Madhya Pradesh High Court
Dare Rajgond vs The State Of Madhya Pradesh Judgement ... on 28 October, 2013
Bench: A.K. Shrivastava, Vimla Jain
1 Cr.A. No.2227 of 2012
HIGH COURT OF MADHYA PRADESH JABALPUR
DIVISION BENCH:
Hon'ble Shri Justice A.K. Shrivastava
Hon'ble Smt. Justice Vimla Jain
Criminal Appeal No. 2227 of 2012
APPELLANT: Dare Rajgond S/o Shivdayal
Rajgond, aged 48 years, R/o
Village Murta Thana - Raipura,
District Panna (M.P.)
Versus
RESPONDENT: The State of Madhya Pradesh
through Aarakshi Kendra
Raipura, District Panna (M.P.)
__________________________________________________
Shri Devendra Singh Baghel, Advocate for the appellant.
Shri C.K.Mishra, Public Prosecutor for the respondent-
State.
JUDGMENT
(Delivered on this 28th Day of October, 2013) Per Justice A.K.Shrivastava Feeling aggrieved by the judgment of conviction and order of sentence dated 23/08/2012 passed by learned Additional Sessions Judge, Pawai, District Panna in Sessions Trial No.02/2011 convicting the appellant under Section 302 of the IPC and sentencing him to suffer R.I. for life and fine of Rs.2000/- with default stipulation, the appellant has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2 Cr.A. No.2227 of 20122. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since in elaboration they are already mentioned in para 3 to 10 of the impugned judgment. For ready reference, it would be condign to mention here that as per the case of prosecution, prosecution witness- Babloo was having illicit relations with the deceased- Longrani which was being questioned by the present appellant. 4-5 days earlier to the date of incident, the appellant who is Jeth (husband's elder brother) of the deceased told Babloo that why he is keeping illicit relations with the deceased and he also tried to assault him. However, at this juncture Hakim intervened. On 18.10.2010 at 10.00 p.m. the appellant came and told the deceased that now he will not live with her and started taking away his utensils etc from the house and also dealt the blow of spade (Fawda) on the temporal region of the deceased as a result of which the blood started oozing from the wound. After causing injury by spade (Fawda) the appellant ran away from the place of occurrence.
3. The FIR was lodged by Sonu (PW-8), on the basis of which a case was registered against the appellant and the investigation was made.
4. After the investigation was over, a charge-sheet was submitted in the committal Court who committed the case to the Court of Session and from where it was received for trial.
5. Learned trial Judge on the basis of allegations made in the charge-sheet, charged the appellant for the offence punishable under Section 302 of the IPC which he denied and 3 Cr.A. No.2227 of 2012 requested for trial.
6. In order to bring home the charges, the prosecution examined as many as 12 witnesses and also proved Ex.P-1 to P-21 the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under Section 313 of the Cr.P.C. However, in support of his defence, he did not choose to examine any witness.
7. The learned trial Judge, on the basis of oral and documentary evidence placed on record, came to hold that the appellant has committed the offence under Section 302 of the IPC and eventually, convicted him to suffer life imprisonment and passed the sentence which we have already mentioned herein above.
8. In this manner, this appeal has been filed by the accused/ appellant assailing his judgment of conviction and order of sentence.
9. The contention of learned counsel for the appellant is that in the present case there are three star witnesses, namely, Mihilal (PW-7), Sonu (PW-6) and Babloo (PW-12). It has been put forth by learned counsel that so far as the testimony of Mihilal (PW-7) is concerned, his statement is not firm because in cross-examination he has admitted that he saw the appellant from the back and, therefore, firmly he cannot say that it was the appellant who caused injury to the deceased or not. By inviting our attention to the testimony of Sonu (PW-6), it has been contended that firstly he is the child witness and secondly 4 Cr.A. No.2227 of 2012 he has not seen the incident because he had come after the incident had already occurred. The learned counsel has invited our attention to the testimony of Babloo (PW-12) with whom it is said that the deceased was having illicit relations and submitted that this witness was kept in the police custody for two days and thereafter he gave his case diary statement recorded under Section 161 of Cr.P.C. which cannot be relied upon and, therefore there is no reliable evidence in order to prove the charge under Section 302 of IPC against the appellant.
