Madhya Pradesh High Court
Munna @ Mulla And Ors. vs The State Of M.P. on 6 July, 2017
Bench: S.K.Gangele, Ashok Kumar Joshi
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.213/2005
1. Munna alias Mulla S/o Rakkhu Ahirwar
2. Keshar Bai W/o Rakkhu Ahirwar
Both R/o Padaav Mohalla, Police
Station Nohta, District Damoh (M.P.) â¦.Appellants
Versus
State of M.P. Police Station Nohta,
District Damoh (M.P.) â¦.Respondent
Shri V.K.Lakhera, learned counsel for the appellants.
Shri Akshat Namdeo, learned panel lawyer for the respondent/State.
Coram : Hon'ble Shri Justice S.K.Gangele
Hon'ble Shri Justice Ashok Kumar Joshi
Whether approved for reporting: Yes/No
JUDGMENT
(Pronounced on 6 /7/2017) Per: Ashok Kumar Joshi J.
1. This appeal is preferred by the appellants under Section 374(2) of the Cr.P.C. being aggrieved by the judgment dated 9.12.2004 passed by the Sessions Judge, Damoh in Sessions Trial No.78/2004. By the impugned judgment, the trial convicted and sentenced appellant no.1 Munna alias Mulla under Section 302 of the I.P.C. for life imprisonment and under Section 201 of the I.P.C. to undergo 5 years R.I. and appellant no.2 Keshar Bai under Section 302/34 of the I.P.C. to undergo life imprisonment and under Section 201 of the I.P.C. to undergo 5 years R.I. with a direction that both the sentences of each appellant shall run concurrently.
2. Admittedly, appellant No.2 Keshar Bai is mother of appellant No.1 Munna alias Mulla. Deceased Jankibai aged about 40 Years was wife of the appellant No.1. Few days ago from the date of incident, Jankibai had left her matrimonial home without intimating anyone and Jankibai was brought by her husband on the date of incident 1.3.2004 to her matrimonial home at Padaav mohalla of town Nohta and on the same day in the night, dead body of Jankibai was recovered by the police from inside the house of the appellants bundled in a sack
3. Prosecution story in brief is that on 1.3.2004 reporter Dhannu (P.W.1) resident of Padaav mohalla of Nohta town lodged F.I.R. (Ex.P.2) at 9:00 p.m. at police station Nohta intimating that appellants are his neighbourers and about one week ago, wife of appellant No.1 Munna had left the house of the appellants without intimating them and Munna had gone for search of her and on the date of incident at about 4:00 p.m., both the appellants have brought Jankibai to their house from Jabalpur. Thereafter, the appellants and Jankibai were quarrelling inside their house, but suddenly, the voice of Jankibai could not be heard from outside and thereafter both appellants after locking their house got seated in front of their house. Thereafter Jankibai was not seen in front of their house. At about 8:00 p.m. both the appellants entered into their house. Having suspicion, Dhannu (P.W.1) peeped from crack (darar) of the door and saw inside that both the appellants were wrapping the dead body of Jankibai in a sack and thereafter Dhannu (P.W.1) intimated about these facts to other neighbourers Ramdayal, Vachan Ahirwar, Kalu Ahirwar, Prembai, Maya (P.W.3) and thereafter Dhannu on the same day with Vachan Ahirwar and Kalu had reached to police station Nohta and lodged the report mentioning about facts with the inference that appellants have murdered Jankibai regarding her bad character and have concealed dead body of the deceased in a bundle. F.I.R. was recorded by Station Officer R.S.Rajput (P.W.8). R.S.Rajput (P.W.8) reached on the spot in the night, but as there was no proper arrangement of light, to secure the spot, he did not enter into house and at that time both the appellants were seated in front of their house. Station Officer halted in the night on the spot with both appellants and on next morning, he started investigation.
