Madhya Pradesh High Court
Fakhruddin Mansoori & Another vs State Of M.P. on 22 July, 2021
Equivalent citations: AIRONLINE 2021 MP 1187
Author: Vivek Rusia
Bench: Vivek Rusia
...1... CRA.No.1303/2007
HIGH COURT OF M.P. BENCH AT INDORE
D.B :HON'BLE JUSTICE SHRI VIVEK RUSIA & HON'BLE JUSTICE
SHRI SHAILENDRA SHUKLA
CRA. No.1303/2007
Fakhruddin S/o. Ismail Mansori,
Aged 40 years,
R/o. Village Pachera, Distt. Ratlam (M.P.)
(2) Jamilabi W/o. Fakhruddin Mansori,
Aged 35 years,
R/o. Sadar Piploda, Distt. Ratlam (M.P.)
...........APPELLANTS
V/s.
State of M.P. through
Police Station Piploda, District - Ratlam (M.P.)
........... RESPONDENT
********
Shri Mukesh Kumawat, learned counsel for the appellants. Shri Amit Singh Sisodiya, learned Public Prosecutor for Non- applicant/State.
******** (JUDGMENT) Indore dt.22.7.2021 PER SHAILENDRA SHUKLA, J :-
1. This appeal under Section 374 of Cr.P.C has been preferred against the order and judgment dated 17.10.2007, pronounced in S.T. No.03/2007 by the Additional Sessions Judge, Jaora, district Ratlam, whereby the appellants have been convicted and sentenced as under :-
Conviction Sentence
Section & Imprisonment Fine Imprisonme
Act Amount nt in lieu of
fine
302 of IPC Life Rs.5000/- 6 Months RI
Imprisonment each each
...2... CRA.No.1303/2007
201 of IPC 3 years RI Rs.500/- 1 Month RI
2. The prosecution story in short is that on 29.9.2006, Dehati Nalishi (Ex. P/1), was executed by Samrat Jat (PW1) at police station Piploda, recorded by O.P. Sharma (PW13) who was ASI, in which it was stated that his brother Kailash (the deceased) living alone separately had given Rs.2000/- loan to appellant No.1 Fakhruddin and due to his subsequenting frequenting the house of appellant, gave rise in the mind of Fakhruddin a doubt about there being illicit relations between Kailash and Jamilabi, the wife of Fakhruddin. On the day of the incident, dispute arose because of non-payment of loan by the appellant. On the day of the incident, dispute arose between Kailash and appellants regarding non-payment of loan. Samrath (PW1) in his Dehati Nalishi has stated that witness Nanalal (PW7) had informed him about this dispute and told him that the appellants have tied Kailash at their well. Samrath (PW1) accompanied by other villagers went out in search of Kailash and confronted appellants who became unnerved on questioning and admitted to have strangulated the deceased (Kailash) and caused his death. The dead body of Kailash was found in the agriculture field of appellants and knotted clothes were found to be wrapped around his neck. There were marks on the grounds showing dragging of the body.
3. On the basis of Dehati Nalishi (Ex. P/1) Panchnama of the body was prepared and sent for postmortem report. Rest of the investigation was carried by ASI P.N. Malviya (PW15) who drew ...3... CRA.No.1303/2007 spot map, obtained the memorandum of appellant No.1, seized broken pieces of bangles from the spot, also seized bangles which were worn by the appellant No.2 and sent the bangles and broken pieces of bangles to FSL along with other articles of evidence. After investigation charge sheet was filed under Sections 302 and 201 of IPC. The charge sheet was committed for regular trial.
4. The presiding officer framed charges under Section 302 and 201 of IPC against the appellants. The appellants abjured their guilt and claimed innocence.
5. The prosecution has examined as many as 15 witnesses whereas no defence witness has been examined. The trial Court has gone on to convict and sentenced the appellants as described in para No.1.
