Madhya Pradesh High Court
Mohan Lal vs State Of Madhya Pradesh on 24 July, 2007
Equivalent citations: 2008 CRI. L. J. (NOC) 1210 (M.P.), 2009 (1) AJHAR (NOC) 209 (M.P.)
Author: K.S. Chauhan
Bench: Arun Mishra, K.S. Chauhan
JUDGMENT K.S. Chauhan, J.
1. This criminal appeal has been preferred under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 07.01.1998 passed 1st Additional Sessions Judge, Bhopal in Sessions Trial No.186/97, whereby the appellant has been convicted under Section 302 and 394 read with Section 397 of Indian Penal Code and sentenced to imprisonment for life under Section 302 of I.P.C. and for 7 years rigorous imprisonment under Section 394 read with Section 397 of Indian Penal Code with the direction to sentences run concurrently.
2. The prosecution case in brief is that on 03.02.1997 Parwati Bai, the mother of complainant Ramgopal of Village Badjhiri went to graze the buffaloes in the forest. The buffaloes returned back but the mother did not, therefore, the complainant searched his mother with other persons in the forest. On 04.02.1997 at 6:30 a.m. she was found dead near a Nala in the forest. The complainant saw that there were the injuries in her legs, throat and both the ears were cut. The silver kadi, ear tops and silver chain were not found on her body which she was wearing, some unknown person has robbed the above articles and murdered her. On the basis of information given by Ramgopal the Crime No.11/97 was registered under Section 302 and 394 of I.P.C. at police station Ratibad, District Bhopal on 04.02.1997 at 8:30 a.m. The investigation set in the motion, spot map was prepared, panchnama of dead body of Parwati Bai was also prepared. Her dead body was sent for postmortem examination. Dr.Geeta Rani Gupta, Medical Officer, Medico Legal Institute, Gandhi Medical College, Bhopal performed the autopsy and opined that the death was due to asphyxia as a result of throttling. Evidence of the injury caused by hard and sharp object is also present. The death was homicidal in nature caused within 24 hours of her examination. The statement of Moolchand was recorded under Section 161 of the Code of Criminal Procedure. On that basis the accused was interrogated. His statement was recorded under Section 27 of Indian Evidence Act relating to discovery of articles concealed by him. On the basis of such information, silver kadi and ear tops were recovered at his instance which were seized by seizure memo Ex.P/13. The other articles pant, shirt and Darante (sickle), the packet of clothes of deceased, control and blood stained soil were also seized. The identification parade was conducted wherein the complainant Ramgopal identified the kadi and ear tops of deceased which were recovered at the instance of the appellant. The seized articles were sent for chemical examination to F.S.L. Gwalior. The F.S.L. report is received therefrom. The result is that the blood was found in all the articles sent for examination except the control soil. The statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure and after completing the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Bhopal wherein the criminal case No.222/97 was registered and the case was committed to the Sessions Court, Bhopal on 22.06.1997.
3. The appellants stand charged under Section 302 and 394 read with Section 397 of Indian Penal Code. The allegations are that on 03.02.1997 at 12 noon in the Government Forest of village Badjhiri, police station Ratibad, committed the murder by intentionally or knowingly causing the death of Parwati Bai. He stands further charged under Section 394 read with Section 397 that on the same date, time and place he robbed the silver kadi, chain and ear tops of brass and at the time of committing robbery he voluntarily caused the hurt to Parwati Bai by Darante (sickle) and caused her death.
4. The accused abjured the guilt and contended that he is innocent and falsely implicated.
5. The prosecution examined as many as eight witnesses whereas the appellant did not examine any defence witness.
6. After considering the evidence, the trial Court found the guilt proved against the appellant beyond reasonable doubt and convicted & sentenced under Section 302 and 394 read with Section 397 of I.P.C. as stated in para no.1 of this judgment.
7. Being aggrieved by the judgment, finding and sentence of the trial Court, the instant appeal has been filed under Section 374(2) of the Code of Criminal Procedure on the grounds mentioned therein.
8. The learned Counsel for the appellant has submitted that the trial Court has not appreciated the evidence in the proper perspective and the conviction is made only on the grounds of conjecture and surmises. There is no eye witness of the incident. The conviction of the appellant is bad in law, therefore, the judgment and sentence passed by the trial Court be set aside and the appellant be acquitted.
9. On the other hand, Shri R.S. Patel, learned Addl. A.G. appearing on behalf of the respondent-State supported the judgment, finding and sentence passed by the trial Court mainly contending that the prosecution has proved its case beyond reasonable doubt and the appellant has rightly been convicted for the offence committed by the appellant.