4. On 2.3.2004, in presence of panch witnesses, the locked house of the appellant got opened after receiving the key from the appellant No.1 Munna and inside house, dead body of Jankibai was found bundled in a sack and the bundle was opened and at that time, wounds were visible on the dead body. Memorandum of inquest (Ex.P.1) was prepared in presence of witnesses. At the same time spot map (Ex.P.8) was prepared and from inside of appellantsâ house in presence of witnesses, fourteen pieces of broken glass bangles and blood stained soil and separately normal soil were seized and sealed and memorandum (Ex.P.4) was prepared. The dead body of the deceased was sent for post- mortem to district hospital, Damoh where on 2.3.2004, post- mortem was conducted by Dr.S.K.Jain (P.W.6), who found six incised wound on dead body of the deceased and one abrasion on right thigh of the deceased and deceasedâs left handâs little finger was found amputated. In opinion of the doctor, deceased had died due to extensive bleeding from cut external jugular blood vessels of the neck within 18 to 24 hours from starting of the post-mortem.
5. Each appellant was arrested by investigator R.S.Rajpoot on 2.3.2004 after preparing separate arrest memos. In presence of two panch witnesses, appellant No.1 Munna alias Mulla gave disclosure statement to the I.O. that a washed axe had been kept by him inside the house after concealing it in cowdung cakes. On above mentioned disclosure, memorandum (Ex.P.1)) was prepared under Section 27 of the Evidence Act. Thereafter, appellant No.2 Keshar Bai intimated that she had kept a clothe secretly in shelf (Aala) which was used by her to clean the blood stains from the spot and it was washed. On her disclosure statement, memorandum (Ex.P.11) was prepared. Thereafter, from appellantsâ house in presence of panch witnesses, a blue coloured terrycot cloth, which was torn at one place was produced by appellant no.2 Keshar Bai, which was sealed and seized and seizure memo (Ex.P.2) was prepared. Thereafter, an iron axe fitted in wooden handle, which was produced by appellant no.1 from his house, was sealed and seized by preparing seizure memo (Ex.P.5). On 2.3.2004, the appellant No.1âs worn full-pant of terrycot and his worn full-sleeves shirt after taking out them from appellant No.1âs body were sealed and seized and seizure memo (Ex.P.7) was prepared. During investigation, a outline map (Ex.P.13) prepared by Patwari Satya Prakash (P.W.7) and his panchnama (Ex.P.14) were received. Sealed material was sent to F.S.L. Sagar through a letter of Police Superintendent, Damoh. According to report (Ex.P.20) of the F.S.L. Sagar, human blood of blood group âBâ was found on appellant No.1 Munnaâs seized full- pant and human blood was also found on appellant No.1âs shirt and on deceasedâs blouse and petticoat and blood was also found on another terrycot clothe which was seized on basis of appellant No.2 Keshar Baiâs disclosure. After completing the formalities of the investigation, a charge-sheet was filed before the J.M.F.C., Damoh, who committed the case to the Sessions Court, Damoh.
6. The Sessions Judge, Damoh charged each appellant with offences punishable under Section 302 and 201 of the I.P.C. Both appellants abjured their guilt and pleaded that they have been falsely implicated, but each appellant stated in his examination under Section 313 of the Cr.P.C. that after taking Jankibai from Jabalpur to their house on the date of incident, the appellant No.1 had gone for labour work and returned in night of same day at about 9:00 p.m. and thereafter he was lying on a cot outside his house, then police had come and after entering into his house taken out the dead body of his wife, then he came to know about the fact of her murder. Appellant No.2 had stated that after taking Jankibai from Jabalpur, she had gone to the bank of a river and returned back to her house in the evening, then Jankibai was not at their house, then she thought that Jankibai had again left their house and thereafter she was preparing food outside their house, then the police came with some neighbourers. No any defence witness was examined for the accused persons. After recording evidence and hearing, the trial Court has convicted and sentenced each appellant as mentioned above in para no.1.
7. Learned counsel for the appellants vehemently contended that there was no any eye witness to the incident and reporter Dhannu (P.W.1) and other neighbourers Ramdas (P.W.2), Maya (P.W.3) turned hostile and had not supported the prosecutionâs version and both the common panch witnesses of relating disclosure and seizure memos, Ramdas (P.W.2) and Kalu (P.W.5) have not supported prosecutionâs case and investigator R.S.Rajpootâs evidence regarding previous disclosure and seizure at the instance of appellant No.2 Keshar Bai. It was contended that learned Sessions Judge erred in convicting and sentencing both the appellants. It was further argued that though the appellant No.2 Keshar Bai was charged with the offence punishable under Section 302 of the IPC, there was no any conclusive and reliable evidence in relation to common intention of both of the appellants to murder Jankibai. The learned Sessions Judge erred in convicting the appellant No.2 Keshar Bai under Section 302/34 of the I.P.C.. It is prayed that this appeal be allowed and each appellant be acquitted.
