Madhya Pradesh High Court
Avinash vs The State Of M.P. on 11 January, 2018
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No. 1977 of 2001
Parties Name Smt.Jaita Bai, widow of Madarsa
Gond, aged about 30 years, R/o
Dhaba, Tahsil Sohagpur, District
Hoshangabad (M.P.)
Vs.
The State of Madhya Pradesh
through the Police Station, Itarsi
Nargar, District Hoshangabad
(M.P.)
Bench Constituted Hon'ble Shri Justice Anurag
Shrivastava
&
Hon'ble Smt. Justice Nandita
Dubey
Judgment delivered by Hon'ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for For appellant: Shri Abhishek
parties Tiwari, is appointed as Amicus
Curiae to appear on behalf of the
appellant.
For respondent/State: Shri
Manish Awasthy, Government
Advocate for State.
Law laid down
Significant paragraph
numbers
&
Criminal Appeal No. 37 of 2002
Parties Name Avinash, S/o Madhukar Pavela
Kunvi, aged 29 years, R/o
Amrawati, Hal Dharamraj Hotel,
Itarsi (M.P.)
Vs.
The State of Madhya Pradesh
-2- Cr.A. No.1977/2001
&
Cr.A. No.37/2002
through the Police Station, Itarsi
Nagar, District Hoshangabad
(M.P.)
Bench Constituted Hon'ble Shri Justice Anurag
Shrivastava
&
Hon'ble Smt. Justice Nandita
Dubey
Judgment delivered by Hon'ble Shri Justice Anurag
Shrivastava
Whether approved for Yes/No
reporting
Name of counsels for For appellant: Shri Sandeep
parties Kumar Dubey, is appointed as
Amicus Curiae to appear on
behalf of the appellant.
For respondent/State: Shri
Manish Awasthy, Government
Advocate for State.
Law laid down
Significant paragraph
numbers
JUDGMENT
(11.01.2018) The appellants have filed these appeals against the judgment dated 06.11.2001 passed in Sessions Trial No.162/2001, whereby the appellant Smt.Jaita Bai has been convicted under sections 302 and 201 of IPC and sentenced to undergo imprisonment for life and imprisonment of R.I for 5 years respectively and appellant Avinash has been convicted under section 201 of the IPC and sentenced to undergo R.I. for 5 years.
-3- Cr.A. No.1977/2001& Cr.A. No.37/2002
2. The prosecution story in brief is that the deceased Shanker Gond was living with appellant Smt. Jaita Bai as husband and wife since 10 years at Itarsi. About 6 - 7 months prior to incident Jaita Bai was working in the hotel of Narendra Kumar (PW-6) where she had developed illicit relations with appellant Avinash who was also working there. When deceased Shanker came to know about the affairs of Jaita Bai and Avinash he objected to it and used to quarrel with Jaita Bai. About two months prior to the incident Jaita Bai ran away with Avinash and lived with him. Two days before the incident she returned home and was again living with deceased Shanker. As per prosecution it is alleged that in the intervening night of 9 and 10 March, 2001 the appellants had committed murder of deceased Shanker Lal by strangulation in his house. Thereafter, they kept the dead body in a metal drum, closed the lid and locked it. Thereafter, they hired the Autorikshaw of Suraj Pal for transporting the drum to Budhni. As per instruction of appellants, Auto driver Suraj Pal and his friend Sunil Jain came to the house of Jaita Bai, where appellants loaded the drum in Autorikshaw and proceeded for Budhni. On the way when they reached near Galla Mandi the fuel of Auto got exhausted and Auto was stopped. Seeing the Auto in suspicious condition, Nepal Singh, Sub Inspector and L.D. Vaishnav, ASI of Police Station, City Kotwali, Itarsi who were on regular patrolling duty, came there and inquired about the drum. The appellant Jaita Bai gave them the key of lock, the drum was opened and the dead body of deceased Shanker Lal was recovered. Thereafter, Nepal Singh and L.D. Vaishnav took the drum in Autorikshaw to Jan Sewa Hospital, where doctor examined the body of Shanker and declared him dead. Appellants were brought to Police Station, City Kotwali, Itarsi where L.D. -4- Cr.A. No.1977/2001 & Cr.A. No.37/2002 Vaishnav recorded the Marg intimation (Ex.P/12). Later on, B.S. Markam (PW-12) SHO, conducted the inquest, prepared the panchanama (Ex.P/2) of dead body and sent the body for postmortem. In postmortem it is found that the deceased was killed by strangulation. The police recorded FIR (Ex.P/12) and registered the offence under Sections 302, 201, 34 of IPC against the appellants and initiated the investigation. The spot map was prepared and broken pieces of bangle of Jaita Bai were seized from the spot. The statement of witnesses were recorded and after usual investigation the charge-sheet has been filed before the Court.
3. The trial Court has framed charge of offence under Sections 302/34 and 201/34 of IPC. The appellants abjured guilt and pleaded their innocence. The prosecution has examined 12 witnesses whereas the appellants has adduced no evidence in their defence.
