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Madhya Pradesh High Court · body

2008 DIGILAW 977 (MP)

Kanhai Lal v. State Of M. P.

2008-08-05

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT : The appeal has been preferred by the accused Kanhai aggrieved by his conviction recorded under sections 302, 392, 460 Indian Penal Code as per judgment dated 5-6-1999 passed by Second Addl. Sessions Judge, Sagar. He has been sentenced to 10 years' R.I. for committing offence under section 460, Indian Penal Code, 7 years' R.I, under section 392, Indian Penal Code and for rigorous life imprisonment under section 302, Indian Penal Code and fine of Rs. 1000/- in default of payment of fine he has to undergo R.I. for one year. Sentences have been ordered to run concurrently. 2. The prosecution case is that the accused Kanhai in the intervening night of 27/28-2-1999 committed criminal trespass in the house of deceased Halki Bai, caused her death and took away the ornaments worn by her. The accused is son in law of the deceased Halki Bai, is not in dispute. Ramrani and Rani are daughter in law of the deceased. Halki Bai used to reside separately from the sons. She used to put half gold coins in her neck, one Khangoria (collar of gold), silver bangles. It is also not disputed that deceased went to the house of the accused and stayed there for quite sometime, she came back 3-4 days before her death. The prosecution alleged that the sons of the deceased namely Kanchhedi (PW-1) and Hariram (PW-2) used to reside separately at village Dhangawa. Halki Bai visited the house of Kanchhedi (PW-1) on 27-2-1999 at 12 hours. On 28-2-1999 when Hariram (PW-2) went to the house of Halki Bai, he found front door was closed from inside, entry was made from back, which door was open when he searched the house, found that Halki Bai was lying on the ground in the Courtyard. She was unable to speak, Kanchhedi was summoned, Halki Bai was found to be dead. The ornaments worn by her were not found on the body. Intimation was given at P.S. Deori, Distt. Sagar at 4 PM on 28-2-1999. It was recorded by Shri K. C. Pali, Station House Officer of P. S. Deori on the basis of which FIR (Ex.P-1) was reduced in writing and the case was registered. After summoning the witnesses as per notice (P-3), the inquest (P-4) was prepared. The spot map (P-5) was also prepared. On autopsy being performed by Dr. It was recorded by Shri K. C. Pali, Station House Officer of P. S. Deori on the basis of which FIR (Ex.P-1) was reduced in writing and the case was registered. After summoning the witnesses as per notice (P-3), the inquest (P-4) was prepared. The spot map (P-5) was also prepared. On autopsy being performed by Dr. R. R. Rai (PW-11) it was found that death was caused due to strangulation. On the basis of statement of Dayali (PW-5) and Jiwanlal (PW-16), accused was arrested as per memo (P-8) on 4-3-1999. Accused furnished information under section 27 of Evidence Act after his arrest that he had placed the ornaments of the deceased beneath a lemon tree. On the basis of memorandum (P-6) recorded under section 27 of the Evidence Act, seizure memo (P-7) was drawn relating to recovery of ornaments. After investigation the accused was charge-sheeted. 3. The accused abjured the guilt and contended that he has been falsely implicated due to enmity with Kanchhedi, Hariram, Dayali and Jiwan. Kanchhedi had demanded money at the time of marriage of his daughter. The accused refused to give him money due to that Kanchhedi was harbouring ill-will. Dayali and Jiwan were having good relationship with Kanchhedi. 4. The trial Court has convicted and sentenced the appellant for commission of the offence under aforesaid sections. Aggrieved thereby the appeal has been preferred by accused from jail. 5. Ms. Rukhsana, learned counsel appearing on behalf of Legal Service Committee of this Court on behalf of appellant has submitted that there is no eye witness in the instant case. There was no motive with the accused to have committed the offence as deceased was having good relationship with her daughter i.e. wife of the accused. The deceased had stayed with the accused for few days and came back only 3-4 days before her death. The prosecution evidence discloses that accused came to the village and stayed with the deceased for 2-3 days and then left the village. Considering the good relationship between the accused and deceased, there was absolutely no motive with the accused to commit the offence. The evidence furnished by Kanchhedi (PW-1) indicates that accused was nabbed on the same day on which the dead body was found i.e. 28-2-1999, thus the factum of arrest and recovery on 4-3-1999 at the instance of accused is shrouded in mystery. The evidence furnished by Kanchhedi (PW-1) indicates that accused was nabbed on the same day on which the dead body was found i.e. 28-2-1999, thus the factum of arrest and recovery on 4-3-1999 at the instance of accused is shrouded in mystery. Kanchhedi (PW-1) and Dayali both sons of the deceased were also detained by the police in connection with the commission of offence in question is apparent from prosecution evidence on record. The recovery of the ornaments at the instance of accused has not been established. The statement of Investigating Officer (PW-10) namely Shri K. C. Pali indicates that he