8. On the other hand, learned panel lawyer has supported the impugned judgment regarding conviction and sentence of each appellant and prayed for dismissal of the appeal.
9. Dr.S.K.Jain (P.W.6) had deposed that as government doctor at Damoh hospital, he conducted post-mortem of dead body of deceased Jankibai on 2.3.2004. Rigor mortis was present and he found following external injuries on body of the deceased:-
(1) An incised wound of size 5 x 2 Inches situated in middle front side of the neck, beneath which muscle, trachea, oesophagus and external jugular blood vessels were cut and in this wound, it was also visible that deceasedâs cervical vertebrae was also cut and semi digested food was coming out from cut oesophagus.
(2) An incise wound of size 1½ x ½ inch on upper part of right arm.
(3) An incised wound of size 1 x ¼ Inch on lower part of right arm.
(4) An incised wound of size 3 x ½ Inch on right elbow, beneath which deceasedâs olecranon bone was cut. (5) An incised wound of size 3 x 1 Inch on middle of right wrist beneath which both bones radius and ulna were fractured.
(6) An incised wound of size 3 x 1 Inch deep upto bone and on posterior back of right hand, beneath which metacarpal of the middle finger was fractured.
(7) One abrasion about 2 Inches long on right thigh. (8) Amputation of little finger of left hand.
10. Dr.S.K.Jain deposed that in his opinion, death of the deceased had occurred due to shock because of extensive bleeding from external jugular blood vessel within a period about 18 to 24 hours prior to starting of the post-mortem. It would be significant to mention here that the statement made by above mentioned doctor has not been substantially challenged for the appellants in their cross-examination. It is clear from total deposition of Dr.S.K.Jain (P.W.6) in light of his recorded post-mortem report (Ex.p.12) that death of the deceased was homicidal.
11. Neighbourers of appellants, Dhannu (P.W.1), Ramdas (P.W.2) and Maya (P.W.3) though they were declared hostile by the prosecution on other points, but they have deposed that in their presence, dead body of Jankibai was recovered by the police from inside of appellantsâ house. Another neighbourer Idris (P.W.4) had clearly deposed that dead body of Jankibai was recovered tied up in a sack and he had seen the external injuries on neck, arms and hands of the deceased. Thus, it was proved that Jankibai had met with the homicidal death due to above mention antemortem injuries. The incised wound found on neck of the deceased with its internal damage was alone sufficient in the ordinary course of nature to cause death of the deceased.
12. Reporter Dhannu (P.W.1) deposed that on the date of incident in the noon, appellant Mulla had brought his wife Jankibai from Jabalpur and on the same day, in the evening at about 5:00 p.m., when he was seeing tazia, then he heard the noise that 'run, she has been killed', thereafter he with other people saw that appellant Munna alias Mulla was lying on a cot in front of his house his mother Keshar Bai was preparing food outside the house and the dead body of Jankibai bundled in a sack was kept in tied state in appellants' house. Tied up dead body of the deceased in a sack was seen by him and also by Kanai, Ramlal and Kalu, thereafter they intimated to Idris (P.W.4). They went to the police station and thereafter the police came to appellants' house and enquired from the appellants. Dhannu (P.W.1) also deposed that he did not know who lodged the FIR and he had not gone to police station, thus he was declared hostile and suggestions were given to him by the public prosecutor, then he deposed that station officer of police station had intimated him that F.I.R. is being lodged in his name. Thereafter, he had signed on F.I.R. (Ex.P.2). Dhannu (P.W.1) also deposed that prior to incident, appellant Mulla had also murdered his child and criminal case relating to his child's murder was pending against him before the incident.
