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2014 DIGILAW 1040 (MP)

State of M. P. v. Kamal

2014-08-21

P.K.JAISWAL, S.K.SETH

body2014
JUDGMENT Seth, J. -- 1. This appeal against acquittal is by the State. 2. Two respondents were sent up to face trial on the charges of murder of Ramubai, wife of accused No.2 Sukhram. The charge against accused No.1 Kamal was under section 302 substantively as also under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the accused No.2 Sukhram was charged under section 302 read with section 114 of the IPC. The trial Court on considering the evidence led by the prosecution acquitted both the accused f all the charges giving them benefit of doubt. Aggrieved by that decision the State has come up in appeal. 3. It is no longer in dispute that the deceased Ramubai aged about 25 years was the wife of accused No.2 Sukhram; that Sukhram and his wife were tribal (Bhils) of Dhar District in M.P.; that Ramubai died a homicidal death on 11.12.2001 in a forest near village Moregoan of Dhar District. This came within the jurisdiction of Police Station Amzera with a Police out-post at Dasai. Autopsy report dated 12.12.2001 is Ex.P/9 by Dr. K.C. Shukla which shows that homicidal death was due to injury to the vital Organ (brain) causing hemorrhage and shock; injury within 24 hours of the examination. 4. Prosecution case in brief was as under. On 11.12.2001 at about 3 p.m. the said Ramubai was collecting cow-dung cakes in the forest near the village Moregaon. At that time she was accompanied by her two sisters Sukamabai and Rukhabai and one Nanibai; Ramubai sat down to attend call of nature and the companions went a little ahead when both the accused came and at the instigation of accused Sukhram, accused Kamal gave blow with a spade on the head of Ramubai whereupon she fell down; and the accused persons ran away from the spot; the incident was witnessed by the said Sukmabai, Rukhabai and Nanibai. FIR Ex.P/5 was recorded at the said police out post at 3 p.m. on 12.12.2001; this FIR was recorded at the instance of Sukmabai; investigation followed and spot map was prepared etc. On this material the prosecution sought conviction of both the accused as mentioned above. 5. The accused abjured their guilt and pleaded that they were innocent and had been falsely implicated. They have examined 3 witnesses in defence. 6. On this material the prosecution sought conviction of both the accused as mentioned above. 5. The accused abjured their guilt and pleaded that they were innocent and had been falsely implicated. They have examined 3 witnesses in defence. 6. The trial Court on the material on record acquitted both the accused of all the charges. The trial Court has given both the accused persons benefit of doubt. Aggrieved by the acquittal the State has come in appeal. The main grounds urged in the memo of appeal are that though Ramubai was the wife of accused Sukkhram, the accused had left her and had remarried another woman; that since then Ramubai was staying with her father and she had filed claim for maintenance against her husband. With this back-ground both accused on the date of incident came to the spot and Sukhram exhorted accused Kamal to kill Ramubai, whereupon the accused Kamal struck a blow on the head of Ramubai with a spade. Ramubai fell down and expired after some time. The trial Court had erred in disbelieving eye witnesses Sukmabai (PW5) and Rukhabai (PW8); it also erred in not accepting the supporting autopsy report; the trial Court erred in holding that there was delay in recording the FIR which had case doubts on the testimonies of the eye witnesses and the trial Court failed to consider evidence on record explaining the delay. For these reasons, State argued that the judgment of the trial Court was erroneous and deserved to be set aside, and the accused persons be punished on the charges framed against them. 7. The Supreme Court in State of Uttar Pradesh v. Gobargan and others (2013)14 SCC 751 has laid down sufficient guidelines for interference by the superior Court against order of acquittal. It is there held that in an exceptional cases where there are compelling circumstances to interfere and the judgment under appeal is found to be perverse, can the appellate Court interfere with order of acquittal. Further held that it should be borne in mind the presumption of innocence of the accused which is bolstered up by the acquittal. With these guidelines in mind let us now examine the evidence on record to see whether case for interference is made out or not. Further held that it should be borne in mind the presumption of innocence of the accused which is bolstered up by the acquittal. With these guidelines in mind let us now examine the evidence on record to see whether case for interference is made out or not. The evidence of Sukmabai, real sister of the deceased who claims to have been present at the time of the incident has this to say: both the accused persons came to the spot and at the instance and instigation of accused Sukhram the accused Kamal struck spade blow on the head of Ramubai; thereafter both the accused filed leaving the spade behind. There is no substantial support to this evidence of Sukmabai in the evidence of Rukhabai her sister (PW8) and an independent witness Nanibai (PW7). Nanibai disclaim any knowledge of the case in hand and she was confronted her case dairy statement seeking to impeach her credit. The fact however remains that there is no independent corroboration of evidence of Sukmabai. The evidence of Rukhabai (PW8) significantly is silent on the part played by Sukram when she states that both accused persons came to the spot and the accused Kamal struck Ramubai on the head with a spade. No word about instigation or abetment by accused Sukhram in her testimony. In this state of affairs it cannot be said that the trial Court erred in giving benefit of doubt to both the accused. 8. As regards the medical evidence touched upon by the State, this by itself does not lead to the conclusion of guilt of particularly accused No.1. Hence according to us this contention of the appellant State has no force. 9. As regards the delay in the FIR this point is also of little or no value since the incident took place on 11.12.2001 at about 3 p.m. and the FIR Ex.P/5 was recorded in the early hours at 3 a.m. on 12.12.2001. That apart, the evidence of Sukmabai shows that the police officer in the Police out post instead of recording the FIR straight away asked her to go and look after the victim. We find that there was no delay in recording the FIR, and even if there was delay that stands explained. Another circumstances to be considered is the finding of blood stains on the seized spade per report Ex.P/17. We find that there was no delay in recording the FIR, and even if there was delay that stands explained. Another circumstances to be considered is the finding of blood stains on the seized spade per report Ex.P/17. But this finding in absence of Serologist Report is of no value. As it is the document Ex.P/17 was unable to clarify about origin of the blood stains and the blood group thereof. 10. From what has been discussed above it is amply clear that the trial Court judgment giving benefit of doubt to both the accused cannot be said to be perverse or calling for interference by the appellate Court. We are therefore very clear that this appeal is devoid of merit and has to be dismissed. 11. Ordered accordingly.