1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 23rd OF AUGUST 2023
CRIMINAL APPEAL NO. 335 OF 2001
Between:-
1. MOTILAL SON OF SHRI
CHIRONJILAL OJHA, AGED 32 YEARS,
OCCUPATION KASHTAKARI RESIDENT
OF VILLAGE GUGRIPURA, POLICE
STATION SIRSOD, DISTRICT SHIVPURI
(M.P.)
2. SMT. SAVITRI, WIFE OF LATE SHRI
MATHURI, AGED ABOUT 37 YEARS,
OCCUPATION HOUSEWIFE, RESIDENT OF
KARONDI, DISTRICT SHIVPURI (M.P)
........APPELLANTS
(BY SHRI VIJAY DUTT SHARMA- ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION KOTWALI,
SHVIPURI, DISTRICT SHIVPURI (M.P.)
........RESPONDENT
(BY SHRI A. K. NIRANKARI- PUBLIC PROSECUTOR)
2
CRIMINAL APPEAL NO. 64 OF 2002
Between:-
RAMESHWAR SON OF HAKIM SINGH
YADAV, AGED 28 YEARS, OCCUPATION
AGRICULTURIST, RESIDENT OF
VILLAGE AMUI, POLICE STATION POHRI,
PRESENT RESIDENT OF KARONDI,
DISTRICT SHIVPURI (M.P.)
........APPELLANT
(BY SHRI MADHUKAR KULSHRESTHA- ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION KOTWALI,
SHVIPURI, DISTRICT SHIVPURI (M.P.)
........RESPONDENT
(BY SHRI A. K. NIRANKARI- PUBLIC PROSECUTOR)
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Reserved on : 16TH OF AUGUST, 2023
Delivered on : 23rd OF AUGUST, 2023
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These appeals having been heard and reserved for judgment,
coming on for pronouncement this day, HON'BLE SHRI JUSTICE
DEEPAK KUMAR AGARWAL passed the following:-
JUDGMENT
Since both Criminal Appeals arise out of common judgment passed by trial Court and as facts are same, therefore, they are heard analogously and are being disposed of by this common judgment.
3(2) Criminal Appeal No.335 of 2001 has been preferred by appellants- Motilal and Smt.Savitri whereas Criminal Appeal No.64 of 2002 has been preferred by appellant Rameshwar, challenging judgment of conviction and order of sentence dated 10-05-2001 passed by Second Additional Sessions Judge, Shivpuri (MP) in Sessions Trial No.271 of 1999 whereby, appellants Rameshwar and Motilal have been convicted under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.500/- and appellant Smt. Savitri has been convicted under Section 120-B of IPC r/w Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.500/- respectively, with default stipulations. (3) Prosecution case, in nutshell, is that on 24-04-1997 at around 02:30 pm, one person Khalak Singh (PW7) informed Police Station Narwar, District Shivpuri that an unknown corpse is lying in a rotten condition near bushes at foot-road coming out of forest of village Languri. On his information, Marg No.07 of 1997 was recorded u/S 174 of CrPC vide Ex.P4. Spot map was prepared vide Ex.P5 by police. Panchnama of corpse was prepared vide Ex.P7. Wearing clothes of corpse i.e. sky blue (asmani colour) pant, red colour shirt and one pair leather black shoes were seized vide Ex.P6. The corpse was sent for autopsy. As per autopsy report Ex.P9, no definite opinion could be given by doctor regarding cause of death of deceased. Viscera was preserved for chemical examination. Initially, appellant Smt. Savitri had lodged a missing report at Physical College Outpost, Shivpuri regarding her husband Mathuri (since deceased). During marg enquiry, statements of Mukesh (PW1) son of Mathuri Prajapati, aged around 10 years and brother of deceased Matadin (PW3) were recorded by police on 01-10-1997 i.e. after more than five months of 4 incident whereas statements of mother of deceased Anandi (PW2) and father of deceased Ramkishan (PW4) were recorded on 12-05-1997. On 01-10-1997, aforesaid seized clothes and shoes of deceased Mathuri son of Ramkishan Prajapati were identified before Police Narwar by son of deceased Mukesh (PW1), mother of deceased Anandi (PW2) and brother of deceased Matadin (PW3) in presence of other two witnesses, namely, Bhagwan Singh and Charna which is Ex.P8. Thereafter, Police Station Kotwali, Shivpuri converted missing report to Marg No.50 of 1997 and during investigation, on getting information that accused have committed murder of Mathuri in connivance with absconded accused Mahesh Joshi, FIR vide Crime No.120 of 1998 was registered at PS Kotwali, Shivpuri after 11 months of incident vide Ex.P14.
