Madhya Pradesh High Court
Bablu @ Babla vs The State Of Madhya Pradesh on 11 May, 2023
Author: Rohit Arya
Bench: Rohit Arya, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 11th OF MAY, 2023
CRIMINAL APPEAL NO. 1194 OF 2014
BETWEEN:-
BABLU @ BABLA S/O PARASRAM, AGE 30
YEARS, CASTE - KUSHWAH, R/O VILLAGE
LALOI, THANA GULABGANJ, DISTRICT
VIDISHA (MADHYA PRADESH).
........APPELLANT
(BY SHRI R.K.S. KUSHWAH - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION GULABGANJ, DISTRICT
VIDISHA (MADHYA PRADESH).
........RESPONDENT
(BY MS. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 31st of March, 2023
Pronounced on : 11th of May, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
2
JUDGMENT
This jail appeal, under Section 383 of the Code of Criminal Procedure, 1973 (for brevity "Cr.P.C."), has been preferred against the judgment dated 12.11.2014, passed by the Court of Additional Sessions Judge, Ganjbasoda, District Vidisha in S.T. No.264/2013, whereby the appellant has been convicted under Sections 302 and 201 of the Indian Penal Code, 1860 (for brevity "IPC") and sentenced him as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonment
in lieu of fine
302 IPC Life Rs.25,000/- SI for 1 year
Imprisonment
201 IPC RI for 5 years Rs.5,000/- SI for 2 months
2. The prosecution case, in brief, is that on 09.03.2013 at about 17:45 hours, on the basis of the statements made by the complainant Dharmendra Shrivastava, ASI, RP Singh Kushwah lodged a Dehati Merg Intimation Report (Ex.P-1) to the effect that on 02.03.2013, complainant's uncle Ramnarayan Shrivastava had come to village Laloi from Ganjbasoda to see his agricultural land, situated there. Thereafter, he went missing since 04.03.2013 and his mobile phone was also found to be switched off. Complainant and other family members searched him at nearby places and thereafter, on 07.03.2013, his brother Manoj Shrivastava lodged a Missing Person Report (Ex.P-12) at Police Station Gulabganj. On 09.03.2013 at about 15.30 hours, Sardar Singh, a resident of village Laloi, informed the complainant on his mobile phone that there is a discussion going on in the village about his uncle's dead body, lying in the well of Leelakishan Viswakarma. Complainant gave aforesaid information to his brother Mahendra and uncle-Bhupendra 3 and when they went to the well, built on the field of Leelakishan Viswakarma, they saw the dead body of Ramnarayan Shrivastava, lying in the well.
3. On the same day, at about 20:25 hours, on the basis of aforesaid Dehati Merg Intimation Report (Ex.P-1), original Merg Intimation Report bearing Crime No.06/2011 (Ex.P-25) was registered at Police Station Gulabganj, District Vidisha (M.P.). ASI, RP Singh Kushwah called the witnesses issuing Safina Form (Ex.P-2) and took out the body of the deceased from the well, which was tied up with a heavy stone. He thereafter, prepared Naksha Panchayatnama (Ex.P-3) of the body of the deceased and sent the same for postmortem examination to PHC Gulabganj. On the next day, i.e., 10.03.2013, at about 11:25 hours, Dr. Mahendra Oswal conducted the postmortem of the body of the deceased and prepared postmortem report (Ex.P-21). He found two lacerated wounds on the skull of the deceased and fracture of his left tibia bone alongwith other injuries and opined that the cause of his death was Asphyxia due to drowning within 3½ to 5 or 6 days since the time of postmortem examination, subject to confirmation by bone marrow examination of left tibia bone. He opined that the marks of injuries over his body in particular to scalp injury raises questions regarding the nature of the death of the deceased as suicidal.
4. On the same day, at about 13:30 hours, SI, PS Raghuvanshi went to the spot, seized a brownish stone and a black rope, which were found tied with the body of the deceased, from the place of occurrence, as per Seizure Memo (Ex.P-13). On 12.03.2013 at about 20:45 hours, he, on the basis of the statements of the witnesses recorded during merg inquiry, lodged the FIR bearing Crime No.35/2013 (Ex.P-30) against 4 the appellant for the offence punishable u/S 302 of IPC. On 13.03.2013, he seized an agreement dated 04.05.2012 (Ex.P-11), executed between the deceased and the appellant about lending an amount of Rs.1,90,000/- to the appellant, from the possession of deceased's wife as per Seizure Memo (Ex.P-16). Thereafter, on 15.03.2013 at about 14:00 hours, he arrested the appellant as per Arrest Memo (Ex.P-9), recorded his Disclosure Statement (Ex.P-8), on the basis of which and on his instance seized deceased's black shoe alongwith stones four in number, used in the crime and water of the well, as per Seizure memo (Ex.P-5).
