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2004(2) JLJ 316
S.S. Jha and A.K. Gohil, JJ.
State of M.P. v. Mst. Dhanno and others
Cr. Appeal No. 61 of 1990; against the judgment of II Additional Sessions Judge, Shivpuri, passed on Sessions Trial No. 134 of 1987;
Decided on 28.1.2004.
(2) Evidence Act, 1872--S. 60--husband of deceased alleged to be eye witness -- police not recording his statement--story not narrated to anybody -- rightly not acted upon.
Prosecution story is that Ramkishan, husband of deceased used to work as a labourer in the field of Kamar Singh. On 7.11.1987, when Ramkishan went on the field of Kamar Singh, he found that wife of respondent No.3 Raghuvir was cutting grass in the field of Kamar Singh. Ramkishan tried to stop her. She started abusing Ramkishan. At the same time respondents Kailash, Ramswaroop, Raghuvir and Dhanno reached on the millet field and started forcing Ramkishan. Ramkishan escaped in the field. Thereafter, all the respondents-accused persons came to the house of Ramkishan at village Rijauda at about 4.00 p.m. Ramswaroop, Kailash, Raghuveer were carrying lathis and Dhanno was carrying sickle. They started making enquiries about Ramkishan. Dulari, wife of Ramkishan stated that Ramkishan is not at home. Then all the accused persons carried away criminally (abducted) Dulari and threw her in the well of Kailash. [Para 2
Held : Though PW 9 Ramkishan, husband of the deceased stated in his evidence that he had seen from the bushes that Kailash threw the deceased in the well and after seeing this he ran away, but, he has neither lodged any report nor stated this fact to anybody else. He stayed at Dabra with his uncle for 10 days, but, during these 10 days he has not stated this fact to his uncle nor did he send any message to his family members either to his mother or brothers. He stated that he was under a state of fear, therefore, he was running here and there. When he was introduced as an eye-witness and had seen the incident, it was quite unnatural that he had not said anything to anybody else that respondents had abducted his wife Dulari forcibly on the well and thereafter they threw her in the well. His statement was even not recorded by the Police. He was directly introduced as an eye witness before the Court. We have carefully perused the evidence of PW 9 Ramkishan. The trial Court has also not relied over the evidence of PW 9 Ramkishan and we also do not find that his evidence is either reliable or helpful to the prosecution. [Para 6
(3) Evidence Act, 1872--S. 27-d`recovery memo of dead body--actual words used by accused not proved by the police officer writing the memo--independent witnesses declared hostile - memorandum not proved -- it cannot be made sale basis for conviction. [Para 8
(4) Criminal P.C., 1973--S. 378--appeal against acquittal -appellate Court should not interfere unless findings are palpably wrong, manifestly erroneous or demonstrably unsustainable. AIR 1996 SC 2035 followed. [Para 10