had planted ornament and had shown the recovery that too from open place. He had already taken the witnesses even with him before arrest of the accused from village Dhangawan. He had taken even the box, lac, packing material, as if in advanced, he knew that recovery was going to be made. The interested witnesses were taken from Dhangawan, a different village though Chaturbhata is a bigger village as compared to village Dhangawa. Counsel has also attracted attention of this Court to the statement of Dayali (PW-5) who has stated that he was not aware whether the ornaments were given to the police by Kanchhedi (PW-1). However, he stated that it was the news spread in the village that Kanchhedi (PW-1) son of the deceased had handed over the ornaments to the police which used to be worn by the deceased. Learned counsel has further submitted that statement of Deendayal (PW-7) witness of recovery is quite unreliable. He is Guru Bhai of Kanchhedi (PW-1) and his close associate. He has also stated that recovery was made from the open place. He has been disbelieved by the trial Court as police used to visit him regularly. He used to entertain the police. He used to work as informer. Counsel has further submitted that statement of Kamal (PW-8) yet another witness of seizure cannot be said to be reliable. The witness was unable to give any reason to accompany the police before arrest and furnishing of information under section 27 of Evidence Act. Counsel has further submitted that witness (PW-8) has stated that on February 28th itself accused Kanhai was arrested, thus the case set up of arrest of accused of 4-3-1999 and furnishing of information on that day, false down. Counsel has further submitted that witness (PW-8) has stated that on February 28th itself accused Kanhai was arrested, thus the case set up of arrest of accused of 4-3-1999 and furnishing of information on that day, false down. She has also attracted attention of this Court to statement made in Para-14 of deposition of Kamal (PW-8) in which witness has stated that accused has not informed to the police about the ornaments. Thus counsel has submitted that furnishing of information by the accused vide memo (P-6) has also not been proved and also the so-called recovery pursuant thereto. Counsel has also submitted that it appears that ornaments were handed over by Kanchhedi and thereafter accused has been falsely implicated by making recovery from open place on 4-3-1999. The commission of offence by accused has not been established beyond periphery of doubt consequently accused deserves to be acquitted. 6. Shri R. S. Patel, learned Addl. AG for State has submitted that there is nothing to doubt the factum of recovery made at the instance of accused Kanhai. He was seen at the village Dhangawa on 27-2-1999. He was arrested on 4-3-1999 and on the same day recovery of ornaments of deceased was made from him. Thus conviction and the sentence imposed by the Court below is proper, it does not call for an interference in the appeal. 7. In the instant case admittedly there is no ocular evidence. There is no eye-witness of the incident. The dead body of the deceased was found at 12 hours on 28-2-1999. It is not in dispute that deceased resided with the accused/son in law and daughter for 5-6 days, and came back to her village 3-4 days before death. The evidence indicate that accused came back to leave her to the village Dhangawa and stayed there for 2-3 days. Accused then left the company of the deceased on 26-2-1999 a day before the incident. Kanchhedi (PW-1) son of the deceased has stated in Para 15/17 of his deposition that deceased always used to give money/gifts to her daughters. One of the daughter was the wife of the accused. Accused then left the company of the deceased on 26-2-1999 a day before the incident. Kanchhedi (PW-1) son of the deceased has stated in Para 15/17 of his deposition that deceased always used to give money/gifts to her daughters. One of the daughter was the wife of the accused. The family of the accused was being benefited by the benevolent gifts which used to be made by the deceased, is also not in dispute, thus in our opinion there was no motive for the accused to commit the murder of deceased and for taking away the ornaments of the deceased. 8. The recovery of ornaments from accused is the main evidence adduced by prosecution in the instant case. Intrinsically connected with the recovery is the factum of date of arrest of the accused. As per prosecution the accused was arrested on 4-3-1999 and immediately thereafter he furnished information leading to recovery at that very time. It is also clear that Kanchhedi (PW-1), Hariram (PW-2) and several other persons were also detained at the police station in connection with commission of offence. Kanchhedi (PW-1) son of the deceased has stated that after death of mother was known, within two hours police has taken accused Kanhai into custody, thus there was no necessity for him of giving information to Kanhai as to death of Halki Bai. He has also admitted in Para-23 that he was also made to sit at the police station in connection with the offence. It appears from the statement of Kanchhedi (PW-1) that accused Kanhai was taken into custody by police on 28-2-1999. Hariram (PW-2) has also admitted that deceased used to give gifts to the wife of the accused. She was not giving any kind of gifts or money in spite of demand to the sons, she used to frequently stay with daughter/son in laws. Hariram has further stated that he, his brother (PW-1) and Dayali were detained at police station. Dayali was detained in police station for 2-3 days. He has further stated in Para-15 of his deposition that very next day of death of mother Halki Bai, police had shown ornaments of the deceased which used to be worn by her. It means that the ornaments were shown to the witness Hariram (PW-2) son of the deceased on 1-3-1999 whereas ornaments were shown to be seized at the instance of accused Kanhai on 4-3-1999. 