Madhya Pradesh High Court
Kadori Pd.Jatav vs The State Of M.P. on 22 May, 2017
1
Cr.A.No.852/2005
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.852/2005
Kadori Prasad Jatav S/o Mahadev Jatav,
Aged about 25 years,
R/O Village Bhourjhir, P.S. Gadarwara,
District Narsinghpur.
Appellant
Vs.
State of Madhya Pradesh, Through P.S. Gadarwara, District,
Narsinghpur.
Respondent
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Present: Hon'ble Shri Justice Rajendra Mahajan
Hon'ble Shri Justice C.V. Sirpurkar
...............................................................................................................
Dr. (Ku.) Vijay Bhatnagar, Counsel for the appellant.
Shri Yogendra Das Yadav, Panel Lawyer for the
respondent/State.
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JUDGMENT
(22-05-2017) Per C.V. Sirpurkar, J:
1. This criminal appeal under Section 374 (2) of the Cr.P.C. is directed against the judgment dated 20.8.2004 passed by the Additional Sessions Judge, Gadarwara, District Narsinghpur in Sessions Trial No. 188/2003, whereby the accused/appellant Kadori Prasad Jatav was convicted under Section 302 of the I.P.C. for committing murder of his wife Ramkali Bai by assaulting her with an axe and sentenced to undergo rigorous imprisonment for life and a fine in the sum of Rs. 1,000/- with default clause.
2 (a). The prosecution case before the trial Court may be summarized as hereunder: Deceased Ramkali Bai was 22 years old woman. She was earlier married to one Ram Babu about three years 2 Cr.A.No.852/2005 before the date of the incident. However, Rambabu used to accuse her of infidelity; therefore, their marriage was dissolved by the community elders. As per the decision of elders, Dalchand (PW-1) had paid Rs.5000/- to Ram Babu. After dissolution of her marriage, deceased Ramkali Bai lived at her maternal home for about one year.
Thereafter, her father Dalchand had married her to appellant Kadori Prasad after taking Rs.12,000/- from him. She lived with appellant Kadori Prasad for about 10 months. Appellant Kadori Prasad used to suspect that she was involved with one Shera @ Brijesh Jhariya, who lived near her maternal home.
2(b). At about 9:15 p.m. on 25.6.2003, accused/appellant Kadori Prasad came to his cousin, first informant Ramji Lal's house and informed him that he had killed his wife Ramkali Bai by causing injuries to her neck by an axe because she was characterless. When Ramji Lal asked the accused as to where did he kill her, accused told him that he had killed her in the Kotha (storehouse) of his house. Thereafter, Ramji Lal accompanied the accused to his house. Appellant Kadori Prasad opened the door and showed him that deceased Ramkali Bai was lying on the floor. Ramji Lal saw that there were long and deep wounds on the neck of the deceased and she was bleeding. After showing the dead body to Ramji Lal, accused Kadori Prasad went away. At that time, there was no one else in the house of accused Kadori Prasad. After that, Dalchand went to police out-post Sihora of P.S. Gadarwara and lodged first information report of the incident at 12:30 a.m. on 26.6.2003.
2(c). During investigation, upon the disclosure statement made by appellant/accused Kadori Prasad under section 27 of Evidence Act, the axe with which the deceased was killed, was recovered from the house of the accused. The blood stained clothes of the accused were also seized. During the serological examination, blood stains were found on the axe; however, origin of the blood could not be traced.
3 Cr.A.No.852/20053. After the trial, the trial Court concluded that the prosecution had succeeded in proving beyond reasonable doubt that the accused knew as to why the deceased was divorced by her first husband. A day before the date of the incident, the accused had seen deceased Ramkali Bai speaking to Brijesh @ Shera who was her neighbour at her maternal home, on the bus stand; therefore, he killed the deceased by inflicting three fatal blows upon the neck of the deceased with an axe. As a result, the deceased died on the spot. Consequently, accused Kadori Prasad was convicted under Section 302 of the I.P.C. and a sentence of life imprisonment and a fine in the sum of Rs.1,000/- was imposed upon him. In default of payment of fine, he was directed to undergo six months of further imprisonment.
4. Learned counsel for the appellant/accused Kadori Prasad (hereinafter referred to in this judgment as the appellant), has challenged the conviction and sentence mainly on the ground that there is no eye witness in this case. The conviction of the appellant has been based primarily upon two distinct types of evidence:
(i) Extra judicial confession of the appellant made to first informant Ramji Lal; and
(ii)Presence of blood stains on the clothes of the appellant and on the axe seized pursuant to the disclosure statement made by him under Section 27 of the Evidence Act.
