Madhya Pradesh High Court
Prabhu Lal vs The State Of M.P. on 31 January, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
1 CRA No. 1342/1995
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRA No. 1342/1995
Prabhulal S/o Shripad
Vs.
State of Madhya Pradesh
Present : Hon'ble Shri Justice S.K.Gangele, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
---------------------------------------------------------------------------------------
Ms. Manju Khatri, counsel for the appellant.
Shri A.N.Gupta, Government Advocate for the respondent/State.
---------------------------------------------------------------------------------------
Whether approved for reporting : Yes/No
---------------------------------------------------------------------------------------
Law laid down :- -
---------------------------------------------------------------------------------------
Significant Paragraphs : - -
---------------------------------------------------------------------------------------
JUDGMENT
(31/01/2018) Per : Smt. Anjuli Palo, J :-
1. The appellant has filed this appeal against the judgment dated 20.12.1994 passed by the Sessions Judge, Khandwa in Session Trial No. 107/1992 whereby the appellant has been convicted under Sections 302 of the Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs. 500/- with default stipulations.
2. In brief, the prosecution case is that on 01.09.1991 at about 9:00 am, in village Kedarkhedi, Gokul and his wife Shakubai (since deceased) along with Munshi Bhil went to their field. At about 5:00 pm Shakubai and Munshi (PW-1) were returning home 2 CRA No. 1342/1995 while Gokul stayed back at the field for grazing cattle. Shakubai was walking behind Munshi. When he heard the cry of Shakubai, he turned back. He saw that the appellant Prabhulal was dragging Shakubai towards culvert (nala). When Munshi tried to save her, the appellant did not listen and inflicted blows by a darati (sickle) on the stomach of Shakubai. She died on the spot. Appellant fled away. Thereafter, Munshi informed the incident to the Govind (brother of Gokul) and other villagers. Govind reached the spot and then lodged the FIR at Police Station, Piploda, District Khandwa. During the investigation, it was revealed that appellant had illicit relationship with the deceased. The deceased stopped talking to him since 3-4 months, therefore, the appellant had caused death of the deceased. After investigation, charge-sheet was filed against the appellant and other accused persons.
3. After committal of the case, learned Trial Court framed charge under Section 302 of the IPC. Appellant abjured guilt and pleaded that he was falsely implicated in the case due to previous enmity.
4. Learned Trial Court relied upon the testimony of Munshi (PW-1) and Govind (PW-2) brother of the Gokul. Both corroborated the testimony of each other. Learned Trial Court held the appellant guilty of committing murder of deceased Shakubai and convicted him under Section 302 of the IPC.
3 CRA No. 1342/1995
5. Learned counsel for the appellant contended that the trial Court has relied upon weak type of evidence and wrongly convicted the appellant. Therefore, he prayed to set aside the impugned judgment and conviction and he be acquitted from the charges levelled against him.
6. Learned Government Advocate has vehemently opposed the prayer of the appellant and contended that the trial Court has rightly convicted and sentenced the appellant for committing offence under Section 302 of IPC.
7. Heard learned counsel for the parties. Perused the record.
8. Munshi (PW-1) deposed that he saw the incident. The appellant was dragging Shakubai and inflicted blows on her by darati. When he tried to save her, the appellant threatened Munshi. Munshi then informed Gokul, Govind and other villagers who had assembled at Hanuman Temple. They all reached the spot.
9. Govind (PW-2) supported the testimony of Munshi and stated that at about 5:00 pm, Munshi informed them about the incident. Then, they reached the spot. He saw the injuries on the stomach and neck of deceased Shakubai. He lodged FIR at Police Station Piploda.
10. Heeralal (PW-3) partly corroborated the testimony of Munshi and Govind but he turned hostile and deposed that Munshi did not 4 CRA No. 1342/1995 tell as to who committed murder of the deceased. Gokul, husband of the deceased informed him that appellant had murdered his wife. Then he reached the spot and saw the injuries on the chest of the deceased. Lobhiram (PW-8) also corroborated the testimony of Heeralal.
