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2010 DIGILAW 553 (MP)

Kalu S/O Udai Singh Gujar v. State Of M. P.

2010-05-13

BRIJ KISHORE DUBE, S.L.KOCHAR

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JUDGMENT : S. L. KOCHAR, J. The appellant has preferred this appeal under section 374 of the Code of Criminal Procedure being aggrieved by the judgment dated 26-6-2005 of the learned Second Additional Sessions Judge, Mandsaur in Sessions Trial No. 165/2005 thereby convicting the appellant for the offence punishable under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine to suffer additional imprisonment for two months. 2. According to the prosecution case, on 1-11-2005 in the morning at 8.30 AM PW-l Mangu Singh resident of village Baodikheda lodged Dehati Nalishi in the village Baodikheda to the effect that in the morning at 6.00AM, he was in his house. At that juncture, elder sister of the appellant named Mangubai (PW-2) came to him and disclosed that in the preceding night, appellant had cut his wife Shivibai by means of axe and her dead body was lying in the house on a cot. Mangu Singh reached at the house of the appellant and saw the dead body of Shivibai lying on the cot. He had also seen an incised injury on the left side of her neck which could be caused by an axe and the bedding containing blood stains. Blood was also seen on the floor. The appellant, at that moment tried to run away, but was caught by the people assembled there and tied him with a rope and kept him in the court-yard. The appellant was having doubt on the chastity of his wife Shivibai because of which he had committed her murder. Mangu Singh then came back to his house and sent telephonic message to the police. Thereafter, upon reaching of the police, Dehati Nalishi Ex.P/1 was recorded by PW-6 Town Inspector/Station House Officer Shri P. L. Raj. Merg-intimation report Ex.P/2 was also recorded on the spot and spot map Ex.P/14 was prepared by Shri P. L. Raj at the instance of PW-2 Mangubai, sister of the appellant. Dehati Nalishi and Merg intimation report were sent to the Police Station with Constable Gangacharan on the basis of which, First Information Report Ex.P/26 was registered. Investigating Officer seized the blood stained and controlled earth, blood stained bed and Chadar through seizure-memo Ex.P/10. Dehati Nalishi and Merg intimation report were sent to the Police Station with Constable Gangacharan on the basis of which, First Information Report Ex.P/26 was registered. Investigating Officer seized the blood stained and controlled earth, blood stained bed and Chadar through seizure-memo Ex.P/10. From the person of the appellant, a shirt was also seized vide seizure-memo Ex.P/11 and the appellant was arrested. On disclosure statement, axe was seized at his instance. After preparation of inquest-report Ex.P/4, dead body was sent for post-mortem examination and the same was conducted by PW-8 Dr. K. R. Patidar. Post-mortem report is Ex.P/21. All the seized articles were sent to the Forensic Science Laboratory and its report is Ex.P/29. Investigating Officer recorded the statements of the witnesses acquainted with the facts of the case. According to the witnesses, the appellant slept inside his room with his wife and other persons of the house were sleeping in the verendah as also in the court-yard. In the morning the appellant made extra judicial confession before his sister Mangubai and other witnesses. Thereafter, he was caught and tied by a rope. On completion of investigation the appellant was charge-sheeted for commission of murder of his wife, an offence punishable under section 302 of the Indian Penal Code. 3. Appellant denied the charges and pleaded innocence. However, he did not examine any witness in his defence. Learned trial Court, after examining the prosecution witnesses and hearing both the sides, convicted and sentenced the appellant as indicated hereinabove. 4. We have heard learned counsel for the parties and also perused the entire record carefully. 5. Learned counsel for the appellant has submitted that there was no eye-witness to the incident and circumstantial evidence relied upon by the learned trial Court is not of conclusive nature so as to prove the guilt of the accused, therefore, he is entitled to be acquitted. 6. On the other hand, learned counsel for the respondent/State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. It is clear from the statement of PW-1 Mangu Singh that Mangubai (PW-2), sister of the appellant approached him in the morning and narrated that the appellant had committed murder of his wife by axe on which, he reached at the house of the appellant and saw the deceased in dead condition having injury on left side of her neck. It is clear from the statement of PW-1 Mangu Singh that Mangubai (PW-2), sister of the appellant approached him in the morning and narrated that the appellant had committed murder of his wife by axe on which, he reached at the house of the appellant and saw the deceased in dead condition having injury on left side of her neck. At that time, villagers named, Udai Singh, Kachru Singh, Kalu Singh and Bhawani Singh were also present there and the appellant was saying that he would also commit suicide by jumping down before the train and tried to run away whereupon he was caught and was tied with the rope. Further say of this witness Mangu Sigh is that Kalu Singh was saying that his wife was characterless. He also admitted about sending of message to the police, lodging of Dehati Nalishi Ex.P/1, recording of Merg-intimation report Ex.P/2, preparation of map Ex.P/14 and inquest report Ex.P/5. In cross-examination para 9, he has deposed that the appellant also disclosed before him about commission of murder of his wife meaning thereby that the appellant made extra-judicial confession before him. This is true that in para 6 of cross-examination, he has stated that there was no dispute between the deceased and the appellant in regard to her character. He denied the defence suggestion that the appellant was in his field and in the night, some other person had committed murder of his wife. On going through the entire statement of Mangu Singh, we find a ring of truth in his statement about extra-judicial confession made by the appellant with regard to commission of murder of his wife by him and there is no reason for this witness to speak lie against the appellant. No suggestion was given to the witness in his cross-examination by the defence about any kind of ill-will with the appellant or his interest in falsely implicating the appellant. 