6. In the appeal, it has been stated that the dead body was recovered after almost 24 hours by Investigating Officer O.P. Sharma (PW12) from the time he has reached the spot and seen the dead body, that the entire case is based on circumstantial evidence, which is discrepant, that there are serious contradictions in the testimony of witness Radheysham (PW4) relied upon by the trial Court, that the doctor who conducted postmortem has made such statements in cross examination which raises suspicion that death was by strangulation. On these grounds judgment of conviction and sentenced passed by the trial Court has been prayed to be set aside and appellant be acquitted.
...4... CRA.No.1303/2007
7. The moot question is whether, in view of grounds taken in appeal, the conclusions regarding conviction arrived at by the trial Court are appropriate or not and whether the appellants deserve to be acquitted.
8. Learned counsel for the State pointing out the relevant portions of the evidence has claimed that there is no error of judgment in arriving at conclusions on the part of the trial Court.
9. The evidence available on record was perused and considered in the light of submissions made. Samrath (PW1) has stated that his brother had given Rs.2000/- loan to the appellants. This apart, there was suspicion that Kailash had illicit relations with appellant No.2 Jamilabi and that led to the murder of Kailash. This witness has thus admitted that he has not seen the incident himself. He states that he was told by Nanalal (PW7) that appellants have tied Kailash near their well. The witness states that he along with Atmaram, Ramesh and Kalulal went towards the well of the appellants. Both appellants appeared to be listless (extremely tired). Fakhruddin claimed ignorance and fled from the spot.
10. None of those persons namely Atmaram, Ramesh Sharma or Karulal have been examined by the prosecution. Nanalal (PW7) who, as per Samrath (PW1) had informed him, has been examined. He states that on the day of the incident while he was in his agriculture field, the sister-in-law of the appellant No.1 Fakhruddin namely Banobi had come in the afternoon and had told that the appellant and ...5... CRA.No.1303/2007 deceased Kailash have been bitterly fighting with each other and she asked Nanalal (PW7) to intervene otherwise it may even lead to death of once of them. Witness states that he thereafter went to the spot, but found no one, but he told Samrath about such altercation and then went back to the village. The next day, he along with villagers went over to the agriculture field of appellant No.1 Fakhruddin in which the dead body of Kailash was found in the cotton crop. This witness has been declared hostile. He denies that he accompanied Kalulal, Atmaram and Samrath etc to the well of Fakhruddin. He also denies that Fakhruddin's conduct appears to be suspicious. He also denies that Fakhruddin had confessed.
11. Thus, from the statement of Nanalal (PW7), it can be gathered that he is a hearsay witness who has not stated anything in his examination in chief apart from hearing about the altercation from Banobi (PW3). In view of his statements, the evidence of Banobi (PW3) would have to be looked into.
12. Banobi (PW3) states that Fakhruddin is her brother-in-law, that the agriculture field of Fakhruddin and the witness are nearby. She stated that on the day of incident at about 12.00 PM, Kailash entered into an altercation with appellant No.1 Jamilabi, near the well of Fakhruddin who had gone to offer Namaaz. The witness has been declared hostile. She admits that at about 12.00 PM her husband and brother-in-law Fakhruddin had gone to offer Namaz and the witness was taking bath near her hutment, deceased Kailash had come and had started shouting over money dispute. Both had entered into ...6... CRA.No.1303/2007 physical altercation as well and Jamilabi had cried aloud to the witness pleading to save her. She admits that there was already a dispute between appellants and the witness since last 4 years and, therefore, she kept on watching and did not intervene. She states that on hearing the cries of Jamilabi, Mukesh and Rajmal had come and they saved Jamilabi from Kailash. Further, suggestions regarding Fakhruddin strangulation Kailash etc have been given to this witness and the witness claims ignorance regarding all these suggestions.
13. She has been examined by the learned counsel for the appellant. In her cross examination, she admits that she does not know the reason for altercation between Jamilabi and Kailash. She also states that from the spot where she was taking bath, place where the altercation was taking place was not visible. She states that the altercation was going on, she could not see and thereafter what happened she is not aware. She further states that 5 minutes later Kailash had gone from the spot and where did he go she does not know.