10. The main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellant under Section 302 and 394 read with Section 397 of I.P.C.
11. We have perused the record and evidence adduced in the case.
12. Ramgopal (PW-1) has deposed that his mother Parwati Bai went to graze the cattle at 10 a.m. The buffaloes returned back but mother did not return then he alongwith other villagers searched his mother in night but in vain. On the next day, he again went to search his mother alongwith Sundarlal, Sitaram, Nilesh and other persons. The body of his mother was found near Nala. He saw the wounds at the lower part of her leg. The Kadi which she was wearing were not found. There was injury mark in throat and the silver chain was not found. Blood was found in the throat. The ear tops of brass were also not found and the ears of her mother were torn. Thereafter, he lodged the F.I.R. Ex.P/1 at concerned police station. The police prepared panchnama Ex.P/3 of his mother.
13. Purnendra Singh (PW-8) was the Station House Officer at police station Ratiwad on 04.02.1997. He has recorded the F.I.R. Ex.P/1 lodged by Ramgopal and also registered marg No.1/97 (Ex.P/5), prepared the spot map (Ex.P/2) and panchnama of dead body Ex.P/3. He has stated that there was cut mark in the throat and blood was profusing, both ears were torn from the place of wearing ornaments and there were marks of injury in the lower part of both the legs where the Payzeb used to wear.
14. Ramgopal (PW-1), Rajaram Tilak (PW-3) also stated that the spot map Ex.P/2 was prepared by the police. Further Ramgopal (PW-1) has also stated that panchnama (Ex.P/3) of dead body of his mother was also prepared.
15. Purnendra Singh (PW-8) has sent the dead body of Parwati Bai for postmortem examination to Gandhi Medical College, Bhopal. The postmortem was conducted on 04.02.1997 by Dr. Geetarani Gupta (PW-4). She found the following injuries on her person:
(i) Linear incised wound situated over right leg on anterior aspect extending from 8 cm below the tibial tuberosity size 3.5 x 0.3 cm directed downwards and laterally.
(ii) Left ear lobule lacerated from lower part of pricked region through and through clotted blood present.
(iii) Right ear lobule lacerated on posterior aspect at lower part of pricked region. Size 0.5 x 0.2 cm vertical clotted blood present.
(iv) Multiple abrasion in form of nail mark situated over anterior aspect of neck size of abrasion in 2.5 x 0.2 cut, 2 x1 cm to 6 x 3 cm some are nearly transverse, some are linear and some semi linear in shape. They are directed in various directions as mentioned in report, underneath this the tissues and muscles are hugely ecchymosed. The thyroid cartilage. The ossified area of thyroid cartilages are separated from non ossified area. The thyroid gland is severally lacerated.
(v) There is incised wound situated over right leg on antero medial aspect, 13 cm above the heal size 2.5 x 0.5 cm vertical underneath this periosten is shapely cut clotted blood present. (vi) There is incised wound situated over left leg 10 cm above the heal size 9 x 0.5 cm in length vertical on medial aspect underneath this depressed fracture is present on medial aspect of tibia in an area of 4 x 2 cm clotted blood present.
16. She opined that death was due to asphyxia as a result of throttling, evidence of injury caused by hard and sharp object is also present. Death is homicidal in nature and within 24 hours of her examination. The postmortem report is Ex.P/6 and its summary report is Ex.P/7.
17. From the ocular and medical evidence, it is established that the aforementioned injuries were found on the dead body of Parwati Bai and according to the medical opinion these injuries were caused by hard and sharp object and the death of Parwati Bai was homicidal in nature.
18. From the statement of Purnendra Singh (PW-8) it reveals that witness Moolchand (PW-2) apprised that the appellant was seen at the place of incidence, therefore, the appellant was interrogated.
19. Moolchand (PW-2) has stated that he knows the appellant because he resides in village Moodhla which is nearby to his village Amla. He knows the appellant by face. He has further stated that his field is situated in between the village Amla and Badjhiri near forest and, therefore on 03.02.1997 at about 3:30- 4:00 p.m. he went there on his field. When he was going towards Badjhiri village he saw a tall person blackish in colour wearing the pant and shirt coming from the side of forest. He asked from where he is coming? He replied incorrectly that he is coming from Amla. In fact he was coming from the forest side. On next day, he came to know that somebody has killed the mother of Ramgopal.
20. This witness further deposed that appellant is the same person to whom he saw coming from forest side near Badjhiri village.
