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2010 DIGILAW 189 (MP)

Amar Singh v. State of M. P.

2010-02-16

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT Dwivedi, J. 1. The appellant has preferred this criminal appeal under section 374 (2) of CrPC feeling aggrieved by the impugned judgment of conviction and sentence dated 6.8.2004 passed by Sessions Judge, Gwalior in Sessions Trial No. 173/04, whereby the appellant has been found guilty for the offence under section 302 of IPC and sentenced to imprisonment for life with fine of Rs. 1,000/- in default of payment of fine further ordered to imprisonment for three months. 2. Briefly stated facts of the case are that complainant Rajkumari is the wedded wife of the present appellant. She was having a minor child Lokendra, the deceased aged about 4 years. On 7.2.2004 near about 10:30 am, the appellant/accused gave one rupee to the minor child Lokendra to purchase cream roll. When the deceased Lokendra did not return to home then her mother complainant Rajkumari searched him and thereafter lodged report on 11.2.2004 for missing of her minor son Lokendra and also suggested her doubt on her husband, the present appellant Amar Singh. Thereafter, it is alleged that Amar Singh confessed before the witnesses that he had strangulated minor son and thrown him into a well situated near railway line. After his alleged extra judicial confession, the appellant was brought by the witnesses to the Police Station Gwalior where he was arrested by the police and the police officer recorded his statement under section 27 of the Evidence Act and on his information reached on the spot and recovered dead body from the well. Necessary panchnama also prepared by the investigating officer. Thereafter, on the basis bf the investigation, case under section 302 of IPC, was registered against the appellant and after due investigation, charge sheet was filed. 3. The appellant/accused abjured the guilt and his defence was of false implication in this case. Learned trial Court after due appreciation of the, entire prosecution evidence held him guilty for the offence under section 302 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. Learned counsel for the appellant submitted that no eye witness account is available for involvement of the appellant/accused in this incident of murder. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. Learned counsel for the appellant submitted that no eye witness account is available for involvement of the appellant/accused in this incident of murder. The learned trial Court has only believed the statement of Santosh (PW 2), Baburam (PW 3) and Kishorilal (PW-8) with regard to the alleged extra judicial confession of the appellant/accused which is a very weak type of evidence and trial Court has wrongly held the appellant/accused guilty for the offence punishable under section 302 of IPC. Therefore, firstly prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court and in the alternative it is further submitted that at the most, the act of the appellant/ accused can be held punishable under section 304 Part-2 of IPC, therefore, prayed for just reduction of the jail sentence. 6. Learned Public Prosecutor appealing for the State supported the impugned judgment and prayed for dismissal of the appeal. 7. Admittedly, the prosecution case fully rests upon the circumstantial evidence. No direct evidence is available against the appellant. Three sets of evidence have been adduced by the prosecution: Firstly, with regard to alleged extra judicial confession of the appellant/accused before the independent witnesses namely Santosh (PW 2), Baburam (PW 3) and Kishorilal (PW-8) before whom the appellant/accused confessed his guilt that he had strangulated the deceased Lokendra and thereafter thrown him into a well situated near the railway line. Second circumstantial evidence adduced against the appellant is with regard to recovery of the dead body at the instance of the appellant by the police as per momo recorded under section 27 of the Evidence Act and third set of evidence is with regard to motive of the appellant that he is doubting on the character of his wife namely Rajkumari (PW-5) that she is having illicit relation with his brother in law Baburam (PW-3) and he also doubted that minor son Lokendra is belonging to aforesaid Baburam due to illicit relationship with his wife Rajkumari. 8. To bring home the charge as levelled against the appellant, material witness is Santosh (PW-2) who clearly stated that after missing of minor child Lokendra, Amar Singh came to his home with his brother and stated that the had strangulated minor son Lokendra and thereafter thrown him into a well. 8. To bring home the charge as levelled against the appellant, material witness is Santosh (PW-2) who clearly stated that after missing of minor child Lokendra, Amar Singh came to his home with his brother and stated that the had strangulated minor son Lokendra and thereafter thrown him into a well. This statement has been given by the appellant/accused in the house of one Shriwati Bai. Thereafter, they took the appellant/accused Amar Singh to the police station at Gwalior where the appellant has also stated same version to the police also, for which, necessary momo has been prepared by the police and then on his information, dead body, was recovered from the well as indicated by the appellant/accused. The aforesaid statement of Santosh (PW-2) has got further support by the statement of Baburam (PW-3) who also stated same fact that Amar Singh confessed before him that he had strangulated the deceased Lokendra and thereafter thrown him into a well Same version has also been given by third independent witness Kishorilal (PW-8) that before him, the appellant/accused has confessed about murder of minor son Lokendra. It is true that Santosh (PW-2) and Baburam (PW -3) are close relative of complainant Rajkumari but third witness Kishorilal (PW-8) is not having any close relationship with the complainant and his statement with regard to extra judicial confession of the appellant with regard to the incident cannot be disbelieved. 