Madhya Pradesh High Court
Kanyhaiyalal Noriya vs The State Of Madhya Pradesh on 22 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:18574
1 CRA-6481-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 22nd OF APRIL, 2025
CRIMINAL APPEAL No. 6481 of 2022
KANHAIYALAL NORIYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Premendra Sen, learned counsel for the appellant.
Shri S.K. Shrivastava, learned Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal This appeal is filed being aggrieved of judgment dated 29.04.2022 passed by the learned Special Judge (Atrocities), Narsinghpur in SC ATR No.43/2016 whereby convicting the appellant under Section 302 of IPC with life imprisonment and fine of Rs.2,000/- with default stipulation of six months R.I. Appellant is also convicted under Section 394 of IPC with 10 years R.I. and fine of Rs.2,000/- with default stipulation of six months R.I. 2 . Learned counsel for the appellant submits that, as per the prosecution case, on 02.02.2016 complainant Lekhram Choudhary had lodged missing person report at Chowki Barman, Police Station - Suatala in regard to his wife Kosabai. It was reported that on 01.02.2016, Kosabai had gone to graze her goats in the Jungle but when she did not return back then inquiry Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 2 CRA-6481-2022 was made but no clue could be gathered, as a result missing person report 04/2016 was registered. Thereafter, complainant had given an intimation that he along with his son Bhagwandas, Godhan and villager Ekam Patel and Narbad Patel had gone to Jungle in search of his wife where they found dead body of his wife in the Jungle of Seth Pataiya. Somebody had strangulated her with a belt and had looted their goats. It was alleged that the belt which was found in the neck of his wife was that of Kanhaiya Noriya, because Kanhaiya Noriya was visiting their house and, therefore, complainant party had doubt over Kanhaiya Noriya.
3. On the basis of such discovery of dead body, police had recorded Dehati Nalisi under Sections 302, 394/397 of IPC and had also registered Merg against suspect Kanhaiya, registering Crime No.52/2016 under Section 302, 394, 397 of IPC. After inquest inquiry postmortem was carried out and, thereafter body was handed over to the relatives for cremation. Spot map was prepared. Kanhaiya was arrested and a piece of belt was recovered from his house along with bells tied to the goat and 11 goats were recovered from the Seth Pataiya Jungle for which seizure memo was prepared.
4. Since, deceased was a member of SC/ST community and appellant was not belonging to said community, Section 3(2)(w) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act was added, charge- sheet was filed in the Court of Judicial Magistrate First Class, Narsinghpur from where matter was committed to the Special Court. 5 . It is submitted that appellant abjured his guilt and thereafter trial was concluded and appellant has been convicted and sentenced as mentioned Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 3 CRA-6481-2022 above.
6. Shri Premendra Sen, learned counsel for the appellant submits that there are several loopholes in the prosecution story. Firstly, there is no recovery of goats from the possession of the appellant. Secondly, goats were admittedly recovered from a public place, namely, village 'Gursi Seth Bataiya ka Jungle' and not from the personal custody of the appellant Kanhaiya, as is apparent from seizure memo, Ex.P-10. Thirdly, recovery of piece of belt from the house of the accused, so also the bells tied to a goat is not relevant because in the seizure memo, Ex.P-12, neither any colour of the piece of the belt recovered from the full pant of the accused lying in his house is mentioned nor the bells which are tied to the body of a goat are so distinctive that they were identified by the complainant party.
7. It is also pointed out that in the postmortem report, Ex.P/13-B, carried out by Dr. Vinay Thakur, cause of death is mentioned as acute asphyxia due to strangulation, ligature mark is antemortem in nature and death had occurred within 36-48 hours of P.M. examination.
8. It is further pointed out that vide Ex.P/13-C, a belt was recovered from the body of the deceased which was sealed by the Doctor but there is no mention of the colour of the belt etc. and, these contradictions render prosecution case to be very weak and there being no circumstantial evidence against the present appellant, his conviction cannot be sustained and be set aside.
9. Learned Public Prosecutor supports impugned judgment and submits that there is no need for any indulgence, there are direct and indirect Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 4 CRA-6481-2022 evidence to upheld conviction of the appellant.
