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2004 DIGILAW 119 (MP)

Rajubai v. State of M. P.

2004-02-05

A.K.TIWARI, S.L.KOCHAR

body2004
JUOGMENT Tiwari, J. 1. Appellants herein stand convicted under sections 302/34, 120B and 201 of the Indian Penal Code vide judgment passed by learned Third Additional Sessions Judge, Dewas, in Sessions Trial Na. 162/94 on 16.11.1994. 2. Undisputed facts are that deceased Gopidas was the husband of appellant Rajubai. Gangabai (PW 1) is the mother of deceased Gopidas. Gangabai (PW 1) resides with her husband Padamdas in village Rapayar. Deceased Gopidas resided with appellant Rajubai in village Agera and they had four daughters and .one son. Deceased Gopidas was serving as teacher and was pasted at village Talod at the time of incident. 3 (a). Prosecution story, in brief, is that appellant Rajubai was having illicit relations with appellant Munna. Deceased Gopidas did not like this relationship. Prior to his pasting at Talod, deceased Gopidas was pasted at Harangaon and he resided there and used to came village Agera occasionally but same time prior to incident, he was pasted at Talod and since then he started to reside at Agera. Appellants, in order to get rid of him, made plan to kill him and according to the plan, appellant Munna killed Gopidas in the night when he had been an his field and •buried the dead body beside a small rivulet near the field of deceased Gopidas. (b) Gangabai (PW 1) came to village Agera where deceased Gopidas resided with his wife appellant Rajoobai and his children, when she came to know that deceased Gopidas was missing. She searched him in villages Kaylas, Pipalranwa, Khadi, Kundiya and Joonda and then made report about his missing. (c) After the inquiry, Police suspected appellant Munna and he was arrested. On the basis of the information given by the appellant Munna vide memorandum (Ex.P-7), the dead body of Gopidas was recovered. Dead body was sent for autopsy to Public Health Centre, Sonkatch, where Dr. Praveen Mishra (PW 9) performed autopsy on the dead body and prepared post mortem report (Ex. P-18). Shirt and undergarment (baniyan) of the deceased were also recovered at the instance of the appellant Munna. On the strength of the information given by the appellant Munna, the spade (phavda) used for committing crime was recovered and seized. After completing the due investigation, charge-sheet was submitted. 4. Appellants were charged for the offences punishable under sections 302/34, 120B and 201, IPC. Appellants abjured the guilt, therefore, they were put to trial. On the strength of the information given by the appellant Munna, the spade (phavda) used for committing crime was recovered and seized. After completing the due investigation, charge-sheet was submitted. 4. Appellants were charged for the offences punishable under sections 302/34, 120B and 201, IPC. Appellants abjured the guilt, therefore, they were put to trial. After the trial, trial Court vide impugned judgment, convicted appellants under the above said sections and sentenced them as mentioned above; hence this appeal. 5. It appears that some effort have been made by the appellants during the trial, to dispute the identity of the recovered dead body by trying to build up a case during the cross-examination of some witnesses that the dead body said to be recovered by the Police was not the body of Gopidas. But during the hearing of this appeal, appellants did not dispute the fact that Gopidas has died. They have not even raised any contention that the body recovered, alleged by the prosecution, was not the body of Gopidas. They have also not disputed the fact that Gopidas died the homicidal death. Even otherwise, Dr. Praveen Mishra (PW 9) has deposed that he performed autopsy on the body of Gopidas, son of Padmadas Balai resident of Agera. According to Dr. Praveen Mishra (PW 9), his death occurred due to the shock which was caused due to the injury on his neck. Thus, the fact that deceased Gopidas met homicidal death, is established. 6. Next question which now arises for consideration is that whether the appellants caused the death of the deceased. Learned trial Court has held them responsible for causing the death of deceased so it will have to be seen whether the findings of the learned lower Court are correct or they are erroneous. For this purpose we will have to scrutinize the evidence led by the prosecution. 7. There is no direct evidence of the incident and the case of prosecution is based solely on the circumstantial evidence. In a case depending upon merely circumstantial evidence, prosecution should prove each of the incriminating pieces of evidence, satisfactorily by cogent and reliable evidence and when proved pieces of circumstantial evidence are taken together they shall form such a complete chain wherefrom no inference other than the guilt of the accused could be drawn. In a case depending upon merely circumstantial evidence, prosecution should prove each of the incriminating pieces of evidence, satisfactorily by cogent and reliable evidence and when proved pieces of circumstantial evidence are taken together they shall form such a complete chain wherefrom no inference other than the guilt of the accused could be drawn. In other words, the proved pieces of circumstantial evidence should not be capable of being explained on any hypothesis other than the guilt of the accused. 8. The first incriminating circumstances said to exist against the appellants is that they had illicit relations and deceased was aware of this relationship between them. It is said that some quarrel also took place some time prior to the incident. This circumstance does not by itself and necessarily lead to the inference that the appellants committed the crime. This circumstance, at the most, can be taken into consideration as a motive to commit the crime. So we will have to see whether there is something more establishing connectivity between the appellants and crime. 