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Madhya Pradesh High Court · body

2010 DIGILAW 546 (MP)

Malti v. State of M. P.

2010-05-13

S.K.GANGELE, S.S.DWIVEDI

body2010
JUDGMENT Shri S.S. Dwivedi, J. -- 1. The appellants have preferred this appeal under section 374 (2) of the Code of Criminal Procedure, aggrieved by the judgment of conviction and sentence dated 20.5.1999 passed by Fourth Additional Sessions Judge, Gwalior, in sessions trial No. 89/96, whereby held the appellants guilty for the offence punishable under sections 302 and 201 of Indian Penal Code and sentenced each of them to imprisonment for life with a fine of Rs. 1000/- and imprisonment for one year RI with fine of Rs. 1,000/- respectively. In default of payment of fine, further ordered to suffer imprisonment for one year and three months respectively. Both the sentences are directed to run concurrently. 2. Briefly stated the facts of the case are, on 26.12.1995 one Barjor Singh R/o Gudi Guda Ka Naka, Gwalior came to the Police Station Kampoo and informed about some dead body lying beneath the floor of the room which was rented to accused Badri Prasad. Because the house was situated under the territorial jurisdiction of Police Station Madhoganj, therefore, the office in-charge of Police Station Kampoo informed Police Station Madhoganj with regard of the aforesaid information, then Police Station Madhoganj, recorded the information in the daily diary at serial No. 1266 and thereafter Arvind Khare, Town Inspector of Police Station Madhoganj with police force reached on the spot. On 27.12.1995 the concerning police officer broke the lock of the room concerned and found the floor recently plastered with soil. On digging the floor of the room concerned, a dead body was found lying there, that had been identified as the dead body of one Kallu S/o Intazar Khan. The identification memo of the dead body of the deceased was prepared as Ex.P/5 the inquest panchnama was also prepared and the dead body was sent for post -mortem examination. During investigation it is found that deceased Kallu used to go to the house of accused Maltibai and it is also found that in the intervening night of 23rd and 24th of December, 1995 both the accused Maltibai and Badri Prasad offered liquor to drink to deceased Kallu and thereafter caused his death by throttling and thereafter buried the dead body of deceased Kallu in a pit beneath the floor and thereafter plastered the floor by means of soil. On the basis of the aforesaid primary enquiry a report (Ex.P/29) under sections 302 and 201 of IPC had been registered against the accused persons. Both the accused persons had been arrested and on their information the bloodstained clothes and other articles had been seized and after due investigation the charge sheet had been filed against the appellants/ accused. 3. Both the appellants/accused abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record by the impugned judgment held both the appellants/accused guilty for the offence punishable under sections 302 and 201 of IPC and sentenced each of them as stated herein above; aggrieved by which the appellants have preferred this appeal. 4. Having heard the learned counsel for the appellants as well as learned Public Prosecutor papering for the State and perused the record. 5. It is submitted on behalf of the appellants that the prosecution case fully rests upon the circumstantial evidence; no direct eyewitness account is available against any of the accused. Similarly, the material witness Barjor Singh (PW 1) and Geetabai (PW 2) turned hostile and had not supported the prosecution story with regard to the involvement of these two accused persons in this incident. The chain of circumstances is also not so conclusive on which basis the guilt of the accused persons can be found proved and thus the learned trial Court has wrongly held both the appellants guilty for the aforesaid offence. Hence, prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. In reply, learned Public Prosecutor for the State supported the impugned judgment and prayed for dismissal of the appeal. 7. On perusal of the record it is apparent that no eye-witness account is available against the accused persons. The prosecution case fully rests upon the circumstantial evidence. Now with regard to the involvement of accused/appellant Badri Prasad is concerned, the material circumstances available against him is that the dead body of deceased Kallu was found in a room which was in possession of the accused Badri Prasad. For this the prosecution had examined Barjor Singh (PW 1) the landlord of the concerning house, who clearly stated that this room had been given on rent to accused Badri Prasad. For this the prosecution had examined Barjor Singh (PW 1) the landlord of the concerning house, who clearly stated that this room had been given on rent to accused Badri Prasad. On the date of incident he saw certain flies to buzz in joint of the house, therefore, he doubted about some happening and thereafter he informed the police then police came on the spot and broke down the lock of the room concerned and after digging floor of the room the police found one dead body of deceased Kallu in a pit. Though this witness had been declared hostile by the prosecution, but the fact remains that the dead body was found in the room which was in possession of accused Badri Prasad, therefore, it is the accused Badri Prasad, who should explain about the circumstance as to how and under what circumstances the dead body was found lying in a pit beneath the floor of the room, which was in possession of the accused Badri Prasad and this material circumstance is against the appellant Badri Prasad only. 8. On perusal of the statement of Barjor Singh (PW 1) it is not proved that second accused Maltibai also used to go to the house of Badri Prasad and she was also seen on the date of incident in the concerning room of Badri Prasad, therefore, on the basis of the statement of Barjor Singh (PW 1) the involvement of accused Maltibai cannot be inferred that she also remained present when the dead body of Kallu has been buried in the pit beneath the floor of the room belonging to Badri Prasad. 