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2015 DIGILAW 73 (CHH)

Ramdev v. State of Madhya Pradesh

2015-03-02

NAVIN SINHA, P.SAM KOSHY

body2015
Order Navin Sinha, J. 1. On the appeal being called out, no one appeared on behalf of the Appellant despite the fact that we had granted bail to him on the assurance and undertaking of the Learned Counsel that he would be properly represented. Since the appeal was of the year 2000, we were not inclined to adjourn the matter. Shri G.P. Kurrey, Panel Lawyer of the High Court Legal Services Committee who was present in Court was requested by us to render his assistance in consideration of the appeal. Shri Kurrey has given us valuable assistance on the basis of which we have been able to adjudicate and dispose the appeal. The Appellant stands convicted under section 302 IPC to life imprisonment with fine of Rs. 200/- and under section 201 IPC to seven years rigorous imprisonment. In the event of failure to pay fine, he was required to undergo two years further rigorous imprisonment ordered by the Second Additional Sessions Judge, Ambikapur, Surguja on 03.12.1999 in Sessions Trial No. 375 of 1996. 2. The deceased Dokra Bai was the wife of the Appellant Bodhan, PW-1, the father of the deceased lodged a Rojnamchasanha on 15.3.1994 that the Appellant had kept the deceased as his wife. The witness received information in the evening on 13.3.1994 that she had died. Visiting her matrimonial home, he found her lying on the ground and saw injury marks. He asked the Appellant not to dispose the body as he was going to call the villagers. The Appellant is alleged to have nonetheless disposed the body. FIR was registered on 12.4.1994 as Crime No. 52 of 1994, marked Exhibit P-6, proved by N.P. Upadhyay, PW-11, the Investigating Officer. PW-11 visited the site where the body of the deceased was alleged to have been burnt. The spot map marked Exhibit P-10 was proved by PW-11 who seized pieces of broken bangles, a broken stick, marked Exhibit P-4 alongwith burnt coal, ashes and bones of the deceased as also a can of kerosene oil marked Exhibit P-3 in presence of independent witnesses Suddhulal, PW-8 and Pandit Singh. It was sent to a Doctor in the Anatomy department for opinion, marked Exhibit P-8, who did not give any opinion and opined that it be sent to an Orthopedic for proper opinion. 3. Learned Counsel for the Appellant submitted that there is no eyewitness to the occurrence. It was sent to a Doctor in the Anatomy department for opinion, marked Exhibit P-8, who did not give any opinion and opined that it be sent to an Orthopedic for proper opinion. 3. Learned Counsel for the Appellant submitted that there is no eyewitness to the occurrence. The prosecution witnesses have stated that relations between the deceased and the Appellant were cordial and they lived peacefully as man and wife. More than one prosecution witness has stated that the deceased had a weak constitution, was ill and that the Appellant was having her treated. There is no voluntary extra-judicial confession by the Appellant which in any event is a very weak piece of evidence requiring corroboration. The possibility that the deceased died a natural death due to illness cannot be ruled out. There is no medical opinion with regard to the seized bones, whether they were human or not much less that the ashes were human. The bones were never sent to the Orthopedic as opined by the Doctor at the hospital where PW-11 had sent it apparent from Exhibit P-14, proved by PW-11. In the facts and circumstances of the case and nature of evidence available, no conclusive opinion is possible that the deceased died of any assault attributable to the Appellant and that the bones allegedly recovered were human in nature. There is no explanation given for the delay, of one month in registering the FIR which itself is fatal to the prosecution case. It cannot be said that the prosecution has established beyond all reasonable doubt that the Appellant is the assailant of the deceased. The Appellant is entitled to the benefit of doubt. 4. Learned Counsel for the State, opposing the appeal submitted that the deceased and the Appellant lived as man and wife. If she died in the house of the Appellant, it is for him to offer explanation for her death including any illness that she may have been suffering from. In his explanation under section 313 Cr.P.C., he has not put forth any defence of natural death. His conduct in absconding after her death is abnormal which raises suspicion against him. He has made an extra-judicial confession to more than one witness. PW-2 has stated having been an eye-witness to the assault. The conviction calls for no interference. 5. In his explanation under section 313 Cr.P.C., he has not put forth any defence of natural death. His conduct in absconding after her death is abnormal which raises suspicion against him. He has made an extra-judicial confession to more than one witness. PW-2 has stated having been an eye-witness to the assault. The conviction calls for no interference. 5. We have considered the submissions on behalf of the parties and perused the evidence on record. 6. Bodhan, PW-1, was the father of the deceased who stated that she had a live-in-relationship with the Appellant and they were living together for a long as man and wife. The witness has not deposed of any past conduct of the Appellant in assaulting the deceased or that the relationship between them was not cordial but estranged. The witness acknowledges that he was informed that his daughter had died and he came to her matrimonial home. In cross-examination, he admitted that the Dhobi had come and informed him. The possibility that the information was sent by the Appellant himself, cannot be completely ruled out in the facts and circumstances of the case. PW-2, Sonkunwar, was the Ghowkidar of the village. She claims to have witnessed the Appellant assaulting the deceased with a stick at about 4 p.m. but herself stated that subsequently the same evening, she saw the deceased and the Appellant talking to each other. The Appellant was drunk and he allegedly asked the witness to wake up his wife, when she realized that the latter was dead. In cross-examination, the witness acknowledged that the Appellant and the deceased lived peacefully for the last 10-15 years and there was no acrimony between them. She acknowledged