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2008 DIGILAW 557 (MP)

Fakeerchand @ Raju @ Radheshyam v. State of M. P.

2008-04-08

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT : ARUN MISHRA, J. 1. The appeal has been preferred by the accused/appellant aggrieved by his conviction under section 302, Indian Penal Code and sentence of rigorous life imprisonment imposed by Addl. Sessions Judge, Burhanpur, District Khandwa in S.T. No. 37/1991 on 21-12-1992 for committing murder of his wife Sunita. 2. As per prosecution case accused stayed in Natraj Lodge at Burhanpur on 20th June, 1990 in Room No. 8 along with his wife, the accused disclosed his name as Radheshyam son of Vishnu Prasad, aged 26 years, occupation was shown as grocery merchant. Rani Chowk, Near Railway Station, Itarsi and name of wife was disclosed as Sunita, entry in the register was made by Shyam Kumar (PW-1), room No. 8 was allotted to them, at about 5.30 P.M. the guests called for the tea which could not be sent as there was no waiter. After sometime Radheshyam went out and did not come back. As the room was found locked from outside, on the next day in the morning Madanlal (PW-2) peeped into the room from the door and found that one woman was lying on the cot, blood was also seen, consequently, intimation was sent to Police Station-Kotwali, Burhanpur by the manager of lodge, namely, Shyam Kumar (PW-1), police reached to the spot, inspected the spot, opened the door and found the dead body of deceased Sunita. There were several injuries on the person of deceased Sunita, froth was coming out from her mouth and nose. The death was caused by inflicting injuries by asphyxia. Marg intimation was recorded, investigation was done, it was found that accused committed murder of his wife. 3. It was not in dispute that marriage of accused Fakeerchand @ Raju @ Radheshyam was performed with Sunita, sister of Kailashchand (PW-4). Marriage was performed in Community Marriage Programme at Akola in State of Maharashtra. Marriage was settled through the husband of mother's sister (Mausa) Prakash (PW-6), deceased used to work in the Bakery owned by Prakash (PW-6), he also worked in Kirana shop of his brother Kamlesh. Accused used to reside at the relevant time in the house of Nazir Beg in the capacity of a tenant. Ramjilal (PW-3) is father of Prakash (PW-6). After marriage accused and his wife resided at village-Sindoorni also in the house of maternal uncle Kalyan, age of Sunita was between 18-20 years. Accused used to reside at the relevant time in the house of Nazir Beg in the capacity of a tenant. Ramjilal (PW-3) is father of Prakash (PW-6). After marriage accused and his wife resided at village-Sindoorni also in the house of maternal uncle Kalyan, age of Sunita was between 18-20 years. Accused was arrested at Village-Isarwadi in State of Maharashtra. After due investigation, accused was charge-sheeted. 4. Accused abjured the guilt and contended that as his wife was missing, he was searching his wife, after three days he was arrested by Maharashtra police as such he was not able to lodge the report about missing of his wife. 5. The trial Court has convicted and sentenced the appellant for commission of offence under section 302 of Indian Penal Code. Dissatisfied thereby the appeal has been preferred by accused/appellant. 6. Shri Ram Narayan Yadav, learned counsel appearing for appellant has submitted that the evidence falls short of proving that accused was responsible to commit the murder of his wife. Evidence with respect to identification cannot be said to be reliable as Shyam Kumar (PW-1) has not supported the prosecution case. He has also submitted that identification was not properly conducted by Kalidas (PW-10). Persons bearing same clothes were not intermixed with the accused, thus, identification made by Shyam Kumar (PW-1) could not have been relied upon. He has further submitted that accused was infact in search of his wife who was missing, thus, he could not lodge the report. There was nothing to disbelieve the version of defence witness Gokul Chand (DW-1). The evidence furnished by Ramjilal (PW-3) and Prakash (PW-6) cannot be said to be enough so as to fasten the guilt upon the appellant, chain of circumstances cannot be said to be complete in the instant case so as to point out the guilt of the accused/appellant, thus, he ought to have been acquitted. 7. Shri S.K. Rai, learned Govt. Advocate appearing for the State has submitted that owner of the lodge Shyam Kumar (PW-1) had correctly identified the accused in the identification parade, that part of identification proceeding he has admitted, but he has submitted that person who was identified was not in the Court, that part of his statement was ex facie incorrect in view of deposition of Kalidas (PW-10), Naib Tahsildar, Khandwa. There was absolutely nothing to disbelieve the proceeding of identification held by Kalidas (PW-10), Naib Tahsildar. The circumstances unerringly point out that accused was responsible for commission of murder of his wife. Prakash (PW-6) has stated that accused was not on duty for last 7 days and thereafter he came back alone without his wife. On the next day, the accused was arrested by the police. Accused entertained doubt about the illicit relationship of deceased with maternal uncle of the accused, thus, has committed murder of deceased. 