9. Another incriminating circumstance is that on the fateful night, appellants had been at the field of deceased. They came to his house in night and again went to the field after taking mattock and a shovel with them. They returned from there at midnight and at that time, appellant Munna said to appellant Rajubai that he has done that work which she had told him to do. The above circumstance is said to be proved on the basis of statement of Urmila (PW 12). Testimony of this witness is not reliable and trustworthy. She has deposed in para three of her statement that if she did not depose against her mother and Munna i.e., appellants herein, her marital relationship would be affected adversely as her in-laws had asked her not to live with her mother. According to her, relatives of her husband have told that if she keeps the company of her mother, they will break the marital tie. Her testimony shows that she feels that her brother should get the pension of her father, i.e. deceased. This feeling and the fear of her desertion by her in-laws might have inspired her to testify against appellant Rajubai, i.e., her mother. She is that type of witness whose testimony cannot be relied without any material corroboration, which is lacking in the present case. This feeling and the fear of her desertion by her in-laws might have inspired her to testify against appellant Rajubai, i.e., her mother. She is that type of witness whose testimony cannot be relied without any material corroboration, which is lacking in the present case. Therefore, this piece of incriminating circumstance, that appellant had gone to the field of the deceased and that in the night appellant Munna was telling appellant Rajoobai that he has done that work which she had asked him to do, is not established beyond reasonable doubt. 10. Even if the above circumstance is taken to be proved, it is not of such a nature that no inference other than the guilt of the accused persons could be drawn on the basis of it. No any other circumstance does exist against the appellant Rajoobai. Merely because she has some relations, even illicit relations, with appellant Munna and she had gone to her field and appellant Munna told her about doing of some work which was asked by her to do, she cannot be held liable for the offence of having caused the death of the deceased. So far as the offences under sections 120B and 201 of IPC are concerned, there is no evidence worth the name available against her. She is, therefore, entitled to an acquittal. 11. So far as appellant Munna is concerned, apart from the evidence discussed above, it is said that dead body of deceased was recovered at his instance. The dead body is recovered from the open place accessible to all. Kailash (PW 13) has stated in his statement that there was a gossip in the village that some body is lying in the nala two or three days prior to the day on which the body was recovered. Kamal Singh (PW 14) has also deposed in his statement that two days prior to the day on which he had been on the nala with the Police Inspector, there was a talk in the village that some dead body is lying near the nala. Under such circumstances, the evidence of the recovery of the dead body at the instance of appellant Munna loses the weight and we find it difficult to hold him responsible for the offence charged only on the basis of the evidence of the recovery of the dead body. 12. Under such circumstances, the evidence of the recovery of the dead body at the instance of appellant Munna loses the weight and we find it difficult to hold him responsible for the offence charged only on the basis of the evidence of the recovery of the dead body. 12. The evidence of the recovery of the phavda is also of no avail as there is no evidence to the effect that it was used in committing the crime. There is no evidence to the effect that human blood belonging to the blood group of the deceased was found on the phavda. The evidence of the recovery of clothes and shoes of deceased also does not help the prosecution. Even if the fact that the so-called articles of deceased were recovered at the instance of accused is taken to be established, still the question remains whether they are the articles worn by the deceased. Prosecution has not led any independent and reliable evidence to establish the fact that the shoes and clothes etc. said to be recovered at the instance of the appellant Munna belonged to the deceased and they were worn by him prior to incident. Hence, appellant Munna cannot be held guilty on the basis of the evidence led by prosecution. 13. We are of the view that the doubtful and suspect nature of the evidence sought to be relied upon to substantiate the circumstances in this case themselves suffer from serious infirmities and lack of legal credibilities to merit acceptance in the hands of Courts of Law. Since the very circumstances sought to be relied upon themselves stood seriously undermined, the existence or proof of one or more of stray circumstances in the chain break and dislocate the link in such a manner so as to irreversibly snap the link in the chain of circumstances rendering it difficult and inappropriate to consider even one or more of them alone to either sufficiently constitute or provide the necessary basis to legimately presume the guilt of the appellant. 14. For the foregoing reasons, the findings of the trial Court as regards holding the appellants Rajoobai and Munna guilty appear to be erroneous in the light of the evidence led by prosecution, appellants are entitled to get the benefit of doubt and their conviction cannot be sustained. Therefore, this appeal and Criminal Appeal No. 383/96 are allowed. 14. For the foregoing reasons, the findings of the trial Court as regards holding the appellants Rajoobai and Munna guilty appear to be erroneous in the light of the evidence led by prosecution, appellants are entitled to get the benefit of doubt and their conviction cannot be sustained. Therefore, this appeal and Criminal Appeal No. 383/96 are allowed. The conviction of appellants Rajoobai and Munna under sections 302/34, 120B and 201 of IPC along with the sentences as passed thereon, is set aside and they are acquitted of the charges levelled against them. 15. Appellant Rajoobai has also filed a separate appeal from jail, which has been registered as Criminal Appeal No. 383/1996. This appeal stands disposed of in the light of this judgment. A copy of this judgment be kept on the record of Criminal Appeal No. 383/1996.