Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 208 (MP)

Meeru v. State of M. P.

2001-03-05

C.K.PRASAD, S.S.SARAF

body2001
Short Note Appellant being aggrieved by his conviction for offence under section 302 of the Indian Penal Code and sentence of rigorous imprisonment for life by the Addl., Sessions Judge, Katni by judgment dated 7.3.1989 passed in Sessions Trial No. 34/88, has preferred this appeal. One Phuliya Bai was found dead on 5.5.1987 in a Mango Orchard. Fact of her death was reported to the police. On receipt of the aforesaid information, Police personnel came and inquest report of the dead-body was prepared. Thereafter, the dead-body was sent for postmortem examination which was conducted by PW 17 Dr. K.C. Singhai. In his opinion, Phuliya died of asphyxia due to throttling. According to the prosecution, the deceased was wearing a gold Khutiya (nose-pin) and Lachchas (large rings worn in legs) and same was found missing. According to the prosecution its value is Rs. 350 and Rs. 10/- respectively. During the course of investigation, according to the prosecution, same were recovered from the appellant on his memorandum. Police after investigation, submitted charge-sheet against the appellant and he was ultimately committed to the Court of Sessions to face trial for offence under section 302 of the Indian Penal Code for causing the death of Phuliya. Appellant denied to have committed any offence and his plea was that he has been falsely implicated in the case. The trial Court on appreciation of evidence held that the death of Phuliya Bai was homicidal in nature and was caused by the appellant. Mr. Mantosh Mishra appears on behalf of the appellant. Mr. R.K. Verma, P.L. appears on behalf of the State. Mr. Mishra concedes that the finding recorded by the trial Court that the death of Phuliya Bai is homicidal in nature is based on material on record and he cannot legitimately call for its reversal. We have perused the evidence of PW 17. Dr. K.C. Singhai, who had conducted the post-mortem examination on the body of the deceased. He has found following injuries on the body of the deceased: "Fixed and congestive - congested, mouth open, teeth close, longue inside the socket, huge amount of froth coming out by both nostrils. Swelling present in front of neck size -- 3" x 3". Three bruise with abrasion present on left side of neck on front side, one present below the margin of mandible on Lt. side, size 1/4" x 1/10, skin deep. Swelling present in front of neck size -- 3" x 3". Three bruise with abrasion present on left side of neck on front side, one present below the margin of mandible on Lt. side, size 1/4" x 1/10, skin deep. Other present on margin of mandible on same side, size 1/4" x 1/10", skin deep. No. three present -- Most laterally of mandible size 1/4" x 1/10", skin deep. There are abrasion present over angle of mandible on same side. No. four -- Abrasion with scar present on right side of neck below the angle of mandible, size 3" x 1/10" skin deep. These all abrasions coincide with the finger nails and all abrasion are ante-mortem." In the opinion of the doctor, the cause of death of Phuliya Bai was asphyxia due to throttling. In view of aforesaid, we do not have any hesitation in affirming the finding of the trial Court that the death of Phuliya was homicidal in nature. Mr. Mishra submits that conviction of the appellant is based on purported seizure of Khutiya and Lachchas allegedly belonging to the deceased from him on his memorandum but neither the seizure of those articles nor its identification have been proved by the prosecution beyond all reasonable doubt and as such, appellant deserves to be given the benefit of doubt. Mr. R.K. Verma, P.L. however, appearing on behalf of the State submits that seizure of the articles belonging to the deceased had been proved beyond all reasonable doubt and its identification also stands established and in that view of the matter, the trial Court did not err in convicting the appellant, relying on the seizure. Having appreciated the rival submissions, we find substance in the submission of Shri Mishra. It is relevant here to state that there is no eye-witness to the occurrence and the prosecution attempted to procure conviction of the appellant only on the basis of the circumstantial evidence and the only circumstantial evidence which has been relied on to establish the charge of murder is the recovery of ornaments of the deceased from the appellant. PW 4 Ram Pratap, who is witness to the memorandum of seizure has clearly stated in his evidence that on enquiry by the Investigating Officer, appellant did not state anything. PW 4 Ram Pratap, who is witness to the memorandum of seizure has clearly stated in his evidence that on enquiry by the Investigating Officer, appellant did not state anything. Thereafter, according to this witness, appellant took the Investigating Officer along with him inside the house and from an earthen pot took out four Lachchas and one Khutiya and handed over him the same. However, in cross-examination, this witness has first stated that the house belonged to the appellant's father and thereafter he stated that the same belonged to Sukhlal. He has however admitted that he does not know the relationship between the appellant and the said Sukhlal. In his cross-examination he has further stated that anybody can enter in the house from which the appellant had taken out the ornaments and handed over to the Investigating Officer. Another witness to the memorandum and seizure is PW 15 who has been declared hostile by the prosecution itself. PW 19 Mohd. Ayub Khan was the Town Inspector during the relevant time and he has stated in his evidence that on 14.5.1987 when the appellant was arrested, on enquiry he stated that he had kept the Khutiya and the Lachcha in husk. Accordingly. he recorded the memorandum and appellant, as stated by him, took out the aforesaid ornaments from the husk and handed over the same to him. The trial Court placed reliance on the evidence of PW 4 Ram Pratap and PW 19 Ayub Khan and convicted the appellant. We are of the opinion that evidence of PW 4 and PW 19 as regard to the seizure of the ornaments belonging to the deceased has not been proved beyond all reasonable doubt. PW 4 has stated in his evidence that the appellant look out the ornaments from the earthen pot and handed over the same to the Investigating Officer whereas. according to the Investigating Officer PW 19, appellant took out the ornaments from the husk. PW 4 Ram Pratap has not stated anything as regard to the memorandum given by the appellant. PW 4 also does not say that the place from where the recovery was made belonged to the appellant. Infact, he went to the extent of saying that anybody can enter in the said house. Articles allegedly belonging to the deceased have not been identified by the witnesses in the Count. PW 4 also does not say that the place from where the recovery was made belonged to the appellant. Infact, he went to the extent of saying that anybody can enter in the said house. Articles allegedly belonging to the deceased have not been identified by the witnesses in the Count. Aforesaid infirmities leave us in doubt and we are of the opinion that on the material placed by the prosecution, it cannot be held beyond all reasonable doubt that articles belonging to the deceased were recovered from the appellant. Accordingly, we are of the view that the appellant deserves to be given the benefit of doubt. We grant it accordingly. In the result, the appeal is allowed. Impugned judgment of conviction and sentence is set aside. Appellant is on bail, he shall be discharged of his bail bond.