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Madhya Pradesh High Court · body

2017 DIGILAW 1038 (MP)

Rataniya v. State of M. P.

2017-09-26

VED PRAKASH SHARMA, VIVEK RUSIA

body2017
JUDGMENT Rusia, J. -- 1. The appellants have filed the present appeal being aggrieved by judgment dated 29.6.2006 by which they have been convicted under section 302/34 of IPC and sentenced to undergo life imprisonment with fine of Rs.1,000-00, with default stipulation. 2. That late Premsingh and appellant No.1 Rataniya are real brothers and appellant No.2 is the wife of late Prem singh . A FIR was lodged by Dilu s/o late Premsingh in a Police Station Ambua, District Jhabua on 31.10.2005 which was registered as Crime No.166/2005 and according to which on 30.10.2005 near about 8.00 PM in the night that his mother Chhaganibai appellant No.2 went with appellant No.1 Rataniya appellant No.1 to do the labour job despite objection taken by his father Premsingh . They did not return in the night and came back to the house next day in the evening. When late Premsingh was sleeping inside the room, appellant No.1,the appellant Rataniya came running inside the house with the knife in his hand, the appellant No.2 Chhaganibai caught hold legs of Premsingh and Rataniya has cut his throat from the knife. 3. After registration of the FIR (Ex.P-1), the investigation set into the motion. The statement of Heeru was recorded as Ex.P-2. The Rataniya was arrested vide Arrest Memo Ex.P-3. The Chhaganibai was also arrested vide Arrest Memo Ex.P-4. The knife, containing the blood stains, was seized vide Ex.P-6. The body was sent for postmortem and as per Ex.P-9 Dr. P. Dhoke conducted autopsy on the dead body and vide postmortem report Ex.P-10 found following injuries on the body of deceased : “Injury : (1) Stab wound over next just above the stream mid line 3×2 cm× deep up to vertebral color. Internal (1) Trachea and asphyxia cut down. (2) Thyroid cartilage cut down. (3) Great vessel of neck – right side cut down.” In the opinion of the Dr.P.Dhoke Premsingh died due to cardiac respiratory failure due to shock and hemorrhage due to injury on throat caused by the knife. During the course of the investigation, the Spot map was prepared vide Ex.P-12. The hearth containing blood stained was recovered vide Ex.P-13. The clothes of Premsingh were kept in the sealed bag vide Ex.P/14 and all the seized articles were sent to FSL, Rau, Indore vide Ex.P-15. The witnesses were interrogated by police. 4. During the course of the investigation, the Spot map was prepared vide Ex.P-12. The hearth containing blood stained was recovered vide Ex.P-13. The clothes of Premsingh were kept in the sealed bag vide Ex.P/14 and all the seized articles were sent to FSL, Rau, Indore vide Ex.P-15. The witnesses were interrogated by police. 4. After completing the standard investigation, challan was laid filed before the Court of Judicial Magistrate, First Class for the offence under section 302/34 of IPC against both the appellants. The JMFC after complying with provisions of section 207 of the CrPC committed the case to the court of Sessions for trial. A charge under section 302/34 of IPC was framed against the appellants who abjured the guilt and prayed for trial. 5. The case of prosecution as per challan, is that on 30.10.2005 near about 8.00 PM when all the labours have returned to village, both the appellants did not return on the same night but they returned on the next day evening The Prem sing questioned the Rataniya as to why they did not return along with the other villagers and he made aspersion on her character and slapped her also. The appellant Rataniya came running inside the house with the knife in his hand and appellant No.2 Chhaganibai has caught hold legs of Premsingh and Rataniya has cut his throat from the knife . At that time Dilu and Jogdi Bai were there and appellant Rataniya has threatened them not to make noise. 6. In support of the challan, the prosecution examined Dilu as (PW1). At the time of statement in the Court, he was aged 8 years and the Court has put certain questions and found him capable of giving the statement in the Court. The (PW1) Dilu has seen the entire incident and exactly narrated in the Court. He has also made allegation against his own mother that she is having illicit relations with appellant No.1 and due to which both have killed his father Premsingh. The prosecution has examined Jogdi Bai as (PW2) who was aged about 13 years and who has also supported the prosecution story as an eye witness. Heeru s/o Nahlo was examined as PW3 who has turned hostile. Another witness Surpal was examined as (PW4) who has also turned hostile. Dr. The prosecution has examined Jogdi Bai as (PW2) who was aged about 13 years and who has also supported the prosecution story as an eye witness. Heeru s/o Nahlo was examined as PW3 who has turned hostile. Another witness Surpal was examined as (PW4) who has also turned hostile. Dr. P. Dhoke was examined as (PW5) who examined the dead body on the same day of the incident and stated that Premsingh died due to cardiac arrest and excessive bleeding due to the injury received by the sharp edged weapon. K.S.Bhadoriya, Investigating Officer was examined as (PW6). In defence, the appellants did not examined any witness. The appellants were examined under section 313 of CrPC with regards to incriminating circumstances appearing against them in the prosecution evidence. Appellant No.1and 2 have claimed that he has been falsely implicated. 7. The learned Sessions Court vide judgment dated 29.6.2006 has held them guilty of the murder of Premsingh hence convicted and sentenced them as stated above. Appellants have filed the present appeal before this Court. 