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2014 DIGILAW 232 (CHH)

Sunderlal v. State of M. P.

2014-06-24

PRITINKER DIWAKER, YATINDRA SINGH

body2014
Judgment 1. This appeal arises out of the judgment of conviction and order of sentence dated 16.20.1999 passed by the Additional Sessions Judge, Sakti, Distt. Bilaspur convicting the accused/appellant under Section 302 of IPC and sentencing him to undergo life imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo additional RI for two years. 2. In the present case, name of the deceased is Hajari. As per prosecution case, on 16.10.1997 wife of the accused/appellant namely Rajkumari (acquitted accused) asked PW-21 Mograbai, wife of the deceased, to send her husband/deceased to her house in the night at about 9 p.m. It is alleged that in the said night, deceased Hajari had gone to the house of the accused/appellant and when he did not return till 2 am, on the next morning she (PW-21) went in search of him to the house of the accused/appellant, knocked his door, which was not opened and when she entered the house of the accused/appellant from backside of the house she found dead body of her husband Hajari lying there in the kitchen garden of the accused/appellant. Merg intimation (Ex.P/1) was recorded on 17.10.1997 at around 10 am at the instance of village Kotwar Firdas (PW-1). Postmortem on the body of the deceased was conducted on 18.10.1997 by Dr. R.D. Gupta (PW-20) who prepared postmortem report (Ex.P/30) wherein it was mentioned that three ligature marks were found on the neck of the deceased and cause of death is asphyxia due to strangulation. After merg inquiry and receiving the postmortem report, FIR (Ex.P/21) was registered against the accused/appellant on 20.10.1997 for the offence under Section 302 of IPC. After investigation, charge sheet was filed against the accused/appellant and acquitted accused Rajkumari under Section 302/34 of IPC and accordingly, charge was framed against them. 3. In order to hold the accused persons guilty, the prosecution examined 22 witnesses in all. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In defence, they examined one Jhangluram as DW-1. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting accused Rajkumari of all the charges, convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. 5. In defence, they examined one Jhangluram as DW-1. 4. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting accused Rajkumari of all the charges, convicted and sentenced the accused/appellant as mentioned in para-1 of this judgment. 5. Contention of learned counsel for the appellant is as under: (i) that there is no direct evidence against the accused/appellant and he has been convicted solely on the basis of statement of PW-21 Mograbai, which is not at all reliable. (ii) that seizure witnesses PW-4 Piludas and PW-6 Madhoram have not supported the prosecution case, and have been declared hostile, therefore, seizure of nylon rope has not been proved by the prosecution as required under the law. (iii) that dead body of the deceased has been found in an open place and adjacent to the said place there is wall of a school and thus, it can not be said that the dead body was found in the house of the accused/appellant. (iv) that from the memorandum of the accused/appellant (Ex.P/4) it is apparent that the deceased was having illicit relation with the acquitted accused Rajkumari, on the date of incident the accused/appellant had seen the deceased mounting on his wife/Rajkumari and therefore, in the heat of passion, if any offence has been committed by him, the same would not fall within the ambit of Section 302 of IPC. 6. On the other hand, supporting the impugned judgment learned counsel for the State submits as under: (i) that dead body of the deceased has been recovered from the kitchen garden of the accused/appellant and no explanation has been offered by him in this regard. (ii) that on the previous night i.e. 16.10.1997 the deceased was called by the wife of the accused/appellant i.e. acquitted accused in her house and therefore, when on the same night dead body of the deceased was recovered from the kitchen garden of the accused/appellant, it is for him to explain as to how the dead body was recovered from there. (iii) that PW-21 Mograbai while supporting the prosecution case has categorically stated that the acquitted accused had called the deceased in her house on the previous night of the date of incident and there is no evidence on record to show as to why this witness (PW-21) would falsely implicate the accused/appellant. (iii) that PW-21 Mograbai while supporting the prosecution case has categorically stated that the acquitted accused had called the deceased in her house on the previous night of the date of incident and there is no evidence on record to show as to why this witness (PW-21) would falsely implicate the accused/appellant. (iv) that on the basis of memorandum of the accused/appellant (Ex.P/4), seizure of nylon rope has been effected vide Ex.P/6 from the house of the accused/appellant and as per FSL report (Ex.P/29) bloodstain was found on the said rope. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 Firdas, village Kotwar, at whose instance merg intimation (Ex.P/1) was recorded, has stated that he was informed by his wife that dead body of the deceased is lying in the kitchen garden of the accused/appellant. PW-2 Punkumari, a witness to the inquest, has stated that she saw the dead body in the kitchen garden of the accused/appellant. PW-3 Nankibai, step-mother of the deceased, has stated that from his childhood the deceased used to work in the house of the accused/appellant and graze his cattle and thereafter, he also started working as servant in the house of the accused/appellant. She has further stated that Mograbai (PW-21) used to clean cow dunk from the house of the accused/appellant. She is also a witness to inquest and has stated that dead body of the deceased was found in the kitchen garden of the accused/appellant. PW-4 Piludas is a witness to memorandum of the accused/appellant (Ex.P/4) and seizures (Ex.P/5 & P/6). Though he has turned hostile so far as memorandum of the accused/appellant is concerned, but has supported the seizures, whereby nylon rope was recovered from the house of the accused/appellant at his instance. Similar is the position with another seizure witness PW-6 Madhoram. Both these witnesses have admitted their signatures on the memorandum and seizure documents. PW-5 Mehattar is a