The State Of Madhya Pradesh vs Gokul Kol on 7 March, 2012

[Cites 3, Cited by 6]

Madhya Pradesh High Court

The State Of Madhya Pradesh vs Gokul Kol on 7 March, 2012

State has filed this appeal under section 378(1) of the Code of Criminal Procedure against the judgment dated 22.7.2010 passed by Sessions Judge, Katni in Sessions Trial No.161/09 acquitting the respondent/accused of the charge under section 302 of the Indian Penal Code.

2. In short, the prosecution case is that respondent was the husband of Janki Bai, the deceased. They resided in village Pathra district Katni. On 16.6.2009, Manoj (PW-1), the son of deceased, lodged a report at police station, Badwara that on 15.6.2009 in the morning, his mother Janki Bai and father Gokul had gone to pluck (2) Cr.A.No.243/2011 Gohi (fruits of Mahua) in the forest of Suriari. When they did not return till night, on the next day i.e. on 16.6.2009 in the morning, he along with his maternal uncle Ramkishore went to forest in search of them. They found dead body of Janki Bai beneath a tree of Mahua. Her clothes were disordered and there were marks of injuries on her body. They searched for respondent, but he was not found. On the basis of said report, marg intimation Ex.P/1 was recorded.

3. In marg inquiry, Sub Inspector Arvind Dubey (PW-12) reached at the spot, prepared spot map and performed inquest. He drew inquest memorandum Ex.P/4 and also got the photographs of the dead body taken. In the opinion of witnesses to the inquest memorandum, the death of Janki Bai was caused due to strangulation. Nearby the dead body, two bottles of liquor, bidi, broken bangles etc. were seen. At some distance, underwear and bra of deceased was also found lying. These articles were seized vide seizure memo Ex.P/11. Dead body of deceased was sent for postmortem examination to Government hospital, Badwara. Dr. Anil Jhamnani (PW-13) conducted the postmortem examination of the body and found multiple abrasions on different parts of the body of deceased. He, however, could not give any opinion about the cause of death of deceased. He preserved viscera, parts of lungs, liver, spleen, kidney and trachea. He also prepared slide of vaginal swab of the deceased. Seized articles were sent to Forensic Science Laboratory for chemical examination. Since no definite opinion about the cause of death was given by the doctor, investigating officer sent photographs of the body and part of trachea of deceased (3) Cr.A.No.243/2011 to Director, Medico Legal Institute, Bhopal for knowing the cause of death of deceased. Dr. C.S.Jain (PW-15) of the Institute after examining the said articles gave his report Ex.P/16 dated 19.8.2009 opining that injuries found on the body could have been caused in scuffle and the cause of death was strangulation. In the marg inquiry, inspector Arvind (PW-12) found that there had been some altercation and dispute between respondent and Janki Bai, therefore, he had committed her murder by strangulation. Thereafter, on 22.8.2009, first information report Ex.P/17 was recorded and a case under section 302 I.P.C. was registered against the respondent. After investigation, charge sheet was filed and the case was committed for trial.

4. On charge being framed, respondent abjured his guilt. According to him, he was resident of village Sakrigarh. He wanted to purchase land in that village. For that purpose, he had borrowed money. On the date of occurrence, in the morning he had gone to village Sakrigarh where he stayed for 3-4 days. When he came back to village Pathra, he came to know about the murder of his wife.

5. To establish its case, prosecution examined 15 witnesses. Since there was no direct evidence in the case, the case rested on the circumstantial evidence. Prosecution relied mainly on the evidence of (i) last seen together; (ii) absence of respondent in the village after the death of deceased; and (iii) homicidal nature of death of deceased. Learned Trial Judge finding the evidence insufficient acquitted the respondent of the charge under section (4) Cr.A.No.243/2011 302 of the Indian Penal Code. Aggrieved by the impugned judgment of acquittal, State has filed this appeal.

6. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record.

7. The fact that deceased died a homicidal death has not been disputed by the respondent. It has been established by the evidence of Manoj (PW-1), the son of deceased, Dukhilal (PW-2), father of deceased and investigating officer Arvind Dubey (PW-12) that the dead body found under the Mahua tree was that of Janki Bai, the wife of respondent. Inquest memorandum Ex.P/4 was prepared by investigating officer. The injuries found on the body of deceased were described therein. The body of deceased was examined by Dr. Anil Jhamnani (PW-13) who found following injuries on her body:-

      (i)     Multiple abrasions 1cm x 0.5 cm to 1cm x 3 cm on
      lateral side of left thigh on upper 1/3rd part.
      (ii)    Abrasion 1cm x 2.5 cm on the back of left knee.

(iii) Abrasion 1cm x 2 cm (3 in number) over back below left scapular region.

(iv) Contusion (two) 1cm x 2.5 cm over right breast medial to right nipple.

In his opinion, the injuries were caused by hard, rough and blunt object.

8. Since Dr. Jhamnani could give no opinion about the cause of death of deceased, he preserved viscera and pieces of lungs, liver, spleen, kidney and trachea. He also prepared slide of vaginal swab. He sealed and handed over the articles to the investigating officer for chemical examination. Postmortem report Ex.P/23 was written and signed by him.

(5) Cr.A.No.243/2011

9. On the aforesaid articles being sent to Medico Legal Institute, Bhopal, Dr.C.S.Jain (PW-15) opined that the death of Janki Bai was caused by strangulation. He formed his opinion on the basis of observation made in inquest memorandum and after seeing the photographs of the deceased sent to him. From the aforesaid circumstances, we find it amply established that deceased died a homicidal death.