14. Thus, this witness although states in examination in chief that she had seen Jamilabi and Kailash entering into verbal and physical altercation, but in the cross examination, she has stated that both could not be seen from the place where the witness was present. However, she has made a statement in cross examination that after 5 minutes of altercation, Kailash had gone from the spot. Thus, from the evidence of this witness, it is proved that at about 12.00 PM Kailash was present near the well and the witness had atleast heard ...7... CRA.No.1303/2007 the voices of altercation. It is now settled that a witness who has been declared hostile is not liable to be completely disregarded and the portions of evidence which remained unchallenged in the evidence of such witness are liable to be considered as valid piece of evidence. Maxim "Falsus in uno, falsus in omnibus" is not applicable in India and it open to Court to sift the deposition of any witness and accept a part thereof, while rejecting the other part. There are number of Apex Court judgments in this regard such as Nisar Ali vs. State of U.P., AIR 1957 S.C. 366 and S.G.P. Committee vs. M.P. Dass Chela through LR's, AIR 1998 S.C. 1978.
15. The witnesses Mukesh (PW5) and Rajmal (PW6), regarding whom Banobi (PW3) has stated that these witnesses had come to the spot and saved Jamilabi are completely hostile witnesses and do not support the case of the prosecution.
16. The other crucial witness is Radheyshyam (PW4) who has also been relied upon by the trial Court. This witness states that on the date of incident at about 12.00 to 1.00 PM, while he was working on his agriculture field and had gone to fetch water from the well of Badrilal, he saw appellants and Kailash fighting over money dispute and Mukesh and Rajmal intervened and then Kailash went away. After sometime Fakhruddin came to his well who was told about the incident by his wife Jamilabi. Thereafter Fakhruddin asked her to accompany him and brought Kailash to their well and then they took Kailash behind the hutment of Shakur (husband of Banobi (PW3). ...8... CRA.No.1303/2007 The witness states that he does not know as to what happened thereafter. He has been declared hostile and then he admits that he had seen Kailash. The appellants tying a knot around the throat of Kailash and was thrown to the ground and dragged. He also admits that appellants dragged Kailash all the way to the agriculture field of the appellants where cotton crop was growing. He has admitted that due to fear, he has not divulged the incident to any one. He also admits that wife of Shakur Khan was also present. He admits that he could not intervene due to fear. He also admits the factum of money dispute between Kailash and appellants. In cross examination, he states that fight had lasted half an hour. In para 10 he states that after intervention in fight with Jamilabi, Kailash went away, but Fakhruddin came to the well after gap of 10 minutes on cycle and Fakhruddin and Jamilabi had gone after Kailash and brought him back. He states that he had seen the incident from about 300 feet. He also states that from the spot the witness was watching, even the portion behind the hutment of Shakur was visible. In para 14 he states that he did not hear any shouts of the victim from the spot of the incident (behind hutment). In para 15 the witness states that he could not tell the villagers about the incident when villagers came at about 4.00 to 4.30 PM but had narrated the incident to police which had come at about 6.30 PM.
17. This witness denies that he was already having dispute with the appellants and was friend of the deceased. No other important question has been asked from this witness. The witness Radheysham ...9... CRA.No.1303/2007 (PW4) is unflinching about seeing Kailash and Jamilabi fighting with each other, that Kailash having gone back after intervention and being brought by the appellants, being taken behind hutment of Shakur. It was only when he does not state about the strangulation of the deceased, that he has been declared hostile and then supports the case of the prosecution of strangulation and dragging away. Making such statements after being declared hostile does not by itself makes the witness unworthy of credibility. It can be seen that the appellants have not been able to bring about any such statements of witness in cross examination, which would create dent in his earlier statements.