8. In the instant case, the conviction depends upon the circumstantial evidence as well as the identification. The accused was working in the Bakery of Prakash (PW-6). Prakash is relative of accused Fakeerchand being husband of mother's sister. Prakash (PW-6) has stated that accused working in Bakery, prior to that he worked in Kirana shop of Kamlesh Kumar. After marriage accused continued to work with him and used to reside as a tenant in the house of Nazir Beg. In the month of June, 1990 in first or second week, accused asked for leave which was objected to, but ultimately it was given, thereafter Prakash (PW-6) was not aware where accused went along with his wife. After availing 7 or 8 days leave, accused reported back on the duty. Next day police came to the village, police wanted the accused in connection with criminal case, consequently arrested the accused. When accused came back on duty after availing leave, he was without his wife. The accused had informed him that his wife was having illicit relationship with someone else. He has denied the suggestion that accused had informed him that accused had gone in search of his wife to Aurangabad and thereafter came back. Prakash (PW-6) is relative of accused, he is not having any ill will against the accused. There is absolutely nothing to doubt the statement of witness Prakash (PW-6) that at the time when the wife of accused was murdered, he had taken the leave of 7/8 days. He came back alone without his wife and accused had not informed Prakash that he had gone in search of his missing wife which fact he would have informed in case his wife was in fact missing. 9. He came back alone without his wife and accused had not informed Prakash that he had gone in search of his missing wife which fact he would have informed in case his wife was in fact missing. 9. Ramjilal (PW-3), father of Prakash (PW-6), has also stated that accused used to work in their Bakery, accused doubted the character of his wife and accused left the job stating that he was having some problem and thereafter came back, he was visibly in some trouble. On being enquired, accused informed him that he was not aware of whereabouts of his wife who was missing, thereafter police came to the village to arrest the accused and for arrest, memo (P/13) was drawn in his presence. The witness has stated that when accused came back he had stated that his wife was missing and he went back stating that he was going to search his wife. Statement of the witness with respect to accused was going to search his wife relates to the period after availing the leave. It is apparent that accused was living with his wife as a tenant in the house of Nazir Beg. Thus, apparently that it was only after accused came back when the dead body of his wife was also already found in the lodge, he stated to Ramjilal (PW-3) that his wife was missing, but the fact remains that accused did not take any step to lodge the report for 7/8 days in case his wife was missing, accused should have been the first person to lodge the report to the police with respect to missing of his wife. His conduct was dubious and points to his guilt. Apart from that there is evidence of identification to be discussed hereinafter. 10. It is apparent that accused was not on duty for 7/8 days when murder of his wife was committed, at the same time he stayed in Natraj Lodge at Burhanpur along with his wife by styling himself as Radheshyam. Shyam Kumar (PW-1), the manager of Lodge has stated that he was not knowing the accused from earlier point of time, one person styled himself as Radheshyam son of Vishnu Prasad stayed in the lodge along with deceased Sunita. Shyam Kumar (PW-1), the manager of Lodge has stated that he was not knowing the accused from earlier point of time, one person styled himself as Radheshyam son of Vishnu Prasad stayed in the lodge along with deceased Sunita. It was stated by accused that they came from Itarsi and were going to Nagpur, entry was made in the Register (Ex.P/1) which was signed by Radheshyam, money was also deposited, double bed room No. 8 was allotted to the aforesaid persons. Madanlal, Waiter, checked the room when lock was not opened till the morning, the person who occupied room No. 8 did not come back in the night. In the morning they waited till 8 AM, consequently, Madanlal peeped into the room and found that one woman was sleeping on the cot, she did not reply in spite of various calls, consequently, police was informed, police opened the lock and