5. It has been contended that on the basis of statements of parents of the deceased namely Dalchand (PW-1), Munga Bai (PW-2), Shera @ Brijesh (PW-4) and defence witness Ravi Shanker Kaurav (DW-1), the theory that the appellant suspected the character of the deceased and; therefore, had an animus against his wife has been demolished. Learned defence counsel further argued that Ramji Lal (PW-7) before whom the appellant is said to have confessed to the crime, has turned hostile and has not supported the prosecution case in any manner. On the contrary, he had supported defence; therefore, the extra judicial confession is not proved. Learned defence counsel has further 4 Cr.A.No.852/2005 submitted that even if it is assumed for the sake of arguments that blood stained clothes and blood stained axe were indeed recovered at the instance of the appellant; neither the group of the blood could be determined nor the origin of the blood could be ascertained; therefore, aforesaid seizures were inconsequential.
6. Learned panel lawyer for the respondent/State on the other hand, has supported the conviction and sentence.
7. On perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal appeal must succeed for the reasons hereinafter stated:
8. According to the prosecution case, there are no eye witnesses to the incident. As has been rightly contended by learned defence counsel, the prosecution case is based upon extra-judicial confession and seizure of blood stained axe and clothes from the possession of appellant.
9. First of all we shall consider the evidence with regard to the extra-judicial confession. The extra-judicial confession was said to have been made to Ramji Lal (PW-7), who was cousin of the appellant; however, Ramji Lal (PW-7) has deposed in the Court that about an year ago, at about 6:00 a.m., the appellant Kadori Prasad's mother was weeping; therefore, he went to her house; whereon, she told him that her daughter-in-law had been killed. She asked him to call Kadori Prasad, who had gone to the field.
10. In this regard, Ravi Shanker Kaurav (DW-1) has stated that appellant was employed by him. He used to work on his field which was about 3-4 kms. from village Bhourjhir, where the appellant lived. He used to work in the field during day and guards the field at night. At about 6:00 p.m. on 25.6.2003, the appellant had come to his field and had stayed overnight with him till 6:00 a.m. the next morning. At that time, Ramji Lal (PW-1) who was a resident of Bhourjir, had come and told Kadori Prasad that someone had killed his wife at night. Thereafter, Kadori Prasad had gone to report the matter to the police.
5 Cr.A.No.852/2005From 6:00 p.m. on 25.6.2003 till 6:00 a.m. the next day, Kadori Prasad was with him on his field and he had not gone anywhere during aforesaid period.
11. Thus, we may see that Ramji Lal, the sole witness, in whose presence the extra judicial confession was alleged to have been made by the appellant, has tuned hostile. Thus, there is no substantive evidence on record with regard to extra-judicial confession. The trial Court has relied upon the admission of Ramji Lal (PW-7) to the effect that the first information report (Ex.P-12) and marg intimation (Ex.P-
13) bear his signatures. Assistant Sub-Inspector Pratap Singh (PW-8), who was posted at out-post Sihora has stated that on 25.6.2003, Ramji Lal had appeared in police out-post Sihora and had reported that at about 9:00 p.m. that night, when he was lying in his house after taking meals, appellant Kadori Prasad had come and told him that he had killed his wife by assaulting her with an axe on neck because she was characterless. Ramji Lal also told him that appellant Kadori Prasad had told Ramji Lal that Ramkali Bai was lying in the kotha (storehouse) of his house. Thereafter, he had gone whith Kadori Prasad to his house and had seen that Ramkali Bai was lying on the floor. After that Kadori Prasad went away. Thereafter, he had registered Dehati Nalishi of the incident (Ex.P-12) which bears the signatures of first informant Ramji Lal.
12. It may be noted in this regard that only substantive evidence in respect of extra-judicial confession allegedly made by appellant Kadori Prasad could have been the statement of first informant Ramji Lal. However, has categorically stated before the Court that appellant Kadori Prasad made no such confession before him on the night of the incident. In fact, Kadori Prasad was not at home that night and he learnt about the murder of deceased Ramkali Bai, the next morning from Kadori Prasad's mother. Thereafter, he had gone to Ravi Shanker Kaurav's field to inform appellant Kadori Prasad about the incident. He has further stated that it was Kadori Prasad who had gone to lodge 6 Cr.A.No.852/2005 the report with the police. He did not lodge the first information report. In fact, police had taken his signatures on the first information report (Ex.P-12) and merg intimation (Ex.P-13), when he had gone to the police out-post Sihora to take the dead body of deceased Ramkali Bai to hospital for post-mortem examination. So far as statements of Assistant Sub Inspector Pratap Singh to the effect that first informant Ramji Lal had informed him about the confession of the appellant is concerned, it cannot be treated as substantive evidence of the confession but it is hearsay evidence of such confession, which is not admissible for the purpose of proving the extra-judicial confession. Thus, the extra-judicial confession allegedly made by the appellant cannot be said to have been proved.
