Rumaliya & Anr. vs State Of M.P.
2021 Latest Caselaw 7214 MP

                                                1                 CRA No.289/2009

    HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
     (DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA &
          HON'BLE MR. JUSTICE SHAILENDRA SHUKLA

                   CRIMINAL APPEAL NO.289 OF 2009


     1. Rumaliya S/o Hamriya
         Age 45 years, Caste - Bhilala
        R/o Village Vaskelphliya Khedi,
        Tehsil-Sendhwa, Barwani,
        District - Barwani (MP)

    2.    Bhaya alias Bobada
          S/o Ganiya Barela,
         Aged 35 years
          R/o Village Chhotijulwaniya (Chunabhatti)
         Tehsil-Sendhwa, District-Barwani (MP)
                                                                               ....Appellants

                                            Versus

         The State of Madhya Pradesh
         Through Police-Station - Sendhwa (Gramin),
         District - Barwani (MP)

                                                                             ....Respondent
--------------------------------------------------------------------------------------------------
         Shri Parasmal Jain, learned counsel for the appellants.
         Shri Amit Singh Sisodiya, learned Government Advocate for
         the respondent /State of Madhya Pradesh.
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                               JUDGMENT

(Delivered on 10th day of November 2021)

Per Shailendra Shukla, J.

This appeal under Section 374 of Code of Criminal Procedure, 1973 has been preferred being aggrieved with judgment of conviction and sentence dated 29.01.2009 passed by Additional Sessions Judge, Sendhwa, District-Barwani (M.P.) in Session Trial No.12/07, whereby the appellants have been convicted under Section 302 and 201 IPC and sentenced

to Life Imprisonment along with fine of Rs.1000/- (each) with further default stipulations in respect of earlier offence and with two years of RI with fine of Rs.200/- with default stipulation in respect of later offence.

2. During the course of appeal, appellant No.1 Rumaliya had withdrawn his appeal, while the appellant No.2 Bhaya aliyas Bobada has remained in jail from the date of his arrest onwards.

3. The prosecution story in nutshell was that on 21.10.2006, at about 10:00 pm, Ramesh S/o Chetram gave an information to Police-Station Sendhwa, District - Barwani that a dead body of unknown male was floating in a well with rope tied around it. Merg was instituted on the basis of this information. Investigation was initiated thereafter and it was found that the aforesaid dead body was that of one Harsingh (deceased) who had earlier left his house on 18.10.2006 to release his mortgaged land and had taken along with him Rs.10,000/- and two goats. Further investigation revealed that the deceased was last seen with the appellants all of whom were under the influence of liquor. It was also revealed that the deceased (Harsingh) and appellant No.1 Rumaliya were on inimical terms. On investigation, it was found that the deceased was done to death after making him consume liquor by the appellants. On the basis of memorandum statements, part of rope which was found wrapped around the body of deceased was recovered from the possession of appellant Rumaliya. Looted cash were also seized from them.

4. After completing investigation, charge-sheet was filed before the Court of JMFC, Sendhwa, District - Barwani (MP) from where the matter was committed to Sessions Court, Sendhwa and from where it was made over to ASJ, Sendhwa.

5. Charges were framed under section 394 & 397 IPC and in alternative under Section 302/34 and 201 IPC. The appellants abjured their guilt and claimed to have been implicated falsely in the aforesaid offence.

6. The prosecution examined seventeen witnesses, whereas no defense witness has been examined by the appellants. The trial Court had ultimately acquitted both the accused from charges framed under Section 394 and 397 IPC but has convicted the appellants under Section 302/34 and 201 IPC and sentenced in the manner, as already described earlier.

7. In the appeal preferred by the appellants, it has been stated by learned counsel for the appellants that grave legal error was committed by misreading the evidence of prosecution witnesses. It has further been stated by him that the story of last seen evidence has not been proven to the hilt by the prosecution and the motive has also not been proved satisfactorily.

8. The main question before us is whether in view of the grounds contained in the appeal, as well as written and oral submissions made on behalf of these appellants, the present appeal deserves to be allowed and the appellants deserved to be acquitted ?

9. The prosecution story hinges on the following pieces of evidence.

(i) The deceased Harsingh leaving his home from village Dhababawdi on 18.10.2006 for going to village Khedi and returning to his house.

(ii) The dead body of a male person found floating in a Well.