10. On the other hand, learned Public Prosecutor has argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned trial Judge for convicting the appellant under Section 302 of the IPC. Therefore, it has been prayed that the appeal be dismissed.
11. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed.
12. On bare perusal of the evidence of witness Mihilal (PW-7), we find that in his examination-in-chief, he says that when he arrived at the spot the deceased was lying in injured condition and the appellant was running away from the house but in para 6 of his cross-examination he has admitted that he has seen the incident from the back side only and not from the face side and, therefore, with certainty he cannot say whether the appellant is the same person who has caused the injury to the deceased. He has admitted the suggestion that causing of injury to the deceased may be by some other person and firmly he cannot say that appellant had caused the injury. He has 5 Cr.A. No.2227 of 2012 further admitted that on the basis of guess he is saying that appellant dealt the blow of spade to the deceased. He has also admitted that after the incident was over, Sonu (PW-6) arrived at the scene. Hence, according to us, this witness has categorically admitted in cross-examination that firmly he cannot say whether the appellant has caused injury or not, therefore the case of prosecution is not proved from the testimony of this witness.
13. After minutely examining the testimony of another witness Sonu (PW-6), we find that his statement is not worth reliable. This witness is a child witness. The law is well settled that if a witness is child, scrutiny of his testimony is to be made great care and caution. After giving our anxious and bestowed consideration to the testimony of this witness, we find that he is a tutored witness. In this regard, we have gone through the cross-examination para 11 of this witness in which firstly he has denied the suggestion that on account of insistence of his maternal uncle (Mama) he is giving such statement but later on he has admitted that today when he has come in the court the statement has been explained to him by his maternal uncle and further told that he should say that appellant has caused injury to the deceased. Hence according to us, the statement of this witness cannot be relied upon. That apart, in para 6 of his cross-examination, he has also deposed that when the incident had occurred he was sleeping in the house. At this juncture, we are examining the testimony of eye witness Mihilal (PW-7) by keeping in juxtaposition the testimony of this child witness and we find that Mihilal (PW-7) is also saying in cross-examination para 6 that Sonu arrived later on after the departure of the appellant from the place of occurrence. Thus, according to us, 6 Cr.A. No.2227 of 2012 these two witnesses are not worth reliable in order to hold that the appellant had caused injury to the deceased resulting into her death.
14. The last witness is Babloo (PW-12). Indeed, this is the witness with whom it is said that the deceased was having illicit relations. On carefully examining the testimony of this witness, we find that in para 6 he has admitted that he was kept in the custody of the police for two days and, thereafter his statement under Section 161 of Cr.P.C. was recorded. Not only this, he was also sent for medical examination in the hospital where his semen was collected and seized. His underwear was also seized by the police personnel. That apart, in para 6 it has been admitted by this witness that he did not see the face of the person who killed the deceased and he saw the assailant from the back side. Further in para 7 he has admitted that he did not see the appellant on the date of incident and, therefore, in these facts and circumstances, the testimony of this witness cannot be relied upon.
15. True on going through the evidence of the autopsy surgeon Dr. M.L.Chowdhary (PW-4), we find that the deceased had sustained injury on the temporal region and he had died on account of that injury but still it is a mystery that who had caused injury. According to us, the prosecution was obliged to solve this mystery by placing cogent and reliable evidence. We have also examined the testimony of aforesaid three witnesses and we find that from their testimony firmly it cannot be said that the appellant had caused the injury to the deceased resulting into her death. Hence we hereby extend benefit of doubt to the appellant.
16. For the reasons stated herein above, this appeal 7 Cr.A. No.2227 of 2012 succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant is in jail, he be set at liberty forthwith, if not required in any other case. .
(A.K.Shrivastava) (Smt.Vimla Jain)
Judge Judge
DV