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2010 DIGILAW 473 (MP)

GENDAUA v. STATE OF M. P.

2010-04-23

RAKESH SAKSENA, S.C.SINHO

body2010
Judgment Rakesh Saksena, J. ( 1. ) Appellant has filed this appeal against the judgment dated 25th May, 2007 passed by learned Sessions Judge, Sidhi in Sessions Trial No. 115/ 2006, convicting her under Sections 302 and 201 of the Indian Penal Code and sentencing her to imprisonment for life with fine of Rs. 5000/- and rigorous imprisonment for three years on each count, respectively. ( 2. ) In short, facts of the prosecution case are that appellant Gendaua was married to Jagannath. After Gauna, she visited her husbands house 2-3 times. Subsequently, she stopped going to his house, and generally lived at her parents house. Despite efforts, since she did not go to live with Jagannath, he kept Durgawati, daughter of Baijnath Prajapati, as his second wife. Durgawati was though married to some other person, but her husband had deserted her. After some time, when Durgawati started living with Jagannath, appellant also went to the house of Jagannath, and started living with him. Durgawati and Gendaua lived in separate rooms of the house of Jagannath. It is alleged that in the morning of 22.5.2006, Durgawati went to forest taking a Dholi (a big basket of bamboo strips) for plucking tendu leaves. After some time, appellant also went to forest for plucking leaves. At about 10.30 a.m., appellant came back weeping to her house and informed Jagannath that Durgawati, who had climbed over the tree for plucking leaves had fallen down and died and that her body was lying under the tree. Jagannath informed the incident to his brother Motilal Prajapati and along with him and appellant went to forest and found Durgawati lying dead. There were injuries on her head, forehead and nose. Motilal Prajapati (PW2) went to police station, Kusmi and informed the police about the incident whereupon Head Constable Ram Singh (PW8) registered a marg report Ex. P/2. ( 3. ) Dy. S.P. N.N.Jharia (PW11) on the same day reached the spot and prepared inquest memorandum Ex. P/5. He seized blood stained and plain earth, broken pieces of bangles and slippers from the spot vide seizure memo Ex. 5-A. Dead body of Durgawati was sent for postmortem examination to Community Health Centre, Kusmi. Dr. Avinash John (PW5) with the assistance of Dr. Raj Bahadur Singh conducted postmortem examination of the dead body of Durgawati on 23.5.2006. P/5. He seized blood stained and plain earth, broken pieces of bangles and slippers from the spot vide seizure memo Ex. 5-A. Dead body of Durgawati was sent for postmortem examination to Community Health Centre, Kusmi. Dr. Avinash John (PW5) with the assistance of Dr. Raj Bahadur Singh conducted postmortem examination of the dead body of Durgawati on 23.5.2006. He found crush injuries on her forehead, nose and on the back side of scalp and gave postmortem report Ex. P/9. ( 4. ) In the course of marg enquiry, it was revealed that a quarrel had occurred between the appellant and Durgawati over a dispute about Dholi, wherein appellant scuffled with Durgawati and when Durgawati fell down, appellant caused injuries to her by stone, as a result of which she died. It was also found that appellant dragged the body of Durgawati and put it near the tendu tree and gave false information to her husband that Durgawati had fallen down from the tree. After marg inquiry, on 23.5.2006, Police Inspector N.K.Singh (PW13) registered the First Information Report Ex. P/15 under Section 302 of the Indian Penal Code against the appellant. During investigation, he arrested the appellant and on her information recovered and seized a stone lying hidden in the leaves vide seizure memo Ex. P/7. He also seized Dholi and a saree vide seizure memo Ex. P/8 from the appellant. Appellant was also sent for medical examination. Dr. Umesh Kumar Singh (PW6) vide injury report Ex. P/10-A found some abrasions on the hands of appellant. After completion of the investigation, police filed the charge sheet against the appellant. ( 5. ) Appellant abjured her guilt and pleaded false implication. According to her, she was falsely implicated. Witnesses stated against her under the influence of police. ( 6. ) Learned Sessions Judge, after trial and upon appreciation of the evidence, adduced in the case held the appellant guilty and convicted her of the charges under Sections 302 and 201 of the Indian Penal Code. Aggrieved by the impugned judgment, appellant has filed this appeal challenging her conviction. ( 7. ) We have heard the learned counsel of both the parties and perused the evidence and material on record. ( 8. ) It has not been disputed that deceased Durgawati died of injuries. Aggrieved by the impugned judgment, appellant has filed this appeal challenging her conviction. ( 7. ) We have heard the learned counsel of both the parties and perused the evidence and material on record. ( 8. ) It has not been disputed that deceased Durgawati died of injuries. However, according to prosecution, the