(iii) The body being identified to be that of deceased Harsingh.

(iv) The death of Harsingh being a result of culpable homicide.

(v) The appellant No.1 Rumaliya having a motive against deceased Harsingh.

(vi) The circumstantial evidence of last seen theory and the recovery of money and belongings of deceased (Harsingh) from the appellants.

The above points shall now be considered successively.

10. Kalabai (PW/1) has stated that her husband Harsingh (deceased) had told her that about 9:00 am that he is leaving for village Khedi to redeem his agricultural land which had been mortgaged to one Amarsingh. However, he did not return to his house thereafter. The witness states that her uncle-in-law then came to her house from village Khedi and asked as to whether Harsingh had come back or not, to which the witness declined. At that point of time, the uncle-in-law informed her that a dead body had been found in a well which cannot be identified.

11. As per Investigating Officer Jorsingh Bhadoriya (PW/17) on 21.10.2006, the dead body had been found in a well regarding which he had received an information. Thus, the deceased Harsingh having left his house on 18.10.2006 and had not returned his house till 21.10.2006 when his wife

Kalabai (PW/1) was informed about the dead body. In this matter, no missing person's report was lodged by Kalabai (PW/1) and she appears to be waiting for her husband Harsingh to return. These statements of Kalabai (PW/1) have not been challenged in cross-examination. Thus, it is found proved that Harsingh had left his house for village Khedi but had not returned to village Dhababawdi.

12. Kalabai (PW/1) has stated that after coming to know about the unidentifiable body floating in a well, her uncle-in-law asked her to identify the body from the clothes worn by the dead person. She states that she went to village Khedi along with her uncle-in-law namely; Rulji. The circumstances and the condition under which the aforesaid dead body was found shall now be discussed.

13. Ramesh (PW/10) has stated that there is a well situated in his agricultural field. He states that he had gone to graze his bullocks to his agricultural field suddenly sniffed foul smell emanating from the well and saw the dead body tied up with a rope floating on the water. He called one person called Sunsar appointed as 'Sarpanch' of the said Village, Watchman Kesariya Dharmendra and Kalu were also there and they all went to the police-station for lodging the report.

14. Kesariya (PW/11) has stated that he is the Village Chowkidar and on being informed by Ramesh (PW/10), he saw a person's dead body floating in a well which was tied up with rope. These statements have been corroborated by witnesses Dharmendra (PW/8) and Shobharam (PW/9).

15. Jorsingh Bhadoriya (PW/17) has stated that he was posted as SHO at Police-Station Sendhwa (Rural), District - Barwani, when Ramesh (PW/10) informed him about discovery of a dead body in his well. Thereafter merg was instituted by the witness which is Ex.P/24 and he proceeded to the spot. The witness states that he got the dead body lifted over from and executed the panchayatnama of dead body. The notice for conducting the Inquest is Ex.P/6 and the Inquest report is Ex.P/7. The witnesses namely; Dharmendra (PW/8), Shobharam (PW/9) and Ramesh (PW/10) have corroborated the statements.

16. The question now for consideration is of identification of dead body.

17. Kalabai (PW/1) has stated that she was barely shown the clothes of her husband Harsingh in the district hospital at Sendhwa, Barwani. The reason for not showing the body to Kalabai was that it had become unidentifiable because of highly decomposed state. A perusal of Ex.P/7 shows that the dead body had been tied up with rope from waist onwards which was covered in a jute sack and which was also tied up with electric wire and the said jute bag was stitched. It was found that the skin and hair had come out due to putrefaction and decomposition. The skin of the dead body had degloved and the scalp hair had come out because of high degree of decomposition.

18. Kalabai (PW/1) has stated that the clothes which were shown to her were the same clothes which her husband had

been wearing when he had left the house. The clothes were T- Shirt and loose underwear. The mother of Kalabai (PW/1) is Ramtibai (PW/3) who has corroborated the statements of her daughter and states that she had appended her signatures on identification memo which is Ex.P/1. Another witness of identification memo is Bhuralal (PW/4) who states that Kalabai (PW/1) had identified the clothes to be belonging to her husband Harsingh.