10. Now the question before us is whether it was respondent who caused the death of deceased. Since there appeared no direct evidence in the case, prosecution adduced circumstantial evidence. It was alleged that in the morning respondent and deceased had gone to pluck Gohi fruits in the forest of Suriari where deceased was killed. To establish the fact that respondent was the last person seen together with the deceased, prosecution examined Manoj (PW-1), Dukhilal (PW-2), Narayan (PW-4) and Santosh Singh (PW-5).

11. Manoj (PW-1) stated that on the date of occurrence, in the morning at about 6:00 a.m. respondent and his mother had gone to forest. Both of them did not return till night, therefore, on the next day, he and his maternal uncle Ramkishore went to search them in the forest. They found dead body of Janki Bai under a tree of Mahua. Implement of plucking fruits, water bottle, two bottles of liquor, bidi and some clothes were found lying near the dead body. They also tried to search respondent, but he was not found. They came back to village and informed the above fact to Kotwar, Dukhilal and others. He went to police station, Badwara and lodged (6) Cr.A.No.243/2011 report Ex.P/1. From the cross-examination of Manoj (PW-1) and also from the evidence of Dukhilal (PW-2), it was revealed that children of respondent used to live with Dukhilal. Respondent and his wife Janki Bai lived separately from them. It was not disclosed from the evidence of Manoj and Dukhilal that they resided in the neighbourhood or even in the same locality. It was not clarified by Manoj as to at which place he saw respondent and deceased going together towards the forest. From the evidence of Manoj, it seems that relations between respondent and his father-in-law Dukhilal (PW-2) were somewhat strained. As far as the evidence of Dukhilal (PW-2) is concerned, he, on the basis of information given by Manoj, stated that in the morning respondent along with his wife had gone to forest of Suriari. The evidence of Dukhilal appeared hearsay in nature. Though it furnished corroboration to the evidence of Manoj (PW-1), but on a critical scrutiny of the evidence of Manoj (PW-1), it appeared suspicious whether he saw respondent and deceased going together to the forest.

12. Narayan (PW-4) deposed that children of respondent informed him that respondent and deceased had gone to forest to pluck Gohi fruits. He himself did not see them going to the forest. Apparently, the evidence of Narayan also comes in the ambit of hearsay evidence.

13. Santosh Singh (PW-5), who also resided in village Pathra, stated that at about 9 o'clock in the morning when he was going in a truck to Katni, he saw respondent on way, going on a bicycle. On that day at about 10:30 a.m., when he reached back to (7) Cr.A.No.243/2011 village, he came to know that wife of respondent had died and people were searching for the respondent. He stated that he had seen respondent from the vehicle when it was going with a speed of 60-70 kms. Even if the evidence of this witness is accepted, it does not form any incriminating piece of evidence especially in view of the evidence of Manoj (PW-1) and Dukhilal (PW-2) that respondent used to go to Katni for labour work and that deceased used to go to forest for plucking Gohi fruits all alone. In this view of the evidence, it cannot be inferred with certainty that it was respondent who committed murder of his wife. The fact that respondent was working as a labourer is further established by the evidence of Dwarka (PW-3) and Ramkripal (PW-7). Ramkripal was a mason in Katni. He deposed that respondent worked as a labourer with him. Respondent had asked for Rs.2000/- from him on 14th June for the Registry of some land. After receiving the money, he did not come again. On 15th June, police came and inquired from him about the respondent. The evidence of Ramkripal that respondent worked as a labourer finds support from the evidence of Dwarka (PW-3).

14. Other circumstances revealed from the prosecution evidence speak differently. Manoj (PW-1) stated that when he saw dead body of Janki Bai, her clothes were in disorder, her bra and underwear were lying a few paces away from her body, two empty liquor bottles, bidi and a lime box were also lying there. There were injuries on her body. It appeared as somebody had committed rape on her. Similar statement was given by Dukhilal (PW-2). Even investigating officer Arvind (PW-12) admitted that it seemed that (8) Cr.A.No.243/2011 somebody committed rape on deceased, therefore, he got the vaginal swab slide prepared. He, however, did not obtain the sperms slide of respondent. Learned Court below observed that no investigation was done to ascertain whether any such type of evidence was created by the respondent with a view to mislead the investigation. It is also important to note that respondent and deceased were living together as husband and wife since last 18-20 years in village Pathra and five children had born to them. The fact of sexual intercourse with the deceased was established from the fact that on examination of the vaginal swab slide, the presence of sperms was confirmed by the Forensic Science Laboratory vide FSL report Ex.P/29.

15. On a close appraisal of the above evidence adduced by the prosecution, we find that the probability that somebody else might have committed the offence, could not be ruled out. It is well settled principle of law that in order to sustain conviction, the circumstantial evidence must be complete and incapable of explanation on any other hypothesis except that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

16. In view of the aforesaid legal principle laid down in a catena of decisions of this Court, we are clearly of the view that in this case the prosecution failed to establish the circumstantial evidence against the respondent beyond all reasonable doubt by leading cogent evidence. We are, therefore, of the view that there is no infirmity in the findings recorded by the trial Court. The view (9) Cr.A.No.243/2011 taken by the trial Court in acquitting the respondent seems reasonable and probable and calls for no interference in this appeal against acquittal.

17. Accordingly, appeal is dismissed. Respondent, who is in custody, shall be released forthwith if not required in any other case.

          (Rakesh Saksena)                           (M.A.Siddiqui)
b             Judge                                      Judge

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