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2016 DIGILAW 626 (MP)

State of M. P. v. Khunna @ Girish Kumar

2016-07-28

N.K.GUPTA, VIVEK AGARWAL

body2016
JUDGMENT Gupta, J. -- 1. The State has preferred the preset appeal, being aggrieved with the judgment dated 15.5.2001, passed by Third Additional Sessions Judge, Morena (M.P.) in Sessions Trial No.226/1993, whereby the respondent has been acquitted from the charges of sections 393 and 302/34 of IPC. 2. Prosecution case, in short, is that on 12.5.1993 at about 2:45 a.m. the deceased Ishwar Kunwar went to the police station Matabasiya in an injured condition and lodged the FIR Ex.P-7 that when in the previous night she was sleeping in her house, the respondent Khunna @ Girish Kumar along with Vijay Singh entered into the house and tried to snatch her golden ornaments from her ear. On her shouting, the respondent Khunna held the deceased Ishwar Kunwar and Vijay Singh assaulted with a dagger causing several injuries to her. After registration of FIR, Ishwar Kunwar was sent for medico-legal examination by a requisition letter Ex.P-10. However, she could not have been taken for medical examination because she had already died. Her body was sent for post-mortem. Dr. P.K. Singh Tomar (PW7) performed the post-mortem on the dead body on 12.5.1993 and gave a report Ex.P-5. He found as many as four injuries to the deceased. One incised wound was found on her right thigh, whereas one incised wound was found on her left leg; one lacerated wound was found on her left forearm, and one stab wound was found on her left chest. By this fourth injury, her left lung was found torn and a huge blood was found on her left chest cavity. According to the doctor, the deceased Ishwar Kunwar had died due to haemorrhage to her left lung and consequential haemorrhage. After due investigation, the charge-sheet was filed before the Magisterial Court, who committed the case to the Sessions Court and ultimately, it was transferred to the Third Additional Sessions Judge, Morena. 3. The respondent in the statement under section 313 of CrPC abjured his guilt. He took a plea that the deceased Ishwar Kunwar was his aunt and her property may not be released in the name of the respondent, a false case was lodged by the complainant party. However, no defence evidence was adduced. 4. During the pendency of trial, the main accused Vijay Singh has expired and, therefore, his name was deleted as an accused. However, no defence evidence was adduced. 4. During the pendency of trial, the main accused Vijay Singh has expired and, therefore, his name was deleted as an accused. The Third Additional Sessions Judge, Morena after considering the prosecution evidence, acquitted the respondent Khunna from the aforesaid charges. 5. We have heard the learned counsel for the parties at length. 6. Mainly, the present case is dependent upon the circumstantial evidence. There is no ocular evidence in the case. The circumstantial evidence is produced basically on the dying declaration given by the deceased. First dying declaration was recorded as an FIR Ex.P-7 whereas the witnesses, namely, Vimla Bai (PW3), Mulayam Singh (PW5) and Ram Singh (PW6) have also told about her oral dying declaration given against the respondent. The witnesses Vimla Bai (PW3), Mulayam Singh (PW5) and Ram Singh (PW6) have tried to create a new story that when they reached the spot, they saw the respondent Khunna and Vijay Singh leaving the spot. However, no such story has been told by these witnesses in their case diary statements. Vimla Bai has claimed that she was sleeping in her house in a room of first floor and thereafter, she went on the terrace and by jumping on the terrace of the accused Vijay Singh, she went to the terrace of the deceased Ishwar Kunwar and thereafter, she got down to the spot with the help of a staircase. However, such statement was not given by the witness Vimla Bai in her case diary statement Ex.D-1. On the other hand, neither Mulayam Singh nor Ram Singh has accepted that Vimla Bai went through the terrace. According to them, when she heard cries of the deceased Ishwar Kunwar she came down in her own house and came out in front of the house and thereafter, all the witnesses went to the house of Ishwar Kunwar from the front gate which was lying open. Since the witnesses did not state before the police that they saw the accused persons leaving the spot, therefore, their such statements before the Court are not acceptable and it cannot be accepted by their evidence that they had seen the respondent while he was leaving the spot. 7. The written dying declaration Ex.P-7 was registered by the SHO, Shri D.V.S. Bhadoriya (PW8). 7. The written dying declaration Ex.P-7 was registered by the SHO, Shri D.V.S. Bhadoriya (PW8). According to that FIR, it is mentioned that the culprits tried to snatch the ornaments of Ishwar Kunwar and thereafter, Vijay Singh assaulted by dagger on her left thigh, left hand and chest. Since Vijay Singh has already expired during the trial, now, only the overt act of the respondent Khunna is to be considered. According to the FIR, there was no allegation against the respondent Khunna that when Vijay Singh assaulted the deceased Ishwar Kunwar the respondent Khunna held her. The deceased Ishwar Kunwar if had lodged the FIR then she did not mention any role of the respondent Khunna in killing the deceased Ishwar Kunwar and, therefore, that dying declaration Ex.P-7 is not at all helpful to the prosecution against the respondent. 