the accused as the witness happened to be her motherinlaw. She has denied it and we think that this ordinary friction, which happens in every household, no motherinlaw shall implicate her own daughterinlaw falsely. Therefore, this argument advanced by the learned Counsel for the appellant, is rejected. The rest of the evidence given by her, is totally acceptable. She has been adjudged to be a natural and truthful witness and her presence cannot be disputed at the time and place of occurrence. In fact, we do not find any flaw worth the name in her statement. Thus the learned trial Court has rightly accepted her testimony. Her allegation that she saw the accused Om Prakash and the appellant in an objectionable manner, has virtually remained unscathed. Similarly, the objections raised by the deceased towards this sort of illicit relationship, is also quite natural. No fatherinlaw will tolerate his own daughterinlaw going corrupt. Therefore, he is bound to raise objection if he found this sort of relationship, which was totally unacceptable to the society as the Indian society is, specially amongst the conservative villagers, from whose stock, the witnesses as well as the accused have sprung up.

There is evidence of PW 4 Prithivi. As regards the present appellant, he is only relevant to this extent that it was a moonlit night, which has not been challenged. His remaining evidence is concentrated towards Om Prakash, with which we are not discussing as he has been acquitted.

PW 5, Sri Solak Chand has also deposed about the points touching directly Om Prakash (acquitted accused). Hence we leave it without going deeper into the matter.

The other evidence is formal in nature rendered by the I.O. as well as PW7 Sri Samaya Singh. He is a witness of Panchayatnama as well, apart from other documents prepared in connection with the investigation by the I.O. In his presence the appellant helped in recovering the bloodstained Pharsa and this evidence is admissible under Section 27 of the Evidence Act and is a very important piece of evidence in the armoury of the prosecution.

Thus after an intensive examination of the prosecution evidence and circumstances on the record, we come to an irresistible conclusion that the prosecution has proved its case beyond a shadow of reasonable doubt. The appeal has no force and it is liable to be dismissed.

The appeal fails, and is dismissed. The appellant is on bail. Her bail bonds are cancelled. The CJM Saharanpur is directed to issue a nonbailable warrant against her and get her arrested and sent to jail. He shall communicate the compliance to this court within a month from today. Appeal dismissed.