CRA No.553/2008
1
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
D.B.: Hon'ble Shri Subodh Abhyankar
Hon'ble Shri Satyendra Kumar Singh, JJ.
Criminal Appeal No.553/2008
Bane Singh s/o Bhadav Singh Parihar
Age - 50 years,
R/o Village - Biglakhedi, District - Shajapur
At Present: - Hathiwala Parisar,
Ramghat, Ujjain, District Ujjain.
Versus
The State of Madhya Pradesh
Through - P.S. Mahakal,
District Ujjain
*****
Ms. Sonali Gupta, learned counsel for appellant.
Mr. Amit Singh Sisodiya, learned Panel Lawyer for the respondent / State of
Madhya Pradesh.
*****
JUDGMENT
(Delivered on this 3rd day of March, 2022) Per Subodh Abhyankar, J.
This appeal under Section 374 (1) of the Code of Criminal Procedure, 1973 has been filed by the appellant being aggrieved of his conviction and sentence.
The appellant stands convicted by the impugned judgment dated 26.02.2008, passed by the learned 7th Additional Sessions Judge (Fast Track), Ujjain District Ujjain (MP) in Sessions Trial No.335/2007, whereby, while holding the appellant guilty, the learned Judge of the trail court has sentenced him, as herein below: -
Accused Conviction Sentence Fine Sentence in
Amount default of
payment of fine
Bane Singh s/o 302 of IPC Life Rs.5,000/- 6 months
Bhadav Singh Imprisonment
Parihar
201 of IPC 1 year Rs.1,000/- 2 months
CRA No.553/2008
2
2. The facts in brief, giving rise to the present appeal are that on 24.08.2007, the deceased Kamla Shankar s/o Mishrilal left his house from Ved Nagar, Ujjain on his scooter bearing registration number MP-13, Y- 4275, to Bank to take pension, but as he did not turn up till evening, a missing person report No.56/2007 was lodged at 23.40 hours at Police Station Neelganga, District Ujjain (MP) and the case was investigated upon; during investigation, an information was received by one Abhishek (PW-4), that on 24.08.2007 at around 11:00 O'clock he had seen the deceased Bane Singh along with the present appellant Bane Singh near Guru Akhada, which lead the Police to inquire about the appellant's whereabout near Guru Akhada and when the appellant was interrogated, he informed that he has strangulated the deceased Kamla Shankar and after tying his body, has kept it in the bathroom in the Hathiwala premises. Thus, a Marg Intimation No.50/2007 was registered under Section 174 of the Code of Criminal Procedure, 1973 and after preparing inquest (Naksha Panchayatnama), the body was sent for postmortem to the District Hospital, Ujjain and a case at Crime No.375/2007 was registered against the appellant for offence under Sections 302 and 201 of Indian Penal Code, 1860. From the possession of the appellant a golden chain, a ring, a watch, and bank passbook, ration card and scooter key and from the scooter's dicky, deceased Kamla Shankar's driving license was seized and the Hathiwala premises from where the body was seized, an old bedsheet including a mattress were also seized. In the postmortem report, Dr. Ajay Sharma (PW-3) has found that the body was CRA No.553/2008 3 decomposed and had the ligature marks on its neck and trachea was compressed; the cause of death is said to be asphyxia, due to strangulation and time is said to be between 36 hours to 72 hours.
3. After the investigation, the charge sheet was filed and the case was committed to the Sessions Court and after recording the evidence, the learned judge of the trial Court, vide its judgment dated 26.02.2008, has convicted and sentenced the appellant, as aforesaid. Hence, this appeal.
4. Counsel for the appellant has submitted that it is a case of circumstantial evidence only, as there is no eye witness account to connect the appellant with the alleged offence; and the recovery of the dead body as also the articles like gold chain, ring are also doubtful for the reason that in the initial missing person report, there is no allegation of the deceased having golden chain or a ring or a watch on his person. Apart from that, gold chain and ring have also not been identified by the complainant; and merely if he has taken those articles on supurdagi, it cannot be inferred that the articles belong to the deceased only and recovered from the appellant.