5. On the same day, at about 16:20 hours, he again recorded the Disclosure Statements (Ex.P-7) of the appellant, on the basis of which, and on his instance seized the deceased's spectacles alongwith its plastic cover and a wrist watch from the bushes near the place of occurrence, as per Seizure Memo (Ex.P-6). He also seized a lease deed (Ex.P-17), executed withregard to the agricultural land, taken by the appellant from Leelakishan, from the possession of appellant's father, as per Seizure Memo (Ex.P-14). He vide letter (Ex.P-31), sent the seized water of the well and preserved bone marrow of the deceased to FSL Bhopal, while vide letter (Ex.P-32), sent the seized stones and deceased's clothes to FSL, Gwalior for forensic examination. After completion of investigation, charge-sheet was filed against the appellant before the Court of Judicial Magistrate First Class, Ganjbasoda, District Vidisha, who committed the case to the Court of Sessions Judge, Vidisha, who made over the same to the Court of Additional Sessions Judge, Ganjbasoda, District Vidisha.
6. Learned Trial Court considering the material prima facie available on record, framed the charges under Sections 302 and 201 of IPC 5 against the appellant, who abjured the guilt and prayed for trial.
7. Learned Trial Court after appreciating oral as well as documentary evidence available on record, convicted the appellant for the offences punishable under Sections 302, 201 of IPC and sentenced him as aforesaid.
8. Being aggrieved by the impugned judgment of conviction and order of sentence, appellant has preferred the instant appeal through jail for setting aside the impugned judgment and discharging him from the charge framed against him.
9. Learned counsel for the appellant submits that admittedly, the deceased Ramnarayan was missing since 04.03.2013 and his dead body was found on 09.03.2013 and till then the name of the appellant was not surfaced. Sardar Singh (PW-14) deposed that on 09.03.2013 itself, he informed the complainant about the extra-judicial confession made by the appellant before Kashiram that he committed murder of the deceased, but the aforesaid fact was not mentioned in the Dehati Merg Intimation Report (Ex.P-1), lodged by the complainant on the said date. Appellant's name was surfaced in the FIR (Ex.P-30), registered on 12.03.2013, but it is nowhere mentioned that when and by whom first time the name of the appellant was disclosed. During investigation, the statements of Kashiram (PW-9), before whom it is said that the appellant had confessed his crime, and the eyewitness Ramswaroop Ahirwar (PW-2) were recorded on 14.03.2013, i.e., after about 10 days of the incident and it is nowhere explained as to why the statements of both the above witnesses were not recorded till 14.03.2013, which in- itself makes their statements doubtful. There is nothing else on record against the appellant, which suggests his involvement in the crime.
6Prosecution has also failed to prove the fact that the deceased was died homicidal death. The prosecution has not proved its case beyond reasonable doubt and the appellant has been convicted only on the basis of suspicion. The learned Trial Court has committed legal error while appreciating the evidence available on record, therefore, the impugned judgement convicting the appellant is unsustainable and is liable to be set aside and the appellant may be acquitted from the charges framed against him.
10. Per contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence submits that the judgment, so passed by the Trial Court, is based on proper appreciation of evidence available on record. Prior to the incident, appellant had taken an amount of Rs.1,90,000/- as loan from the deceased Ramnarayan, who was demanding his money back from the appellant as he had to repay his loan, taken by him from Zila Sahkari Samiti Pachma. Due to the aforesaid reasons, appellant assaulted and threw the deceased into the well. Prosecution witnesses Ramswaroop (PW-2) and Kashiram (PW-9), who saw the incident and before whom the appellant had confessed his crime, have supported the prosecution case. Prosecution has proved its case beyond reasonable doubt, therefore, the learned Trial Court has not committed any error in convicting the appellant and hence, the appeal filed by him is devoid of merits and deserves to be dismissed.
11. Heard the learned counsel for the parties at length and perused the record.
12. Prosecution case is based on direct as well as circumstantial evidence and prosecution in its support has examined, in all, 23 7 witnesses including eyewitness Ramswaroop Ahirwar (PW-2). Other material witnesses are Kashiram (PW-9), before whom appellant had confessed his crime, ASI, R.P. Singh Kushwah, (PW-23), who took out the body of the deceased from the well and lodged Dehati Merg Intimation Report (Ex.P-1). Dr. Mahendra Oswal (PW-16), who conducted the postmortem examination on the body of the deceased and I/O, SI, P.S. Raghuvanshi (PW-22), who lodged the FIR and investigated the case.
