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Madhya Pradesh High Court · body

2004 DIGILAW 78 (MP)

State of M. P. v. Dhanno

2004-01-28

A.K.GOHIL, S.S.JHA

body2004
ORDER Gohil, J. -- 1. State has filed this appeal against acquittal in S.T. No. 134/87 against the judgment dated 14.9.88 passed by II ASJ, Shivpuri after obtaining leave. All the respondents were prosecuted under section 302 of the Indian Penal Code (Code" for short) for committing murder of Dulari (hereinafter referred to as deceased) wife of Ramkishan. 2. Succinctly stated, prosecution story is that Ramkishan, husband of deceased used to work as a labourer in the field of Kamal Singh. On 7.11.1987, when Ramkishan went on the field of Kamal Singh, he found that wife of respondent No.3 Raghuvir was cutting grass in the field of Kamal Singh. Ramkishan tried to stop her. She started abusing Ramkishan. At the same time respondents Kailash, Ramswaroop, Raghuvir and Dhanno reached on the millet field and started forcing Ramkishan. Ramkishan escaped in the field. Thereafter, all the respondents-accused persons came to the house of Ramkishan at village Rijauda at about 4.00 p.m. Ramswaroop, Kailash, Raghuveer were carrying lathis and Dhanno was carrying sickle. They started making enquiries about Ramkishan. Dulari, wife of Ramkishan stated that Ramkishan is not at home. Then all the accused persons carried away criminally (abducted) Dulari and threw her in the well of Kailash. Due to fear, Ramkishan ran away. He was escaping and running here and there. The members of the family of deceased Badani and Mangi started searching for Dulari and Ramkishan but even after 4 days they could not find them. Therefore at 8-10 p.m. on 11.11.1987, Badami, the elder brother of Ramkishan lodged a report of abduction and missing at Police Station Pohari. On this report, Crime No. 88/87 under sections 342 and 366 of the Code was registered at Police Station Pohari. 3. As per prosecution, on 14.11.1987, respondent Dhanno was arrested and on the basis of information and statement of Dhanno, memorandum under section 27 of the Evidence Act Ex. P-5 was prepared. The dead body of the deceased Dulari was recovered from the well situated near Deori Samastipur Square on Shivpuri-Pohari Road. Recovery Panchnama of deadbody is Ex. P-1 and Panchnama of deadbody is Ex. P-2. Thereafter on 26.11.1987, the other accused persons were arrested and on the basis of memorandum, lathi was recovered from Ramswaroop and Raghuvir and chadar was recovered from Kailash. Spot maps Ex. P-9 and Ex. P-10 were prepared with the help of Patwari. Recovery Panchnama of deadbody is Ex. P-1 and Panchnama of deadbody is Ex. P-2. Thereafter on 26.11.1987, the other accused persons were arrested and on the basis of memorandum, lathi was recovered from Ramswaroop and Raghuvir and chadar was recovered from Kailash. Spot maps Ex. P-9 and Ex. P-10 were prepared with the help of Patwari. Matter was investigated and during investigation, map Ex. P-11 was prepared. Statement of the witnesses were recorded. The deadbody of the deceased was identified by the family members and was referred to Public Health Centre, Pohari for post mortem examination. PW 16 Dr. R.K. Jain performed autopsy of the dead body. After investigation, chargesheet was filed. 4. During trial, prosecution examined as many as 22 witnesses in this case. PW 6 Phoolwati is the wife of PW 15 Badami who is the elder brother of Ramkishan. PW 7 Bisso is wife of Mangi who is the younger brother of Ramkishan, PW 9 Ramkishan is the husband of the deceased. PW 12 is Laxmanram, Head Constable. PW 14 Fayyaj Bahadur, PW 16 Dr. R.K. Jain, PW 17 Naktu, PW 18 Chhanchu and PW 22 Anil Kumar Singh Kushwaha, Sub Inspector have also been examined. From the evidence of aforesaid witnesses, it is clear that the deadbody of the deceased was recovered from a well. From the evidence of aforesaid witnesses it is also clear that the evidence of last seen against the respondents is available on record. As per medical evidence of PW 16 Dr. R.K. Jain, cause of death is Asphyxia of the body due to drowning. The duration of death was within 8 days of the Post Mortem examination. Mode of death was unknown. Doctor found the following condition of the deadbody : -- Rigor mortis has passed off. -- Eye - bulged out due to decomposition. -- Tongue -- protruded out. -- Post Mortem stains present over the head, neck and back. -- Blisters and bullous present all over the body. -- Larvae creeping over the body. Files attracted towards the body. -- Corrougated and bleached skin of the hand and feet due to lying of body in water. -- No external injury is visible over the body due to pumpeaness and decomposition of body. 5. From the medical report, it is clear that no injuries were found on the deadbody of the deceased. Files attracted