9. It means that the ornaments were shown to the witness Hariram (PW-2) son of the deceased on 1-3-1999 whereas ornaments were shown to be seized at the instance of accused Kanhai on 4-3-1999. 9. Ramrani (PW-3) is daughter in law of the deceased, she is wife of Hariram (PW-2). She has stated that the door was closed from inside, on that she asked the deceased to open the door, it was not opened, as such she went to the field and informed the fact to her husband Hariram (PW-2). Then Hariram came to the house of the deceased, when they entered from the back door found that Halki Bai was lying dead. The ornaments which she used to wear were missing. Deceased Halki Bai had gone to the house of the accused Kanhai on Wednesday and come back along with him on Sunday. The accused Kanhai stayed with the deceased on Monday and Tuesday and went back on Wednesday, mother-in-law died on Saturday. It becomes apparent from the statement that deceased was having cordial relationship with the accused. Witness (PW-3) has further stated that the deceased was wealthy and used to give gifts to the daughters one of them was wife of the accused. She was not giving any kind of gifts to the sons and daughter in laws. Accused was not seen by the witness after he had left the company of the deceased Halki Bai for the last 4 days prior to death of Halki Bai. On the next day of death of the deceased, police came to the village and informed that ornaments were seized. The next day of the offence was 1-3-1999 not 4-3-1999, the date on which recovery was allegedly made, thus the recovery made on 4-3-1999 becomes extremely doubtful. Rani (PW-4) is another daughter in law and wife of Kanchhedi (PW-1). She has supported the version of Ramrani (PW-3) that deceased had gone to the house of the accused Kanhai stayed there and thereafter she came back on Sunday. The incident has taken place after a week. The deceased was residing separately for the last 10-15 years. Deceased used to visit her daughters frequently. She has supported the version of Ramrani (PW-3) that deceased had gone to the house of the accused Kanhai stayed there and thereafter she came back on Sunday. The incident has taken place after a week. The deceased was residing separately for the last 10-15 years. Deceased used to visit her daughters frequently. She has stated in Para-12 that after 2 days she came to know that ornaments were recovered by police, Sarpanch had shown the ornaments to her which were belonging to the deceased before the identification was made by her of the ornaments. The identification made is of no evidenciary value as Sarpanch had shown the articles which were belonging to the deceased and had stated to witness that these ornaments were of the deceased. 10. When we consider value of deposition of Dayali (PW-5), he has stated that Halki Bai had died prior to one and half month. When he was coming back from the field to his house at about 8-10 pm, he was carrying a torch. He met accused, who was going from Dhangawa to Chaturbhata, on his making enquiry the accused had disclosed that he was going to Chaturbhata. The accused was not carrying anything in his hand. Next day he came to know that Halki Bai was lying dead in the house. He has stated that accused Kanhai used to do the agricultural operation at village Chaturbhata on crop sharing basis. Police had made enquiry from him. Witness had denied that he was made to sit at police station whereas Hariram (PW-2) has stated that Dayali was also detained at police station, thus witness has not stated correct facts about his being detained at police station in connection with the offence. On suggestion being made that he handed over the ornaments to the police, he denied it, however, he expressed his ignorance as to the fact whether Kanchhedi (PW-1) had handed over the ornaments to the police. He has further stated that in the village it was spread that Kanchhedi had handed over the ornaments of the deceased to the police. On the basis of statement of Dayali (PW-5), it cannot be inferred that accused had visited village Dhangawa with the intention to commit the offence. Even if he visited the village Dhangawa in between 8-10 pm, it was not unusual for him as he was having visiting terms with the deceased. On the basis of statement of Dayali (PW-5), it cannot be inferred that accused had visited village Dhangawa with the intention to commit the offence. Even if he visited the village Dhangawa in between 8-10 pm, it was not unusual for him as he was having visiting terms with the deceased. Merely by the fact that accused was seen going from Dhangawa to Chaturbhata a day before dead body was found, could not be said to be