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2011 DIGILAW 69 (CHH)

SUKALU v. STATE OF M. P.

2011-02-22

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2011
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. This appeal is directed' against the judgment dated 29.01.1994 passed in Sessions Trial No.03/93 by the Second Additional Sessions Judge, Rajnandgaon. By the impugned judgment, the appellant has been convicted under Sections 302 & 201 I.P.C. and sentenced to undergo imprisonment for life and imprisonment for 3 years with a direction to run the sentences concurrently. 2. The facts, briefly stated, are as under:- Vedobai (PW-10) is the wife of the appellant. The appellant was residing in his in-laws place. Deceased - Tarabai was the sister-in-law (Sali) of the appellant. The appellant had developed illicit relations with Tarabai. Tarabai got a male child from the appellant. After the village Panchayat, the appellant admitted to keep her as his second wife. The allegations are that in the intervening night of27.04.1993 & 28.04.1993, the appellant called Tarabai in his room; committed sexual intercourse against her; and thereafter, he committed her murder by throttling and also by assaulting her by spade and threw her dead body in the village pond. When the dead body was seen by the villagers, information was given to the police station. The investigation officer reached to the place of occurrence, gave notices to the Panchas and prepared inquest (Ex.P/1) on the body of the deceased. The body of the deceased was sent for postmortem to Government Hospital, Dongargarh, where, the postmortem examination was conducted by Dr. N. Sachdev (PW-9). He noticed multiple incised wounds on the body of the deceased. The deceased was carrying pregnancy of about 8-10 weeks. The wind pipe was congested and there were fractures on thyroid cartilage. The Autopsy Surgeon opined that the cause of death was asphyxia due to throttling and it was homicidal in nature. The postmortem report is Ex.P/14. It was found that the appellant was absconding from the village. He was taken into custody on 01.05.1993 and his memorandum statement under Section 27 of the Evidence Act (Ex.P/3) was recorded and one small spade was seized at the instance of the appellant vide seizure memo Ex.P/4. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur, from where, a report (Ex.-P/19) was received. According to the F.S.L Report, blood stains were found on the clothes of the deceased, but no blood stains were found on the spade, allegedly seized from the possession of the appellant. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur, from where, a report (Ex.-P/19) was received. According to the F.S.L Report, blood stains were found on the clothes of the deceased, but no blood stains were found on the spade, allegedly seized from the possession of the appellant. After completion of usual investigation, charge sheefwas filed in the Court of Judicial Magistrate First Class, Dongargarh, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Second Additional Sessions Judge, Rajnandgaon, who conducted the trial and convicted and sentenced the appellant as aforementioned. Initially, the case of the prosecution was based on eyewitness account of Vedobai (PW-10) and that she had stated about the incident to Shankarlal (PW-4) and Gendlal (PW-7). Vedobai (PW-I0) turned hostile. The learned Sessions Judge, referring to the evidence of Vedobai and further that she had stated about the incident to Shankarlal (PW-4) and Gendlal (PW-7), held that it was proved beyond all reasonable doubts. that the appellant has committed murder of the deceased. It was also held that the appellant was absconding since the morning of 28.04.1993; therefore, it was an additional circumstance against the appellant. 3. Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State, submitted that the evidence of Shankarlal (PW-4) and Gendlal (PW-7) would show that the eyewitness Vedobai (PW -10) told them that the appellant has committed murder of the deceased in their house and further that the appellant was absconding since the morning of 28.04.1993, therefore, the learned Sessions Judge has rightly convicted the appellant under the aforementioned Sections of the IPC. 4. We have heard Mr. Bhaduri at length and have also perused the records of the sessions case. 5. Admittedly, the dead body of the deceased was found in a pond on 28.04.1993. The pond is at some distance from the house of the in-laws of the appellant, where, he was residing as Ghar Jamai. The case of the prosecution was based on the eye-witness account of Vedobai (PW -10), who was also an inmate of the house, where the appellant, deceased- Tarabai and mother-in-law of the appellant - Sirmotin Bai (PW-1) were residing together. Vedobai turned hostile and she did not support the case of the prosecution. The case of the prosecution was based on the eye-witness account of Vedobai (PW -10), who was also an inmate of the house, where the appellant, deceased- Tarabai and mother-in-law of the appellant - Sirmotin Bai (PW-1) were residing together. Vedobai turned hostile and she did not support the case of the prosecution. She denied her entire case diary statements (Ex.P/15) and deposed that she did not state like that before the Police. Even in the cross-examination, nothing material could be brought on record to show that the appellant was the actual culprit. She deposed that the appellant had gone to village Bamhna, one day prior to the incident, which was at a distance of IS km. Shankarlal (PW-4) and Gendlal (PW -7) deposed that Vedobai (PW -10) had told them that her husband has committed murder of the deceased. The Sessions Judge has relied on their evidence. Their such evidence was inadmissible being hearsays. Moreover, when Vedobai (PW-10) turned host He, evidence of Shankarlal (PW4) and Gendlal (PW-7), which was based on the information of Vedo Bai, would carry no weight age. We are of the view that the Sessions Judge fell into error in relying on such evidence of Shankarlal (PW-4) and Gendlal (PW-7) and taking it as corroborative evidence for version of Vedobai. (PW -10). 6. The evidence of discovery and seizure of spade would also carry no importance as no blood stains were found on the spade. The spade is a common article, which can be found in the house of almost every villager. 7. So far as conduct of the appellant in absconding immediately after the occurrence is concerned, we find that it was not at all established that the appellant absconded after the incident. On the contrary, it comes in the evidence of Vedobai (PW-10) that he had gone to a different village one day prior to the incident. In Thimma vs. The State of Mysore1, the Supreme Court. held that "Though the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest". 8. In Thimma vs. The State of Mysore1, the Supreme Court. held that "Though the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest". 8. We are of the view that there was absolutely no legal evidence against the appellant to hold him guilty of the aforesaid offences, and the learned Sessions Judge fell into error by convicting the appellant under the aforementioned Sections of the IPC on the above set of evidence. 9. For the foregoing reasons, we allow this appeal and set-aside the conviction and sentence awarded to the appellant under Sections 302 & 201IPC. The appellant is acquitted of the charges framed against him. The appellant was arrested on 01.05.1993 and was released on bail on 19.02.2003. Presently, he is on bail. His bail bonds are cancelled and surety stands discharged. Appeal Allowed.