11. Nestor Kujur (PW-7) Station Incharge, police station Piploda has corroborated the testimony of Govind (PW-2) and deposed that FIR (Ex. P/1) was lodged by Govind. Then at about 8:30 am on the next day, Nestor Kujur prepared panchnama of the body of the deceased (Ex.P/7) and spot map (Ex. P/5). He seized blood stained soil and other articles including piece of broken bangles, pair of sleepers belonging to the deceased, empty urea bag, etc. from the spot. He arrested the appellant on 02.09.1991. As per the memorandum (Ex. P/10) of the appellant, he seized a darati (sickle) vide seizure memo Ex. P/11 which was hidden in the bushes. Memorandum Ex. P/10 was signed by the appellant. Nestor Kujur (PW-7) found blood stains on darati. The seized articles were sent to FSL, Sagar for chemical examination.
12. As per the FSL report (Ex. P/18) no blood stain was found on the darati seized from the appellant.
13. Learned counsel for the appellant contended that the appellant had no motive to commit murder of the deceased. 5 CRA No. 1342/1995 Govind (PW-2) brother-in-law of the deceased admitted that the appellant had illicit relationship with the deceased. Therefore, the husband of the deceased raised objection and scolded wife. Two days prior to the incident, Gokul-husband of the deceased told his father-in-law about the behaviour of Shakubai. It is important to note that the prosecution did not examine Gokul-husband of the deceased. Gokul is the best witness but he was given up by the prosecution as mentioned in the order dated 14.02.1994 of the trial Court.
14. The appellant produced defence witness Ramesh (DW-1). He deposed that at the time of the incident, appellant was with him at Khandwa. They reached Kedarkhedi at about 7:00 pm. Thereafter, they came to know about the incident from the villagers. Ramesh also deposed that two days prior to the incident, Gokul-husband of the deceased had an argument with the father of the deceased. Learned Trial Court had not relied on the testimony of Ramesh (DW-1) as the plea of alibi, they failed to produce his bus journey ticket. He firstly stated that on the date of incident, the appellant was with him at Khandwa. The appellant himself had not taken this defence during his accused statement under Section 313 of the Cr.P.C. Hence, in our view also, the appellant failed to establish the plea of alibi in his defence.
15. There is sole testimony of Munshi (PW-1) which is important 6 CRA No. 1342/1995 for considering the criminal liability of the appellant.
16. In case of State of UP Vs. Satveer & Ors., (2015) 9 SCC 44, the Hon'ble Apex Court has held that evidence of sole witness needs to be considered with caution and after testing it against other material. Further, such evidence must inspire confidence and ought to be beyond suspicion.
17. Munshi (PW-1) admitted that the Gokul-husband of the deceased was his bataidar (sharecropper). Learned counsel for the appellant contended that under the influence of Gokul, Munshi (PW-1) falsely stated against the appellant. It is not possible for him to see as to who assaulted the deceased (PW-3) and Lobhiram (PW-8) clearly deposed that Munshi had not informed them as to who assaulted the deceased. The body of the deceased was found in the culvert (nala). Spot map was prepared by Nestor Kujur (PW-
7). As per the spot map (Ex. P/5). Body of the deceased was found at point No. 3 Presence of eye-witness is shown at point No. 2. Nestor Kujur (PW-7) indicated point No. C, D and E where he found broken bangles and sleepers belonging to the deceased. The scene of occurrence is a curved culvert (nala). The deceased was dragged to a long distance. Munshi (PW-1) clearly deposed in his cross-examination that the culvert was deep and he crossed the culvert. At that time, deceased was at a distance from him. She cried for help, "daji mujhe sambhalo mujhe mar gaya". Therefore, 7 CRA No. 1342/1995 it is doubtful that the eye-witness Munshi would have seen the incident.