¼1½ lk{; vf/kfu;e] 1872&/kkjk 3&vafre ckj lkFk ns[ks tkus dk ikfjfLFkfrd lk{;&blls vf/kd dqN ugha gks rc vfHk;qDr dks fl)nks"k Bgjkus ds fy, i;kZIr ugha&fo‘ks"kr% tc og Lo;a fojks/kkHkklksa ls Hkjk gSA ¼2½ lk{; vf/kfu;e] 1872&/kkjk 60&e`rd ds ifr dk çR;{kn‘khZ lk{kh gksuk vfHkdfFkr&iqfyl us mldk dFku vfHkyf[kr ugha fd;k&dgkuh fdlh dks Hkh crkbZ ugha xbZ&ml ij dkjZokbZ Bhd gh ugha dh xbZA vfHk;kstui{k dh dgkuh gS fd e`rd dk ifr jkefd‘ku Jfed ds :i esa dejflag ds [ksr ij dk;Z djrk FkkA 7-11-1987 dks tc jkefd‘ku dejflag ds [ksr ij x;k rc mlus ik;k fd çR;FkhZ Ø-3 j?kqchjflag dh iRuh dejflag ds [ksr esa ?kkl dkV jgh gSA jkefd‘ku us mls jksdus dk ç;kl fd;kA og jkefd‘ku dks xkyh nsus yxhA mlh le; çR;FkhZx.k dSyk‘k] jkeLo:i] j?kqohj vkSj /kUuksa cktjs ds [ksr ij igq¡ps vkSj jkefd‘ku ij cyç;ksx djus yxsA jkefd‘ku [ksr ls Hkkx x;kA rRi‘pkr~ lHkh çR;FkhZx.k&vfHkqDr O;fDr vijkà yxHkx 4-00 cts xzke fjtkSnk esa jkefd‘ku ds ?kj vk,A jkeLo:i] dSyk‘k vkSj j?kqohj ykfB;k¡ fy, Fks rFkk /kUuksa g¡fl;k¡ fy, FkhA og jkefd‘ku ds ckjs esa iwNrkN djus yxsA jkefd‘ku dh iRuh nqykjh us crk;k fd jkefd‘ku ?kj ij ugha gSA rc lHkh vkijkf/kd <ax ls nqykjh dks mBk ¼vigj.k dj½ ys x, rFkk mls dSyk‘k ds dq,¡ esa Qsad fn;kA ¼iSjk 2½ vfHkfu/kkZfjr % ;|fi e`rd ds ifr v lk 6 jkefd‘ku us vius lk{; esa dgk gS fd mlus >kfM+;ksa esa ls ns[kk Fkk fd dSyk‘k us e`rd dks dq,¡ esa Qsadk Fkk vkSj ;g ns[kus ds i‘pkr~ og Hkkx x;k] rFkkfi mlus u fjiksVZ nkf[ky dh gS] u ;g rF; fdlh vksj dks crk;k ghA og Mcjk esa vius dkdk ds ikl 10 fnu rd jgk ijarq bu 10 fnu esa mlus ;g rF; vius dkdk dks ugha crk;k] u mlus vius dqVqac ds lnL;ksa] ekrk ;k Hkkb;ksa dks dksbZ lans‘k gh HkstkA mlus dgk fd og Hk;Hkhr Fkk blfy, og b/kj&m/kj Hkkx jgk FkkA tc mls çR;{kn‘khZ lk{kh ds :i esa yk;k x;k gS rFkk mlus ?kVuk ns[kh Fkh rc ;g dkQh vLokHkkfod Fkk fd mlus vU; fdlh dks Hkh ;g ugha crk;k fd çR;FkhZx.k us dq,¡ ij cyiwoZd mldh iRuh nqykjh dk vigj.k dj fy;k gS rFkk rRi‘pkr~ mUgksaus mls dq,¡ esa Qsad fn;k gSA mldk dFku iqfyl }kjk vfHkfyf[kr Hkh ugha fd;k x;k FkkA mls lh/ks U;k;ky; ds le{k çR;{kn‘khZ lk{kh ds :i esa yk;k x;kA geus v lk 9 jkefd‘ku ds lk{; dk lko/kkuhiwoZd ifj‘khyu fd;k gSA fopkj.k U;k;ky; us Hkh v lk 9 jkefd‘ku ds lk{; dk voyac ugha fy;k gS rFkk geus Hkh mldk lk{; voyacuh; ;k vfHk;kstui{k ds fy, lgk;d ugha ik;kA ¼iSjk 6½ ¼3½ lk{; vf/kfu;e] 1872&/kkjk 27&‘ko dk cjkenxh Kkiu&vfHkqDr }kjk ç;qDr okLrfod ‘‘kCn] Kkiu fy[kus okys iqfyl vf/kdkjh }kjk lkfcr ugha&Lora= lk{kh i{knzksgh ?kksf"kr&Kkiu lkfcr ugha&nks"kflf) dk ,dek= vk/kkj ugha cuk;k tk ldrkA ¼iSjk 8½ ¼4½ naM çfØ;k lafgrk] 1973&/kkjk 378&nks"keqfDr ds fo#) vihy&vihy U;k;ky; dks gLr{ksi ugha djuk pkfg, tc rd fu"d"kZ lqLi"Vr% vU;k;iw.kZ] çdVr% xyr vFkok çek.; :i ls vleFkZuh; ugha gksA , vkb vkj 1996 ,l lh 2035 vuqlfjrA ¼iSjk 10½
Key Points: - The court discusses that circumstantial evidence of last seen together is not sufficient to convict without more, especially if internally contradictory (!) . - It analyzes the evidentiary weight of a Section 27 memorandum and recovery of a dead body, noting hostile witnesses and lack of direct words by the accused; conviction cannot be based solely on such memorandum without corroboration (!) (!) . - It reiterates the principle that appellate courts should not interfere with acquittals unless trial court findings are palpably wrong or unsustainable, and allows reappraisal only when those conditions are met (!) (!) (!) . - The judgment ultimately dismisses the appeal against acquittal, finding no reliable proof of homicidal death or guilt beyond reasonable doubt (!) (!) . - The medical autopsy did not conclusively establish homicidal death; nature of death remained undetermined from PM findings [27000073630004]. - The prosecution’s last-seen witnesses were found unreliable due to inconsistencies in testimony and conduct [27000073630005][27000073630006]. - The sole recovery/memorandum evidence (Ex. P-5) lacking independent corroboration was deemed insufficient for conviction [27000073630007].