the room, dead body of Sunita was found, there were several injuries on her person, froth was coming out from her mouth and nose. Police had seized register as per seizure memo (P/7), blood stained plaster from the wall was seized as per memo (P/11), various clothes, etc. which were found in the room were also seized. He has also stated that in the jail, at the time of identification parade, 10-12 persons were standing, on the basis of his impression he identified the accused. In the cross-examination the witness has stated that the person who was identified was not the accused present in the Court. Fact remains that he had made correct identification of the accused in the parade. The witness has admitted that he made identification in the parade and out of 10-12 persons he made identification of accused Radheshyam, but at the same time when he has stated that person present in the Court was not Radheshyam is falsified by Identification memo (P/2) and statement of Kalidas (PW-10), Naib Tahsildar cum Executive Magistrate. Kalidas (PW-10) has stated that memo of identification parade (P/2) was drawn by him. Shyam Kumar (PW-1) has correctly identified the accused. Thus, we entertain not even an iota of doubt that it was accused who was present in the Court was infact identified in the identification parade. Accused has also admitted that identification parade was conducted by Kalidas (PW-10). Kalidas (PW-10) has stated that memo of identification parade (P/2) was drawn by him. Shyam Kumar (PW-1) has correctly identified the accused. Thus, we entertain not even an iota of doubt that it was accused who was present in the Court was infact identified in the identification parade. Accused has also admitted that identification parade was conducted by Kalidas (PW-10). Thus, the part of statement of Shyamkumar (PW-1) that person identified was not present in the Court was ex facie incorrect and has been rightly discarded. Identification parade and memo (P/2) stands established by statement of Kalidas (PW-10) as well as Shyam Kumar (PW-1). The aforesaid witnesses were not having any grudge against the accused, the evidence of identification also points to the guilt of accused beside the circumstances that he had taken the leave from Bakery and when he came back, he was alone, he did not lodge any report as to missing of wife, in case he was in search of his wife he should have lodged the report. It is clear that accused was in the company of deceased when he left the place and came back alone. The statement of defence witness Gokul Chand (DW-1) does not inspire confidence. Gokul Chand has stated that accused in the intervening period came to his house along with his wife to Village-Sindoorni, District Jalgaon, State of Maharashtra. The witness has stated that when he went to his shop, he found that wife of the accused was missing, but Gokul has also not lodged any report. He is close relative i.e. maternal uncle of the accused, his statement goes to support the prosecution to the extent that accused was in the company of his wife after he had taken the leave from Bakery, but statement of witness that wife of accused was found missing during the day time after he went to duty could not be said to be reliable. Version of defence witness does not inspire confidence, his deposition has been rightly rejected by the trial Court. 11. The circumstances projected in the instant case points out that accused was in the company of his wife before she was found dead, thus it was incumbent upon him to explain his conduct. The conduct of the accused cast further doubt on him. 11. The circumstances projected in the instant case points out that accused was in the company of his wife before she was found dead, thus it was incumbent upon him to explain his conduct. The conduct of the accused cast further doubt on him. Accused has failed to explain the date when his wife was missing, from where she was missing and in case she was missing why accused did not lodge any report for 8 days. The accused has not explained the aforesaid circumstances and the explanation offered that he was searching his wife is found to be incorrect. No evidence has been adduced so as to show that where the accused had gone in search of his wife, thus, so called explanation given by the accused is also found to be incorrect and false. 12. In our opinion the chain of circumstances is complete and each of the circumstance of the chain points out to the guilt of the accused. Thus, we find that guilt of the appellant has been established beyond periphery of doubt. 13. Resultantly, we find that appeal is devoid of merits, same deserves dismissal, it is hereby dismissed. The conviction and sentence imposed upon the appellant under section 302, Indian Penal Code of rigorous life imprisonment is hereby affirmed. Accused is on bail, his bail bond is cancelled. He is directed to surrender, failing which police to arrest him forthwith.