19. Jayantilal Purohit (PW/16) is the Tehsildar of Sendhwa who has stated that he had conducted the identification proceedings whereby the Kalabai (PW/1) had identified the clothes of her husband Harsingh. The signature of witness on identification memo is Ex.P/1 which has been identified by the witness. This witness in para 3 states that the sealed packet containing the clothes were opened before the wife of deceased Harsingh. These clothes were taken out from the dead body by Dr. Suresh Chouhan (PW/15) who had conducted the postmortem. He states that full sleeved white terri-coat Shirt, full sleeved greenish T-Shirt and a cotton striped underwear with a cord were taken out and handed over to Police Constable.

20. Ramlal Gathe (PW/14) states that he is the Head Constable of Police-Station Sendhwa who has prepared the seizure memo of the aforesaid clothes and the document is Ex.P/22. The statements of Kalabai (PW/1) that the clothes which had been placed before her for identification were that of her husband Harsingh, have not been challenged. It is also not challenged that these clothes were taken off from the dead

body. Thus, it is proved that the dead body was that of Harsingh.

21. The question was whether the death of Harsingh was accidental or homicidal ?

22. Dr. Suresh Chouhan (PW/15) has stated that internal organs of the dead body had been rendered totally soft and pulpy. However, no bone had been found to be broken. Due to high level of putrefaction, the cause of death could not be determined. Viscera analysis and diatom test was needed to be conducted for ascertaining the cause of death. Death had occurred more than 72 hours prior to postmortem examination conducted on 21.10.2006. The report is Ex.P/23. Thus, the doctor conducting the postmortem has not been able to ascertain the exact cause of death of deceased Harsingh. However, in view of the fact that in the dead body, the legs had been found to be tied up with rope and its upper torso was covered in a jute bag which was also stitched and tied up with an electric wire, rules out accidental death and no doubt remains that the death was a result of culpable homicide and it also becomes evident that deceased Harsingh had already being done to death and his body was thrown in the Well so that the same may not be found out.

23. The question now is regarding the circumstantial evidence available against the appellants and the motive for committing the crime.

24. Reverting to the motive first, Kalabai (PW/1) has stated that appellant No.1 Rumaliya was harassing her husband Harsingh because the witness and her husband had taken loan of Rs.300/- from Rumaliya which was not repaid to him and therefore he continued to harass them and told them that he would not allow them to plough their agricultural field situated at village Khedi and due to continuous harassment meted out to them, the couple had no option but to leave village Khedi and move over to village Dhababawdi and fearing that appellant Rumaliya would take away the land, Harsingh had mortgaged the land to one Amarsingh. Her statements have been corroborated by her mother Ramtibai (PW/3.)

25. Kalabai (PW/1) has stated that she did not lodge any report against appellant Rumaliya regarding such harassment. She states in para 4 that Rumaliya was their relative and therefore report was not lodged against him. This witness has not been confronted with her police statements. Further, the same has been supported by Ramtibai (PW/3) and therefore it is proved that the reason for Harsingh to leave village Khedi was the harassment meted to him by Rumaliya. The question is why the deceased was going to village Khedi on the day when he was found missing ? Kalabai (PW/1) stated that due to fear of Rumaliya, her husband Harsingh had mortgaged his land with one Amarsingh. He had borrowed Rs.10,000/- from villagers and had left his house to redeem his land from mortgage. The witness Nanla (PW/12) and Rajaram (PW/13) have corroborated the statements of Kalabai (PW/1) and both of whom have stated that they had given Rs.5000/- each to deceased Harsingh and he had taken loan from them as he

wanted money for redeeming his land. As per the statement of both these witnesses, Rs.10,000/- were in the denomination of currency notes of Rs.50/- and Rs.100/- each. Kalabai (PW/1) has stated that while her husband was leaving house, he had also taken a male goat and a female goat along with him.

26. The next evidence is that of circumstantial evidence against the appellants. In this regard, the first circumstantial evidence is that regarding last seen. Gajanand (PW/2) states that he had come to village Patli on his motorcycle and was standing on a small bridge (Pulia) near the Robert Memorial and he saw the deceased and the accused (appellants) moving towards the village Khedi. He states that Harsingh came to him requesting him to lend his tractor for transporting his household items from village Dhababawdi to village Khedi. As per this witness, he told the deceased Harsingh that he was under the influence of liquor and that he may come on the next day and take tractor from him. He also states that these persons were also carrying goat meat (mutton) along with them and he asked them to cook the meat otherwise it would become inedible. The witness further states that the deceased was wearing a white Shirt and a T-Shirt inside. The mutton was in the hands of appellant No.2 Bhaya. He also states that the deceased had moved to village Dhababawdi about four to five months earlier. Thus, this witness claims that he not only knows the deceased but he also knows his background. In cross-examination, he states that trio had stayed with him for 10-15 minutes and then the witness had left for his house. He also states that from the spot where he met them was on the way to village Khedi which is about 100 metres from the spot.

