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2017 DIGILAW 668 (MP)

Jayram v. State of M. P.

2017-05-12

ALOK VERMA, VED PRAKASH SHARMA

body2017
JUDGMENT Verma, J. -- 1. This criminal appeal is filed against judgment passed by learned Second Additional Sessions Judge, Khargone in Sessions Trial No.202/2012 dated 17.8.2013, wherein, learned Additional Sessions Judge convicted the present appellant under section 302 IPC and sentenced him to life imprisonment and fine of Rs.20,000/- with default stipulation. 2. The prosecution story in brief is that present appellant and deceased Suklibai are husband and wife. They both went to work as labourer about two years prior to the incident towards Baidiya. They reached back home located at village Semalkut and were staying in house of father of the appellant about four-five days prior to the incident. The incident occurred on 29.8.2012. The other members of family went to the field and working in field. The appellant and the deceased were at home and also Ganji (PW9) – a girl of 10 years was also at home, who is daughter of Tetu – one of the relatives of appellant. The appellant asked his wife to cook food for him, which she refused. On this, he picked up Kharaliya, which is a wooden piece, used in the wheels of bullock-cart and gave one single blow on head of the deceased, due to which, she sustained fatal injury and died. The girl Ganji saw the incident. She informed other members of the family. They reached back to the house and saw the deceased lying injured. When they checked, they found that she had already expired. The appellant fled away and was not found in the house. The matter was reported by Gamar Singh (PW10) – brother of appellant at about 2.30 p.m., while the incident took place at 11.00 a.m. The police reached on the spot and after due investigation chargesheet was filed. 3. Learned Sessions Court framed the charge under section 302 IPC, recorded evidence of prosecution and statement of accused under section 313 CrPC and holding him guilty under section 302 IPC, sentenced him as aforesaid, against which, this jail appeal is filed. 4. Learned counsel for the respondent/State supports the impugned judgment and prays that the same may be affirmed. 5. According to the prosecution story, the sole eye witness of the incident is Ganjibai, who is examined as child witness (PW9). This witness turned hostile. She said that the appellant was also working in the field and her aunt Suklibai (deceased) was at home. 5. According to the prosecution story, the sole eye witness of the incident is Ganjibai, who is examined as child witness (PW9). This witness turned hostile. She said that the appellant was also working in the field and her aunt Suklibai (deceased) was at home. She (Suklibai) climbed up the roof and was trying to take some wood from there for cooking food. She fell down from there and her head hit the ground, due to which, she sustained injuries and died. She was declared hostile and was cross-examined, however, she has not supported the prosecution story. The other witness, who reached on the spot, as per prosecution story, when Ganjibai (PW9) called them also turned hostile. Tetu (PW1), Munsingh (PW2) – father-in-law of the deceased, Kalibai (PW3) – mother-in-law of the deceased, Balibai (PW4) – sister-in-law of the deceased, Ranglibai (PW5) – sister-in-law of the deceased, Suba (PW6) – a neighbour of the deceased also turned hostile and did not support the prosecution story, however, they raised a different story that she fell down while she was trying to take out some wood from roof, where, she climbed up and sustained the fatal injury. Kalu (PW8) is father of the deceased and father-in-law of present appellant. He said that when he heard about the death, he came to the village and he was told that present appellant killed her. Gamari Singh (PW10) also turned hostile. He was also a close relative of the present appellant. Shantaram (PW12) is brother of the deceased. He said that he was told by other villagers, when he reached hearing about death of his sister that present appellant killed her. 6. In this situation, all the material prosecution witnesses turned hostile. Only two witnesses – father and brother of the deceased supported the incident that when they reached hearing the death of deceased, they were told that present appellant killed her. But, this apart, their statement is a hearsay and is not admissible. In this situation, there is no oral evidence available against him. On the contrary, the prosecution witnesses raised a different story that deceased fell down and sustained fatal injury. 7. Learned Additional Sessions Judge pressed into service the legal principle that when there is no oral evidence available, the matter can be decided on circumstantial evidence. In this situation, there is no oral evidence available against him. On the contrary, the prosecution witnesses raised a different story that deceased fell down and sustained fatal injury. 7. Learned Additional Sessions Judge pressed into service the legal principle that when there is no oral evidence available, the matter can be decided on circumstantial evidence. Learned Judge searched the prosecution evidence to find out the circumstantial evidence against the present appellant and found that there are following evidence available against him :- a) His subsequent conduct that he remained absconding after the incident and could be arrested only on 9.9.2012, about 10 days after the incident. According to learned Judge, present appellant evaded his arrest by hiding himself, and therefore, this subsequent conduct can be taken into consideration. b) Learned Additional Sessions Judge found that there was human blood on Kharada, which was seized on disclosure memo given by the accused. c) Learned Additional Sessions Judge believed that part of the story of the prosecution witness, in which, they said that Jayram and the deceased were at home, when the incident took place. Learned Judge relied on the statement of Tetu (PW1), however, some prosecution witnesses said that Jayram was also working in the field. Kalibai (PW2) and Ganjibai (PW9) said that Jayram was not present at home. However, believing Tetu (PW1), the Judge held that present appellant was at home, and, therefore, it was held by the Judge that present appellant was last seen with the deceased. d) The Judge also opined that present appellant was not present when post-mortem was performed on the deceased, which also indicates his guilt. 8. The inferences drawn by learned Additional Sessions Judge do not appear convincing to us. None of the circumstantial evidence, the Judge used to held present appellant guilty, indicates towards guilts of the present appellant. Merely, because present appellant was arrested after 10 days, it cannot be said that he was trying to evade his arrest. There is no evidence of prosecution to show that in spite of best efforts, he could not be traced. The Investigating Officer – R.S. Chari (PW14) only said that he arrested the present appellant on 9.9.2012. Before that why he did not arrest, was not explained by this witness. So far as, human blood on Kharadi is concerned, this is also not a very strong evidence. The Investigating Officer – R.S. Chari (PW14) only said that he arrested the present appellant on 9.9.2012. Before that why he did not arrest, was not explained by this witness. So far as, human blood on Kharadi is concerned, this is also not a very strong evidence. Kharadi is normally available in rural houses, where bullock carts are used. Even, if we believe the alternative story of prosecution witness that deceased fell down, there is a possibility exist that Kharaliya lying nearby got the blood stains. Similarly, his conduct that he was not present at the time of post-mortem was also not very convincing evidence to hold the conviction against him. 9. The prosecution story was based on oral evidence. The story should be proved by the prosecution. In this case, as the prosecution witnesses did not support the prosecution story, it cannot be said that the same can be proved by circumstantial evidence. In this view of the matter, we find that there is no such circumstantial evidence, which conclusively indicates towards guilt of the present appellant. Accordingly, we find that this appeal deserves to be allowed and hereby allowed. 10. The appellant is acquitted from charge under section 302 IPC. He may be released from custody forthwith, if his presence is not required in any other matter. The order of trial Court in respect of disposal of property is hereby affirmed.