an incriminating circumstance against the accused particularly when he was empty handed as stated by the witness. Babu Singh (PW-6) has stated that accused Kanhai used to cultivate his land, he had not reported in the duty for 28-29 days prior to date of his arrest on 4-3-1999. He has stated that accused came back on the duty at 12 O'clock in the night and was arrested on the next day. Witness has stated in Para-4 of his deposition that he may have stated in the police statement the date of reporting back on duty 28-2-1999, it may be the right date mentioned by him and on that day in the night about 12 hours, accused Kanhai reported on duty and then was taken into custody by the police. Thus the factum of arrest of the accused on 4-3-1999 and recovery is further clouded by the statement of Babu Singh (PW-6). Though house of Babu Singh was situated in the field itself from where the recovery was made, he was not made witness of arrest, of the information or seizure nor any other independent witness of the village Chaturbhata was called. 11. There are two witnesses of the seizure namely Deendayal (PW-7), Kamal (PW-8) and then comes the statement of K. C. Pali (PW-10), SHO of Police Station. In view of the aforesaid evidence discussed by us, a very close scrutiny of statement of Deendayal (PW-7) and Kamal (PW-8) is required. Deendayal (PW-7) has stated that he is Guru Bhai of Kanchhedi (PW-1) and deceased was his "Badi Maa". He has also stated that accused Kanhai used to frequently visit to the deceased Halki Bai. Deceased used to extend financial help to the accused and to her daughters. Witness has stated that accused had taken out the ornaments which were placed in the fodder of Soyabeen. He has also stated that accused Kanhai used to frequently visit to the deceased Halki Bai. Deceased used to extend financial help to the accused and to her daughters. Witness has stated that accused had taken out the ornaments which were placed in the fodder of Soyabeen. In the seizure memo (P-7) it has not been mentioned that ornaments were kept in hide inside the fodder, it has been mentioned that ornaments were found placed below the lemon tree. The witness has further stated in cross-examination in para-8 that the place was quite open though there was boundary wall around the field. It was possible for everybody to reach at that place. He has further admitted in Para-10 that police used to visit his house frequently. He used to offer tea and food to them, he was having close associates in the police department. He used to inform the police whatever he used to come to know. The trial Court in our opinion has rightly discarded the version of this witness Deendayal, Witness has further stated that he, Hariram and Kanchhedi were also made to sit at the police station. Kamal (PW-8) yet another witness of recovery has stated that recovery was made in his presence, accused had taken out the ornaments out of fodder. Deendayal was summoned first and thereafter he was summoned by the police at about 12 hours. Police came to his house to take him. The witness (PW-8) is also resident of village Dhangawa not of village Chaturbhata where the seizure of ornaments has taken place. It is not understandable why both the witnesses of different village Dhangawa were taken before hand by the police. The village Chaturbhata is stated to be a bigger village in comparison to Dhangawa. The witness has further stated in Para-4 that on February 28th itself accused Kanhai was taken into custody by the police. The arrest of accused on 4-3-1999 becomes doubtful as it appears that accused was already in custody of the police from earlier point of time. The witness (PW-8) is also a close associate of Kanchhedi (PW-1) and Hariram (PW-2) as stated by him in Para-7. Deceased was not having good relationship with the sons (PW-1/PW-2). In Para-10 witness was not able to state the vehicle in which he was taken to village Chaturbhata, was belonging to whom and who was driving it. The witness (PW-8) is also a close associate of Kanchhedi (PW-1) and Hariram (PW-2) as stated by him in Para-7. Deceased was not having good relationship with the sons (PW-1/PW-2). In Para-10 witness was not able to state the vehicle in which he was taken to village Chaturbhata, was belonging to whom and who was driving it. In case it was police vehicle as claimed, the witness was supposed to state the said fact. He has further stated in Para-11 that police stopped vehicle in front of house of Babu Singh. The statement of the witness (PW-8) is full of embellishment. Both the witnesses of arrest/seizure were taken from village Dhangawa which is a place 6-7 Kms. away from Chaturbhata. The witness has further stated that when police made enquiry from the accused, accused had not furnished information as to whereabouts of the ornaments. Thus furnishing of the information itself by the accused under section 27 of the Evidence Act becomes doubtful. He has further stated that ornaments were seized from open place. At the same time when we consider statement of Shri K. C. Pali (PW-10) I.O., he has stated that on 4-3-1999 morning when he has proceeded towards the spot he has taken the box, lac, sealing and packing material which is used for the purpose of seizure along with him. He has further stated that he had taken the witnesses also from