4. The trial Court on appreciation of evidence arrived at the conclusion that appellant Jaita Bai has committed murder of deceased Shanker Lal and with the help of Avinash she was trying to dispose off the dead body in order to destroy the evidence of murder. The trial Court convicted the appellant Jaita Bai under Sections 302 and 201 of IPC and appellant Avinash under Section 201 of IPC and sentenced them as mentioned hereinabove.
5. It is argued by the learned counsel for the appellant that there is no eye witness to the incident. The case of the prosecution rest upon circumstantial evidence. The recovery of dead body from possession of appellants not proved beyond reasonable doubt. When co-accused -5- Cr.A. No.1977/2001 & Cr.A. No.37/2002 Avinash was acquitted of charge of 302 of IPC than Jaita Bai cannot be convicted for the same offence. The trial Court on erroneous appreciation of evidence has recorded the findings of guilt against the appellants under Sections 302 and 201 of IPC.
6. Heard arguments and perused the record.
7. From the statement of witnesses L.D. Vaishnav A.S.I. (PW-9) and Nepal Singh Sub-Inspector City Kotwali Itarsi (PW-3), it appears that on 10.03.2001 during patrolling duty at around 2 O'clock in the night, they found the appellants carrying the dead body of deceased Shankar Lal kept in a drum by auto rickshaw. This fact is also verified by auto driver Suraj Pal (PW-2) and Sunil Jain (PW-1). The dead body was brought to police station where PW-9 recorded the marg intimation and initiated the inquest and sent the dead body for post-mortem.
8. Dr. R.K. Damle (PW-10) deposed that on 10.03.2001 at Jan Sewa Hospital Itarsi, he had conducted the post- mortem of dead body of deceased Shanker Lal and found as under :-
(i) The rigor-mortis was present in upper limbs and lower limbs.
(ii) Ligature marks present front of neck which extend in between both sternomastaid muscle.
(iii) Swelling around left eye (black eye), contusion over chest, bleeding from left side of nose and left side of angle of mouth.-6- Cr.A. No.1977/2001
& Cr.A. No.37/2002 It is opined by the doctor that the death of Shanker Lal was occurred due to asphyxia as a result of strangulation. The death is caused within 24 hours. The statement of doctor is duly corroborated postmortem report Ex.P-11 given by the doctor. In cross-examination he has not made any contradictory statement. Thus, relying upon the statement of the doctor and post-mortem report, the trial Court has rightly arrived at the finding that the death of deceased was caused due to strangulation which is homicidal death.
9. Now the question arises whether the appellants have committed murder of the deceased? There is no witness to the incident. The case of prosecution rests upon the circumstantial evidence. It is now well settled that the circumstance from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with this innocence.
10. In the present case the prosecution has suggested following circumstances against the appellant:-
(i) The appellants were having illicit relationship and when the deceased raised objection against this relationship, the appellants conspired to kill the deceased.
(ii) The deceased was killed by strangulation.
(iii) The appellants had concealed the dead body in a drum.-7- Cr.A. No.1977/2001
& Cr.A. No.37/2002
(iv) The appellants were taking the dead body concealed in a drum to destroy it which was recovered from their possession.
(v) The appellants were last seen with the deceased.
(vi) Appellants had not given any explanation regarding death of the deceased.
11. Keeping in view the above circumstances, considering the evidence adduced by the prosecution, we found that the witness Kannu Lal (PW-4) deposed that deceased Shanker Lal was his nephew. Shanker Lal was living with Jaita Bai as husband and wife since 10 years. The defence has not controverted this fact in cross-examination of the witness. Kodu (PW-5) who is the brother of Shanker Lal also verifies this fact that Shanker Lal was living with Jaita Bai as husband and wife since 10 years in Itarsi. Narendra Kumar (PW-6) deposed that he is the owner of hotel Dharamraj situated at station road Itarsi. Jaita Bai and Avinash were working in his hotel prior to incident. Jaita Bai was living at Patti Bazar, Itarsi. This fact is also corroborated by witness Ramesh (PW-
8) who deposed that Jaita Bai was living with deceased Shanker in front of his house at Patti Bazar, Itarsi. In view of aforesaid evidence it is rightly found proved by the trial Court that at the time of incident appellant Jaita Bai was living with deceased Shanker as his wife in the house situated at Patti Bazar, Itarsi.
12. Suraj Pal (PW-2) deposed that he is an Autorikshaw driver. In the night of the incident at about 11:30 pm he was waiting for passengers infront of railway station. His friend Sunil Jain was also present there. Appellants Jaita Bai and Avinash came there and hired the Autorikshaw for carrying a -8- Cr.A. No.1977/2001 & Cr.A. No.37/2002 drum to Budhni. Thereafter, Suraj Pal and Sunil went to the house of Jaita Bai situated at Patti Bazar where the appellants brought a drum from the house, which was locked and loaded it in the Autorikshaw thereafter, they proceeded for Budhni. When they reached near Galla Mandi the Autorkishaw stopped due to some fault. When Suraj Pal was checking the fault a police vehicle came there and inquired about the drum and its contents. Thereafter, Jaita Bai provided the key of lock and the drum was opened and the dead body of deceased was recovered. The police took the dead body and drum in Autorikshaw to Hospital where doctor examined the deceased. The police prepared the panchayat nama of the dead body (Ex.P/2) and also came to the house of Jaita Bai where spot map (Ex.P/3) was prepared. In cross- examination this witness has not made any contradictory statement and his statement is corroborated by Sunil Jain (PW-1).