witness to inquest notice (Ex.P/7) and inquest (Ex.P/8). He is also a witness to spot map (Ex.P/9), seizure memo of dead body (Ex.P/10) and photographs of the dead body. He has supported the prosecution case. PW-7 Samarinbai, relative of the deceased, has been declared hostile. PW-8 Doulatdas, brother of the deceased, found the dead body in the kitchen garden of the accused/appellant. He is also a witness to seizure (Ex.P/11, P/12 & P/13). He has supported the prosecution case. PW-7 Samarinbai, relative of the deceased, has been declared hostile. PW-8 Doulatdas, brother of the deceased, found the dead body in the kitchen garden of the accused/appellant. He is also a witness to seizure (Ex.P/11, P/12 & P/13). PW-9 Chandrashekar Vaishnav, Constable, took the dead body for postmortem, obtained duty certificate and helped in the initial stage of investigation. PW-10 Chandan Singh is a witness who has proved that the dead body of the deceased was found in the kitchen garden of the accused/appellant. He is also a witness to seizure of one letter (Article D/7), however, he could not explain the contents of the said letter, neither the trial Court could found anything incriminating in the said letter. 9. PW-11 Pilaram is a witness to spot map (Ex.P/9), inquest notice (Ex.P/7) and inquest (Ex.P/8). He has duly supported the prosecution case. PW-12 Firtudas found the dead body of the deceased in the kitchen garden of the accused/appellant. However, on the point of seizure he has been declared hostile. PW-13 Bedram and PW-14 Birbal are witnesses to seizure (Ex.P/16) by which underwear, fullpant, shoes and shirt of the deceased were seized. PW-15 Fulsai, a witness to inquest notice (Ex.P/7), inquest (Ex.P/8) and letter seized from the fullpant of the deceased, has duly supported the prosecution case. PW-16 Bhururam is a witness to inquest notice (Ex.P/7) and inquest (Ex.P/8) has also duly supported the prosecution case. PW-17 Dilchandra, Police Constable, who took certain articles for chemical examination and PW-18 B.P. Yadav, A.S.I., the investigating officer, have duly supported the prosecution case. PW-19 A.K. Bajpai, Sub Inspector, who recorded merg intimation (Ex.P/1) has proved the same. PW-20, Dr. R.D. Gupta, Assistant Surgeon, conducted postmortem on the body of the deceased vide Ex.P/30 and found three ligature marks on the neck of the deceased. According to him cause of death was asphyxia due to strangulation. 10. PW-21 Mograbai, wife of the deceased, has stated that she knew the accused persons, on the date of incident at 9 pm acquitted accused Rajkumari had called her husband in the house of the accused/appellant where he was working as servant and had left the job about a year back. She has stated that in the morning she used to go to the house of the accused/appellant to collect cow dunk. She has stated that in the morning she used to go to the house of the accused/appellant to collect cow dunk. When on the previous night she had gone to the house of the accused/appellant, acquitted accused Rajkumari asked her to send her husband at 9 pm. According to this witness, at 9 pm her husband had gone to the house of the accused/appellant, however, she could not tell the reason as to why her husband was called. She has stated that in the night she waited till 2 for return of her husband, however, he did not return in the night and therefore, on the next morning at about 6 am she went to the house of the accused/appellant, knocked his door but the same was not opened and when she had gone to the other side of the house, she saw dead body of her husband lying in the kitchen garden of the accused/appellant. In the cross-examination, this witness has remained very firm and nothing could be elicited from her by the defence which could render her evidence untrustworthy or doubtful. Though there are some minor contradictions in the statement of this witness but they are insignificant in nature and in her cross-examination she has stuck to her statement made in examination-in-chief. 11. PW-22 Kamlesh Kumar, Patwari, has prepared and proved the spot map (Ex.P/33). 12. DW-1 Jhangluram has stated that on 16.10.1997 he had gone to Sakti to purchase ox and there he had met the accused/appellant along with Ishwar, Pardeshi and Govind. He has stated that though ox of the accused/appellant was sold on 16.10.1997 but he stayed at Sakti along with his friend and on 17.10.1997 they returned to their village. In the cross-examination, he has admitted the fact that he had not disclosed to the police that on 16.10.1997 the accused/appellant was with him at Sakti. 13. Minute examination of the evidence makes it clear that on 16.10.1997 wife of the accused/appellant had asked the wife of the deceased (PW-21) to send her husband/deceased at 9 pm to the house of the accused/appellant and accordingly, the deceased had gone to the house of the accused/appellant at 9 pm. When he did not return, he was searched by PW-21 and on the next morning his dead body was found in the kitchen garden of the accused/appellant. When he did not return, he was searched by PW-21 and on the next morning his dead body was found in the kitchen garden of the accused/appellant. PW-21 has fully supported the prosecution case and has deposed against the accused/appellant. Recovery of dead body of the deceased from the kitchen garden of the accused/appellant has been duly proved by the independent prosecution witnesses. In his statement under Section 313 of Cr.P.C. no explanation has been offered by the accused/appellant as to how dead body of the deceased was recovered from his kitchen garden. Moreover, at the instance of accused/appellant (Ex.P/4), one nylon rope was seized (Ex.P/6) and as per FSL report (Ex.P/29) bloodstain was found on the said rope. Seizure witnesses (PW-4 and PW-6) have duly supported the seizure of nylon rope. Thus, taking into consideration the ocular and medical evidence adduced as also the other attending circumstances, we are of the view that the prosecution has been successful in proving the guilt of the accused/appellant beyond reasonable doubt. The trial Court was fully justified in holding the accused/appellant guilty under Section 302 of IPC and sentencing him accordingly. 14. In the result, the appeal being without any substance is liable to be dismissed and it is dismissed as such. The accused/appellant is on bail, therefore, his bail is canceled and he is directed to be taken into custody forthwith for serving out the remaining sentence. Appeal dismissed.