18. Now adverting to the cause of death of Kailash, evidence of Dr. Vivek Dubey (PW11) would be considered. This witness states that he had conducted postmortem of Kailash S/o. Kachrulal at about 11.00 AM on 30.9.2006. He has found froth coming out of the right corner of the mouth, tongue stuck between teeth, the tongue was blue in coloration and the face was also bluish with signs of congestion. There was a ligature mark in front of the throat extending up to left ear and there were number of contusions and abrasions behind the neck and also abrasions were present on the nose. On internal examination it was found that muscle of wind pipe were dark in colour and the cause of death was strangulation and the report is Ex.P/20. In para 8 of the cross examination he denies that a person can strangulate himself. Learned counsel for the appellants has drawn Court's attention to para 6 of the cross examination of this witness who admits that in case of strangulation ligature mark should ...10... CRA.No.1303/2007 be present all over the neck and further admits that in the present case ligature mark was not there all over the neck. Learned counsel thus submits that this admission itself raises a doubt regarding the opinion of strangulation.
19. These submissions were considered.
20. There is no doubt regarding the fact that all signs present on the face, neck, wind pipe etc would give rise to one conclusion that death had occurred due to application of pressure on the neck. It could not be by hanging and could not also be by suicide as doctor himself has stated that a person cannot strangulate himself. The only possibility is that of throttling by hands and not strangulation. However, the ligature mark around the neck excludes the possibility of throttling by hands and the only possibility which remains is that of using some other means of strangulation. The evidence of Radheysham (PW4) has been found to be creditworthy in which he has stated that after putting knot over the neck of Kailash he was dragged. Number of abrasions, contusions behind the neck corroborates the statements of Radheysham (PW4). These injuries must have been suffered by Kailash while being dragged. Since the pressure on the neck of Kailash was exerted while being dragged, he died as a result of strangulation. In this manner the evidence of doctor is explainable.
21. Now adverting to the other circumstantial evidence available, the statements of Investigating Officer P.N. Malviya (PW15) assume ...11... CRA.No.1303/2007 importance. He states that he had drawn spot map Ex.P/5 and had seized broken pieces of bangles from the spot, ie., Ex.P/12. This witness further states that the accused were arrested vide Ex.P/15 and Ex.P/16. In his memorandum statements, ie., Ex.P/17, the appellant Fakhruddin offered to recover his Lungi which he had hidden in his agriculture field amidst cotton crop. This Lungi appeared to be old used bearing stitch marks and holes at many places. Thus, it appears that this Lungi was old discarded pieces of cloth, which may have been used for throttling Kailash. Radheysham (PW4) has stated that the appellants had wrapped Lungi around the neck of Kailash and had thrown him on the ground and dragged him. Witness P.N. Malviya (PW15) further states that he had recovered a bangle worn by Jamilabi from each of her hands through a lady constable and seized the same vide Ex.P/19 and had sent the broken bangle pieces picked up from the ground and bangles taken out from the wrists of Jamilabi and sent both these articles to the FSL. The FSL report is Ex.P/29 in which after scientific examination, it has been found that the broken pieces and complete bangles are identical in terms of their shape, size, colour, specific gravity and thickness. I.O. P.N. Malviya (PW15) admits that in Ex.P/12, which is seizure memo of bangles there is no reference of sample sealed, but denies suggestion that the broken pieces were not sealed. Ghanshyam (PW8) is the other witness of seizure memo Ex.P/12 and corroborates this factum of seizure of broken bangle. No question has been asked regarding such seizure in his cross examination.
...12... CRA.No.1303/2007
22. Thus, it is proved that from the spot of incident broken pieces of bangles which have been recovered belonged to the appellant No.2 Jamilabi which corroborates her presence on the spot. Umeshchandra (PW10) is the witness of seizure memo of Lungi recovered on the basis of information of Fakhruddin. He supports the case of the prosecution.