8. The appellants have challenged the conviction and sentence on the ground that (PW1) and (PW2) are related witnesses and other independent witnesses have turned hostile. Therefore, the entire conviction cannot be solely based on statements of (PW1) and (PW2) who were minor at the time of incident. It has also been suggested that Rataniya has sold the bullock-cart of Premsingh and usurp the money ,there was a serious dispute between them, therefore, Rataniya has been falsely implicated. The learned Sessions Court has over looked this defence taken by the appellant. The material witness Baba Kanaksingh and sister Ajma have not been examined in the Court. The (PW3) and (PW4) did not support the prosecution case. Therefore, the conviction is bad-in-law and liable to be set aside. 9. That (PW1) Dilu, son of deceased late Premsingh and appellant No.2 Chhaganibai, in his deposition has stated that his mother was having affair with his uncle appellant No.1 Rataniya and both have committed the murder of his father. When his father was sleeping and mother was also there, appellant No.1 Rataniya came by running with a knife in his hand and his mother has caught hold both the legs of Premsingh and appellant Rataniya has inflicted the injury on his throat and ran away. When his father was sleeping and mother was also there, appellant No.1 Rataniya came by running with a knife in his hand and his mother has caught hold both the legs of Premsingh and appellant Rataniya has inflicted the injury on his throat and ran away. In cross-examination, in para 7, he stated that his father was not happy with his mother because she used to talk his uncle and due to which he tried to assault her and his mother and cousin sister Jogdi Bai has left the house and they both did not return the home. He has further admitted that Motesingh of Village Ajmeri has threatened his father to kill him. He has further stated that when he was sleeping inside the house, his uncle Kanaksingh has told him that his father has died. Therefore, in cross-examination, he has changed his version and according to which he was not present at the time of incident. 10. Likewise (PW2), who is niece of appellant Rataniya, has stated that when Rataniya came inside the house with knife, her Mami i.e. Chhaganibai was out side the home, she further stated that Chhaganibai has caught hold the legs of Premsingh and appellant Rataniya has inflicted the injury by knife and thereafter Rataniya ran away. In cross-examination, she has stated that Rataniya has sold the bullock-cart of Premsingh and usurp the money and there was a serious dispute between them due to selling of bullock-cart. She admitted that Premsingh has assaulted Chhaganibai and thereafter, they both ran away from the house and did not return till the night. In para 7 she has further stated that when late night she came to the house,Mama Premsingh was lying on the bed and along with her Chhaganibai was there. Therefore, like (PW1) she has also partially changed her version in cross-examination. The independent witnesses (PW3) and (PW4) have out rightly rejected the case of the prosecution and turned hostile. In cross-examination also questions were put by the AGP but they did not change their version. They have denied their signatures over the seizure memo also. 11. Therefore, like (PW1) she has also partially changed her version in cross-examination. The independent witnesses (PW3) and (PW4) have out rightly rejected the case of the prosecution and turned hostile. In cross-examination also questions were put by the AGP but they did not change their version. They have denied their signatures over the seizure memo also. 11. That as per the statements of (PW1) and (PW2), Premsingh was not happy with the relation of appellants.They have gone out side the village for doing work and did not return along with other villagers on the same day but they return next day in the evening and (PW2) has stated that because of which there was a quarrel between Premsingh and his wife Chhaganibai and thereafter she left the house along with (PW2) and they remain out till night and when returned, they have been informed that Premsingh has expired. That (PW1) has also stated that when he was sleeping, his uncle has informed him that his father has expired. They have also stated that there was a dispute between Premsingh and Rataniya because Rataniya has sold his bullock-cart without his permission and consumed the money. The other family members were also not happy with the relation of appellants. The story of prosecution also does not inspire confidence that appellant No.1 Rataniya would come to the house of appellant and caused the murder in presence of all family members due to his illicit relation with appellant No.2. The witnesses, (PW1) and (PW2), are related witnesses to the accused as well as to the deceased and at the time of incident they were minor aged about 8 and 13 years and there was a possibility that they have supported the prosecution case under pressure. Kanaksingh an adult member was present in the house at the time of the incident, but he was not examined by the prosecution who could be the material witness. Therefore, the appellants are entitled to the benefit of a doubt. The prosecution has failed to prove the case beyond all reasonable doubt. 12. In the result, this appeal is allowed. The conviction and sentence passed against the appellants are set aside. The appellants are acquitted of the charge under section 302/34 of IPC. They are in jail. They be released forthwith, if not required in other case.