21. This witness has been subjected to lengthy cross examination and the attempts were made to bring the contradiction from his pervious statement Ex.D/1 regarding the fact that whether he has mentioned the colour of that person and also the clothes which he was wearing at that time and when his police statement was recorded.
22. On perusal of Ex.D/1 it transpires that his police statement was recorded on 4th February, 1997 wherein it was mentioned that the person was of blackish colour and was wearing the pant and shirt so there is no material contradiction on this point in his statement.
23. Further he has stated that he knows the appellant even before 3rd February, 1997 because he had seen him walking in villages Badjhiri, Jhagariya, Kurchani and in the forest.
24. From the statement of Moolchand (PW-2) it is established that he saw the appellant coming from the side of forest near village Badjhiri on the date of incident and he was knowing the appellant by face from before.
25. On the perusal of the spot map Ex.P/2 and Ex.P/9 the place of incident is in the forest nearby to village Badjhiri.
26. From the statement of Moolchand (PW-2) it can very well be said that the appellant was seen on the date of incident coming from the side of forest which is the place of occurrence.
27. Purnendra Singh (PW-8) has deposed that appellant gave the statement that kadi and tops are kept in Ballodi in the field nearby to his house. He is wearing the same clothes after washing. The memorandum Ex.P/10 was recorded by him before the witnesses.
28. Bulakhilal (PW-7) has also stated that police interrogated the appellant before him wherein he gave the statement that the tops, silver kadi and clothes are kept in the hut. The information was recorded by the police which is Ex.P/10.
29. From the evidence of these witnesses, it is established that the appellant gave memorandum under Section 27 of Indian Evidence Act regarding the discovery of above articles.
30. Purnendra Singh (PW-8) seized two silver kadi, brass tops from the appellant vide seizure memo Ex.P/13. Bulakhilal (PW-7) has also supported the evidence regarding seizure of these articles.
31. Purnendra Singh (PW-8) further deposed that he has also seized the full pant, shirt and shoes of plastic of the appellant vide Ex.P/11 and Darante(sickle) of iron was also seized at the instance of the appellant vide Ex.P/12 and the accused was arrested vide arrest memo Ex.P/14.
32. Bulakhilal (PW-7) has supported the statement of this witness stating therein that the clothes and shoes were seized by Ex.P/11, Darante (sickle) vide Ex.P/12 and the appellant was arrested vide Ex.P/14.
33. Searching cross examination has been done on these witnesses by the appellants but nothing is elicited to discredit their testimony. Therefore, this fact is established that the appellant gave the memorandum statement Ex.P/10 and got recovered the articles kadi and tops vide Ex.P/13, Darante (sickle) vide Ex.P/12 and also his clothes and shoes vide Ex.P/11.
34. Ramgopal (PW-1) has identified the articles of silver kadi and ear tops of brass in the test identification parade conducted in Tehsil Office, Bhopal. He has stated that he identified these articles because his mother used to wear them.
35. Nisar Ahmed Rizwi (PW-5) was Naib Tehsildar/Executive Magistrate in Tehsil Huzur, Bhopal. He conducted the test identification parade of these articles on that day in Room No.1, Old Secretariat, Tehsil Office, Bhopal. One sealed packet was received from police station Ratibad. He mixed the tops and kadi in these articles. The detailed description given in column No.5 of test identification parade memo Ex.P/8. Ramgopal correctly identified the round tops of brass and two silver kadi from the mixed articles. He prepared the identification memo Ex.P/8 which contains his signature and thumb impression of Ramgopal. He has clearly stated that at the time of identification parade no police officer was present there. He has further deposed in cross examination that Ramgopal identified these articles saying that his mother used to wear these articles.
36. From the evidence of Ramgopal (PW-1) and Nisar Ahmed Rizwi (PW-5) it is clearly established that the articles were identified correctly and nothing is elicited from their evidence that the identification of the articles was not conducted properly.
37. From the aforesaid evidence, it is clearly established that Parwati Bai is the mother of complainant Ramgopal who used to wear silver kadi in her feet and tops in ears. On 03.02.1997 she went to the forest where she was found dead. These articles were not found on her body. The injuries were found on her dead body. Her death was caused due to throttling. The appellant was seen by Moolchand (PW-2) near the place of incident on the date of occurrence. The appellant gave the statement under Section 27 of Indian Evidence Act for the discovery of articles silver kadi and ear tops. On the basis of his information, these articles were recovered at the instance of the appellant. Darante (sickle) was also seized from him. The seized articles were put to identification parade wherein the complainant Ramgopal correctly identified the articles recovered at the instance of appellant. The seized articles were also sent for chemical examination to F.S.L., Gwalior from where the report has been received wherein all the articles sent for examination contain the blood except the control soil. So these are some circumstances which indicates that appellant has not only robbed Parwati Bai but has also committed her murder by inflicting the injuries on her person and by throttling.