10. After hearing learned counsel for the parties and going through the record. Lekhram Harijan (PW-1) has stated that accused was visiting their house and used to wear a red colour belt, as a result of which, he had identified the belt. He had doubt that the appellant only had killed his wife because there was a loop around the neck of his wife.
11. In cross-examination, PW-1 admits that when he had recorded Dehati Nalisi, Ex.P-2, he had not mentioned the colour of the belt to be red. He further admits that in Ex.P-2 there is no mention of the fact that when appellant used to visit their house, then he used to come with a red belt. He further admits that he had not mentioned it in Ex.P-2 that the belt was identified by him and for such omission he cannot give any reason.
12. This witness further admits in para 10 of his cross-examination that while recording Merg intimation, Ex.P-3, he had not taken name of the appellant and cannot give any reason for such omission. Similarly, he admits that if in Naksha Panchayatnama, Ex.P-5, name of the appellant is not mentioned, then he cannot give any reason for such omission. He further admits that he had not given name of the accused while preparing of Naksha Ex.P-6 and P-8 by saying that nobody had asked him, therefore, he had not narrated this fact. There is another omission that he had not mentioned this fact in Dehati Nalisi, Ex.P-2, that silver bangles of his wife were missing.
13. Bhagwandas Choudhary (PW-2), son of the deceased, admits that there was a red colour belt around the neck of their mother, that belt was of Kanhaiyalal. He had seen Kanhaiyalal putting on said belt. It is also alleged Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 5 CRA-6481-2022 that appellant had taken 11 goats.
14. Thereafter, in cross-examination, this witness admits that if name of the appellant is not mentioned in Naksha Panchayatnama, Ex.P-5, then he cannot give any reason for such omission. He further admits that red colour belt which was found around the neck of his mother is used by several villagers. He further admits that he had not seen the appellant committing murder but said that he had seen the goats and had seen the accused selling the goats.
15. Godhan Choudhary (PW-3) admits that he had not seen anybody causing murder of his mother.
16. Rustam Mehra (PW-4) was declared hostile.
17. Dharmesh Sharma (PW-5) stated that police had seized belt and goats in front of him vide seizure memo, Ex.P-10, which contains his signatures. Apart from this, no other proceedings were undertaken before him. This witness was declared hostile. This witness admitted that goats were recovered from the Jungle and he cannot say about the number of goats. He further admitted that all the proceedings were undertaken by the police personnel at the police station and his signatures were obtained at police station. He further admits that he had signed all the documents at the instance of the police personnel.
18. Dr. Vinay Thakur (PW-6), Medical Officer, had conducted postmortem and opined that cause of death was asphyxia. He admitted that there was blue tinge on her face apart from swelling. In cross-examination, he stated that blue lips can be because of consumption of a poisonous Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 6 CRA-6481-2022 substance.
19. Chandra Sheikhar Malvi (PW-8) stated that police had called him to the Jungle for photography where he had taken out photographs, thereafter police had brought the accused and had seized a belt from him. He had given memorandum, Ex.P-11, seizure Ex.P-10 and P-12 respectively. In cross- examination, this witness admitted that the belt which was seized was of green colour and was made of cloth.
20. Prahlad Noriya (PW-9) has admitted that he is giving statements as per the discussion which took place at police station.
21. Komal Singh Yuvney (PW-9/A), ASI, admitted that till the recording of missing person report there was no intimation in regard to murder of Kosabai. In Ex.P-1, there is no mention of the name of the person who caused murder of Kosabai.
22. O.P. Sharma (PW-11), Sub Inspector, who had investigated the matter, admitted that at the time of recording of Dehati Nalisi, complainant had said that he had doubt over Kanhaiya. But he could not give any reason for not mentioning this fact in Dehati Nalisi. Similarly, this witness admitted that while making seizure memo, Ex.P-12, he had not mentioned about the colour of the belt and the material of the belt. This witness further admits that in Dehati Nalisi, colour of the belt was not mentioned. Lekhram (PW-1) had also not stated that silver bangles of his wife were missing or somebody had snatched gold nose piece causing injury to the nose. He further admits that Lekhram (PW-1) never informed him that accused use to come with a red colour belt and, therefore, he had identified the belt. He has admitted that Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 7 CRA-6481-2022 if this would have been informed by Lekhram (PW-1), then he would have made note of this fact. He could not contradict witness Chandra Sheikhar Malvi, who stated that the colour of the belt, which was seized from possession of the appellant, was of green colour and was made up of cloth.