towards the body. -- Corrougated and bleached skin of the hand and feet due to lying of body in water. -- No external injury is visible over the body due to pumpeaness and decomposition of body. 5. From the medical report, it is clear that no injuries were found on the deadbody of the deceased. Duration of death is within 8 days from 14.11.1987 which comes to around 6-7.11.1987. Doctor has opined that he is unable to say that whether the nature of death is homicidal, suicidal or accidental. Therefore, it is clear that from the post mortem report the nature of death is not known that whether it was homicidal or not. 6. So far as the evidence of PW 18 Chhanchu is concerned, from his evidence it is clear that on the day when the deceased was last seen with Dhanno, she was going all alone with Dhanno. This independent witness has further stated that the deceased was seen with Dhanno out of the village and they were going towards the field and thereafter PW 18 had not seen the deceased alive and this evidence does not support any other act of Dhanno. Therefore, it can be concluded that the deceased was last seen with Dhanno, but, this evidence alone is not sufficient for convicting the respondents. Though PW 9 Ramkishan, husband of the deceased stated in his evidence that he had seen from the bushes that Kailash threw the deceased in the well and after seeing this he ran away, but, he has neither lodged any report nor stated this fact to anybody else. He stayed st Dabra with his uncle for 10 days, but, during these 10 days he has not stated this fact to his uncle nor did he send any message to his family members either to his mother or brothers. He stated that he was under a state of fear, therefore, he was running here and there. When he was introduced as an eye-witness and had seen the incident, it was quite unnatural that he had not said anything to anybody else that respondents had abducted his wife Dulari forcibly on the well and thereafter they threw her in the well. His statement was even not recorded by the Police. He was directly introduced as an eye witness before the Court. We have carefully perused the evidence of PW 9 Ramkishan. His statement was even not recorded by the Police. He was directly introduced as an eye witness before the Court. We have carefully perused the evidence of PW 9 Ramkishan. The trial Court has also not relied over the evidence of PW 9 Ramkishan and we also do not find that his evidence is either reliable or helpful to the prosecution. It is quite unnatural that the husband will see the incident from his own eyes that his wife is being thrown in the well and he will not come to save her nor inform either to the Police or to any of the family members or uncle. Therefore, it appears that the trial Court has rightly discarded his evidence. 7. So far as the last seen evidence of PW 6 Phoolwati, PW 7 Bisso, PW 15 Badani and PW 18 Chhanchu are concerned, the evidence of the aforesaid witnesses are also not reliable because as per prosecution's case on 7.11.1987, the respondents abducted the deceased from her house in presence of her family members. Then there was no case that for 3-4 days they were searching the deceased. When the deceased was abducted by respondents from her house in presence of family members then why the report of the incident was not lodged on the same day and why they gave this explanation that they were searching the deceased. They have not given any satisfactory explanation that why the report was lodged after 4 days and what was the necessity to search the deceased when the respondents had abducted her. Therefore, on this very ground, the last seen evidence of the aforesaid witnesses cannot be considered to be reliable and cannot be the basis for conviction. 8. Learned counsel for the appellant vehemently submitted that the Investigating Officer can prove the memorandum under section 27 of the Evidence Act in the absence of any other evidence and that the respondent-accused persons be convicted on the basis of recovery of the deadbody at the instance of respondent Dhanno and memorandum prepared under section 27 of the Evidence Act. In this case, both the witnesses of memorandum PW 1 Kamar Singh and PW 19 Vijay Singh have turned hostile. They both have denied that before them any memorandum was prepared or any statement was recorded or Dhanno had stated anything. In this case, both the witnesses of memorandum PW 1 Kamar Singh and PW 19 Vijay Singh have turned hostile. They both have denied that before them any memorandum was prepared or any statement was recorded or Dhanno had stated anything. They have denied the recovery as well as preparation of memorandum under section 27 of the Evidence Act and they both have stated that their signatures were obtained on blank papers by the Police. Therefore, in the