23. In the appeal memo, it has been mentioned that although the body was seen 24 hours earlier, but the same was not recovered by I.O. O.P. Sharma (PW13) for upto 24 hours, which creates doubt in the prosecution story. In this regard, the evidence of O.P. Sharma (PW13) was perused. He has stated that he was posted as ASI on 29.9.2006 and received information regarding death and this information was noted in Roznamchasana No.1272. Roznamchasana is placed on record, which shows timing of 6.00 PM (Ex.D/2). The place of the incident was 12 to 15 Kms from the police station as stated in para 9 of the witness. In para 10 he states that he had seen the dead body in the night only, but did not prepare Panchnama because it had already turned dark. This explanation is reasonable because in the dark the marks on the body could not have been seen properly and therefore, the very next day early morning at 6.00 AM the Panchnama had been drawn. Thus, there is no unusual delay. The delay is properly explained.
24. A perusal of the spot map drawn by P.N. Malviya (PW15), which is Ex.P/5, shows that the same has been drawn very ...13... CRA.No.1303/2007 elaborately. Dotted lines have been drawn from mark A to mark A/1 and it has been mentioned that there are signs of dragging from A to A/1. This place is situated behind the hutment of Shakur who is the husband of Banobi (PW3). At the spot A, broken pieces of bangles have been found. The dead body of Kailash was found is the spot B. In the spot map, it has been shown that the distance between A/1 to B is 155 steps. The spot B has been shown to be agriculture field of the appellant. Again from mark C to B signs of dragging have been shown by way of dotted red lines, which show that after strangulating to death at spot A/1, the body of Kailash was dragged from spot C to spot B. The aforesaid spot was in the ownership of appellants and it was their duty to explain as to how the body of Kailash with whom they had fought earlier was found at their field. Thus onus under Section 106 of Evidence Act has not been explained and unburdened by the appellants. Umesh Kumar Rawal (PW9) is Patwari who has affirmed that the spot where the body was recovered, is Survey No.397 and is in the ownership of Ismile who is the father of Fakhruddin. The witness has traced the map Ex.P/13 and the Khasra Panchsala is Ex.P/14. The evidence of this witness is unflinching.
25. Thus, after due consideration in view of the evidence of Radheysham (PW4), the evidence of Banobi (PW3), corroborated by Dr. Vivek Dubey (PW11) and circumstantial evidence including memorandum and recoveries made from the appellant. It is true that an altercation had taken place between appellant Jamilabi and ...14... CRA.No.1303/2007 Kailash on the date of incident which involved physical grappling also, that thereafter on intervention by others Kailash had retreated and was going back when appellant Fakhruddin came back after reading Namaaz and on coming to know about the incident, the appellants went and brought Kailash back, they dragged him behind the hutment of Shakur, tied a Lungi around his neck and through him on the ground and dragged him resulting in his death. They then had hidden the body of Kailash by dragging it in their agriculture field in order to cause disappearance of evidence.
26. The evidence shows that the death of Kailash was result of culpable homicide and the manner in which deceased was taken behind the hutment and then strangulated and dragged shows intention to cause death which attracts the provisions of Section 300 firstly of IPC. There are no circumstances, which may give benefit of any of the exception under Section 300 of IPC to the appellants in view of the manner in which offence was committed.
27. Consequently, we find no ground to set aside the finding of conviction under Section 302 and 201 of IPC recorded by the trial Court against both the appellants. Their conviction stands affirmed. The sentence imposed upon both the appellants also stands affirmed and this appeal is dismissed.
28. The appellant No.2 is presently on bail. The bail bond of appellant No.2 is hereby cancelled. She be taken into custody within a period of 15 days from the date of his judgment, for serving out the ...15... CRA.No.1303/2007 remaining part of her jail sentence.
29. Record of the case be sent to the concerned trial Court along with the copy of this judgment for perusal and its compliance.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
SS/-
Digitally signed by SHAILESH
MAHADEV SUKHDEVE
Date: 2021.07.23 14:57:21
+05'30'