9. Second material witness is Geetabai (PW 2), who is the wife of Barjor Singh, she also specifically stated that the room from where the dead body of Kallu had been recovered was in possession of the accused Badri Prasad. This room had been given by her husband on rent to Badri Prasad but thereafter she had not stated anything against the co-accused Matlibai. On this point this witness Geetabai had also been declared hostile by the prosecution. This room had been given by her husband on rent to Badri Prasad but thereafter she had not stated anything against the co-accused Matlibai. On this point this witness Geetabai had also been declared hostile by the prosecution. In cross-examination by the prosecution she only "stated to the police that Maltibai had confessed about the incident, but it is the settled principle that the extra-judicial confession is found to be a weak type of evidence and it requires further corroboration and it is also not proved that why Maltibai is supposed to confess before Geetabai with regardto the alleged incident. In such circumstances, on the basis of the statement of Geeta Bai (PW 2) the involvement of Maltibai in this incident is not proved. 10. Witness Dhirendra Kumar Tomar (PW 3) is the Officer in-charge of Police Sation Kampoo, to whom Barjor Singh (PW 1) had informed about the incident, thereafter, he informed Police Station Madhoganj because the place of incident was in the territorial jurisdiction of Police Station Madhoganj. 11. Babloo (PW 4) is the brother of deceased Kallu, who also proved the• fact that Badri Prasad came to his house and asked Kallu to accompany him to the house of Maltibai. Thus, on the basis of the aforesaid statement of Babloo (PW 4) the only circumstance proved against Badri Prasad is that lastly it is Badri Prasad, who asked Kallu to accompany him and thereafter both of them went from the house. Therefore, this mitigating circumstance is also against the accused Badri Prasad that he went with Kallu from the house of deceased Kallu. 12. Azad Khan (PW 5) is the witness before whom the concerning police recovered the dead body of Kallu from the room belonging to and in possession of accused Badri Prasad and also prepared the necessary panchnama for the recovery of the dead body and its identification. 13. Raghuvir Singh Bhadoriya (PW 6) is the investigating Officer of Police Station Madhoganj, who recorded the inquest panchnama and also seized the viscera received from the hospital after post-mortem examination of the dead body. Intazar Khan (PW 7) is the father of deceased Kallu, who proved the fact that Kallu used to meet Maltibai but only on the basis of this circumstance the involvement of Maltibai for causing murder of Kallu cannot be inferred. Intazar Khan (PW 7) is the father of deceased Kallu, who proved the fact that Kallu used to meet Maltibai but only on the basis of this circumstance the involvement of Maltibai for causing murder of Kallu cannot be inferred. He also proved the identification of the dead body of Kallu before the police as per memo EX.P/5. 14. Dr. J.A. Soni (PW 8) performed the post-mortem of the dead body of deceased Kallu S/o Intazar Khan and found ligature mark on the neck, also an incised wound on the external region and seven penetrating wounds on various parts of his body and opined that due to excessive hemorrhage from the injuries resulting shock the death has occurred. 15. Harcharan (PW 9) proved the seizure memo (Ex. P/26), the seizure of clothes of the deceased Kallu. Rajveer Singh (PW 12) proved the Registration of the FIR; and, Arvind Khare (PW 13) is the investigating Officer. 16. The accused had also examined one Raghuvir Singh Gaur (DW 1) as defence witness, who proved the fact that Maltibai was residing in his house on rent and thereafter she vacated the house concerned. Similarly, second defence witness Munnalal Baghel (DW 2) proved the fact that Badri Prasad was working in a factory concerned. Nothing substantial came out from the statements of the aforesaid defence witnesses. 17. Thus, on overall re-appreciation of the entire evidence on record, we are of the considered opinion that against the appellant/accused Badri Prasad the chain of circumstances is proved by the prosecution that the dead body of deceased Kallu was found in the room which was in possession of accused Badri Prasad. It is also proved that it is Badri, who brought the deceased Kallu from his house and thereafter his dead body was found lying in the room belonging to Badri Prasad for which there is no probable explanation given by the accused Badri Prasad. Therefore, in such circumstances, the prosecution has successfully proved the fact that it is the appellant/accused Badri Prasad, who caused the death of Kallu and thereafter concealed the dead-body by digging the floor and buried it in a pit and thereby committed the offence punishable under sections 302 and 201 of IPC. 18. Therefore, in such circumstances, the prosecution has successfully proved the fact that it is the appellant/accused Badri Prasad, who caused the death of Kallu and thereafter concealed the dead-body by digging the floor and buried it in a pit and thereby committed the offence punishable under sections 302 and 201 of IPC. 18. Similarly, on perusal of the entire evidence on record the prosecution has utterly failed to prove the guilt of the accused Maltibai that she is also involved in this incident. No specific direct evidence as well as circumstantial evidence is available against Maltibai on which basis this can be found proved that she is also involved in the murder of Kallu. The only evidence available against her is that Kallu used tomeet Maltibai but for that evidence only the charge under section 302 of IPC against appellant Maltibai cannot be found proved. 19. Consequently, the appeal preferred by the appellants is allowed in part and is disposed of in the matter as indicated below: - (i) The appeal preferred by appellant Maltibai is allowed. The impugned judgment of conviction and sentence to the extent of appellant Maltibai for the offence under sections 302 and 201 of IPC are set aside and she is acquitted of the aforesaid charges. Fine amount, if any, deposited by her be refunded to her, she is on bail, her bail bonds shall stand discharged forthwith. (ii) Similarly, the appeal preferred by appellant Badri Prasad being devoid of any merits is dismissed and his conviction and sentence under sections 302 and 201 of IPC are affirmed. He is already in custody.