5. Counsel has also submitted that the body of the deceased was found from a bathroom of the building (Hathiwala Premises) which was being used as a Dharmashala and as such, the possibility of any other person (s) committing the aforesaid offence cannot be ruled out, as the appellant was not the sole occupant of the building; and apart from that admittedly, the body had also started putrefying and was also having strong smell and thus, it is not possible for any other person not to locate the body.
CRA No.553/2008 4
6. It is further submitted that even the spot from where the body has been recovered is also disputed, as in the inquest (Naksha Panchayatnama) Ex.P/5, the body is said to be recovered from the first floor of the building (Hathiwala Premises) whereas in the recovery memo Ex.P/8, it is mentioned that the body was lying on the second floor wrapped in a bed sheet. Thus, it is submitted that when the prosecution itself is not sure about the place of incident, the appellant cannot be convicted on the basis of such weak evidence.
7. Counsel has also drawn the attention of this Court to the deposition of PW-11 Prahlad Narayan who had given the room on rent to the appellant in the aforesaid building (Hathiwala Premises) and who has stated in his cross-examination that the appellant Bane Singh was given a room on the third floor of the building. He has also admitted that there was no restrictions regarding any movement of the persons who used to come in the building. Thus, it is submitted that the place of incident is apparently has not been proved beyond reasonable doubt and the benefit of which ought to have been given to the appellant.
8. The attention of this Court has also been drawn to the deposition of PW-8 Kailash who is a witness to Ex.P/7 the seizure memo of the body as also the other seizure memos Ex. P/9, Ex.P/10, Ex.P/11 to Ex.P/14, Ex.P/5 and Ex.P/16 to submit that although he is a seizure witness, however, he is not more than a pocket witness as he has also been suggested that he has been a witness in hundreds of cases on behalf of the prosecution CRA No.553/2008 5 and is a regular witness of Mahakal Police Station.
9. To substantiate her submissions, counsel has drawn the attention of this Court to paras 7, 8 and 9 of this witness wherein he has been cross examined regarding various other criminal cases as also the names and designation of police personnel of Mahakal Police Station. Thus, it is submitted that the statement of this witness cannot be relied upon.
10. The attention of this Court has also been drawn to the deposition of PW-7 Om Prakash, Head Constable who has also stated that when they went to Hathiwala Parisar, they found that the room of the appellant Bane Singh was locked and they came down and while they were standing there, they saw a man approached them and it was informed that the said person is the appellant only. Counsel has submitted that had the appellant been involved in the aforesaid case, he would certainly have run away from the crime scene, if the case of the prosecution is that he had also concealed the body in the same premises in the bathroom of second floor where he was residing. Thus, it is submitted that the prosecution has not been able to prove its case beyond reasonable doubt and to connect the chain of event so complete so as to obviate any other possibility, other than the guilt of the accused.
11. Counsel for the respondent / State, on the other hand, has opposed the prayer. It is submitted that no illegality has been committed by the learned Judge of the trial Court while appreciating the evidence.
CRA No.553/2008 6
12. The attention of this Court has also been drawn to the deposition of PW-4 Abhishek who is an independent witness and had last seen the deceased in the company of the appellant when the deceased Kamla Shankar Chourey was parking his scooter in front of the Akhada and Bane Singh was also accompanying him and when he asked the deceased Kamla Shankar Chourey as to what brought him there, he told him that he had come with Bane Singh. After seeing Kamla Shankar on 24.08.2007, this witness went to Indore and came back at around 06.30 PM. On the next date, he came to know that Kamla Shankar is missing since a day, at that time, he informed Kamla Shankar's son Manoj Chourey, that he had seen Kamla Shankar, the other day along with appellant Bane Singh. Hence, they went to Neelganga Police Station and informed this fact to Om Prakash, Head Constable and from there, they went to Akhada where this witness Abhishek had last seen the deceased with the appellant, they found that Priya Scooter of the deceased was parking nearby which was seized from the spot and thereafter, they went to Bane Singh's room and subsequently, Bane Singh also came and also hesitated after seeing the police personnel and the other persons inquiring about him and although at that time, he did not inform them anything, however, after some time, as he was also afraid, he disclosed that he has committed the murder of the deceased. Bane Singh took them to the second floor and in the latrine, adjacent to porch, they found a body wrapped in a bed sheet.