injuries on her body were homicidal in nature, whereas according to defence, Durgawati had sustained injuries by a fall from the tree. Dr. Avinash John (PW5), on postmortem examination found following injuries on the body of deceased: (i) right eye of the deceased closed, left eye protruded, tongue protruded and swollen, blood oozing from left eye, nose, peeling of skin over right shoulder, sternum right hand and elbow joint (ii) depressed fracture of frontal bone above right eye (iii) fracture of occipital bone (iv) depressed fracture of nasal bone (v) depressed fracture of frontal bone and right temparo parietal bone of the scalp (vi) abrasion over left shoulder and (vii) fecal matter passed out. In the opinion of doctor, deceased died due to shock due to ante mortem crush injury by hard object. The injury of scalp was sufficient to cause death in ordinary course of nature. ( 9. ) In the cross examination Dr. Avinash John stated that these injuries were not possible by fall from the tree because if some body would fall from the tree, he would stretch his hands in his defence and in those circumstances he would receive injuries on hands also. He also stated that in a fall and in a scuffle all the injuries were not possible. In his opinion, the injuries found on the body of deceased were not of accidental nature. ( 10. ) After perusal of the postmortem report Ex. P/9-A and the evidence of Dr. Avinash John (PW5), we find that it has no where been stated that the injuries found on the body of deceased were homicidal. In our opinion, though doctor stated that if the person would fall from a height, he would receive some injuries on his/her hands also, but this cannot be accepted as a gospel truth because in case of sudden fall, the injured may not be in a position to use hands to ward off the injuries of head. Since, Dr. In our opinion, though doctor stated that if the person would fall from a height, he would receive some injuries on his/her hands also, but this cannot be accepted as a gospel truth because in case of sudden fall, the injured may not be in a position to use hands to ward off the injuries of head. Since, Dr. Avinash John (PW5) did not depose positively that the injuries found on the body of deceased were homicidal in nature, it cannot be held established that the injuries found on the body of deceased were homicidal in nature. ( 11. ) Learned counsel for the appellant submitted that there was no direct evidence in the case. The prosecution adduced only circumstantial evidence to prove its case, however, the trial Court gravely erred in placing implicit reliance on the circumstances sought to be established by the prosecution. He submitted that the evidence of extrajudicial confession allegedly made by the appellant before Dinesh Prasad Tiwari (PW4) was not reliable as the possibility that it was made in the presence of police could not be ruled out. We have gone through the evidence of Dinesh Prasad Tiwari (PW4). According to Dinesh Tiwari, he did not know the appellant or the deceased before the incident. Deceased Durgawati was the second wife of Jagannath. He heard that appellant and Durgawati went to pluck tendu leaves in the forest where Durgawati died. Further this fact was disclosed by appellant at the place of incident in presence of number of persons. She disclosed that she did not go for plucking leaves with Durgawati in the morning because it was dark, and Durgawati alone went to forest taking a Dholi. After some time, she also went to forest and met Durgawati, but Durgawati refused to hand her over Dholi to her then she scuffled with her, due to which Durgawati fell down. According to Dinesh Tiwari (PW4), appellant further disclosed that when Durgawati fell down, she picked up stones from the vicinity and assaulted Durgawati with them, as a result of which, she died. She told that she dragged Durgawati to some distance and put her beneath a tree. At that time, Durgawati was breathing. She, then, went to river and washed the stains of blood on her clothes and informed her husband that Durgawati fell from the tree and died. She told that she dragged Durgawati to some distance and put her beneath a tree. At that time, Durgawati was breathing. She, then, went to river and washed the stains of blood on her clothes and informed her husband that Durgawati fell from the tree and died. In cross examination, this witness admitted that he knew the appellant after the occurrence. He had gone to the place of occurrence on the next day when dead body was not there. In para-5 of his statement, he admitted that police seized the pieces of bangles from the spot and also recovered a stone on being pointed out by the appellant. From the above facts, it appears that the aforesaid confessional statement was made before number of persons and also in the presence of police. The incident is said to have taken place on 22.5.2006 at about 10 a.m., whereas this witness stated that he heard the appellant confessing her guilt before every body on the next day when the seizures were being made