13. From the statements of complainant Dharmendra Shrivastava (PW-1) & Golu @ Mahendra Shrivastava (PW-4), who are nephews of the deceased, Manoj Shrivastava (PW-3), Bhupendra Shrivastava (PW-
6) & Govind Shrivastava (PW-15), who are brothers of the deceased and Rita Shrivastava (PW-19), who is wife of the deceased, this fact appears undisputed that on 02.03.2013, the deceased Ramnarayan had gone to village Laloi from Ganjbasoda, to see his agricultural land situated there and thereafter, since 04.03.2013 he went missing and his mobile phone was also found to be switched off. This fact also appears undisputed that the complainant alongwith other members of his family had made search of the deceased at nearby places and thereafter, on 07.03.2013 at about 11:30 hours, complainant's brother Manoj Shrivastava lodged his Missing Person Report (Ex.P-12) at Police Station Gulabganj, District Vidisha.
14. Complainant Dharmendra Shrivastava (PW-1) deposed that after about 2 days of lodging of missing person report at about 14:00 hours, Sardar Singh, a resident of village Laloi, had informed him on his mobile phone that a discussion was going on in the village that the dead body of his uncle Ramnarayan was lying in the well, built on the field 8 of Leelakishan Vishwakarma. He deposed that thereafter, he told his brother Mahendra and uncle Bhupendra about the aforesaid information on their mobile phones, and when they went there and saw the dead body of the deceased Ramnarayan lying in the well and informed him about the same, he informed to Police Station Gulabganj. Mahendra Shrivastava (PW-4) and Bhupendra Shrivastava (PW-6) have supported his aforesaid statements and deposed that after receiving the information about the discussion going on in the village that the body of the deceased Ramnarayan was lying in the well, they went to the well, situated in the field of Leelakishan, and saw the body of the deceased lying in the well.
15. ASI, R.P. Singh Kushwah (PW-23) has also supported complainant's aforesaid statements and deposed that after receiving the information about the body of the deceased, on 09.03.2013 at about 17:45 hours, he reached to the spot and recorded Dehati Merg Intimation report (Ex.P-1) on the basis of the statements made by the complainant. He deposed that after calling the witnesses through Safina Form (Ex.P-2), he took out the body of the deceased, which was tied up with a heavy stone, from the well and prepared Naksha Panchayatnama (Ex.P-3) of the body of the deceased and thereafter sent the same to PHC Gulabganj for postmortem examination. Dr. Mahendra Oswal (PW-16) deposed that on the next day, i.e., 10.03.2013 at about 11:30 hours, he conducted the postmortem examination of the body of the deceased Ramnarayan and observed as follows:-
External examination :-
(1) Body lying in pugilistic posture. (2) Rigor Mortis absent in all four limbs. (3) Body in advance stage of putrefaction.9
(4) Whole body, face, neck, chest, abdomen, scrotum, penis hugely swollen.
(5) Subcutaneous emphysema present. (6) No hair of scalp - but pubic hair present - Nails bluish red, conjunctiva bluish red. No mark of ligature found around the neck.
Injuries:-
(1) Lacerated wound over pinna of left ear throughout its width, completely separated upper & lower half. No blood seen at wound site. (2) L - shaped lacerated wound, measuring 3cm x 1/2cm x 1/2cm, on left side of scalp corresponding to left occipeto parietal area of skull, 6 cm to the left of mid line, margin of the wound dead white, no fresh or putrified blood found underneath the wound. No underlying fracture of skull found.
(3) Lacerated wound, measuring 2 ½cm x ½ cm x ½ cm, over left occipital area of scalp, 7 cm to left of midline, margin dead white. No fresh or putrifield altered blood found. No underline fracture of skull found - No collection of haematoma found.
(4) Oblique fracture of left tibia at lower 1/3 rd area of leg, 5cm above the ankle. No fracture haematoma found. No overlying injury of skin or subcutaneous tissue found.
16. Dr. Mahendra Oswal (PW-16) deposed that he prepared the postmortem report (Ex.P-21) and preserved bone marrow of left tibia bone of the deceased for bone marrow examination (Diotoms). He opined that the cause of death of the deceased was Asphyxia due to drowning within 3½ to 5 or 6 days since the time of postmortem examination, subject to confirmation by bone marrow examination of preserved left tibia bone. He opined that since advance putrefaction was present on the body of the deceased and marks of injuries were dead 10 white, therefore, it was not possible to opine whether the injuries found on the body of the deceased were antemortem or postmortem in nature. He opined that the marks of injuries found over the body of the deceased in particular scalp injury raises questions regarding the nature of death of the deceased as suicidal. He further opined that since along with other injuries, lacerated wounds were found on the occipital area of the scalp of the deceased and his left tibia bone was also found broken, therefore, probability of his homicidal death cannot be denied.