8. Also Dr. P.K. Singh Tomar (PW7) has accepted in paragraph 11 of his cross-examination that the injury caused to the left lung of the deceased was grave and cut was big and due to profuse bleeding she would have died within a few minutes of the incident. He found the chest cavity filled up with the blood. According to the FIR Ex.P-7, the incident took place at about 1:00 a.m. in the night whereas the FIR was lodged at 2:45 a.m. in the night and according to Dr. Tomar’s opinion, it was not possible for the deceased Ishwar Kunwar to lodge the FIR after one hour and forty-five minutes of the incident. In this connection, the requisition prepared by the Investigating Officer, Ex.P-10 is important. The requisition was filled up for medico-legal examination of the deceased Ishwar Kunwar but thereafter, no remark has been noted on the back of that MLC application that whether she was brought dead to the hospital or she died during her transportation from the police station to the hospital. Due to non-mentioning of note on the back of the document Ex.P-10, it is clear that when that requisition form was filled up, the Investigating Officer knew that the deceased Ishwar Kunwar had already died and filling up the requisition form Ex.P-10 was a formality to show that the FIR Ex.P-7 was correct and lodged by the deceased Ishwar Kunwar herself. According to Dr. According to Dr. Tomar, Ishwar Kunwar would have died within a few minutes after the incident and it was not possible for her to lodge an FIR after one hour and forty-five minutes. It is shown that Ishwar Kunwar was an illiterate woman of old age and, therefore, she appended her thumb impression but possibility cannot be ruled out that the FIR was lodged by SHO Shri Bhadoriya with the help of Mulayam Singh and Ram Singh and thereafter, thumb impression of the deceased Ishwar Kunwar was taken with the help of her dead body. In these circumstances, the dying declaration as mentioned in the FIR Ex.P-7 is not at all trustworthy and the trial Court has rightly discarded the said written dying declaration. 9. Vimla Bai (PW3), Mulayam Singh (PW5) and Ram Singh (PW6) have stated that the deceased Ishwar Kunwar told them that she was sleeping in her house and the respondent Khunna and accused Vijay Singh went inside the house and tried to snatch her ornaments. Thereafter, they assaulted her brutally. As discussed above, story of Vimla Bai is not true. She had exaggerated her approach to the place of incident. According to the statements of these witnesses, it appears that Vishambar, husband of Vimla Bai was adopted by the deceased Ishwar Kunwar and, therefore, Vimla Bai was made main witness of the case. However, it is also accepted by the witnesses that after death of the deceased Ishwar Kunwar, Ram Singh and Mulayam Singh had captured her house and they started residing in her house whereas they have accepted that various disputes relating to mutation of agricultural property of the deceased were pending before the concerning revenue officer. It is apparent that if Vishambar, husband of Vimla Bai was taken by the deceased Ishwar Kunwar as her adopted child, then if Vishambar was working at Morena in State Transport Corporation, then on adoption Vimla Bai would have resided with the deceased Ishwar Kunwar. No document relating to adoption has been shown to the Investigating Officer. Since Ishwar Kunwar was residing in her house all alone, it indicates that other relative of the deceased Ishwar Kunwar was claiming her property by various ways and the story of adoption is not true. In FIR Ex.P-7 if it was lodged by the the deceased Ishwar Kunwar, she did not mention that Vimla Bai was wife of her adopted son. In FIR Ex.P-7 if it was lodged by the the deceased Ishwar Kunwar, she did not mention that Vimla Bai was wife of her adopted son. She had mentioned that Vimla Bai was wife of her nephew. If that report was prepared by the witnesses Ram Singh and Mulayam Singh with the help of SHO Shri Bhadoriya, then still they indicate Vimla Bai to be wife of nephew of the deceased Ishwar Kunwar and, therefore, the story of alleged adoption was not at all established. 10. In these circumstances, the situation was such that any of the persons who could get the property of the deceased Ishwar Kunwar could kill her and blame would have been placed upon the rival claimants. In these circumstances, the testimony of Vimla Bai, Ram Singh and Mulayam Singh is to be considered with great caution because possibility cannot be ruled out that they took advantage of death of the deceased Ishwar Kunwar and implicated the rival claimants. 