13. Another neighbour of appellants, Maya (P.W.3) also deposed that on the date of incident at about 4:00 p.m., when he was working in her house's roof, then at three to four times, she had heard voice of crying of Jankibai that 'save her, she has been killed' and thereafter it was the talk of the town that appellant Munna alias Mulla's wife is not being seen, thereafter anyone intimated Idris (P.W.4) and police came in same night at 8:00 p.m. and after opening the door of appellants' house, dead body of Jankibai was recovered in a sack and lateron it was revealed that appellant Munna alias Mulla had murdered his wife. But Maya (P.W.3) deposed that she did not know that fromwhere Jankibai and Munna alias Mulla had come, thus Maya (P.W.3) was also declared hostile and suggestions of the nature of cross-examination were given to her by public prosecutor, but in cross-examination, she deposed that between appellants' house and her house, there is only one house situated and she had also seen the dead body.
14. Another hostile declared prosecution witness Ramdas (P.W.2) deposed that on the date of incident, when he returned to house at about 9:00 p.m. in the night after finishing his labour work, then it was known to him that appellant Mulla had murdered his wife and his wife's dead body was recovered from appellant Mulla's house tied up in a sack and in his presence, safina form (Ex.P.3), inquest memo (Ex.P.1), seizure memo of pieces of broken bangles, blood stained soil and normal soil (Ex.P.4) were prepared in his presence on the next day. He was declared hostile because he did not support the prosecution's case in relation to recovery of a clothe on previous disclosure statement of appellant no.2 Keshar Bai, though he supported the prosecution's case in relation to recovery of an axe vide seizure memo (Ex.P.5) on production by appellant Munna from his house and he admitted his signature on spot map (Ex.P.8) made by the police.
15. Idris (P.W.4) deposed that on the date of incident at about 8:30 p.m. in the night, Vachan, Maya, Rammu Ahirwar and Dhannu had come to his house and intimated him that appellant Mulla had murdered his wife Jankibai and also intimated that Jankibai had left appellants' house about one week ago and on this ground, she has been murdered by her husband, then he intimated that relating station officer telephonically from his house and thereafter he had gone with above mentioned persons to police station and on the same day, police authorities had recovered Jankibai's dead body from inside of appellants' house and her dead body was tied up in a sack and he also saw marks of injuries on neck and hand of deceased Jankibai and inquest panchnama (Ex.P.1) was signed by him and previously appellant Munna alias Mulla had also killed his son.
16. Much emphasis has been given by appellants' learned counsel on the fact that alleged reporter Dhannu (P.W.1) had not supported the prosecution's case in relation to lodging of F.I.R. by him. Dhannu (P.W.1) had clearly deposed before the trial Court that on the date of incident at about 3:00 p.m., Jankibai was brought by appellant Munna alias Mulla to his house from Jabalpur and at about 5:00 p.m., he heard the shouting of Jankibai about she being injured and about his going to police station with other neighbourers and thereafter about seeing dead body in a sack inside the house of the appellants and after declaring him hostile, he had admitted his signature on FIR (Ex.P.2). Reporter Dhannu's role of intimating other neighbours and going to police station is also supported by Indris (P.W.4) and other witnesses. Dhannu (P.W.1) had also admitted his signature on inquest panchnama (Ex.P.1). Thus, in present case, there is no any adverse effect of Dhannu's denial of lodging FIR (Ex.P.2) by himself, because same facts deposed by him are established and corroborated by evidence of other neighbours Ramdas (P.W.2), Maya (P.W.3) and Idris (P.W.4). Station officer R.S.Rajpoot (P.W.8) has clearly deposed that on 1.3.2004 as station incharge of police station Nouhta, he had lodged the F.I.R. (Ex.P.2) as reported by Dhannu (P.W.1).
17. Investigator R.S.Rajpoot (P.W.8) deposed in his cross- examination that he had reached to appellants' house in the night on the date of incident after lodging FIR at 9:00 p.m. in police station and it was revealed in the FIR itself that dead body of Jankibai was tied up in a bundle and in same night, when he reached to the spot, both appellants were seated in front of their house and as there was no proper arrangement of light in appellants' house and to keep the spot i.e. appellants' house safe, he did not enter into appellants' house in the night, but he himself stayed in the whole night at spot and both appellants were also kept outside of their house for whole night i.e. between 1.3.2004 and 2.3.2004 and in next morning at about 9:00 a.m., he started investigation and prepared spot map (Ex.P.8), inquest panchnama (Ex.P.1) and other seizure memos and sent the dead body for post mortem.
