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2006 DIGILAW 812 (MP)

Halle @ Premlal v. State of M. P.

2006-07-05

DEEPAK VERMA, SUSHMA SHRIVASTAVA

body2006
ORDER Smt. Shrivastava, J. -- 1. Appellants have been found guilty under section 302 of IPC for committing murder of Vipata Bai and have been awarded life imprisonment with fine of Rs. 5,000/- in default imprisonment for one year, by III Additional Session Judge, Sagar in ST No. 294/97 decided on 17.4.1998. Being aggrieved, by the aforesaid finding and sentence the appellants have preferred this appeal. 2. According to the prosecution the alleged incident took place on 19.4.1997 at village Samnapur Parasiya of Tahsil Rehli, District Sagar. Deceased Vipata Bai aged about 15/16 years r/o village Parasiya was studying a Rehli at the relevant time and was living in rented house at Rehli with her brothers Govind and Nandram. Both the appellants Halle Kachhi and Baloo @ Babloo Razal resident of Rehli used to tease her malafide a the time of her to and fro journey to school When the examinations of the deceased Vipata Bai were over on 5.4.1997 she had come bad to her village along with her brothers Govind Prasad and Nandram. On 19.4.1997 at about 3:00 p.m. both the appellants Halle Kachhi Patel and Baloo @ Babloo came to village Parasiya on Bicycle and took the whereabouts of the house and fields of the complainant Govind Prasad from one Madhu Kori of the village. At about 6:00 p.m. on the same day when the complainant Govind Prasad, the brother of the deceased was returning back from jungle along with his Harwaha, Gudda Yadav by the bullock cart after collecting Jareta from the jungle and reached near his well (Gadriya Wala Kuwa) he saw that both the appellants Halle Patel and Baloo @Babloo Razak were throwing his sister Vipata Bai into the well by holding her hands and feet. Complainant Govind Prasad and Gudda Yadav both rushed to the well and found that Vipata Bai had died in the well. Then the complainant Govind Patel and Gudda Yadav both ran after the appellants but they escaped. 3. Complainant Govind Patel went to the Police Station Rehli and lodged the FIR. On the basis of the report and information given by the complainant Govind Patel, FIR and marg intimation were recorded at Police Station Rehli and the offence was registered against the appellants, investigation commenced. The dead body of the deceased Vipata Bai was taken out from the well by the police and sent for postmortem. On the basis of the report and information given by the complainant Govind Patel, FIR and marg intimation were recorded at Police Station Rehli and the offence was registered against the appellants, investigation commenced. The dead body of the deceased Vipata Bai was taken out from the well by the police and sent for postmortem. The postmortem was conducted by team of three Doctors. According to the postmortem report, the death of Vipata Bai was caused due to Asphyxia, as a result of ante-mortem drowning. After other usual investigation, the appellants were prosecuted under section 302 of IPC and were put to trial. 4. Appellants abjured the guilt and pleaded innocence and false implication. 5. The learned trial Court, on the basis of the evidence adduced in the case found the appellants guilty of committing murder of Vipata Bai by throwing her into the well and convicted and sentenced them as aforesaid. Hence, this appeal. 6. Arguments of both the sides were heard and the record of the lower Court perused. 7. The conviction of the appellants is founded mainly on the basis of the evidence of complainant Govind Prasad (PW 2), the brother of the deceased and his Harwaha Gudda Yadav (PW 3), who claimed to have seen the appellants throwing Vipata Bai into the well and thereby causing her death. The learned counsel for the appellants has vehemently argued that the evidence of these witnesses is unnatural and untrust worth and that both of them are interested and partisan witnesses and they have falsely implicated the appellants due to alleged eve teasing of the deceased by the appellants in her school days. 8. Now, upon perusal and close scrutiny of the whole evidence adduced in the case it is found that except the evidence of complainant Govind Prasad (PW 2), the brother of the deceased and his servant Gudda Yadav (PW 3), there is no independent witness of the alleged incident, although the alleged incident is said to have taken place in the open field. 9. Kotwar Ghasiram of village Sarnnapur (PW 1) who claims to have reached the spot just after the incident and seen the deceased Vipatabai lying dead in the well and was informed of the incident by the complainant Govind Prasad does not specifically name the appellants. 9. Kotwar Ghasiram of village Sarnnapur (PW 1) who claims to have reached the spot just after the incident and seen the deceased Vipatabai lying dead in the well and was informed of the incident by the complainant Govind Prasad does not specifically name the appellants. PW 1 Ghasiram Kotwar simply states that complainant Govind Prasad had told him that two boys of village Rehli, one Patel and another Dhobi had killed his sister by throwing her into the well. Kotwar Ghasiram (PW 1) himself has not seen the appellants present running away from place of incident. Although the complainant Govind Patel has tried to depose that he alongwith Gudda Yadav (PW 3) and Ghasiram Kotwar (PW 1) had run after the appellants, but Ghasiram Kotwar (PW 1) has specifically stated in his cross examination that he has not seen anyone running from the spot. 10. Even PW 5 Shyamlal who has stated that the appellants had come to village Parasiya in the month of Baisakha at about 3:00 p.m. and had asked for water from him does not specify any day or date and does not speak anything against the appellants relating to the alleged incident. The other witness Madhu @ Omprakash (PW 4) has also not supported the prosecution version of appellants enquiring from him the whereabouts of the house and fields of the complainant Govind Prasad. 11. So far as the evidence of the complainant Govind Prasad (PW 2), the brother of the deceased and his Harwaha Gudda Yadav (PW 3) is concerned, their testimony about the incident does not inspire confidence for the reasons that follow. 