(4) During investigation, at the behest of accused Motilal, a 315 bore country-made katta along with one live cartridge and one empty cartridge was seized vide seizure memo Ex.P16. During investigation, it was also found that due to illegal relationship between accused Motilal and Smt. Savitri and Mathuri being an obstacle in their relations, accused Motilal and Rameshwar conspired with accused Smt. Savitri Bai for commission of murder of Mathuri. Present appellants- accused were arrested. Co- accused Mahesh Joshi was found absconding. After completion of investigation and other formalities, a charge sheet was filed before the Court of Chief Judicial Magistrate, Shivpuri from where case was committed to the Sessions Court for its trial. Accordingly, accused were charged. They denied the charges levelled against them, pleaded complete innocence and preferred trial. Accused Motilal and Rameshwar expressed false implication. Similarly, accused Smt. Savitri termed the prosecution 5 story to be untrue because of separation from her father-in-law and mother-in-law. Prosecution in order to prove its case examined as many as ten witnesses including PW1- Mukesh, son of deceased, PW2- Anandi mother of deceased, PW3-Matadin brother of deceased and PW4- Ramkishan father of deceased. After conclusion of trial, the learned trial Court convicted and sentenced appellants for commission of offence, as mentioned above in para 2 of this judgment.
(5) It is contended by learned counsel for appellants that no iota of evidence came on record during the trial so that appellants could be connected with the alleged crime. It is further contended that as per opinion of doctor neither any gun pellet nor any bullet was found on the person of deceased and from decomposition, the death of deceased could even not be ascertained. Confessional statement of accused Motilal under Section 27 of Evidence Act was recorded vide Ex.P15 by police on 23-03- 1998 i.e. near about one year after the incident. PW1 Mukesh, son of deceased in his police diary statement Ex.D1 deposed that his mother Smt. Savitri used to talk with accused Motilal what you have done with Mathuri to which then he said that they have killed Mathuri and the same fact was stated by Mukesh to her grand-mother Anandi (PW2) but mother of deceased Anandi (PW2) in her Court statement recorded on 19-01-2000 deposed that Mukesh did not tell her as to who killed Mathuri which appears to be contradictory statement of PW1 Mukesh & PW2-Anandi. Similarly, Ramkishan (PW4) who is the father of deceased in para 2 in his Court statement deposed that Mukesh came after a month at night from Orai and in para 4 he deposed that Mukesh did not tell him either about the death of Mathuri or as to what Motilal and Savitri used to talk about 6 Mathuri. Dr. P K Khare (PW8) did not give any define opinion regarding the cause of death of deceased.
(6) It is further contended by learned counsel for the appellants that although as per prosecution allegation from the possession of accused Motilal a 315 bore country-made katta along with one live and one empty cartridge was seized yet as per Court statement, the Investigating Officer Suresh Singh Sikarwar (PW10), in Para 2 and 3, has stated that both cartridges were live cartridges which makes the prosecution story doubtful regarding the cause of death of deceased by means of the said Katta. It is further contended that Bhagwan Singh and Charna were not examined by prosecution who were the witnesses of Panchnama of dead body of deceased vide Ex.P8. The prosecution has utterly failed to bring home the guilt of the appellants beyond reasonable doubt. The trial Court without properly appreciating the prosecution evidence has committed an error in convicting and sentencing the present appellants for alleged offence vide impugned judgment which deserves to be be set aside and the appellants deserve to be acquitted by allowing both the appeals.
(7) Further contention of learned counsel for appellants is that during trial since appellant No.2 Smt. Savitri was in custody from 24-03-1998 till 22-06-1998 and from the date of passing of impugned judgment she was in custody till the date of her suspension of jail sentence granted by this Court i.e. 14-05-2002, therefore, she has already suffered one year three months two days of incarceration. Similarly, since appellant Motilal was in custody from 24-03-1998 till 10-09-1998 during the trial and was in custody from the date of passing of impugned judgment till the date of his suspension of jail sentence granted by this Court i.e. 14-05-2002, 7 therefore, he has already suffered one year five months 21 days of incarceration and since appellant Rameshwar was in custody for a period of 116 days during trial and was in custody from the date of passing of impugned judgment till the date of his suspension of jail sentence granted by this Court i.e. 14-05-2002, therefore, he has already suffered near about one-and-a half year of incarceration.