village Dhangawa even before the accused was arrested at village Chaturbhata. What was the reason to take the witnesses of arrest/seizure in advance from Dhangawa even before the arrest of accused, is suspicious circumstance coupled with the evidence furnished by the aforesaid witness that accused was taken into custody by the police on 28-2-1999 itself. Taking of the box, sealing and packing material before hand was clearly an act in anticipation of recovery before even arrest of the accused was made and furnishing of information by him the aforesaid facts mentioned in Paras 22 and 23 of the deposition of investigating officer Shri K. C. Pali (PW-10) render his version unworthy of credence. There was no reason for the investigating officer to take witnesses in advance before arrest, furnishing of information and seizure. There was no reason for the investigating officer to take witnesses in advance before arrest, furnishing of information and seizure. It appears that witness has already made up the mind that these events were going to happen, how he expected in advance all these event would take place, makes the case of the prosecution to be doubtful. No independent witness of village Chaturbhata had been called in order to ensure fairness of the investigation. I.O. has also stated that he had made enquiry from the accused in presence of the witness Kamal (PW-8) but the witness (PW-8) has not supported the fact of furnishing of information. Statement of Deendayal (PW-7) has been discarded by the trial Court itself. Thus factum of arrest on 4-3-1999, furnishing of information and recovery made at the instance of accused becomes doubtful in the instant case. 12. When we come to the question of identification of the ornaments, the case of the prosecution is further weakened. There is also doubt as to date when in fact ornaments were available with the police. Though formal seizure was made on 4-3-1999, ornaments were available to the police on the next day of death i.e. 1-3-1999. Ramrani (PW-3) in Para 14 and Hariram (PW-2) in Para-15 and Rani (PW-4) in Para 12 of their deposition have stated that ornaments were available with the police next day of the death of Halki Bai i.e. 1-3-1999. 13. S. K. Parashar (PW-12) Sarpanch of Gram Panchayat, has been examined by the prosecution to prove the identification proceedings of ornaments. He has stated in Para 8 of cross-examination that when police has brought the seized articles, they were open. The witnesses who had come for the purpose of identification were present at that time. Thus it is apparent that articles i.e. ornaments were shown to the witnesses before identification was in fact held and mixing of those with other similar ornaments was made. The witness was unable to state in Para-6 that what was the weight of the ornaments which were mixed with the ornaments in question. The witness has stated that identification memo (P-6) was reduced in writing by Narmada Prasad and Sarpanch Bilaky had dictated it, however, signature of Bilaky were not obtained on the memo (P-6). In case document (P-6) was reduced in writing as per Bilaky's dictation, his signatures ought to have been obtained on it. The witness has stated that identification memo (P-6) was reduced in writing by Narmada Prasad and Sarpanch Bilaky had dictated it, however, signature of Bilaky were not obtained on the memo (P-6). In case document (P-6) was reduced in writing as per Bilaky's dictation, his signatures ought to have been obtained on it. The ornaments are said to be identified by Kanchhedi, Rani and Ramrani. Ramrani (PW-3) has stated that next day of the incident, police came to the village and had shown the ornaments of the deceased. Thus it is apparent that before identification and even the seizure the articles were shown to the witnesses. Rani (PW-4) has deposed in Para-12 that Sarpanch had shown the very articles to her as belonging to the deceased. The Sarpanch had lifted the articles which were seized by the police and had shown to her. Thus no credence can be placed on the so-called identification proceedings in view of the facts projected in the case. 14. In the facts and circumstances of the case, mere presence of the accused at the village on 27-2-1999 a day before the body was found cannot be said to be a circumstance so as to fasten the guilt on the accused. The evidence discloses that he did not stay in the house of the deceased overnight and the body was found next day about 12 O'clock in the noon and the report was lodged at 4 pm. Evidence of witnesses indicate that accused was taken into custody on the same day, thus prosecution case set up of the arrest on 4-3-1999 and recovery and furnishing of information on 4-3-1999 becomes doubtful. The evidence adduced by the prosecution fails to prove the guilt of accused beyond periphery of doubt. Thus we deem it appropriate to give benefit of doubt to the accused and acquit him from the charges for commission of offence under sections 302, 392, 460, Indian Penal Code. We set aside the conviction and sentence imposed upon him by the trial Court. 15. Resultantly, the appeal is allowed. The conviction and sentence imposed upon the appellant under sections 302, 392, 460, Indian Penal Code is hereby set aside, he is directed to be released forthwith in case he is not required in any other case.