Madhya Pradesh High Court
Rajkumar @ Raju vs State Of M.P. on 2 February, 2019
CRA 882/2007 1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
DIVISION BENCH : Hon'ble Shri Justice S.C. Sharma
and Hon'ble Shri Justice Virender Singh
Criminal Appeal No.882/2007
Rajkumar @ Raju S/o Saligram
Vs.
State of Madhya Pradesh
-x-x-x-x-x-x-x-x-x-x-x-
Shri A.S. Rathore, learned counsel for the appellant.
Shri Rahul Vijaywargiya, learned Public Prosecutor for the
respondent-State.
-x-x-x-x-x-x-x-x-x-x-x-
JUDGMENT
(02/02/2019) Per : Virender Singh, J.
The appellant has preferred this appeal challenging his conviction under Section 302 of IPC and sentence of life imprisonment with fine of Rs.3000/- and in default, RI of one year awarded by 18th Additional Sessions Judge (Fast Track), Indore vide judgment dated 31/07/2007 delivered in Sessions Trial No.116/2007.
2. Background facts giving rise to the present appeal in brief are that the deceased Nirmala Bai was married to the appellant about 15-16 years prior to the date of incident, but after sometime, they developed some differences. Since last 7- 8 years, the appellant was misbehaving with her. He used to beat her after having liquor. Perturbed with this harassment and cruelty, the deceased used to come back and stay with her brother and parents, but every time, the appellant used to come and apologize and take her back. This practice was CRA 882/2007 2 going on since a long. Prior to the incident, the deceased along-with her youngest daughter came back home and was staying with her younger brother Chandrakant. On 28/11/2006 at about 7:30 P.M., the appellant barged into the house of Chandrakant, beat Nirmala, dragged her up to the road and knifed on the vital part including neck of her body and caused fatal injuries, resulting in her death.
3. Elder brother of the deceased Laxminarayan Khandelwal lodged FIR No.618/06 (Ex.P/6) against four persons namely, Raju @ Rajkumar, Sikandar @ Shailendra Kumar, Kamlabai W/o Saligram and Saligram S/o Ishwarlal (husband, his brother and parents) under Section 302 of IPC at Police Station Annapurna, Indore. The police also registered Merg No.40/06 (Ex.P/5) and investigated the case. During investigation, the police called the witnesses vide Ex.P/7, prepared panchnama lash before them (Ex.P/8), visited the spot, prepared spot map (Ex.P/23), seized plain and bloodstained soil (Ex.P/17), sent the dead body and requested the doctor for postmortem. Dr. Bharat Prakash (P.W.1) performed autopsy and opined that the death of the deceased was due to profuse bleeding because of injuries sustained by her and nature of death was homicidal. The police arrested all four accused persons vide arrest memo Exs.P/10, P/11 & P/12, interrogated the appellant, prepared memo of information given by him (Ex.P/13), seized knife used in the incident vide seizure memo Ex.P/16 from his possession. The police also seized his bloodstained shirt vide seizure memo Ex.P/15 and received viscera and clothes of the deceased from CRA 882/2007 3 the hospital. The police sent all articles to the FSL for chemical examination vide letter Ex.P/18, recorded police statement of the witnesses, recovered a notebook from the appellant and obtained his admitted handwriting, sent both the disputed and admitted handwriting to the FSL, who confirmed that both are originated from the same person, means both handwriting were of the appellant (Ex.P/22). After completing investigation, the police filed charge-sheet against all four accused persons.
4. After the trial, learned trial Court found that the case of the prosecution could not be established against Sikandar @ Shailendra, Kamlabai and Saligram and acquitted them, while holding the appellant guilty, convicted and sentenced him as stated in para-1 above.
5. The appellant has preferred this appeal on the grounds that the judgment and order of the learned trial Court is contrary to the law and facts available on record. The trial Court has drawn unwarranted inferences from the evidence produced by the prosecution and committed grave error in overlooking the contradictions and omissions appeared in the statements of the witnesses. Statements of prime witnesses of the prosecution inherents weaknesses and are contradictory to each other on material points. Besides, their statements have been recorded by inordinate delay and delay is not explained. Daughter of the appellant Jyoti (P.W.13) has admitted that since the time of lodging FIR, she was in touch with the police even she went to the police station at the time of lodging of the report and met the police 2-3 times after CRA 882/2007 4 lodging the report, but her police statements were recorded after 25 days of the incident and delay is not explained. Another witness Hukumchand (P.W.5) has admitted in para-6 of his statement that he had not seen the incident. He only took his sister to the hospital by an auto-rickshaw with the help of two unknown persons. Other independent persons present on the spot, were not made witnesses in the case. Laxminarayan has first seen the deceased at the hospital, therefore, he had not seen the incident. The evidence shows that accused Shailendra was falsely implicated as at the relevant point of time he was at his duty i.e. Kochin and not on the spot. The trial Court itself has not found the statement of the witnesses trustworthy with regard to the other three accused persons and has acquitted them. The same set of evidence cannot be relied upon against the appellant. When the witnesses are once held unreliable, they cannot be relied to record conviction of the appellant, therefore, conviction of the appellant is bad in law. Impugned judgment is not sustainable in the eyes of law and be set aside.