23. In the case of State of Goa Vs. Sanjay Thakran and another, 2007 (3) SCC 755, in para 21, the Apex Court has held that when the witnesses identified the articles recovered, they did not have sufficient opportunity to see those articles being used by the deceased for a long duration, and the articles had no distinctive marks, on the basis of which they could be distinguished from the similar articles which were easily accessible and available in the market, the Court held that identification of the said articles by the witnesses was difficult to believe.
24. In the present case, belt with which strangulation was allegedly carried out has been said to be that belonging to the appellant. Whereas, Dharmesh Sharma (PW-5) has admitted that he had signed all the documents at police station. Seizure memo, Ex.P-12, does not make mention of the clolour of the belt which was recovered from the present appellant. Chandra Shekhar Malvi (PW-8) stated, in para 4, of his cross-examination that the belt which was seized vide Ex.P-12 was of green colour and was made up of cloth. Whereas, on the contrary, Bhagwandas (PW-2) has admitted that colour of the belt found in the neck of his mother was red and that was of the appellant Kanhaiyalal. There is no matching of the broken piece of belt which was recovered from the possession of the appellant Kanhaiyalal with that piece which was recovered from the neck of the deceased. Therefore, in absence Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 8 CRA-6481-2022 of the aforesaid matching, there is lack of evidence to connect the piece of belt recovered from possession of the appellant with that which was found in the neck of the deceased and, in absence of any expert evidence for which no efforts were made by the prosecution to match the two pieces of the belt recovered from the neck of the deceased and one from the possession of the appellant, in the light of the judgment of the Apex Court in the case of State of Goa (supra), prosecution has failed to corroborate the involvement of the present appellant. Even otherwise, recovery of the goats is from a open place. Bells which were recovered from the possession of the appellant are not having any distinctive marks and there is no identification of those bells to be belonging to the deceased family.
25. The ingredients of "robbery" are being defined in Section 390 of IPC. It is held that - Extortion is 'robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted will constitute 'robbery'.
26. Section 394 of IPC prescribes punishment for voluntarily causing hurt in committing 'robbery'. The essential ingredients of robbery are that the accused was one amongst others in committing or attempting to commit robbery; that the accused caused hurt to any other person while doing so; and that he did so (caused hurt) voluntarily has laid down in the case of Murali alias Chhota Vs. State, 2014 CrLJ NOC 549.
Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 9 CRA-6481-2022
27. In the present case, essential ingredients of Section 394 have not been proved prosecution has failed to prove that there were more than one persons were concerned in committing or attempting to commit robbery as defined in Section 390 of IPC; that one of the aforesaid persons in committing or attempting to commit robbery caused hurt to the victim; and that such hurt by any of the delinquents aforesaid was caused voluntarily, therefore, charge under Section 394 of IPC is not substantiated. Therefore, this Court has no hesitation to hold that conviction of the appellant under Section 394 of IPC, in absence of there being any evidence to prove the aforesaid aspects which are the necessary ingredients of 'robbery' cannot be substantiated and, therefore, conviction under Section 394 of IPC too cannot be sustained and is hereby set aside.
28. In view of such facts and evidence available on record are examined, then it is evident that there is no eye witness account, the only circumstantial evidence used to record conviction is that of recovery of belt but that too could not be conclusively proved by leading scientific evidence by conducting a test to match the two pieces of belt and in absence of any conclusive evidence, it cannot be said that chain of circumstances is complete so to uphold the conviction of the appellant and, accordingly, impugned judgment of conviction dated 29.04.2022 cannot be upheld and is hereby set aside.
29. Accordingly, appeal is allowed.
30 If the appellant is not required in any other case, he be released forthwith. Fine amount, if deposited by him, be returned back to him. Case Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 25-04-2025 11:54:09 NEUTRAL CITATION NO. 2025:MPHC-JBP:18574 10 CRA-6481-2022 property be disposed of in terms of the judgment of the trial Court.
32. Record of the Court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
MTK
Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 25-04-2025
11:54:09