8. PW-11 Udai Singh, an independent witness also reached at the house of the appellant. He has stated that Kalu Singh had disclosed before them that he had cut the neck of his wife by axe. He also stated that he had committed the murder of his wife because she was against him. 8. PW-11 Udai Singh, an independent witness also reached at the house of the appellant. He has stated that Kalu Singh had disclosed before them that he had cut the neck of his wife by axe. He also stated that he had committed the murder of his wife because she was against him. Further say of this witness Udai Singh is that they caught the appellant on the spot and tied with a rope, thereafter, telephonic information was sent to the police and the police reached there and prepared inquest report Ex.P/4. He identified the appellant in Court also. This witness has also proved seizure of axe Ex.P/9 from the appellant as well as blood stained clothes, earth and controlled earth, bed-sheet vide seizure memo Ex.P/10. (In para 4 of the statement of this witness, incorrect exhibit number Ex.P/6 is mentioned regarding seizure of axe. The correct exhibit number is Ex.P/9). Shirt was also seized from the person of the appellant through seizure memo Ex.P/11. In cross-examination of this witness, there is no material to cause dent to his testimony on all these aspects and no suggestion was given by the defence to this witness with regard to any kind of ill-will or inimical terms with the appellant. We find no reason to disbelieve the testimony of this witness Udai Singh. 9. Supreme Court in the case of Maghar Singh vs. State of Punjab, AIR 1975 SC 1320 has observed in para 5 as under :- "The second contention put forward by the learned counsel for the appellant was that there was no material corroboration of the statement of the approver and the High Court had convicted the appellant on the basis of the extra-judicial confession made by the two accused before some persons but that could not in law be regarded as any corroboration at all, because one tainted evidence cannot corroborate another tainted evidence. The evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution. The evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone as was done in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh, 1954 SCR 1098 = AIR 1954 SC 322 , where their Lordships of the Supreme Court rested the conviction of the accused on the extra-judicial confession made by him before two independent witnesses, namely Gadkari and Perulekar. In the instant case also, after perusing the evidence of P.W. 3 and P.W. 12 we are satisfied that they are independent witnesses before whom both the appellant and accused Surjit Kaur made confession of their guilt and this therefore forms a very important link in the chain of circumstantial evidence. In our opinion the argument proceeds on fundamentally wrong premises that the extra-judicial confession is tainted evidence." 10. In the case at hand also PW-1 Mangu Singh and PW-11 Udai Singh are independent witnesses, therefore, their evidence of extra-judicial confession made by the appellant regarding commission of murder of his wife, is fully reliable. Supreme Court in the case of Darshanlal vs. State of Jammu and Kashmir, AIR 1975 SC 898 has again considered the value and veracity of extra-judicial confession and accepted the confession of the appellant made for killing of his wife before uncle and cousin of his wife and conviction was based on the evidence of extra-judicial confession. 11. The aforementioned evidence of extra-judicial confession is duly corroborated by the conduct of the appellant who tried to run away from his house and was caught and tied by the witnesses and villagers. He had not gone to lodge the report at the Police Station though he was the first person who had seen his wife in dead condition and early in the morning at 4.00 AM gave information to this effect to his sister PW-2 Mangubai (See : para 8. It appears that because of typing mistake in para 3 of examination-in-chief of this witness Mangubai, time of giving information by the appellant to Mangubai is mentioned as 4.00 PM ). 12. It appears that because of typing mistake in para 3 of examination-in-chief of this witness Mangubai, time of giving information by the appellant to Mangubai is mentioned as 4.00 PM ). 12. The evidence of extra-judicial confession is also corroborated by medical evidence of PW-8 Dr. Patidar who conducted autopsy on the dead body of the deceased and found three incised wounds on her person caused by hard and sharp object. The injuries were on left parietal region, left side of neck near shoulder and also on the shoulder and third one was also on the left shoulder cutting major and important blood vessels. In the opinion of Dr. Patidar, deceased died because of heart failure due to excessive bleeding from the wounds. The death was homicidal in nature. The doctor proved post-mortem report Ex.P/21. 13. PW-11 Udai Singh was also a witness of disclosure statement about axe given by the appellant vide Ex.P/12. He has stated that the appellant had disclosed before him that he had kept the axe inside his hut and in pursuance of his disclosure statement, the appellant got recovered the axe vide its seizure memo Ex.P/9 which bears the signature of this witness. Learned trial Court has placed reliance on recovery of axe. In our considered view, axe is a common agricultural instrument available in the house of every agriculturist, but its recovery can be an important piece of evidence if in Forensic Science Laboratory Report, blood of the deceased is confirmed. In the instant case, though the Forensic Science Laboratory Report Ex. P/29 has confirmed the presence of human blood on Articles A, C, D, F, G, G-2 and G-3 as well as presence of A-group blood on Articles C, D and E blood stained earth, bed, Chadar, shirt of the appellant, axe, saree, petticoat and blouse of the deceased, but no question was put to the appellant in his statement recorded as per provision under section 313 of the Code of Criminal Procedure for explaining this circumstance. Therefore, the same cannot be relied upon against the appellant. 14. For the foregoing discussion, we do not find any merit in this appeal, therefore, the same is hereby dismissed, maintaining the conviction and sentence of the appellant as passed by the learned trial Court. Therefore, the same cannot be relied upon against the appellant. 14. For the foregoing discussion, we do not find any merit in this appeal, therefore, the same is hereby dismissed, maintaining the conviction and sentence of the appellant as passed by the learned trial Court. Office is directed to send a copy of this judgment to the trial Court along with its record for compliance, in due course.