from the spot. Dy. S.P. N.N.Jharia (PW11) stated that on receiving report on 22.5.2006, he went to spot and conducted inquest proceedings in presence of witnesses and also seized pieces of bangles from the spot. Inspector N.K.Singh (PW13) stated that after marg enquiry, he registered the case under Section 302 of the Indian Penal Code against the appellant and recorded first information report Ex. P/15. On 23.5.2006, he went to spot and also arrested the appellant. On the same day, on disclosure statement being given by the appellant, he recovered a blood stained stone near the place of incident hidden under the leaves. This clearly goes to indicate that on the next day of the incident when the aforesaid extra judicial confession was made by the appellant before Dinesh Prasad Tiwari (PW4), the police was present. In these circumstances, in our opinion, the evidence of alleged extra judicial confession relied on by the prosecution was doubtful and also inadmissible in evidence. Apart from it, Dinesh Prasad Tiwari was also confronted with his police statement Ex. D/4, wherein he no where stated that the appellant made any confession that she assaulted Durgawati by stone. In these circumstances, in our opinion, the evidence of alleged extra judicial confession relied on by the prosecution was doubtful and also inadmissible in evidence. Apart from it, Dinesh Prasad Tiwari was also confronted with his police statement Ex. D/4, wherein he no where stated that the appellant made any confession that she assaulted Durgawati by stone. The trial Court was not justified in relying on the aforesaid extra judicial confession on the ground that at least the part of statement of the appellant that she was present with the deceased and had dragged the body of deceased was established. Since it can be clearly inferred that all of the incriminating statements alleged to have been made by the appellant, were made, in the presence of police, they were not admissible in evidence and the trial Court committed serious error in holding that the extra judicial confession made to Dinesh Prasad Tiwari (PW4) was reliable and acceptable. ( 12. ) It is also significant to note that Dinesh Prasad Tiwari (PW4) was not known to appellant and was also not a person in authority in whom she could have reposed confidence. In these circumstances, credibility of PW4 becomes doubtful especially in the absence of any independent corroboration. Apex Court in Balwinder Singh Vs. State of Punjab- AIR 1996 S.C. 607 held that: "An extrajudicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extrajudicial confession." We accordingly hold that the evidence of extrajudicial confession is not acceptable. ( 13. ) The evidence of deceased being last seen together with the appellant was nothing else than the aforesaid extra judicial confession of the appellant. None of the witnesses of the prosecution stated that the deceased had gone to forest with the deceased or that she was with her at the time of her death. Since we have found that the evidence of extra judicial confession was not reliable, this piece of circumstantial evidence also fails. ( 14. ) N.K.Singh (PW13) stated that in the presence of witnesses, Hubbalal Singh and Chhatrapal Singh, appellant disclosed that she had hidden the blood stained stone under the leaves. Since we have found that the evidence of extra judicial confession was not reliable, this piece of circumstantial evidence also fails. ( 14. ) N.K.Singh (PW13) stated that in the presence of witnesses, Hubbalal Singh and Chhatrapal Singh, appellant disclosed that she had hidden the blood stained stone under the leaves. He recorded her statement in the memorandum Ex. P/6, and then before the aforesaid witnesses, appellant took out the stone kept under the leaves which he seized vide memorandum Ex. P/7. Hubbalal Singh (PW3), the attesting witness of aforesaid memorandums stated that though the information recorded in the memorandum Ex. P/6 was given by the appellant, but she did not get the stone recovered. In fact, police itself searched and found the stone lying near tendu leaves. Evidence of this witness about recovery of the aforesaid blood stained stone militates against the evidence of N.K. Singh (PW13). Hubbalal Singh (PW3) was not declared hostile by the prosecution, therefore, his evidence has to be treated as a part of the prosecution case. Other witness Chhatrapal Singh was not examined in the Court. Apart from it, the stone was recovered from an open place, accessible to all. Thus, in our opinion, it cannot be accepted beyond doubt that the said blood stained stone was recovered on the information given by the appellant. ( 15. ) The evidence of Baijnath Prajapati (PW1), the father of deceased, Motilal Prajapati (PW2), the brother of Jagannath and Hubbalal Singh (PW3) that they heard that appellant had gone for plucking the leaves with Durgawati, was clearly hearsay in nature and was therefore not admissible in evidence. According to Motilal Prajapati (PW2), appellant had told him that she had gone with