13. Another circumstances upon which the trial Court has relied relates to the fact that as per the defence case, the appellant was not at home on the night of the incident. In fact, he had left his home at 5:00 p.m. and had gone to the field of Ravi Shanker Kaurav for night duty. Thus, as per the defence version during the night of the incident, only appellant Kadori Prasad's mother was at home with the deceased. The death is alleged to have been taken place at about 8:30 or 9:00 p.m. on 25.6.2003. According to Ramji Lal, Kadori Prasad's mother informed him about the murder and asked him to call Kadori Prasad from Ravi Shanker Kaurav's field at 6:00 a.m. on 26.6.2003. Thus, as per the defence version Kadori Prasad's mother stayed with the dead body of deceased from 8:30 p.m. on 25.6.2003 till 6:00 a.m. on 26.6.2003, which appears highly improbable. The trial Court observed that it cannot be believed that she had stayed with the dead body throughout the night without informing any of her neighbours. However, it goes without saying that the prosecution has to stand on its own legs. It cannot expect to benefit from the loopholes or weaknesses in the defence taken by the accused. Therefore aforesaid weakness in the defence, does not detract from the fact that there is no substantive evidence of extra-judicial confession.
7 Cr.A.No.852/200514 Moreover, there is no evidence on record to suggest that on the night of the incident only the appellant and the deceased were at home and the next morning the deceased was found to have been murdered, putting onus of explaining the circumstances under which she was murdered, upon the appellant. As such, from this angle also the prosecution has no case.
15. The appellant has taken defence in the examination of accused and has also given suggestion to various witnesses in this regard that on the night of the incident he was on the field of Ravi Shanker Kaurav (DW-1). At about 6:00 p.m. the next morning Ramji Lal came and told him about the incident. Thereafter, he went straight on by- cycle to police out-post Sihora to lodge the report. He suspected that Shera @ Brijesh wanted to marry deceased Ramkali Bai; however, Ramkali Bai had married appellant Kadori Prasad; hence, Brijesh had turned vengeful and had therefore, killed Ramkali Bai. He had gone to the police out-post to lodge report against Brijesh @ Shera but the police did not lodge his report. They locked him up and went to the spot. Shera @ Brijesh was also called to the police station and interrogated and was later released. The trial Court has placed reliance upon the fact that not only the Dehati Nalishi at number 0 was lodged at 12:30 a.m. on 26.6.2003 but the first information report with crime number was also lodged in P.S. Gadarwara at 1:10 a.m. the same night; therefore, Ramji Lal's version that he learnt about the murder only next morning and did not lodge any report, cannot be believed. In this regard, It may be repeated that the prosecution does not benefit from this loophole in the defence either. The fact remains that there is no substantive evidence of extra-judicial confession nor is their any evidence that the appellant and the deceased were alone at night. An additional fact that goes in favour of the appellant is that his house was rural house, which could be breached easily at night by anybody. Thus, theory of extra-judicial confession stands completely demolished.
8 Cr.A.No.852/200516. The second piece of evidence upon which the trial Court has relied for recording conviction of the appellant under Section 302 of the I.P.C. is that on the disclosure statement made by the appellant Kadori, the blood stained axe alleged to have been used for committing murder, was discovered in a concealed condition and seized from the house of the appellant. Likewise, blood stained clothes of the appellant were also seized from his possession.
17. To begin with it may be seen that the statement of investigating officer Assistant Sub-Inspector Pratap Singh (PW-8) to the effect that at about 4;00 p.m. on 26.6.2003, appellant Kadori Prasad had disclosed in the presence of the witnesses that he had concealed the axe in his house and the same was seized when the appellant took it out and handed it to the police, has been contradicted by witness Pawan Khemariya (PW-5) Baktawar Singh Mehra (PW-6). Both of them have stated that the appellant did not disclose any fact in their presence to the police. In fact, the appellant was not present when the proceedings took place. The axe was lying in open condition, visible to everyone, in the house of the appellant, from where it was seized by the police. The witnesses have also stated that in their presence no clothes were seized from the possession of the appellant by the police.