6. Learned Public Prosecutor has opposed the prayer. Relying on the statements of the eyewitnesses Jyoti (P.W.13) and Hukumchand (P.W.5), the learned Public Prosecutor has submitted that the prosecution has successfully proved its case beyond reasonable doubt, therefore, it is submitted that the appeal be dismissed.
7. We have considered rival contentions of the parties and have gone through the evidence produced by the prosecution before the trial Court.
CRA 882/2007 58. The appellant has not controverted the fact that on the date, time and place of the incident, the deceased sustained the following injuries:-
(i) Incised wound 3 x 1 x 1/2 cm. over web of right thumb and forefinger of right hand palmer aspect.
(ii) Two incised wound 1.3 x ¼ subsidiaries deep over terminal phalynx, palmer aspect ½ cm. approx.
(iii) Incised wound 3.5 x 1.5 x 1 cm. oblique over epigastrium region, just below xiphisternum.
(iv) Incised wound slightly oblique 11 x 4 x 6 cm. over anterior-lateral right side.
Dr. Bharat Prakash (P.W.1) opined that the injuries caused by hard and sharp object, which was the cause of her death and her death was homicidal in nature. All these facts have not been contested by the appellant, therefore, we need not to discuss the prosecution evidence in this regard in detail and without delving deep, we confirm the findings of the trial Court that on the alleged date, time and place of the incident, the deceased was died and her death was homicidal in nature.
9. Prosecution witnesses Laxminarayan (P.W.4), Hukumchand (P.W.5) (both brothers of the deceased), Jyoti (P.W.13) (daughter of the deceased), Gajanan (P.W.14) (neighbour of Laxminarayan), Anil (P.W.18) (friend of Laxminarayan), Chandrakant (P.W.19) (cousin of the deceased) and Shantabai (P.W.23) (mother of the deceased) have claimed that they all have seen the incident or that they have seen that co-accused persons were holding the deceased and appellant Raju @ Rajkumar was beating her and he CRA 882/2007 6 stabbed her till death and when they run towards the spot, all the accused persons ran away.
10. We have carefully examined their statements and found that none of them was present on the spot or none of them has seen the accused persons involving in the incident or at least their presence on the spot at the time of incident is seriously doubtful. It is needless to say that all these witnesses have also been disbelieved by the trial Court with regard to the other three accused persons namely Shailendra Kumar @ Sikandar, Kamlabai and Saligram.
11. In his police statement, Laxminarayan (P.W.4) claimed that he had seen the incident but in court, he has left this claim. He has only stated before the Court that when reached, he saw the accused persons running from the spot and his sister was lying on the road unconscious. Hukumchand (P.W.5) has claimed that he had seen the incident but none of the other witnesses named in preceding para have stated that at the time of incident, he was present on the spot. Contrary to their claim, their mother Shantabai (P.W.23) has clearly depicted in para-6 of her cross- examination that at the time of incident, Hukumchand and Laxminarayan both were at home with her. Some children of their colony came and informed that the deceased is lying on the road in injured condition. After receiving this information, they all rushed towards the place of incident and had seen the body of the deceased lying on the road. Both Laxminarayan and Hukumchand have claimed that they picked up the body of the deceased, kept it in an auto rickshaw and took it to the CRA 882/2007 7 hospital and in this process, their clothes got drenched in the blood but their such clothes were never seized by the police nor they handed over the same to the police. Thus their claim that they had seen the accused persons beating or causing injury to the deceased falsifies.