(8) On the other hand, learned counsel for the State vehemently opposed the contentions so advanced on behalf of the appellants and submitted that it is a case of circumstantial evidence and the circumstances show that due to illegal relationship between accused Motilal and Smt. Savitri, Mathuri being an obstacle in their relation, accused Motilal and Rameshwar conspired with accused Smt. Savitri Bai the commission of murder of deceased Mathuri. The trial Court has rightly appreciated the prosecution evidence and there being no infirmity in the impugned judgment of conviction and order of sentence and the findings arrived at by learned Trial Court do not require any interference by this Court; hence; he prays for dismissal of appeals.
(9) First, we have to see as to whether the impugned judgment passed by the trial Court is in accordance with law and on proper appreciation of evidence on record. To substantiate the charges levelled against appellants, prosecution adduced evidence of Investigating Officer and doctor along with other material witnesses, i.e. son of deceased Mukesh (PW1), mother of deceased Anandi (PW2), brother of deceased Matadin (PW3), father of deceased Ramkishan (PW4) & informant Khalak Singh (PW7).
(10) Khalak Singh (PW7), in his evidence, deposed that he was the 8 resident of Village Gopliya and two years back he had seen an unknown rotting corpse of male person in the forest of Languri, who was wearing pant, shirt and shoes. He gave this information to Police Narwar. Upon his information Ex.P4, police reached the pot and seized clothes of corpse vide Ex.P6. After preparation of seizure memo, dead body Panchnama was prepared by Police Narwar vide Ex.P5. He put his signatures on both Ex.P4 and Ex.P6. During cross-examination, this witness has stated that maggots were present on all over the body of corpse. Besides this, the defence did not put any question so that the evidence of this witness regarding intimation about corpse could be disbelieved. (11) In support of evidence of Khalak Singh (PW7), RS Sharma (PW5) in his evidence deposed that on 24-04-1997 he was posed as ASI at PS Narwar. On the said date, Khalak Singh (PW7) gave an information to him regarding unknown corpse lying in the forest of Languri. Intimation was recorded vide Ex.P4. This witness in para 3 of his evidence deposed that he had seized pant, shirt and shoes of that unknown corpse vide Ex.P6. After about six months, i.e. on 01-10-1997 the aforesaid corpse was identified by his son Mukesh, mother Anandi and brother Matadin on the basis of photo shown to them. Identification memo is Ex.P8. No important question was put to him in his cross-examination so that evidence of this witness could be disbelieved. Similarly, Ranveer Singh (PW6) who was posted as Head Constable in PS Narwar, in his evidence deposed that seizure of viscera of deceased in one small box and kidney of corpse in another box was prepared vide seizure memo Ex.P7 in his presence. (12) Dr. P.K.Khare (PW8) who had conducted the autopsy of corpse aged about 40 years on 25-04-1997, in his evidence, deposed that maggots 9 were found all over the body of corpse. Both parts of heart of corpse were dilated. Liver and spleen had become black, deaf and soft and have become like a pulp. Bladder was empty and kidneys were not found in the body. According to this witness, no definite opinion could be given regarding death of deceased and various pieces of body and viscera were preserved and sent for examination. Duration of death of corpse was within three-five days. Report is Ex.P9. This witness in his cross- examination deposed that nothing can be said about the nature of death of deceased because the cause of death is not clear.
(13) The Investigating Officer Suresh Singh Sikarwar (PW10) who was posted as Town Inspector in PS Kotwali Shivpuri in his evidence deposed that on 22-03-1998 he had received Case Diary of Merg No.7 of 1997 recorded u/S 174 of CrPC from PS Narwar whose enquiry was conducted by In-charge of Physical Chowki. On the basis of such enquiry, FIR at Crime No.120 of 1998 was registered for offences under Sections 302, 120-B, 34 of IPC which is Ex.P14. This witness further deposed that thereafter he had arrested accused Rameshwar, Savitri and Motilal on 23- 03-1998 and memorandum of Motilal was also recorded under Section 27 of Evidence Act and at the behest of accused Motilal, a 315 bore country- made katta along with one live cartridge and one empty cartridge were seized by him vide seizure memo Ex.P16. This witness in para 4 of his cross-examination denied that memorandum of accused Motilal Ex.P15 and seizure memo Ex.P16 were prepared by him at Police Station. Seizure memo Ex.P16 is not in his handwriting but in the handwriting of Head Constable who went with him and whose name he could not remember. This witness in para 5 of his cross-examination admitted that no 10 examination of aforesaid seized country-made katta was done by any expert. Besides this, no question was put by the defence so that evidence of this witness could be disbelieved.