18. Learned trial Judge has observed in this regard that the investigating officer had no animosity towards the appellant. As such, there was no reason for him to have falsely implicated the appellant; therefore, the statements of the panch witnesses notwithstanding, it could be believed that the axe was recovered from a concealed state. It is true that there was no enmity between the investigating officer on one hand and the appellant on the other; however, as per prosecution case itself, the appellant had gone to Ramjilal on his own to disclose the fact that he had killed his wife Ramkali Bai. As such, he had no intention at that point of time, to conceal his crime from the world because he felt himself 9 Cr.A.No.852/2005 morally vindicated to kill her due to her infidelity. Again, as per prosecution case, after showing dead body to Ramjilal, the appellant went away and apparently never returned home alone. In these circumstances, it appears highly improbable that in such a frame of mind, he would care to conceal the axe under a tarpaulin amongst Khaderuhaz. Thus, the statement of the punch witnesses that the axe was lying in open for everyone to see, appears to be closure to the truth.
19. Moreover, it is apparent from the F.S.L. Report (Ex.P-12) that though blood was found on the axe and the clothes alleged to have been seized from the possession of the appellant, neither its blood group could be ascertained nor its origin could be determined.
20. In this regard it has been held by the Supreme Court in the case of Kansa Behera Vs. State of Orissa, AIR 1978 SC 1507 that:
10. The recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.
11. As regards the recovery of a shirt or a dhoti with blood-stains which according to the serologist reports were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood-stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn.
21. Likewise, the High Court of Madhya Pradesh in the case of Lattu vs. State of Madhya Pradesh, 2004 (2) MPHT 392 MP has held that:
10 Cr.A.No.852/2005Recovery of blood stained knife and clothes is inconsequential unless there is evidence to the effect that the blood was human blood and the blood group tallied with that of the deceased.
22. In the case of Sonelal vs. State of Madhya Pradesh, AIR 2009 SC 760, it has been held as hereunder:
15. It appears from the report of the Forensic Science Laboratory that blood found on the knife seized from the accused matched with the blood found on the underwear of the deceased. PW-6 in his evidence stated that he had sustained injuries at the hands of the accused. The inevitable conclusion is that there is no merit in this appeal which is accordingly dismissed.
23. In the case of Molia vs. State of Madhya Pradesh, AIR 2000 SC 177, a three bench of Supreme Court relying upon the case of State of Rajasthan vs. Teja Ram and others, has observed as hereunder:
As far as the knife recovered at the instance of Molai (A 2), it did have the human blood but the blood group could not be determined. These incriminating articles connect the accused with the crime in question. Mr. Shukla, the learned senior counsel, however, urged that it would be unsafe to connect the said knife with the crime in question and attribute the use of the same by the accused persons in the absence of determination of the blood group. This argument does not appeal to us because the FSL's report has clearly certified that the blood found on the knife was human origin. This question fell for consideration in State of Rajasthan v. Teja Ram, (1999) 3 SCC 507 : (1999 AIR SCW 1514 : AIR 1999 SC 1776 : 1999 Cri LJ 2588) and this Court held that it would be an incriminating circumstance if blood on the weapon was found to be of human origin.
24. In the case of Nana Keshav Lagad and others vs. State of Maharashtra, 2013 Cr.L.J. 4011; however, in the case of State of Rajasthan vs. Teja Ram and others, AIR 1999 SC 1776, the Supreme Court has held that:
"Clothes worn by accused persons contained human blood. It has to be explained. The accused persons offering no explanation, is a incriminating circumstance."
25. In view of aforesaid legal position, in the opinion of this Court, it would be unsafe to presume that the blood on the axe was human blood. Thus mere presence of the blood, origin whereof is unknown, cannot be taken to a be circumstance against the accused putting him to explanation.
11 Cr.A.No.852/200526. There is no other kind of admissible evidence against the appellant available on record.
27. On the basis of foregoing discussion, in the opinion of this Court, the trial Court grievously erred in convicting the appellant of the offence punishable under Section 302 of the I.P.C.; therefore, the conviction is liable to be set aside.
28. Consequently, this criminal appeal is allowed.
29. The conviction and sentence imposed upon appellant Kadori Prasad Jatav under Section 302 of the I.P.C by impugned judgment dated 20.8.2004 passed in Session Trial No.188/2003, is set aside. The appellant Kadori Prasad Jatav stands acquitted of the charge.
30. He shall be released forthwith if not required in connection with any other case.
{Rajendra Mahajan} {C.V. Sirpurkar}
Judge Judge
ahd
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.852/2005
Kadori Prasad Jatav
Vs.
State of Madhya Pradesh
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JUDGMENT For consideration {C.V. Sirpurkar} JUDGE 22 /05/2017 Hon'ble Shri Justice Rajendra Mahajan {Rajendra Mahajan} JUDGE Post for: 22 /05/2017 {C.V. Sirpurkar} JUDGE