17. Appellant has challenged the aforesaid fact that the deceased was died homicidal death, but, as transpired from the statements of Dr. Mahendra Oswal (PW-16), that the deceased had sustained lacerated wounds on the occipital area of his scalp alongwith fracture in his left tibia bone and his dead body was found in pugilistic posture, which suggests that there was a fight with him before his death, this fact is established that his death was homicidal and not suicidal. The aforesaid fact also finds support from the statement of ASI, R.P. Kushwaha (PW-
23) and Naksha Panchayatnama (Ex.P-3), prepared by him, wherein it is stated that the body of the deceased was found tied up by a rope with a heavy stone in the well. Therefore, submissions made by the learned counsel for the appellant that the deceased was died suicidal death has no force. The act of causing lacerated wounds, mentioned above, on the occipital area of deceased's scalp alongwith fracture in his left tibia bone and throwing him into the well after tying him with a heavy stone in-itself, shows that he was murdered.
18. So far as the issue whether aforesaid act was committed by the appellant is concerned, the entire prosecution case against the appellant mainly rests upon the statements of prosecution witnesses Ramswaroop 11 (PW-2), who claims himself as an eyewitness of the incident, and Kashiram (PW-9), who has deposed that the appellant himself told him that he had committed murder of the deceased.
19. Ramswaroop Ahirwar (PW-2) has deposed that on the date of incident, when he was returning home, he saw the appellant assaulting the deceased Ramnarayan through Chinkari (stone) into the well, from where screams were coming. He deposed that after hearing the screams, when he reached there, he saw the deceased in the well, from whose head, blood was oozing out. He deposed that since appellant had threatened him therefore, he did not tell the incident to anyone, but when police came to the village, he narrated the incident to the police. Kashiram (PW-9) has deposed that on 09.03.2013 in the evening, when he had returned from Mandi, the appellant called him at his house and told that he assaulted the deceased and threw him into the well. He deposed that on the same day, he immediately went to the house of his employer Sardar Singh and narrated the incident to him.
20. Admittedly, deceased Ramnarayan was missing since 04.03.2013 and his Missing Person Report (Ex.P-12) was lodged on 07.03.2013, by his brother Manoj Shrivastava at Police Station Gulabganj, District Vidisha. As per prosecution case itself, on 09.03.2013 at about 15.30 hours, on the basis of the statements of deceased's nephew complainant Dharmendra Shrivastava, a Dehati Merg Intimation Report (Ex.P-1) was lodged by ASI R.P. Singh Kushwah, wherein it was stated that one Sardar Singh, a resident of village Laloi, informed the complainant on his mobile phone that there is a discussion going on in the village about his uncle's dead body, lying in the well of Leelakishan Viswakarma, and on the aforesaid information, when his brother Mahendra and uncle-
12Bhupendra went to the well and saw the body of Ramnarayan Shrivastava, lying in the well, and informed the complainant about the same, then he reported the matter to the police.
21. In view of the above, it is apparent that since the date of missing of the deceased, i.e., 04.03.2013 till the date of lodging of the Dehati Merg Intimation Report (Ex.P-1), i.e., 09.03.2013, the name of the appellant was not surfaced as the assailant of the deceased. Upon perusal of the record, it is apparent that the name of the appellant was first time surfaced in the FIR bearing Crime No.35/2013, dated 12.03.2013 (Ex.P-30), lodged by SI, P.S. Raghuvanshi, wherein doubt was created on the appellant. Statements under Section 161 of Cr.P.C. of Ramswaroop and Kashiram were recorded on 14.03.2013 and it has nowhere brought on record that when and by whom first time doubt was created on the appellant. The prosecution has not given any plausible explanation as to why the statements of eyewitness Ramswaroop (PW-
2) and Kashiram (PW-9), before whom appellant made extrajudicial confession, were not recorded till 13.03.2023.
22. Almost all the witnesses have deposed that when police came to the spot, Ramswaroop was present there, but the prosecution has not given any plausible explanation as to why the statements of eyewitness Ramswaroop were not recorded after about 10 days of the incident, therefore, it is not safe to rely upon the statements of Ramswaroop (PW-
2) that on the date of incident, he himself saw the appellant assaulting the deceased. In this regard judgement passed by the Apex Court in the case of State of Orissa Vs. Mr. Brahmananda Nanda reported in (1976) 4 SCC 288 can be relied upon. Relevant part is as follows:
"2. .........The evidence suffers from serious 13 infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of June 13, 1969 and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than June 15, 1969 on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on June 14, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A.S.I. Madan Das and should have waited till the rooming of June 15, 1969 for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of witness.........."