(14) Matadin (PW3) who is the brother of deceased, in his evidence deposed that he is living with his family separately from accused Savitri Bai. Two and half years of the incident, he has not even seen as to how his brother deceased is living. This witness further deposed that as and when he was asking Savitri about work doing by his brother deceased, Savitri used to tell him that his brother used to do work. This witness further deposed that accused Rameshwar and Motilal used to live at the adjacent house of his brother Mathuri and used to come to house of his brother Mathuri. In para 3 of his statement, this witness further deposed that after twenty days, his nephew Mukesh came to him and told that accused Motilal left him at Orai and informed him that Savitri Bai and Motilal used to talk each other regarding the death of Mathuri and clothes of deceased Mathuri are available in PS Narwar. This witness further in para 3 of his statement has also deposed that when Mukesh used to query where his father, on that Savitri the mother of Mukesh used to say him that his father is dead and used to tell that Motilal is his father and except this, no other thing was narrated by Mukesh to him. During cross-examination, this witness in Para 07 of his cross-examination admitted that his brother Mathuri had gone for labour work out of station for a period of 15-20 days and after marriage of his brother Mathuri, there was no dispute between them.
From the evidence of this witness, it appears there there is no last seen evidence that the appellants were present with deceased and, 11 therefore, the evidence of this witness does not help the prosecution in order to establish last seen evidence.
(15) Anandi (PW2) who is the mother of deceased Mathuri, in her evidence deposed that her son Mathuri used to live separately from her along with his family. Accused Motilal and Rameshwar who were living adjacent to the house used to come her house, take tea and liquor. Prior to about two years of the incident, her daughter-in-law Savitri used to tell her that her son Mathuri used to do work and one day, Savitri told her about her wishes to go to Guna after selling house. After some days, her grandson Mukesh came in the night and on query, he told that he is coming from house of his maternal uncle i.e. from Orai and also told that his mother Savitri and Motilal used to live at Orai and told that his mother Savitri and Motilal used to talk about Mathuri whose clothes and shoes are available in PS Narwar. This witness in para 3 of her evidence admitted that that Mukesh did not tell her anything as to who has killed her son Mathuri. Thereafter, she went with Mukesh to PS Narwar where she identified clothes and shoes of her son Mathuri on the basis of photo shown to her by police. From the statement of this witness, it appears that the evidence of this witness does not help the prosecution. (16) We have to carefully scrutinize evidence of minor/ child witness i.e. PW1 Mukesh, who is the son of deceased and evidence of such child witness is very important. In para 01 of his Court statement, this minor witness deposed that Savitri is his mother and he know accused Rameshwar and Motilal. Two years before incident, his father Mathuri used to live at Karondi along his mother Savitri and his brother. The accused used to live adjacent to their house. This witness in para 2 of his 12 examination-in-chief deposed that in the night accused Motilal and Rameshwar had prepared meat and had taken liquor by calling his father deceased Mathuri and thereafter they took his father Mathuri away took in a state of unconsciousness on the bullet motorcycle. When this fact was called by him to his mother Savitri, on that his mother Savitri told that his father has gone somewhere else and again in the morning when he told his mother about his father, on that his mother Savitri told that his father must be dying somewhere, he has gone. This minor witness deposed that when accused Motilal said to his mother that he had killed his father, this fact was secretly heard by him. After five- six days, his mother went with accused Motilal and Rameshwar along with his brother to Orai where his mother Savitri used to tell him that he should call accused Motilal as his father. During cross-examination, this witness in para 05 stated that the police did not interrogate three times and only one time the police had interrogated. This witness further deposed that meat was prepared in his house by his mother Savitri. The accused Motilal had brought liquor to his house and thereafter had taken the same. This witness denied that the wife of accused Rameshwar had called his father where his father had taken drink along with accused Motilal and Rameshwar.
(17) Ramkishan (PW4) who is the father of deceased in para 4 of his examination-in-chief deposed that his grand-son Mukesh told him that he has come from Orai and he did not tell anything about death of Mathuri. This witness also admitted that Mukesh did not tell what Savitri and Motilal used to talk about Mathuri. In para 6 of his cross-examination, this witness deposed that his son used to do work and come back after 15- 20 days. He told the police that Savitri had told him that she became widow 13 and she had a dream that her husband had died and she will live with her brothers at Guna. If police has not written this fact in Ex.D3 then he cannot give any reason. This witness further deposed that he had gone with police Orai and when he returned from Orai, Mukesh told him that his son Mathuri had gone on a motorcycle with accused Rameshwar and Motilal and did not return since then.