18. R.S.Rajpoot (P.W.8) deposed that on 2.3.2004, in front of appellants' house at about 11.45 a.m. on his interrogation, appellant No.1 Munna alias Mulla had disclosed the fact that an axe has been concealed by him inside his house in cowdung cakes, which will be produced by him and on appellant's Munna's above disclosure, recorded memorandum (Ex.P.10) and at the same time, appellant No.2 Keshar Bai disclosed that a clothe has been put by her in shelf (Aala) in their house and that clothe was washed by her, which would be recovered by her and on appellant No.2 Keshar Bai's disclosure, he recorded memorandum (Ex.P.11). The investigator also deposed that appellant Munna alias Mulla produced an axe from his house, which was seized and sealed by him vide seizure memo (Ex.P.5) and a blue coloured terrycot clothe produced by appellant no.2 Keshar Bai was also seized by him vide seizure memo (Ex.P.6) and on the same day, he got removed shirt and full-pant worn by the appellant No.1 from his body because they were having blood stains and seized and sealed them in presence of witnesses vide seizure memo (Ex.P.7) and on 3.3.2004, he seized at police station a sealed packet sent by doctor after post-mortem, in which deceased's worn clothes were sealed vide seizure memo (Ex.P.18) and all the seized materials were sent for chemical examination to F.S.L., Sagar with a letter (Ex.P.19) prepared by the Superintendent of Police, Sagar and later on F.S.L., Sagar's report (Ex.P.20) was received.
19. It would be significant to mention here that both the common panch witnesses of disclosure statement (Ex.P.10) and seizure memo (Ex.P.5) relating to appellant No.1 Munna namely Ramdas (P.W.2) and Kalu (P.W.5) have supported the evidence of above mentioned investigator and admitted their signatures on relating memorandums and seizure memos and Kalu (P.W.5) also supported the prosecution's case that in his presence, appellant No.1 Munna's worn full-pant and shirt were seized by the police vide seizure memo (Ex.P.7), which was signed by him also, but other common panch witness Ramdas (P.W.2) has admitted his signature on Ex.P.7, but clearly deposed that except an axe, nothing was recovered from appellant no.1 Munna alias Mulla, thus Ramdas (P.W.2) was declared hostile and when suggestions like cross-examination were given to him by the public prosecutor, then he admitted that in his presence, blood stained worn full-pant and shirt of full-sleeves were recovered from appellant no.1 Munna alias Mulla after being taken out from his body. It appears that due to time-gap, the recovery of blood stained clothes of appellant No.1 was not disclosed by him firstly, but later on he recollected his memory and supported prosecution. Another panch witness Kalu (P.W.5) without any infirmity had clearly supported the fact of recovery of an axe on appellant No.1 Munna's disclosure statement and his blood stained shirt and pant. Thus, the recovery of an axe and blood stained clothes of appellant No.1 Munna and broken pieces of bangles is proved by these witnesses. According to F.S.L. report (Ex.P.20), human blood was found on appellant No.1 Munna's full-pant and shirt and according to this report, human blood found on appellant No.1 Munna's full-pant was of blood group 'B' and blood was also found on seized axe, though its source and blood group could not be identified because blood stains on axe were disintegrated.
20. Thus, there is no eye witness to the incident of murder but other proved facts and circumferences were clearly established and proved beyond any doubt by the prosecution evidence available on record that about one week ago, appellant No.1 Munna alias Mulla's wife Jankibai had left appellants' house, on the date of incident i.e. 2.3.2004, Jankibai was brought by appellant No.1 Munna alias Mulla to appellants' house at about 3:00 p.m. and thereafter crying of Jankibai from appellants' house was heard by neighbourers to save her as she is being killed and above mentioned neighbourers/prosecution witnesses after consulting with each other had gone to police station Nohta and the matter was reported on the same day in the night at about 9:00 p.m. Both appellants were found present in front of their house and thereafter dead body of Jankibai was recovered from appellants' house bundled in a sack having above mentioned external injuries. Thus, it was clearly proved that appellant No.1 Munna alias Mulla had killed his wife on the date of incident inside his house.