absence of any independent witness, the respondents cannot be convicted solely on the basis of the evidence of Investigating Officer. The memorandum under section 27 of the Evidence Act Ex. P-5 was prepared by PW 14 Fayyaj Bahadur on the basis of statement of respondent Dhanno. It has been stated in Ex. P-5 memorandum under section 27 of the Evidence Act that ^^eSaus dSyk’k] j?kqohj o jkeLo:i ds lkFk nqykjh dh gR;k dq,¡ esa Qsad dj dh gS yk’k nsojh frjkgs ds ikl lM+d okys dq,¡ esa iM+h gS py dj cjken djk; nsrh gw¡A** but PW 14 Fayyaj Bahadur who prepapred the memorandum Ex. P-5 does not say before the Court that respondent Dhanno had stated the aforesaid version to him and thereafter he had prepared the' memo and thereafter dead body was recovered. Even if it is said that the Investigating Officer can prove the memorandum, then it is the burden on the prosecution to prove the memorandum and in that case the Head Costable who had prepared the memorandum has to prove the actual words uttered by the accused before him. We have also perused the evidence of PW 14 Fayyaj Bahadur and in the absence of actual words in the examination-in-chief of PW 14 uttered by the respondent Dhanno while preparing memorandum and also in absence of other corroborative evidence about memorandum under section 27 of the Evidence Act, it cannot be said that Ex. P-5 memorandum is proved and conviction cannot be based solely on the evidence of PW 14. Even the facts stated by respondent Dhanno for preparing memorandum are not proved by PW 14. Therefore, conviction cannot be based simply on the evidence of PW 14 Fayyaj Bahadur, Head Constable. 9. The trial Court has also found the defence story more reliable as the deceased Dulari and her husband Ramkishan were not in good terms. Even the facts stated by respondent Dhanno for preparing memorandum are not proved by PW 14. Therefore, conviction cannot be based simply on the evidence of PW 14 Fayyaj Bahadur, Head Constable. 9. The trial Court has also found the defence story more reliable as the deceased Dulari and her husband Ramkishan were not in good terms. They were always fighting and many a times deceased Dulari had left the house of her husband and was residing with her parents. On the date of incident, Ramkishan has also beaten the deceased Dulan in the way bear Bus stand square at Deori. Therefore, it was submitted by defence that due to beating, she went to the well and fell herself and due to fear Ramkishan was absconding for 15 days. When the dead body was recovered and Dhanno was arrested, then he came and his statement was recorded by Police on 23.11.1987. Post incident conduct of Ramkishan was also found unnatural and doubtful. It was further submitted that there was also a dispute between the family members of Ramkishan and respondents/accused persons for digging a well in the pond land of village. It has also revealed that Badri, father of accused persons Kailash and Raghuvir had also made allegations against Ramkishan for theft of their crop and on the instruction of Badri, Naktu Chokidar had lodged report in police against Ramkishan. Balu, one of the family members of the respondents-accused was also involved in dacoity case and because of that the family members of the complainant party were angry with the accused persons and therefore the trial Court found that the complainant party implanted the aforesaid false story for implicating the respondents in commission of crime. 10. Thus, considering the totality of the evidence on record, we find that the learned trial Court has rightly appreciated the evidence and has rightly acquitted the respondents from the allegations. From the medical evidence also, it cannot be concluded that it is a case of homicidal death. Thus, we find that no case is made out for interference by this Court in this appeal against acquittal as the prosecution has failed to prove the story beyond reasonable doubt. From the medical evidence also, it cannot be concluded that it is a case of homicidal death. Thus, we find that no case is made out for interference by this Court in this appeal against acquittal as the prosecution has failed to prove the story beyond reasonable doubt. It is a settled position under law that the appellate Court should not interfere in appeal against acquittal unless the findings recorded by the trial Court are found to be palpably wrong, manifestly erroneous or demonstrably unsustainable. In the case of Ramesh Babulal Doshi v. State of Gujrat [ AIR 1996 SC 2035 ] the Apex Court held that : "The mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." 11. Thus, considering the facts and circumstances of the case, and the evidence recorded by the Court below, we do not find any merit in this appeal. Accordingly, this appeal fails and is hereby dismissed. .......................