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2007 DIGILAW 965 (MP)

Sundariya @ Sundersingh v. State of M. P.

2007-09-05

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2007
JUDGMENT : S.K. KULSHRESTHA, J. 1. This appeal is directed against the judgment dated 10th July, 2007, passed by the learned Special Judge Barwani in Special Case No. 13/2007 whereby the trial Court has convicted the appellant under section 364 of the Indian Penal Code read with section 3(2)(v) of the SC/ST (Prevention of Atrocities)Act and also under section 302 of the Indian Penal Code read with section 3(2)(v) of the SC/ST Act and has sentenced him to R.I. for 10 years and fine of Rs. 1,000/- under section 364 read with section 3(2)(v) of the SC/ST Act and imprisonment for life and fine of Rs. 2,000/- under section 302 read with section 3(2)(v) of the SC/ST Act. 2. As per the case of the prosecution, on 13-5-2006, at about 6.00 p.m. accused Sundariya came to the house of complainant Motilal (PW-5) and told him and his wife Kalabai that he will be attending wedding in the house of Bharsingh and they should also come so that they can dance together in the said wedding. On the said suggestion, Motilal (PW-5) and his wife accompanied Sundariya upto the house of Bharsingh. On consuming liquor, Motilal (PW-5) got intoxicated and fell asleep. Therefore, his wife and other ladies namely Parubai, Suklibai and Kusum joined the dance group. After about an hour, Motilal (PW-5) woke up and finding that his wife was not there, he made enquiries from others. He was informed by Parubai, Suklibai and Kusum that accused Sundariya had taken his wife stating that he would escort her up to her house. Thinking that deceased Kalabai may have gone to the house, he went to sleep and when he came in the morning, he was told by Suklibai and Shyamlal that his wife Kalabai was lying dead in the field of Naharusingh. He rushed to the field and found that his wife was lying dead and there was blood around her and since she was last seen in the company of accused, a report was made by Motilal (PW-5). 3. A case was registered under section 302 of the Indian Penal Code and investigation commenced. After holding inquest of the dead body, witnesses were examined, spot map was prepared and the dead body was sent to hospital for autopsy. Autopsy was performed by Dr. M.S. Jamre (PW-13) who gave report Exhibit-P/17. 3. A case was registered under section 302 of the Indian Penal Code and investigation commenced. After holding inquest of the dead body, witnesses were examined, spot map was prepared and the dead body was sent to hospital for autopsy. Autopsy was performed by Dr. M.S. Jamre (PW-13) who gave report Exhibit-P/17. As per the report (Exhibit-P/17) and the testimony of Dr. Jamre (PW-13), the following injuries were found on the body of the deceased: (1) Bruise 2 x 1 c.m. over the centre of forehead. (2) Lacerated wound 1 x 1½ c.m. over the forehead. (3) Haematoma about 5 x 5 c.m. over the forehead. (4) Abrasion ½ x ½ c.m. on the left elbow. (5) Bruise 2 x 2 c.m. over left side of chest below the nipple. (6) Bruise 3 x 3 c.m. over right side of chest. (7) Bruise 4 x 2 c.m. back of chest right side. (8) Bruise ½ x 1 c.m. over the left shoulder. (9) Bruise 3 x 2 c.m. over the left side of chest below nipple. (10) Bruise 2 x I c.m. over left wrist. (11) Bruise ¼ x ¼ c.m. around anus. (12) Bruise ½ x ½ c.m. around anus over left side. (13) Blood was oozing out from nostril. In the opinion of Dr. M.S. Jamre (PW-13), death was caused as a result of haemorrhage, but there was no evidence of rape. 4. After completion of the investigation, the accused was tried, convicted and sentenced as hereinabove stated. 5. Insofar as the question of homicidal death is concerned, learned counsel for the appellant has not disputed the same. Even otherwise the testimony of the witnesses to the inquest and Motilal (PW-5) as also the post-mortem report Exhibit-P/17 clearly establish that death of Kalabai was homicidal. 6. The only question for our consideration is, whether on the basis of the circumstantial evidence, the prosecution has been able to prove that it was the appellant, who had committed the said offence. 7. Learned counsel for the appellant submits that the case of the prosecution hinges on the testimony of Parubai (PW-1), Suklibai (PW-2) and Motilal (PW-5), husband of the deceased. 7. Learned counsel for the appellant submits that the case of the prosecution hinges on the testimony of Parubai (PW-1), Suklibai (PW-2) and Motilal (PW-5), husband of the deceased. Learned counsel submits that since Parubai (PW-1) and Suklibai (PW-2) by whom Motilal (PW-5) had been informed that the deceased was seen last with the accused having not supported the prosecution and turned hostile, the evidence of Motilal (PW-5) is rendered hearsay because it was only on the basis of narration of the incident by Parubai (PW-1) and Suklibai (PW-2) that the F.I.R. (Exhibit-P/3) was lodged by Motilal (PW-5). 8. The learned Dy. A.G. per-contra, submits that in view of the F.I.R. there being full corroboration of the testimony of Motilal (PW-5), the learned Special Judge had rightly found the accused guilty and punished him accordingly. 9. We have heard the learned counsel for the parties and perused the record. 10. The prosecution has examined in all 18 witnesses. Parubai (PW-1) has not supported the prosecution and so is the case of Suklibai (PW-2). We may observe here that since Motilal (PW-5) claims knowledge from Parubai (PW-1) and Suklibai (PW-2) and it was on that basis that F.I.R. has been made, it is a moot question whether such an F.I.R. can be used for corroboration of the testimony Motilal (PW-5). 