21. So far as appellant No.2 Keshar Bai is concerned, it would be significant to mention here that the learned trial Court had charged her under Section 302 and 201 of the I.P.C., but it had convicted and sentenced Keshar Bai under Section 302 read with section 34 of the I.P.C. and section 201 of I.P.C. It is true that even in absence of specific charge under Section 34 of the I.P.C., an accused could be convicted for the main offence with the aid of section 34 of the I.P.C., but it would also be significant to mention here that contrary to his report (Ex.P.2), reporter Dhannu (P.W.1) had deposed before the trial Court that on the date of incident, Jankibai was brought only by her husband appellant No.1 Munna alias Mulla to their house of Padaav Mohalla of town Nohta. Ramdas (P.W.2) and Indris (P.W.4) have also deposed that they were informed by the villagers that only appellant No.1 Munna alias Mulla had murdered his wife. Hostile declared prosecution witness Maya (P.W.3) had not deposed anything about presence of appellant No.2 Keshar Bai in her house on the fateful day. It would also be significant to mention here that both common panch witnesses Ramdas (P.W.2) and Kalu (P.W.5) had not supported the prosecution's case and evidence of investigator R.S.Rajpoot (P.W.8) regarding seizure of a blue coloured terrycot clothe on previous disclosure statement of appellant No.2 Keshar bai.
22. Ramdas (P.W.2) clearly deposed in his examination-in-chief that he did not know what was recovered from appellant No.2 Keshar Bai in his presence. After declaring him hostile, in reply to suggestion given by public prosecutor, he admitted his signature on seizure memo (Ex.P.6), but again reiterated that he did not remember that in his presence, whether a blue coloured terrycot clothe was recovered from Keshar Bai or not. Another panch witness Kalu (P.W.5) clearly deposed in his examination-in-chief that though relating memorandum (Ex.P.11) and seizure memo (Ex.P.6) were having his signatures, but in his presence appellant Keshar Bai did not make any disclosure statement relating to recovery of any clothe and no any clothe was recovered from Keshar Bai in his present. It is significant to mention here that panch witness Kalu (P.W.5) did not support the alleged recovery of a blue coloured terrycot clothe alleged used by Keshar bai to clear the blood stains from the floor of their house, but Kalu (P.W.5) was even not declared hostile by the prosecution, thus in light of well established legal position, the evidence of Kalu (P.W.5) relating to non-recovery of any terrycot clothe from appellant No.2 Keshar bai is even not challenged by the prosecution and thus his above mentioned deposition rebutting prosecution case and above mentioned I.O.'s evidence in relation to prior disclosure statement of appellant No.2 Keshar bai and consequent recovery is binding on prosecution and it would be treated as part of the prosecution story. As already discussed, other panch witness Ramdas (P.W.2) has also not supported the prosecution's case on the point of alleged recovery of terrycot clothe from appellant No.2 Keshar Bai.
23. Undisputedly, Jankibai was murdered in appellants' house at Padaav mohalla of town Nohta. Both appellants in their examination recorded by the trial Court under Section 313 of the Cr.P.C., expressed that on the date of incident, Jankibai was brought from Jabalpur to Nohta by both of them, but appellant No.1 Munna alias Mulla disclosed facts that after taking his wife back to his house, he had gone for his labour work and had returned at about 9:00 p.m. to his house and was lying on a cot in front of their house and her mother was preparing food outside their house and at that time, police came and took out her wife's dead body from his house, though first time, he learnt about the fact of murder of his wife. He disclosed facts that on returning in night to his house, then his wife was not present at his house, he thought that her wife has again left his house. Appellant No.2 Keshar Bai in her examination under Section 313 of Cr.P.C. expressed that after taking back Jankibai from Jabalpur to their house, she had gone to bank of river leaving Jankibai at her house and returned to her house in evening, then Jankibai was not present and she thought that jankibai had again eloped from their house and thereafter she was preparing food outside their house and at that time, police came with their neighbourers and implicated them in a false case.