Gohil, J. -- 1. State has filed this appeal against acquittal in S.T. No. 134/87 against the judgment dated 14.9.88 passed by II ASJ, Shivpuri after obtaining leave. All the respondents were prosecuted under section 302 of the Indian Penal Code (Code" for short) for committing murder of Dulari (hereinafter referred to as deceased) wife of Ramkishan.
2. Succinctly stated, prosecution story is that Ramkishan, husband of deceased used to work as a labourer in the field of Kamal Singh. On 7.11.1987, when Ramkishan went on the field of Kamal Singh, he found that wife of respondent No.3 Raghuvir was cutting grass in the field of Kamal Singh. Ramkishan tried to stop her. She started abusing Ramkishan. At the same time respondents Kailash, Ramswaroop, Raghuvir and Dhanno reached on the millet field and started forcing Ramkishan. Ramkishan escaped in the field. Thereafter, all the respondents-accused persons came to the house of Ramkishan at village Rijauda at about 4.00 p.m. Ramswaroop, Kailash, Raghuveer were carrying lathis and Dhanno was carrying sickle. They started making enquiries about Ramkishan. Dulari, wife of Ramkishan stated that Ramkishan is not at home. Then all the accused persons carried away criminally (abducted) Dulari and threw her in the well of Kailash. Due to fear, Ramkishan ran away. He was escaping and running here and there. The members of the family of deceased Badani and Mangi started searching for Dulari and Ramkishan but even after 4 days they could not find them. Therefore at 8-10 p.m. on 11.11.1987, Badami, the elder brother of Ramkishan lodged a report of abduction and missing at Police Station Pohari. On this report, Crime No. 88/87 under sections 342 and 366 of the Code was registered at Police Station Pohari.
3. As per prosecution, on 14.11.1987, respondent Dhanno was arrested and on the basis of information and statement of Dhanno, memorandum under section 27 of the Evidence Act Ex. P-5 was prepared. The dead body of the deceased Dulari was recovered from the well situated near Deori Samastipur Square on Shivpuri-Pohari Road. Recovery Panchnama of deadbody is Ex. P-1 and Panchnama of deadbody is Ex. P-2. Thereafter on 26.11.1987, the other accused persons were arrested and on the basis of memorandum, lathi was recovered from Ramswaroop and Raghuvir and chadar was recovered from Kailash. Spot maps Ex. P-9 and Ex. P-10 were prepared with the help of Patwari. Matter was investigated and during investigation, map Ex. P-11 was prepared. Statement of the witnesses were recorded. The deadbody of the deceased was identified by the family members and was referred to Public Health Centre, Pohari for post mortem examination. PW 16 Dr. R.K. Jain performed autopsy of the dead body. After investigation, chargesheet was filed.
4. During trial, prosecution examined as many as 22 witnesses in this case. PW 6 Phoolwati is the wife of PW 15 Badami who is the elder brother of Ramkishan. PW 7 Bisso is wife of Mangi who is the younger brother of Ramkishan, PW 9 Ramkishan is the husband of the deceased. PW 12 is Laxmanram, Head Constable. PW 14 Fayyaj Bahadur, PW 16 Dr. R.K. Jain, PW 17 Naktu, PW 18 Chhanchu and PW 22 Anil Kumar Singh Kushwaha, Sub Inspector have also been examined. From the evidence of aforesaid witnesses, it is clear that the deadbody of the deceased was recovered from a well. From the evidence of aforesaid witnesses it is also clear that the evidence of last seen against the respondents is available on record. As per medical evidence of PW 16 Dr. R.K. Jain, cause of death is Asphyxia of the body due to drowning. The duration of death was within 8 days of the Post Mortem examination. Mode of death was unknown. Doctor found the following condition of the deadbody :
-- Rigor mortis has passed off.
-- Eye - bulged out due to decomposition.
-- Tongue -- protruded out.
-- Post Mortem stains present over the head, neck and back.
-- Blisters and bullous present all over the body.
-- Larvae creeping over the body.
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