13. Sunil Jain (PW-1) has verified the fact that at the night of incident he was present with his friend Suraj Pal (PW-2) when appellants came there and hired the Autorikshaw for going to Budhni. The appellants took them to the house of Jaita Bai where they loaded a drum in the Autorikshaw. The Autorikshaw run down on the way near Galla Mandi, meanwhile, the police came there and on suspicion police inspected the drum and found the dead body of deceased in it.
14. Nepal Singh Sub Inspector, Police Station, City Kotwali (PW-3) and L.D. Vaishnav, ASI (PW-9) also stated that 10.03.2001 they were on patrolling duty, at about 2 O' clock in the night an Autorikshaw standing near the road on -9- Cr.A. No.1977/2001 & Cr.A. No.37/2002 Hoshangabad - Budhni main road, near Galla Mandi. The appellants were sitting on back seat of Autorikshaw and one drum was also kept in it. On suspicion they asked about the contents of drum, Jaita Bai told them that the wheat was kept in it. Thereafter, they asked Jaita Bai to open the drum then Jaita Bai took out a key from her purse and opened the lock of drum. Inside the drum under some cloths the dead body of deceased was recovered. It is further deposed by the witness that they brought the dead body and Autorikshaw to Jan Sewa Hospital, Itarsi where doctor examined the body and declared the deceased dead. The same fact has been narrated by L.D. Vaishnav (PW-9) in his statement. It is further deposed by this witness that he has recorded the Marg intimation (Ex.P/12) at Police Station, City Kotwali, Itarsi. Nothing has been elicited in cross-examination of witnesses PW-3 and PW-9 to discredit their testimonies. The Marg intimation (Ex.P/12) corroborates the statement of L.D. Vaishnav.
15. The witnesses Suraj Pal and Sunil Jain are independent witnesses. They have categorically deposed that the appellants have kept the drum in Autorikshaw from which the dead body of the deceased Shanker was recovered. The drum was brought from the house of Jaita Bai. The statement of PW-3 and PW-9 clearly establishes the fact that on search of drum the dead body of deceased was recovered. The testimonies of PW-1, PW-2, PW-3 and PW-9 appears to be cogent, trustworthy and reliable. Thus, the trial Court on proper appreciation of evidence has recorded the findings that the appellants have kept the dead body of the deceased in the drum and tried to remove the dead body from the spot.
-10- Cr.A. No.1977/2001& Cr.A. No.37/2002
16. Now the question arises as to whether the appellant Jaita Bai has committed murder of the deceased. In this regard we find that Jaita Bai was living with the deceased as husband and wife in his house. The dead body of deceased was brought from the house and kept in the Autorikshaw. The prosecution witness Shiva (PW-11) has categorically deposed in his statement that at the time of incident, in the night, only the appellant Jaita Bai was present with the deceased in the house. It is established that the deceased was killed in the house by strangulation. Therefore, Jaita Bai has to give explanation how deceased had been died.
17. Section 106 of Evidence Act lays down that "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
Hon'ble Apex Court in case law State of Rajasthan Vs. Thakur Singh, 2014(12) SCC 211 held that:-
"The burden of proving the guilt of an accused is on the prosecution, but there may be certain facts pertaining to a crime that can be known only to the accused, or are virtually impossible for the prosecution to prove. These facts need to be explained by the accused and if he does not do so, then it is a strong circumstance pointing to his guilt based on those facts."
18. Appellant Jaita Bai has given no explanation how deceased sustained injuries and how he had been died. Inspite of informing the police or neighbours about the death of deceased, she was trying to dispose off the dead body with the help of co-accused Avinash. She concealed the dead -11- Cr.A. No.1977/2001 & Cr.A. No.37/2002 body in a drum. These circumstances clearly indicates the involvement of Jaita Bai in commission of murder of Shanker Lal. Thus, the trial Court on proper appreciation of evidence has held the appellant Jaita Bai guilty for commission of murder of deceased Shanker Lal. It is also proved that the appellants had concealed the dead body in the drum in order to destroy the evidence and they were trying to dispose off the body. Thus, it is also proved that the appellants have committed the offence punishable under Section 201 of IPC.
19. Since there is no evidence of last seen against the appellant Avinash therefore the trial Court has rightly acquitted Avinash of the charge of Section 302 of IPC. Therefore, acquittal of Avinash does not lead to innocence of main accused Jaita Bai.
20. In view of aforesaid, we do not find any illegality in conviction and sentence awarded by the trial Court. Hence, it is hereby dismissed. The bail bonds of appellant Avinash is hereby cancelled and he is directed to surrender before the trial Court to suffer remaining part of sentence.
(Anurag Shrivastava) (Nandita Dubey)
Judge Judge
Vin**
Digitally signed
by VINOD
SHARMA
Date: 2018.01.14
21:51:15 -08'00'