12. Both the witnesses namely Govind Prasad (PW 2) and Gudda Yadav (PW 3) have stated in their evidence to have seen the appellants throwing deceased Vipata Bai in to the well by holding her hands and feet but their evidence is inter se contradictory in material particulars. Complainant Govind Prasad (PW 2) has stated in his evidence that on 19.4.1997 at about 6:00p.m. when he was returning from jungle he had seen his sister in Gadariawala field and appellant Halle Yadav was holding her hands and appellant Baloo @ Babloo Razak was holding her feet and they were taking her near the well. Complainant Govind Prasad (PW 2) has stated in his evidence that on 19.4.1997 at about 6:00p.m. when he was returning from jungle he had seen his sister in Gadariawala field and appellant Halle Yadav was holding her hands and appellant Baloo @ Babloo Razak was holding her feet and they were taking her near the well. According to the complainant Govind Prasad (PW 2), as stated by him in para (1) & (7) of his deposition, when he shouted and whoopee at the appellants, they threw his sister into the well and ran away. But such a version is not exactly given by the other witness Gudda Yadav (PW 3). According to Gudda Yadm (PW 3) appellants were holding the hands and feet of Vipata Bai and when they saw him and Govind Prasad they threw Vipata Bai into the well. 13. Not only this, according to the complainant Govind Prasad (PW 2) appellants had thrown his sister into the well by swinging her body once, while PW 3 Gudda Yadav has, stated in para 7 of his deposition that appellants had thrown Vipata Bai into the well by swinging her twice or thrice. It is also noteworthy that there is no such averment in the FIR (Ex. P-l) lodged by the complainant Govind Prasad (PW 2) that the appellants had thrown Vipata Bai into the well by "swinging' her. 14. A Contradiction is also found in the evidence of complainant Govind Prasad (PW 2) and (PW 3) Gudda Yadav regarding the driving of the bullock cart at the time of incident when they reached the spot. Complainant Govind Prasad (PW 2) says that before reaching near the place of incident he was driving the bullock cart, while PW 3 Gudda Yadav claims that he was driving the bullock cart himself throughout while returning from jungle to the fields. Such a contradiction may not appear material on face of it but that is enough to create reasonable doubt as to the presence of the PW 3 Gudda Yadav at the time of incident. 15. Be that as it may, it also appears unnatural that appellants would throw Vipata Bai into the well in presence of her brother Govind Prasad (PW 2) and his companion Gudda Yadav (PW 3) at a short distance, as deposed by them, without any rhyme or reason. 16. 15. Be that as it may, it also appears unnatural that appellants would throw Vipata Bai into the well in presence of her brother Govind Prasad (PW 2) and his companion Gudda Yadav (PW 3) at a short distance, as deposed by them, without any rhyme or reason. 16. Although it has come in the evidence of Haricharan Tiwari (PW 7) and O.P. Shrivastava, Investigating Officer (PW 13), that there was a rumour that deceased was raped but from the medical evidence it is clear that the deceased was not subjected to rape. Dr. C.K. Dubey (PW 12) who had conducted the postmortem on the body of the deceased Vipata Bai, along with two other companion doctors has specifically stated that there was no external injury visible on her genital organ or on the adjoining parts and her hymen was also found intact. As per the FSL report of the Chemical Examiner (Ex. P-18) no sperm or semen were found on the undergarments or slide of the deceased. 17. As per the medical evidence given by Dr. C.K. Dubey (PW 12), no visible external injury was found on the body nor any ligature mark was seen on the body of the deceased. As such there Gould possibly be no reason or cause for the appellants, for throwing the girl Vipata Bai abruptly in to the well on seeing her brother and his companion as alleged. It also appears unnatural that the deceased would not have shouted and struggled to save herself or wriggle out from the clutches of the appellants even after seeing her brother at a close distance with another person. 18. Although, PW 3 Gudda Yadav has tried to state, as against the prosecution case, that appellants had killed Vipata Bai and thrown her dead body into the well (mari marai kuwe me feikh diya) but such a statement is also not to be believed as it goes contrary to the medical evidence. Dr. C.K. Dubey (PW 12) has specifically stated that as per opinion of the Doctors conducting the postmortem cause of the death of the deceased Vipatabai was Asphyxia due to antemortem drowing. He has also clarified in the cross examination that the death of the deceased was caused after drowning in the water. Even no ligature marks were found over the neck of the deceased. He has also clarified in the cross examination that the death of the deceased was caused after drowning in the water. Even no ligature marks were found over the neck of the deceased. There are no reasons, to disagree with the medical evidence and the opinion given by a team of Doctors. Hence it cannot be accepted that the appellants had thrown the girl Vipata Bai into the well in an unconscious state or after her death. 19. In view of the above discussion the evidence of the complainant Govind Prasad (PW 2) and his witness Gudda Yadav (PW 3) that they had seen the appellants, throwing the deceased Vipata Bai into the well by holding her hands and feet is not liable to be accepted beyond all reasonable doubts. The trial Court fell in error in placing implicit reliance on the testimony of these two witnesses. 20. Even otherwise the background of alleged eve teasing of the deceased by the appellants in her school days could hardly be a motive to commit her murder, although the alleged eve teasing of the girl by the appellants might be a reason for her brother to name and blame them. - 21. It has also come in evidence that the well where the dead body of the deceased Vipata Bai was found was not having any parapet walls. Therefore, the possibility of the accidental fall of the deceased VipataBai in the well of her own field or jumping herself into the well on being scolded at her home, as suggested from the defence side, cannot be ruled out. 22. In the light of the aforesaid discussion, we are of the opinion that the trial Court has committed error in finding the appellants guilty for committing murder of Vipata Bai by throwing her into the well. 23. The appeal is therefore, allowed. The conviction and sentence awarded to the appellants under section 302 of IPC by the trial Court vide impugned judgment are set aside. Appellants are in jail. They shall be released forthwith, if not required in any other case.