38. In Mukund alias Kundu Mishra and Anr. v. State of Madhya Pradesh it has been held by the Apex Court that:
If in a given case-as the present one-the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drawing the above conclusion we have draw sustenance from the judgment of this Court in Gulab Chand v. State of M.P. .
39. In Shri Bhagwan v. State of Rajasthan , it has been held by the Apex Court that:
11. The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence,. If the party gives a reasonable explanation as to how he obtained it, the Courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accessed was found in possession of these incriminating articles and was not in a position to give any reasonable explanation, Earabhadrappa alias Krishnappa v. State of Karnataka was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at this instance. This Court observed (para 13):
This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration(a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.
40. In Krishnamoorthy and Anr. v. State by Inspector of Police and Ors. 2007 CRI.L.J. 1803, it has been held by the Apex Court held thus:
9. From the chain of circumstances, both courts have held that only possible conclusion is that A-1 to A-4 had committed the murder of the deceased. Though the confessions made to Police are to be excluded and though extra-juridical confession to others in its very nature, is a weak piece of evidence, when examined with reference to the other proved circumstances, and the recoveries made on the information furnished by the accused, the guilt of the accused stood established. We find no infirmity in the reasoning or conclusions of the trial court or the High Court.
10. The main contention urged by the learned Counsel for the appellants (A-3 and A-4) is that there is no direct evidence to connect them with the incident and the offence. As noticed above, the prosecution case is not based on direct evidence of eye-witnesses but purely on circumstantial evidence. The accused 3 and 4 as also the other two accused, are linked to the offence by their being sighted in the field of the deceased on the day of the incident and on account of the recovery of the jewels of the deceased as also recovery of the stones used for committing the offence, on the information furnished by them.
11. Learned Counsel for the appellants next contended that the question of PW-2 identifying all four accused did not arise. She pointed out that PW-2 had stated in his examination-in-chief that on the day of the incident, he only saw A-1(Vijayan) running away from the field of the deceased. In his cross-examination, he admitted that even in his statement under section 161 CR.PC. he had stated that he had seen only Vijayan(A-1) running away. It is true that if PW-2 had seen only A1 near the scene of incident, the question of his identifying all the four accused in the test identification parade is unexplained. But the fact remains that PW-6 has clearly stated that he saw all the four accused on the date of the incident running from the field of deceased and he had informed the police that he had seen them on the date of the incident. He also identified them in the test identification parade. Therefore, the discrepancy in the evidence of PW-2 by itself, will not affect the case of the prosecution. Nor is it sufficient to displace the chain of irrefutable inferences flowing form the chain of circumstances established by evidence.
12. The learned Counsel for the appellants lastly contended that PW-1 son of the deceased had not given description of the jewels in the F.I.R. As rightly noted by the High Court, PW-1 who found the dead body of his mother, ran to the police station and reported the death and the fact that the jewels were missing. The mere fact that he did not refer to the jewels in detail in the F.I.R., will not in any way affect the identification of the jewellery seized from the accused as those belonging to his mother. A faint attempt was made to contend that the jewels were not of such great value as to lead to murder. It is submitted that the accused were falsely implicated. It is not possible to say that unless the jewels are of a particular value, robbery and murder would not be committed. There is also no apparent reason for the Police to falsely implicate the accused.
41. In Ezhil v. State of Tamilnadu , it has been held by the Apex Court that:
The accused found to be in possession of goods of deceased and possession was very much proximate in point of time to time of the death of deceased. It was held that it could be presumed that the accused had committed the robbery and the murder.
42. In the light of the aforesaid decisions rendered by Apex Court and in the facts and circumstances of the case, we find that the appellant not only robbed Parwati Bai but also voluntarily caused the hurt by hard and sharp object and caused her death by throttling.
43. The trial Court has dealt with these aspects in great detail and has arrived at the correct conclusion that the appellant is the author of this crime and has rightly convicted and sentenced the appellant for the charges levelled against him, therefore, we affirm the finding of conviction and sentence passed by the trial Court.
44. We find no merit in this appeal hence it deserves to be dismissed.
45. Consequently, the appeal fails and is dismissed accordingly.
46. The order regarding disposal of criminal properties is hereby affirmed.