12. Third prime witness, the daughter of the deceased, 9 years old Jyoti (P.W.13) has deposed on oath that she had seen the accused persons beating her mom but para-16 of her statement reads thus:-
"16- esjh eEeh dh e`R;q ds i'pkr~ eSa 20&25 fnu rd vius ekek ds ;gka jgh Fkh] dgha ckgj ugh xbZ FkhA ;g lgh gS fd esjs ekek ? kVuk ds i'pkr 20&25 fnu rd dgrs jgs fd rqEgkjk iqfyl esa c;ku djok,axsA esjs ekek us eq>ls dgk Fkk fd eSaus iqfyl okyksa ls ckr dj yh gS] vkSj iqfylokys esjk c;ku ysaxsA esjh eEeh dh e`R;q ds 20&25 fnu ckn esjs ekek eq>s c;ku fnykus ysdj ugh x;sA esjs ekek th us eq>s dgk Fkk fd mUgksus iqfyl okyksa dks esjs c;ku fy[kok fn;s gSaA esjs ekek us ,slk dgk Fkk fd mUgksus] tks esjs iqfyl esa c;ku fy[kok, gSa mlh ds vuqlkj eq>s dksVZ esa c;ku nsus gSA ekek us eq>s ?kj ij ;g crk;k Fkk fd iqfyl us esjs c;ku fy;s gS vkSj os c;ku eq>s i<+dj crk;s FksA djhc 8&10 fnu iwoZ esjs c;ku esjs ekek us eq>s i<+dj crk, FksA ;g lgh gS fd vkt esjs ekek esjs c;ku vius lkFk ysdj eq>s odhy lkgc ds ikl U;k;ky; esa ysdj x;s FksA ;g lgh gS fd mu odhy lkgc us esjs ekek ls c;ku dh dkih ysdj eq>s crk;k Fkk fd rqedks ,sls c;ku vkt rqedks dksVZ es nsuk gS vkSj mlds ckn ogh c;ku vkt eSus U;k;ky; esa fn;sA"
13. In para-17, she has further admitted that whatever his mama had told her, she depicted before the Court. Thus, without any doubt in mind it is crystel clear that she is a tutor witness and cannot be relied upon to hold the appellant guilty. Her situation can also be understand with one another fact that leaving her all three siblings, she alone was residing with her uncle (mama) and even after the incident, she was staying with her uncle. Her siblings were residing with their CRA 882/2007 8 grandparents. In such a situation, keeping in view her age, one can easily understand her compulsion or helplessness, but in any case, her statement cannot be believed as genuine and true or free from contaminating elements or free from extraneous considerations.
14. Gajanan (P.W.14) is examined by the prosecution as a chance witness. He deposed that he had seen the incident, but contrary to his police statement Ex.D/5, he has stated that at the time of the incident, Laxminarayan and Hukumchand reached on the spot. They picked up the body of the deceased and took it to the hospital. While in police statement, he has stated that he along with some other persons picked up Nirmalbai and took her to the hospital but none of the document of hospital or the police show that he had gone to the hospital or stayed there or he was present at the time when the police initially took the cognizance and prepared the panchnama lash etc.
15. Anil (P.W.18) and Chandrakant (P.W.19), who have stated that the accused persons have inflicted injuries to the deceased before them but besides their friendship and relation with the deceased and her kin, their statements are questionable or distrustworthy for many other reasons. Name of Chandrakant as a person present on the spot is not mentioned in the FIR. He has admitted that he did not pick up the deceased from the spot even when she was her first cousin. He did not even revealed the name of the persons, who picked up the deceased from the spot. He did not accompany his family members when they were taking the CRA 882/2007 9 deceased to the hospital. In did not remain with the grieved family for any help or even for condolence. He never extended any type of help to his family when his cousin was murdered by someone. His conduct makes his presence doubtful. Almost similar is the situation of statement of Anil. Besides the fact that their statements are contrary to the statement of Laxminarayan, Hukumchand and Shantabai that they were present on the spot and took the deceased to the hospital. They both have not mentioned their presence on the spot or that they all took the deceased to the hospital. Besides their statements are also contradictory on the fact as to where or in what directions, the accused persons ran away after the incident. Contrary to the claim of Laxminarayan, Hukumchand and Shantabai or even against Jyoti, Anil (P.W.18) has stated that he and Golu took the deceased to the hospital in rickshaw but he could not reply with certainty as to whether their clothes were drenched in the blood or not, therefore, statement of both these witnesses also do not earn any credence.
16. Laxminaryan, Hukumchand and Shantabai have claimed that they reached on the spot and picked up the deceased and took to the hospital, but Anil and Chandrakant have not supported them on this point and contrary to their statements, Anil has stated that he and Golu took the deceased to the hospital. Golu has turned hostile, though in his examination-in-chief, he has stated that when he reached on the spot, the deceased was lying dead on the road.