11. Hajariya (PW-3) has been examined and he has only stated that on learning that dead body of Kalabai was lying in the field, he had gone to the spot and Rafiq Khan (PW-4) also states that he had learnt from others that the accused had committed murder, Jitendrakumar Senani (PW-6) had issued the Caste Certificate, Prabhudayal Nagar (PW-7) Patwari, had prepared the spot map, Prakash (PW-8) was a witness to the inquest and to the seizures, Munna (PW-9) was examined to prove documents Ex.P/11, 12, 13 and 14, Malsingh (PW-11) a ward boy in the hospital, was a witness to the seizure of article vide Exhibit-P/15, Mohanlal Bhavsar (PW-12) was a witness to Exhibit-P/16, Dr. M.S. Jamre (PW-13) had performed autopsy and given report (Exhibit-P/17), Abdul Gaffar (PW-14) had seized a sealed packet containing hair of the accused, Dr. Anup Kumar Garg (PW-15) had examined the accused and did not find any injury on his person, Antarsingh Jamra (PW-16) had held inquest, P.C. Verma (PW-17) is a witness to the documents and A. K. Masih (PW-18) is the Investigating Officer. Anup Kumar Garg (PW-15) had examined the accused and did not find any injury on his person, Antarsingh Jamra (PW-16) had held inquest, P.C. Verma (PW-17) is a witness to the documents and A. K. Masih (PW-18) is the Investigating Officer. 12. As stated above, the case of the prosecution rests mainly on the testimony of Parubai (PW-1) and Suklibai (PW-2). Motilal (PW-5) had lodged the report on the basis of the information received from these two witnesses. Motilal (PW-5) has supported the case of the prosecution and has alleged that he learnt from Parubai (PW-1) and Suklibai (PW-2) that it was the accused, who had taken his wife away, perhaps for escorting her to the house and on finding, in the morning, that she was not there and that he was informed that her dead body was lying in the field, he had lodged the report for action against the accused. Parubai (PW-1) and Suklibai (PW-2) have not supported the case of the prosecution. 13. The learned Special Judge has taken into account the report Exhibit-P/3 lodged by Motilal (PW-5), in coming to the conclusion that it corroborates the testimony of Motilal (PW-5) and has convicted the accused on that basis as also on the basis of seizure of a stone and a piece of cloth found entangled in the fence of the field. According to the prosecution, texture of the cloth seized from the fence matched with the shirt of the accused. 14. We have a very strong reservation on the logic of the learned Special Judge. It is a trite law that once a person deposes on the basis of information received from some other person, then, unless the person from whom information is said to have been received confirms that such information was given, the evidence of the person deposing is rendered hearsay. In the present case, it is not denied that the information was given only by Parubai (PW-1) and Suklibai (PW-2) to Motilal (PW-5) and the F.I.R. (Exhibit-P/3) was based purely on the information thus given. When the witnesses Parubai (PW-1) and Suklibai (PW-2) did not support that they had given the said information, the evidence of Motilal (PW-5) and the report (Exhibit-P/3) based on such information would be rendered hearsay. When the witnesses Parubai (PW-1) and Suklibai (PW-2) did not support that they had given the said information, the evidence of Motilal (PW-5) and the report (Exhibit-P/3) based on such information would be rendered hearsay. Motilal (PW-5) has though lodged the F.I.R. (Exhibit-P/3), based on the information received from Parubai (PW-1) and Suklibai (PW-2) and, therefore, the state of things do not acquire any different dimension only because the F.I.R. corroborates the maker. Once it is established that maker of the F.I.R. was informed about the incident and had made the statement in the F.I.R. on the basis thereof, the moment the person from whom it is said that he had learnt about the incident, turns hostile and does not support the prosecution story, the evidentiary value of such a person immediately collapses. Under these circumstances, we find ourselves unable to subscribe to the view of the learned Special Judge that on the basis of corroboration from the F.I.R., the accused could be convicted on the testimony of Motilal (PW-5). 15. We have also gone through the record with regard to the seizure of stone and seizure of a piece of cloth from the fence of the field. Firstly, seizure of all these articles does not inspire any confidence. From the seizure of the stone, no inference of culpability can be drawn. The prosecution has, however, strongly relied on the matching of the portion of shirt Article “A” with Article “D.” Even if it is considered incriminating evidence, the fact remains that it is a circumstance which could always be explained on the hypothesis of innocence of the accused. Whether the piece of shirt got entangled in the fence at the time of commission of the alleged murder or for some other reason on earlier date, there is no evidence to the said effect. Under these circumstances, the evidence of matching of a small piece of cloth with that of sleeve of the shirt cannot be taken as a circumstance conclusively establishing the guilt of the appellant. We may point out that in the case of circumstantial evidence, it is necessary for the prosecution to demonstrate that each circumstance indicates the guilt of the accused and the circumstances taken together make a complete chain to indicate his guilt and neither the circumstances individually nor collectively can be explained on any hypothesis of innocence of the accused. We may point out that in the case of circumstantial evidence, it is necessary for the prosecution to demonstrate that each circumstance indicates the guilt of the accused and the circumstances taken together make a complete chain to indicate his guilt and neither the circumstances individually nor collectively can be explained on any hypothesis of innocence of the accused. In the present case, the two circumstances relied upon by the prosecution are:- (1) That the deceased was last seen in the company of the accused. (2) The fibre of the shirt of the accused tallied with the piece of cloth recovered from the fence of the field. 16. Both the circumstances, as already demonstrated, do not implicate the accused either individually or collectively. Under these circumstances, the evidence does not establish that the accused was last seen with the deceased and thereafter, the deceased was found murdered and that in committing the murder, piece of his shirt had got entangled in the fence which matched with the shirt he was wearing. 17. Accordingly, the conviction of the appellant and sentence awarded to him is set aside. He is acquitted of the charges against him and set at liberty. The accused is in Jail, he be released forthwith if not required in connection with any other matter.