13. Heard learned counsel for the parties and perused the record.
CRA No.553/2008 7
14. From the record, it is found that the missing person report was lodged on 24.08.2007 at 23.30 hours by complainant Manoj Chourey (PW-
1), the son of the deceased stating that the deceased had left the house to inquire about his pension. The pamphlet regarding the missing person is also placed on record as Ex.P/2. So far as the recovery of the dead body of the deceased is concerned, it is not by any chance that it was recovered but it was the PW-4 Abhishek who had last seen the deceased with the appellant Bane Singh on 24.08.2007 at around 01.00 O'clock and in fact, he also had a conversation with him in which the deceased also informed him that he is accompanied by the appellant Banesingh. Thereafter, he left for Indore on 25.08.2007 and subsequently, when he came back and was informed that the deceased is missing, he went to the son of the deceased and thus, on the information provided by PW-4 Abhishek, the Police reached on the spot where they also met Bane Singh and Bane Singh lead them to that body which was lying in a bathroom wrapped in a mattress and bed sheet. It is also found that the body of the deceased was covered by a mattress and then a bed sheet was also wrapped around it. It might be possible that the smell of the body was not prominent to be felt by other persons, especially when the body itself was kept in a bathroom.
15. It is also found that certain articles have also been recovered at the instance of the appellant vide Ex.P/9 wherein two keys were fond in his possession, one was of a house and the other one was of the scooter of the deceased. Vide Ex. P/10, the appellant has also got recovered a gold chain, CRA No.553/2008 8 a ring and a watch, which has been proved by PW-8 Kailash, who has supported the case of the prosecution and has not turned hostile but admissibility of his evidence has been challenged on the ground of him being a pocket witness. Although the presence of this witness PW-8 Kailash is doubted by the defence, but PW-1 Manoj has not been cross examined on the point that he has not received the articles so seized on Supurdagi and the appellant has also not claimed the aforesaid articles.
16. It is also found that vide Ex.P/14, the Driving License of the deceased Kamla Shankar was also recovered from the dicky of his scooter, which was recovered at the instance of the present appellant only as its key was also recovered from him, coupled with the fact that the Police has reached to the appellant not through this witness PW-8 Kailash, but through an independent witness PW-4 Abhishek, who had not only seen the deceased with the appellant, but had also spoken to him at that time and the deceased had informed him that he is with the appellant only. And soon after the appellant was approached by the Police, the body was recovered. PW-4 Abhishek is also a witness to the recovery and his testimony is found to be of a sterling character. It is also found that the appellant has not claimed any of the articles which has been seized from him; and in fact, the seized gold chain, gold ring, scooter along with its key and wrist watch has been given to son of the deceased and has not been claimed by the appellant. It is true that the articles seized from the appellant ought to have been identified by the prosecution from the son of the deceased, but its CRA No.553/2008 9 absence does not lead to the innocence of the appellant.
17. In such facts and circumstances of the case, this Court has no hesitation to come to a conclusion that the chain of event is so complete so as to obviate any other possibility other than the guilt of the appellant. The learned Judge of the trial Court has not faulted in convicting the appellant, as aforesaid.
18. In view of the same, Criminal Appeal No.553/2008 being devoid of merits is hereby dismissed; and impugned judgment dated 26.02.2008 passed by the learned 7th Additional Sessions Judge (Fast Track), Ujjain District Ujjain (MP) in Sessions Trial No.335/2007 is hereby affirmed.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2022.03.03 18:38:45 +05'30'