23. So for as the evidence with-regard to the extrajudicial confession, alleged to have been made by the appellant before witness Kashiram is concerned, although Kashiram (PW-9) has supported the prosecution case and deposed that on 09.03.2013 in the evening, appellant called 14 him at his house and told that he assaulted the deceased and threw him into the well. He has also deposed that immediately thereafter, he went to the house of his employer Sardar Singh and narrated the incident to him. Sardar Singh (PW-14) has supported his above statements and deposed that on Friday, when Kashiram came to his house and told about the aforesaid extrajudicial confession made by the appellant, he informed the complainant about the same. Complainant Dharmendra Shrivastava (PW-1) has also stated so, and deposed that on the said information, when his brother Mahendra and uncle Bhupendra went to the well and saw the body of the deceased Ramnarayan lying in the well and informed him about the same, he informed to Police Station Gulabganj.
24. Complainant Dharmendra Shrivastava (PW-1) further deposed that on the same day, police came on the spot and on the basis of his statements, recorded Dehati Merg Intimation Report (Ex.P-1). Upon perusal of the above Dehati Merg Intimation Report (Ex.P-1), it is apparent that in the said report neither the name of the appellant has been mentioned nor it has been mentioned that Kashiram or Sardar Singh revealed about the extrajudicial confession of the appellant. It has nowhere explained as to why the aforesaid fact did not find place in the Dehati Merg Intimation Report dated 09.03.2013 (Ex.P-1). Since, the name of the appellant was surfaced first time on 12.03.2013, at the time of registration of the FIR (Ex.P-30), therefore, in view of the above, it is also not safe to rely upon the statements of Kashiram that on 09.03.2013, appellant told him that he assaulted the deceased and threw him into the well. Articles, alleged to be seized on the basis of disclosure memos of the appellant, were admittedly seized from the spot 15 or near the spot. There is nothing else against the appellant on the record, which suggests his involvement in the crime.
25. Prosecution in its support has also examined deceased's nephew Dharmendra Shrivastava (PW-1) & Golu @ Mahendra Shrivastava (PW-4), brothers Manoj Shrivastava (PW-3), Bhupendra Shrivastava (PW-6) & Govind Shrivastava (PW-15) and wife Rita Shrivastava (PW-
19) alongwith other witnesses to prove the fact that the appellant had taken an amount of Rs.1,90,000/- as loan from the deceased Ramnarayan for taking agricultural lands of Leelakishan on lease and when deceased Ramnarayan demanded his money back to repay his cash credit loan amount taken from Zila Sahkari Samiti Pachma, appellant committed his murder. From the statements of above witnesses, although it appears that appellant had taken an amount of Rs.1,90,000/- as loan from the deceased Ramnarayan vide agreement dated 04.05.2012 (Ex. P-11) for taking agricultural lands of Leelakishan on lease as per lease deed dated 04.05.2012 (Ex.P-17), but there is nothing on record, from which it can be inferred that he was having any dispute with the deceased. For the sake of argument, if it is assumed that appellant was having motive to commit murder of the deceased, even then, this is not sufficient to hold the appellant guilty for the commission of murder of the deceased.
26. In view of the aforesaid discussion, in the considered opinion of this Court, only on the basis of suspicion, it cannot be said that the prosecution has proved its case beyond reasonable doubt, therefore, learned Trial Court has committed error in holding the appellant guilty for the offences under Sections 302 and 201 of IPC. Hence, conviction of the appellant cannot be upheld and the appeal filed by the appellant 16 deserves to be allowed.
27. Ex-consequenti, the judgment and sentence dated 12.11.2014, passed by the Court of Additional Sessions Judge, Ganjbasoda, District Vidisha in S.T. No.264/2013 is hereby set aside. The appellant is acquitted of the charges framed against him.
28. The Appellant is in jail. He be set at liberty, if not required in any other case.
29. Fine amount (if any) deposited by the appellant be refunded to him.
30. The Registry is directed to immediately supply a copy of this judgment to the Appellant, free of cost.
31. Let the record of the Trial Court be sent back immediately, along with copy of this judgment, for necessary information and compliance.
32. The Appeal succeeds and is hereby Allowed.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Abhi
Digitally signed by
ABHISHEK CHATURVEDI
Date: 2023.05.11 18:43:05
+05'30'