17. Laxminarayan and Hukumchand have stated that CRA 882/2007 10 they were on the spot and have seen the incident. They have not stated that Anil and Chandrakant were also present on the spot. Anil and Chandrakant have stated that they were present on the spot and have seen the incident, but they have not stated that Laxminarayan and Hukumchand were present on the spot. Presence of Laxminarayan and Hukumchand negated by their mother Shantabai. She has also kept mum and has not stated that Anil and Chandrakant were also present on the spot. Jyoti has stated that she alone was present on the spot with her mother at the time of the incident. She has not stated that any of them namely, Laxminarayan, Hukumchand, Anil, Chandrakant and Shantabai were present on the spot and surprisingly, none of these witnesses have stated that Jyoti was present on the spot. This makes statements of all these witnesses seriously doubtful.
18. All the eyewitnesses have claimed that they were present on the spot, they have seen the incident, they took the deceased to the hospital, intimated the police about the incident and constantly remained in touch with the police but even then their statements under Section 161 Cr.P.C. have been recorded after 10, 12, 15 or even after 23 days and no attempt is made by the prosecution to explain this delay. In view of the statements of daughter and mother of the deceased Jyoti and Shantabai, this delay is a very important and absence of any explanation for this lapse is fatal and makes the prosecution case doubtful.
19. Eyewitnesses have claimed that they have seen the accused persons on the spot, while Shantabai has admitted that CRA 882/2007 11 when she along with Laxminarayan, Hukumchand reached on the spot, there was a dark, therefore, the claim of the witnesses appear to be doubtful.
20. Statements of all the material witnesses against all the accused persons against whom the charge-sheet was filed by the police are one and the same. They all have stated that Shailendra, Saligram and Kamlabai caught the deceased or were present on the spot and Raju inflicted knife. Their statements are disbelieved by the trial Court itself with regard to the remaining accused persons namely, Shailendra, Saligram and Kamlabai. The law is well settled in this regard that when the same set of evidence is disbelieved with regard to the one or the other accused persons, it cannot be believed against other accused persons.
21. Thus in nutshell, Laxminarayan and Hukumchand have stated that they have seen the incident, but Anil and Chandrakant have not confirmed their presence on the spot and their mother Shantabai has contradicted their statements and stated that they were at home with her and only rushed to the hospital after receiving information for small children of the colony. Jyoti is clearly a tutored witness and her Court statement is not trustworthy. There is substantial delay in recording the police statement of the witnesses and this delay is not explained. There is absolute lack of evidence like bloodstains on the clothes of the persons, who claimed that they picked up the deceased from the spot and took her to the hospital to corroborate their claim regarding their presence on the spot. Statements of the witnesses are contrary to each CRA 882/2007 12 other on the material points. Learned trial Court has committed an error in appreciating such evidence and relying on such type of statement to record conviction of the appellant.
22. Such contradictory situation as we have observed; reflects the erroneous approach of the learned trial Court. The learned trial Court has not considered the evidence produced by the prosecution in its right perspective. We have reasons to doubt the opinion expressed by the learned trial court. Considering the totality of the facts and the evidence, in our considered view the evidence relied upon by the learned trial Court to record conviction is neither convincing nor sufficient to hold the accused/appellant guilty of the offence charged against him. The evidence adduced by the prosecution falls short of reliability and is unsafe to record conviction. It cannot be said that the prosecution has established the facts beyond reasonable doubt and certainly benefit of doubt will go to the appellant. Consequently, the appeal filed by the appellant is allowed. The impugned judgment and order of sentence is hereby set aside. The appellant is acquitted from the charge under section 302 IPC. He be set at liberty forthwith, if not required in any other offence.
23. Order of the learned trial Court regarding disposal of seized property, is hereby confirmed.
(S.C. Sharma) (Virender Singh)
Judge Judge
soumya Digitally signed by Soumya
Soumya
Ranjan Dalai
DN: c=IN, o=High Court of
Madhya Pradesh,
ou=Administration,
Ranjan
postalCode=452001,
st=Madhya Pradesh,
2.5.4.20=f4d2118683e84322
bb5797cf28ee60671538b737
Dalai cf52962d84d7b527897e53ac
, cn=Soumya Ranjan Dalai
Date: 2019.02.07 12:05:53
+05'30'