Durgawati to pluck leaves, where Durgawati had fallen from the tree and died. Similarly, Hubbalal Singh (PW3) stated that he had received information that both the wives of Jagannath had gone to pluck the leaves in the forest where Durgawati died. He stated that the appellant disclosed before the police that she had a quarrel with the deceased. Thus, the evidence of these witnesses does not make out an admissible piece of evidence and the fact that appellant was last seen in the company of deceased does not stand established beyond the periphery of doubt. ( 16. ) Evidence of Dr. He stated that the appellant disclosed before the police that she had a quarrel with the deceased. Thus, the evidence of these witnesses does not make out an admissible piece of evidence and the fact that appellant was last seen in the company of deceased does not stand established beyond the periphery of doubt. ( 16. ) Evidence of Dr. Umesh Kumar Singh (PW6) is that on the examination of the person of appellant he found (i) an abrasion on the middle finger of her left hand (ii) an abrasion on the elbow of left hand and (iii) an abrasion on her left palm. The first injury was caused by some sharp edged weapon and other two injuries were caused by some hard blunt object. According to prosecution, these injuries were sustained by the appellant while assaulting the deceased with the stone. The trial Court also held that since appellant did not explain how these injuries were received by her, it could be inferred that she suffered these injuries while assaulting the deceased with a stone. We are unable to agree with the finding recorded by the trial Court in this regard. Even if some trivial injuries were found on the person of appellant, it did not essentially give rise to inference that these injuries were sustained by her in assaulting the deceased. Even according to prosecution, the appellant had also gone to pluck tendu leaves; the possibility of suffering minor scratches on the hand by bushes or the branches of trees could not be ruled out, therefore, in our opinion, trial Court committed error in concluding that injuries found on the hands of appellant formed an incriminating piece of evidence against her. ( 17. ) In Ram Singh Vs. Sonia and others- AIR 2007 SC 1218 , the Apex Court observed: "39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstances must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances get snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof, for some times unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between may be true and must be true and the same divides conjectures from sure conclusions." ( 18. ) After a critical scrutiny of the circumstances sought to be proved by the prosecution keeping in view the legal position enunciated above, we find that the prosecution failed to establish that deceased died a homicidal death and that the appellant caused her death. The finding of conviction recorded by the trial Court, therefore, deserves to be set aside. ( 19. ) It was also contended by the learned counsel for the appellant that at the time of occurrence appellant was juvenile, therefore, the trial was bad in law. By order dated 5.10.2009, we had directed the learned Sessions Judge, Sidhi to hold an enquiry for determining the age of the appellant on the date of incident. In compliance of the said order, learned Sessions Judge held enquiry and submitted its report on 19.1.2010 concluding that on the date of incident i.e. 22.5.2006, appellant was under 18 years of age i.e. a juvenile. In compliance of the said order, learned Sessions Judge held enquiry and submitted its report on 19.1.2010 concluding that on the date of incident i.e. 22.5.2006, appellant was under 18 years of age i.e. a juvenile. Under Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for brevity referred to as Act) the claim of juvenility may be raised before any court and it shall be recognized at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. If the Court finds a person to be a juvenile on the date of commission of the offence, it shall forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a court shall be deemed to have no effect. Special provision has been enacted in Section 20 of the Act in respect of pending cases, wherein it has been provided that all the proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and the if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. The explanation attached to Section 20 of the Act provided that: Explanation- "In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence Was committed." ( 20. ) Since after examining the case on merits, we have found the appellant not guilty, therefore, no order need be passed by us in respect of the question of dealing the appellant as juvenile. ( 21. ) For the reasons discussed hereinabove, we set aside the impugned judgment of conviction of appellant passed by the trial Court and acquit her of the charges levelled against her. Appellant be released forthwith, if not required in any other case. Appeal allowed.