(18) There is another circumstance which relevant that as far as seizure of clothes of deceased and his identification is concerned, Khalak Singh (PW7) in his evidence deposed that unknown corpse had worn red shirt, black pant and shoes whereas ASI RS Sharma (PW5) posted at PS Narwar in his evidence deposed that corpse had worn red shirt, light sky blue (halki asmani) pant, back underwear and leather shoes and Matadin, who is the brother of deceased (PW3) in para 4 of his evidence deposed that he along with his mother Anandi had gone to PS Narwar where he identified clothes of deceased as red shirt, black pant and black shoes. Khalak Singh (PW7) in his evidence deposed that maggots were present all over the body of corpse and Dr.PK Khare (PW8) in para 2 of his evidence deposed that the whole body of corpse was disappeared and rotted. Maggots were present all over the body of corpse except there were small holes on back. No material was found around the neck. The whole skin had turned black and dried up. Hair of head could be removed easily. Child/minor witness Mukesh (PW1) son of deceased, mother of deceased Anandi (PW2) and brother of deceased Matadin (PW3) identified the deceased on the basis of photo and clothes shown to them by police.
From the evidence of above-said witnesses, it appears that there are contradictions and omissions in their evidence regarding identification of 14 deceased. Similarly, Bhagwan Singh and Charna have not been examined by prosecution who were the witnesses at the time of preparation of Panchnama of corpse as well as seizure of clothes of deceased Ex.P8 and the prosecution has not examined these two witnesses which is fatal to the prosecution.
(19) So far as the testimony of a child witness is concerned, the Hon'ble Apex Court in a recent decision of Pradeep vs. State of Haryana, 2023 Live Law (SC) 501 has held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question where there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. So far as recording the evidence of minor is concerned, a child witness indisputably is competent to testify if he understands the questions put to him and gives rational answers there.
It is well-settled principle of law that before recording evidence of a minor, it is the duty of a judicial officer to ask the preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. [See:- Pradeepan & Another vs. State of Kerala (2008) 1 SCC (Cri) 241] (20) In the present case, PW1 Mukesh who is the son of deceased in his 15 police diary statement Ex.D1 deposed that his mother Smt. Savitri used to talk with accused Motilal what you have done with Mathuri to which then accused Motilal said that they have killed him and the said fact has been narrated by him to her grand-mother Anandi (PW2) but the mother of deceased Anandi (PW2) in para 3 of her Court statement recorded on 19- 01-2000 admitted that Mukesh did not tell her anything about who killed Mathuri. Similarly, father of deceased Ramkishan (PW4) in para 4 of his examination-in-chief deposed that when Mukesh came from Orai he did not tell anything him about the death of Mathuri and also admitted that Mukesh did not tell what Savitri and Motilal used to talk about his son Mathuri. It appears from the evidence of such child/minor witness that there are major improvements in his Court statements. If Mukesh would have heard the version between his mother Savitri and accused Motilal, he ought to have told the police and lodged an FIR but that was not done. Therefore, it is very difficult to accept the testimony of such child witness and, therefore, his evidence does not inspire any confidence and it cannot form basis of conviction of the appellants.
(21) The next question so far as recovery of 315 bore country-made katta from the possession of accused Motilal is concerned, on the other hand, Investigating Officer Suresh Singh Sikarwar (PW10) who was posted as Town Inspector at PS Kotwali Shivpuri, in his evidence, deposed that at the behest of appellant- accused Motilal, a 315 bore country-made katta along with one live cartridge and one empty cartridge were seized by him vide seizure memo Ex.P16 on 23-03-1998, on the other hand, this witness in Para 2 and 3 of his Court statement deposed that both cartridges were live cartridges and further, in para 5 of his cross-examination, this witness 16 admitted that no examination of seized country-made katta was done by expert, which appears the prosecution story doubtful regarding the cause of death of deceased by such country-made katta.
(22) In the light of above discussions well as on going through the totality of facts and circumstances of the case, it is evident that the prosecution has utterly failed to establish the appellants guilty of aforesaid offence beyond reasonable doubt. The trial Court has committed an error in convicting and sentencing the appellants for the alleged offence without properly appreciating prosecution evidence. Accordingly, we allow both the appeals. The impugned judgment passed by trial Court is hereby set aside and the appellants are acquitted of offence alleged against them. As appellants are on bail, their bail bonds and surety bonds stand discharged. (23) Office is directed to place a copy of this judgment in connected Criminal Appeal No.64 of 2002 filed by appellant Rameshwar and also send a copy of this judgment along with record to concerning trial Court for necessary information.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
JUDGE JUDGE
MKB
MAHENDRA
BARIK
2023.08.24
04:12:57
+05'30'