that she had not eye-witnessed any assault on the deceased by the Appellant. PW-3, Amuliya Bai, likewise stated that she had not seen the Appellant assaulting the deceased, but told him to get his wife treated properly and claimed to have seen injury marks on the person of the deceased. In cross-examination, she stated that the Appellant came with food for the deceased and that they lived as normal husband and wife for a long period of time. PW-4, Ram Bai, contrary to the evidence of PW-2 and PW-3, stated that she met the Appellant and the deceased on the road when the Appellant was assaulting the deceased. In cross-examination, she stated that the Appellant came with food for the deceased and that they lived as normal husband and wife for a long period of time. PW-4, Ram Bai, contrary to the evidence of PW-2 and PW-3, stated that she met the Appellant and the deceased on the road when the Appellant was assaulting the deceased. In cross-examination, she acknowledged that the Appellant was having the deceased treated for the ailment and also that both the husband and wife were drunk when she met them by the road side. PW-5, Dayaram also acknowledges not having eye-witnessed any assault. More importantly, in cross-examination, he stated that the deceased was thin and of a weak constitution and often sick. PW-6, Dokri is a hear-say witness but in cross-examination stated that she knew the deceased who was thin and of a weak constitution and that he had participated in her funeral rites also. It militates against the evidence of PW-1 that the Appellant disposed the body clandestinely. PW-7, Baisakhi deposed of an extra-judicial confession by the Appellant to him that he had killed his wife. PW-8, Suddhulal was the seizure list witness of the items seized at the place of the cremation. In cross-examination, he admitted that while the seizure was made on the road in between village Chakeri enroute to Pandri, he had signed the papers regarding the seizure at the house of the Chowkidar in village Chakeri. He further deposed that he had not seen any injury marks on the person of the deceased before her death. PW-9 was the Patwari who proved the spot map, Exhibit P-5A prepared by him. PW-10, Anirudh Tiwari proved the Rojnamchasanha, Exhibit P-1, lodged by PW-1 deposed that PW-1 had come with a pre-written report. 7. The nature of evidence and the materials on record disclose that the Appellant and the deceased were living as man and wife for over 10-15 years. The prosecution witnesses have all stated that the relationship between them were cordial and not estranged. The father of the deceased, PW-1 has also not stated of any acrimonious relationship between the Appellant and the deceased. More than one prosecution witness has stated of the deceased being sick and of a weak constitution undergoing treatment. The Appellant is stated to have been looking after the deceased by having her treated for her ailment. The father of the deceased, PW-1 has also not stated of any acrimonious relationship between the Appellant and the deceased. More than one prosecution witness has stated of the deceased being sick and of a weak constitution undergoing treatment. The Appellant is stated to have been looking after the deceased by having her treated for her ailment. Even the place of assault as the house of the Appellant becomes a disputed fact because of the evidence of PW-4 that she met the Appellant and the deceased by the road side where the latter was being assaulted by the Appellant. The allegation that he clandestinely burnt the body stands falsified by the evidence of PW-6 deposing that he had participated in the funeral rites of the deceased. 8. The occurrence is stated to have taken place on 12.03.1994. PW-1, father of the deceased acknowledges having been informed by the Dhobi of the assault on his daughter. Yet he lodges a pre-written report before the police three days later on 15.03.1994 with no explanation for the delay. If that were not enough, it was formally registered as FIR on 12.04.1994 and investigation commenced. If the deceased had been assaulted on 12.03.1994 and even after lodging of the Rojnamchasanha on 15.03.1994 is accepted, there had to be some explanation either from PW-1 or PW-11 why investigation commenced one month later on 12.04.1994. No explanation whatsoever has been furnished either by PW-1 or PW-11. The alleged seizure of the broken bangles, ashes, can of kerosene is of no consequence in view of any evidence that the ashes found at the place of cremation were human. The bones allegedly seized by PW-11 were sent to the Professor of Anatomy who did not give any opinion that they were human bones and suggested that it be sent to an Orthopedic. There is no report thereafter. It has not been conclusively established that the bones and remains discovered were human. 9. That leaves only the extra-judicial confession allegedly made by the Appellant to PW-7. He did not make any voluntary confession to PW-3 and on the contrary is alleged to have replied on a query made by the witness. That does not qualify as a voluntary extra-judicial confession. The only voluntary extra-judicial confession alleged against Appellant is by PW-7. 9. That leaves only the extra-judicial confession allegedly made by the Appellant to PW-7. He did not make any voluntary confession to PW-3 and on the contrary is alleged to have replied on a query made by the witness. That does not qualify as a voluntary extra-judicial confession. The only voluntary extra-judicial confession alleged against Appellant is by PW-7. An extra-judicial confession by itself is a weak piece of evidence and cannot be substantive evidence for conviction unless it is coupled with other corroborative evidence like recovery of weapons of assault or the voluntary extra-judicial confession itself corroborated by more than one witness, truthful in nature. 10. In the entirety of the facts and circumstances, it cannot be said that the prosecution has proved beyond all reasonable doubt that the deceased died of any assault attributable to the Appellant and that she did not die a natural death due to illness and that the bones recovered allegedly were human. The benefit of doubt therefore has to be given to the Appellant, who is set at liberty and acquitted, subject to the conditions laid down in Section 437-A of the Cr.P. The appeal is allowed.