9. In such circumstances, we are of the considered opinion that the learned trial Court has rightly held that the appellant/accused has made extra judicial confession before the independent witness Kishorilal wherein he clearly admitted that he had strangulated minor son Lokendra and thereafter thrown him into a well. 10. Second set of circumstantial evidence adduced by the prosecution is with regard to recovery of the dead body at the instance of appellant as per the statement recorded under section 27 of the Evidence Act. For this, prosecution had examined the investigating officer Manmohan Singh Gil (PW-10) who clearly stated that before independent witnesses, the appellant/accused informed him with regard to recovery of the dead body of the deceased Lokender which was lying into a well situated near steel factory compound near railway line, for which, memo Ex. P/6 has been prepared and signed by him and by the independent panch witnesses. P/6 has been prepared and signed by him and by the independent panch witnesses. Thereafter, upon this information, they reached near steel factory as shown by the accused and saw dead body into a well situated in the boundary, for which necessary panchnama Ex. P/7 has been prepared. Thereafter, Fire brigade was called and dead body was taken out from the well concerned, for which, necessary panchnama Ex. PIS has been prepared. Dead body of the deceased was identified by witnesses Kishorilal and Udaybhan Singh and found it to be the dead body of minor Son Lokendra S/o. Amar Singh. The aforesaid statement of investigating Officer Manmohan Singh Gil (PW-10) has got further support by the statement of Kishorilal (PW-8) who is also proved the information, given by the appellant as per memo Ex. P/6 and also proved the recovery of dead body at the instance of appellant/accused as per seizure memo Ex. P/7. He also proved the indentification memo Ex. P/8. Nothing substantial came in their' cross examination, on which basis, the aforesaid statements given by the investigating officer Manmohan Singh Gill (PW-10) and Kishorilal (PW-8) can be disbelieved on this point. 11. It is true that extra judicial confession male by the accused is a very weak type of evidence but in the present case it has got further support by the circumstances for recovery of dead body at the instance of the appellant/accused. In such circumstances the link of circumstances are so united, on which basis, only inference can be drawn against the appellant that he is the only person who committed this murder of a minor child Lokendra, aged about 4 years. 12. Further mitigating, circumstance available against the appellant is the statement of Rajkumari (PW-5) who clearly stated that being her husband the appellant/accused is doubting about her character that she is having some relation with her brother-in-law Baburam, on which basis, at the first instance she made a complaint against the appellant with regard to doubt that appellant may be a person who may commit any offence with her minor child Lokendra. She also further stated that appellant/accused also went to some Sadhu and also came to know that reason of his tension that the minor child Lokendra is not belonging to him. She also further stated that appellant/accused also went to some Sadhu and also came to know that reason of his tension that the minor child Lokendra is not belonging to him. This also appears to be connecting circumstances against the appellant to prove his motive that because of his doubt that minor child is not belonging to him can also be a cause for commission of offence of murder of minor child Lokendra by the appellant/accused. 13. Thus, on overall re-appreciation of the entire evidence- on record, we are of the considered opinion that chain of circumstances, is linked together and only inference on the basis of aforesaid, mitigating circumstances, can be drawn against the appellant/accused that he is the person who committed murder of minor child Lokendra and after commission of offence of murder, he also threw the dead body of minor child into a well from where it has been recovered at the instance of appellant/accused. 14. Thus, we are of the considered opinion that learned trial Court has rightly believed that all circumstances adduced by the prosecution, proved the guilt of the accused and thus, the finding of conviction recorded by the trial Court is based on proper appreciation of evidence on record and nothing substantial came, on which basis the aforesaid finding can be interfered with. Similarly, learned trial Court has also sentenced the appellant to imprisonment for life which is minimum sentence provided under section 302 of IPC. 15. Resultantly, appeal preferred by the appellant being devoid of any merit is dismissed accordingly.