18. There is a possibility in favour of the appellant. He may be falsely implicated for causing death of the deceased Shakubai. The question arose because the weapon seized from the custody of the appellant had no blood stains over it. Secondly, it is inappropriate that Govind (PW-2) brother-in-law of the deceased went to the police station to lodge FIR instead of Gokul-husband of the deceased. Thirdly, prosecution did not examine Gokul-husband of the deceased as a witness to establish the motive of the appellant to commit murder of the deceased.
19. In case of Krishnegowda Vs. State of Karnatak, 2017 SCC Online SC 284, the Hon'ble Apex Court has held as under :
".......................It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Benthem, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused."
20. As per the prosecution story, husband of the deceased had an argument with the father of the deceased about the illicit relationship between the appellant and the deceased. 1-2 days prior to the incident, Gokul had a talk on this issue with his father-in- 8 CRA No. 1342/1995 law. Due to such quarrel, the deceased was ignoring the appellant. There is no evidence on record with regard to the same. Therefore, the evidence of Gokul was essential to prove this fact. Further, Munshi (PW-1) firstly informed Gokul about the incident thereafter he went to the village to inform Govind and other villagers. Except Govind, Lobhiram (PW-8) and Heeralal (PW-3) did not support the testimony of Munshi (PW-1). They clearly deposed that Munshi did not inform them as to who assaulted Shakubai.
21. If Munshi (PW-1) saw that the appellant had caused death of the deceased, why her husband Gokul and other witnesses prepared panchnama (Ex. P/14) for confirmation that Munshi saw the incident. In the panchnama, it is also mentioned that due to fear of the appellant, Munshi ran away to call Gokul (husband of the deceased). Gokul himself ran towards the village to save his life. In the Panchnama (Ex.P/14) it is clearly mentioned that Gokul did not come to the spot. He reached the scene of occurrence with the villagers. The prosecution witnesses did not depose such conduct of Gokul. Even though, Govind (PW-2) brother of Gokul did not depose that they found Gokul at the spot. In the examination-in- chief, he stated that after receiving the information about the incident, he went to the spot along with Gokul. He denied that Gokul ran away towards the village.
22. As per FIR (Ex.P/1) deceased Shakubai and her husband 9 CRA No. 1342/1995 Gokul along with Munshi went to the field at about 9:00 am on the date of incident. In the evening, why Gokul stayed at the field of Munshi? Only Shakubai and Munshi were returning home. We find that the sole testimony of Munshi (PW-1) is not safe to convit the appellant without corroboration.
23. In case of Kuna @ Sanjaya Behera Vs. State of Odisha, (2018) 1 SCC 296, the Hon'ble Apex Court has held as under :
"That conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukhan1, Ramji Surya, Patnam Anandam and Gulam Sarbar with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise."
24. After considering the peculiar facts of this case and the principles laid down by the Hon'ble Supreme Court, we are of the considered opinion that the case is not properly investigated by the police. Due to absence of evidence of Gokul (husband of the deceased) as a witness, adverse inference can be drawn against the prosecution that if he was produced as a witness, it would have adversely affected the prosecution case in favour of the appellant. The possibility that Gokul (husband of the deceased) committed murder of the deceased with the help of eye-witness Munsh in a 10 CRA No. 1342/1995 pre-planned way, cannot be ruled out. Thereafter, they concocted a story to implicate the applicant as an accused in this case due to his illicit relationship with the deceased. We are of the considered opinion that the prosecution has failed to prove the charge beyond any reasonable doubt. Hence, the Trial Court wrongly convicted the appellant under Section 302 of IPC for committing murder of deceased Shakubai.
25. Consequently, the appeal filed by the appellant is allowed. The impugned judgment of conviction and sentence is hereby set aside and the appellant is acquitted from the charges levelled against him. Appellant is on bail. His bail bond stands discharged.
26. Copy of this judgment be sent to the Court below for information and compliance alongwith its record.
(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
Digitally signed by
SREEVIDYA
Date: 2018.02.01
12:52:17 +05'30'