11. As discussed above, the witnesses could not see any person leaving the house when they reached the spot. Their evidence may be considered only for the oral dying declaration given by the deceased Ishwar Kunwar. A lengthy cross-examination has been done by the defence counsel on these witnesses which indicates that the testimony of these three witnesses was not at all reliable. They improved the story that the deceased told them that the respondent Khunna held the deceased Ishwar Kunwar and then Vijay Singh assaulted her but if she would have told such story about the overt act of the respondent Khunna then, there was no reason that such story would have been narrated in the FIR Ex.P-7. Under these circumstances, the evidence given by these witnesses cannot be accepted to that portion of the facts that the respondent Khunna held the deceased when co-accused Vijay Singh assaulted her with a dagger. By mere presence of a person his common intention cannot be presumed with the co-accused. If the prosecution story is accepted as it is, then the respondent Khunna and co-accused Vijay Singh entered into the house to snatch the ornaments of the deceased Ishwar Kunwar. It is not proved by the prosecution that the respondent Khunna had any knowledge that the co-accused Vijay Singh had a dagger at that time. If the prosecution story is accepted as it is, then the respondent Khunna and co-accused Vijay Singh entered into the house to snatch the ornaments of the deceased Ishwar Kunwar. It is not proved by the prosecution that the respondent Khunna had any knowledge that the co-accused Vijay Singh had a dagger at that time. Under these circumstances, if the improvement done by the witnesses is discarded, then there is no evidence to show the common intention of the respondent Khunna for crime undersection 302 of IPC. The trial Court has rightly acquitted the respondent Khunna from the charge of section 302 read with section 34 of IPC. 12. A charge under section 393 of IPC was also appended against the respondent. However, it is strange that if two stout youths went inside the house to snatch the ornaments of the deceased Ishwar Kunwar, who was aged 75 years at that time and they could not remove a single ornament from the place where those were found on the person of the deceased Ishwar Kunwar. The witnesses Vimla Bai (PW3), Mulayam Singh (PW5) and Ram Singh (PW6) have accepted that there was no sign of snatching the earrings, ear-tops, nose-pin etc. Dr. Tomar did not find any injury on ear and nose of the deceased. If two stout persons were in a position to stanch the ornaments of the deceased, then one would have kept hand on mouth of the deceased and another would have snatched the ornaments. On the other hand, if Panchnama lash Ex.P-12 is perused then it was mentioned in that document that four golden earrings, two golden tops, one golden nose-pin, two silver bangles and seven silver lachhies found on the legs of the deceased were available on the body of the deceased. At this stage, it is to be mentioned here specifically that the Investigating Officer did not show any seizure of such ornaments and there is no document on record as to how those ornaments were disposed off. ASI Mahendra Saxena (PW11) could not reply about disposal off those ornaments whereas the witnesses Vimla Bai, Mulayam Singh and Ram Singh have accepted that the police gave such ornaments to them. ASI Mahendra Saxena (PW11) could not reply about disposal off those ornaments whereas the witnesses Vimla Bai, Mulayam Singh and Ram Singh have accepted that the police gave such ornaments to them. It was the duty of the Investigating Officer to recover the ornaments from the body of the deceased and to prepare the seizure memo and thereafter, the competent person would have applied before the Court to get interim custody of the ornaments and at the time of conclusion of the case, the trial Court would have passed an order of final disposal off those ornaments but it would be apparent that ASI Mahendra Saxena (PW11) did not prepare any seizure memo of the ornaments and those ornaments were never produced before the Court and he gave the ornaments to Vimla Bai etc. whereas he was not competent to do so. Under these circumstances, connivance of the Investigating Officer is very well on record and the testimony of these three witnesses namely, Vimla Bai (PW3), Mulayam Singh (PW5) and Ram Singh (PW6) does not attract any trust upon their evidence. 13. Possibility cannot be ruled out that when they went to the house of Ishwar Kunwar they found her dead and therefore, a story was cooked and FIR Ex.P-7 was lodged at a time. A case was prepared by the police according to wishes of Mulayam Singh and Ram Singh. Hence, there are lot of contradictions and developments of various facts visible in the evidence of Vimla Bai, Mulayam Singh and Ram Singh. Under these circumstances, it cannot be accepted beyond doubt that the deceased Ishwar Kunwar had stated before these witnesses that the respondent Khunna have tried to snatch her ornaments. As discussed above, if the ornaments had been tried to be snatched by them, some injuries would have been caused to the deceased on her ears and nose or two stout persons would have snatched the ornaments forcefully. Hence, the allegation under section 393 of IPC appears to be a falsehood. The trial Court has rightly acquitted the respondent Khunna from the charge of section 393 of IPC. 14. On the basis of aforesaid discussion, there is no reason to allow the State appeal or to interfere in the impugned judgment passed by the trial Court. Consequently, the appeal filed by the State is hereby dismissed. The judgment passed by the trial Court is hereby confirmed. 15. 14. On the basis of aforesaid discussion, there is no reason to allow the State appeal or to interfere in the impugned judgment passed by the trial Court. Consequently, the appeal filed by the State is hereby dismissed. The judgment passed by the trial Court is hereby confirmed. 15. The respondent Khunna is on bail, his presence is no more required and, therefore, it is directed that his bail bonds shall stand discharged. 16. Copy of the judgment be sent to the trial Court along with its record for information.