24. Above mentioned facts disclosed by both of appellants in their examination under Section 313 of the Cr.P.C. appears prima facie to be unnatural and unbelievable. It is proved by prosecution evidence beyond reasonable doubt that dead body of Jankibai was recovered from appellants' house having antemortem external injuries and some injuries were fatal. It is well established in the light of so many recent citations of Hon'ble Apex Court that when a dead body of murdered family member is found in the house, other family members are having responsibility to explain the facts and circumstances of death of relating deceased. It would be significant to mention here that in inquest memo (naksha panchnama Ex.P.1), which is signed by reporter Dhannu (P.W.1), Ramdas Ahirwar (P.W.2) and other witnesses and prepared by investigator R.S.Rajpoot (P.W.8), it is clearly mentioned in these panchnamas prepared on 3.3.2004 that deceased Jankibai's dead body was found inside a room of house of appellant Munna and door of the relating room was locked, which was opened in the presence of panch witnesses after the key was provided by the appellant No.1 Munna alias Mulla. Thus it was proved in present case that dead body of Jankibai was recovered from a locked room from the house of appellants, whose key was with appellant No.1 and appellants were present when the police came in night on the date of incident on spot. Thus, explanation offered by the appellants in relation to murder of Jankibai is totally false and could not be accepted. Though it is proved that Jankibai was murdered in appellants' house and the possibility of presence of appellant No.2 Keshar Bai could not be doubted but in absence of direct evidence, it could not be inferred that appellant No.2 Keshar Bai was having a common intention with his son appellant No.2 Munna alias Mulla to cause death of Jankibai. Ramdas (P.W.2) and Indris (P.W.4) have clearly deposed that they were informed by other neighbourers that only appellant No.1 Munna alias Mulla had murdered his wife Jankibai. At the time of incident, appellant No.2 Keshar Bai was shown a lady of 60 years old in relating arrest memo and other memos. By mere presence of appellant No.2 Keshar Bai in the house of her son in such an old age, where generally old people remain helpless and totally dependent on other family members, it could not be inferred in evidence available on record that appellant No.2 Keshar Bai was having a common intention to cause death of Jankibai with her son. In our considered opinion, the prosecution had failed to prove the charge of section 302 of the I.P.C. or even the offence punishable under Section 302 read with section 34 of the I.P.C. against appellant No.2 Keshar Bai. In our considered opinion, learned Sessions Judge had erred in convicting the appellant No.2 Keshar Bai under Section 302/34 of the I.P.C., but in our considered opinion, learned trial Court had not erred in convicting and sentencing the appellant No.1 Munna alias Mulla for charged offence punishable under Section 302 of the I.P.C.
25. So far as conviction and sentence of both appellants under Section 201 of the IPC is concerned, though it was proved that dead body of the deceased was kept or bundled in a sack inside appellants' house, it is clear that dead body of Jankibai in relating sack was recovered soon after the incident from the house of appellants. Thus, in these proved facts and circumstances, it could not be inferred that any appellant has caused disappearance of evidence of offence punishable under Section 302 of the IPC with the intention to screen the offender from legal punishment. It is clear that there is no evidence that any appellant had given any false information to anyone regarding committed offence. Hence as dead body of the deceased Jankibai was not removed from the spot, though it was bundled in a sack, in present state of available prosecution evidence, it was not proved that any appellant has committed the offence of causing disappearance of evidence of the offence of murder. In our considered opinion, the learned trial Court had erred in convicting and sentencing each appellant under Section 201 of the I.P.C.
26. In the result, this Criminal Appeal is allowed in part and appellant No.2 Keshar Bai's conviction and sentence recorded by the trial Court under Section 302/34 and 201 of the IPC is set aside and appellant No.2 Keshar Bai is acquitted from the charges of Sections 302/34 and 201 of the IPC and this appeal is also partially allowed in relation to conviction and sentence of appellant No.1 Munna alias Mulla under Section 201 of the IPC and his conviction and sentence under Section 201 of the IPC is set aside and he is acquitted from the charge of Section 201 of the IPC, but appellant No.1 Munna alias Mulla's conviction under Section 302 of the IPC and sentence of life imprisonment are hereby affirmed. Both appellants are serving their jail sentence in relating jail. Appellant no.2 Keshar Bai be released forthwith, if not required in any other case. The trial Court be informed with result of this criminal appeal and its record be immediately returned for compliance.
(S.K. GANGELE) (ASHOK KUMAR JOSHI)
JUDGE JUDGE
C