The statements made by this witness in examination-in-chief have not been challenged in cross-examination. Hence, it is found proved that the deceased was last seen at about 5:00 pm along with the appellants and all the three were under the influence of liquor and they were also possessing mutton (meat). It is to be recalled that deceased had left his house with two goats. The time of the death of deceased was about 8:00 pm. As per prosecution story, prior to that at 5:00 pm, the deceased was found in the company of appellants and this fact has been found proved. Thus, it is also clear that the appellants and the deceased were seen at village Patli which falls before village Khedi and the spot where the incident had taken place was verified by the police and the verification memo is Ex.P/13 which has been proved by witness Kesariya (PW/11). A perusal of the same shows that the verification of spot was made by the appellants only. In the aforesaid Ex.P/13, the spot 'A' where the incident took place is on the side road made up of gravel (kachha road) and is depicted as 'A'. Well is situated shown at '5' lying on the north of spot 'A'. The spot map is Ex.P/10 which has been prepared by Investigating Officer Jorsingh Bhadoriya (PW/17) in which this well has been shown to be situated in the agricultural field of one Sunsar. Besides this is the agricultural field of Ramesh (PW/10). Thus, the spot where the incident took place was on the way to village Khedi and the well in which the dead body was found is also situated nearby. Thus, it appears that deceased Harsingh was done to death at a place which was quite near to the place where the appellants and the deceased were last seen together prior to the incident.

27. Apart from the last seen evidence of Gajanand (PW/2), one Bhuralal (PW/4) has also stated to have seen the appellant Bhaya along with the deceased. He says that he had come to Sendhwa and he met Harsingh (deceased) at bus stand at about 1-2 pm who had two goats with him and had told the witness that he had come from Village Dhababawdi and wanted to sell the two goats. Subsequently one of the goat was sold by them for Rs.600/-. Witness states that deceased then consumed liquor. The witness further states that later he saw deceased accompanied by appellant Bhaya. In cross- examination also, the witness reiterates that he had seen the deceased with appellant No.2 Bhaya. The evidence of this witness has not been contradicted in cross-examination and hence it is found proved that on the date of incident at about 1

- 2 pm, appellant Bhaya and the witness were together at Sendhwa Bus Stand. As already found proved, later the same day at about 4 - 5 pm, appellants Rumaliya and Bhaya and deceased were found together at Village Patli. This time they had mutton in their hands but the goat was not there which implies that the mutton was of the same goat which the deceased was carrying earlier. Thus appellant No.2 Bhaya was in the company of deceased right from 1:00 pm to 2:00 pm onwards on the date of incident.

28. The last seen theory having been proved, other circumstantial evidence would be considered. As already stated, it is found proved that the deceased was carrying Rs.10,000/- which was in the denomination of currency notes of Rs.50/- and Rs.100/-.

29. Jorsingh Bhadoriya (PW/17) has stated that on the basis of memorandum of appellants Rumaliya and Bhaya i.e. Ex.P/16 and Ex.P/17 respectively, Rs.3000/- were recovered from the house of brother of appellant Bhaya as per Ex.P/18, Rs.4000/- was recovered from Rumaliya as per Ex.P/20. A perusal of Ex.P/18 and Ex.P/20 shows that from appellant Bhaya, currency notes in the denomination of Rs.50/- was seized and currency notes in the denomination of Rs.100/- was seized from appellant Rumaliya. It has already been found proved that Rs.10,000/- notes which deceased was carrying were in denominations of Rs.50 and Rs.100 and the recovery from the appellants were also of the same denominations. As per Jorsingh Bhadoriya (PW/17), two other incriminating articles were seized from the appellant Rumaliya and these were parts of an electric wire and a shawl (allegedly belonging to the deceased Harsingh). As per the deceased both were seized vide Ex.P/20 from appellant Rumaliya. The witness J.S. Bhadoriya (PW/17) has stated that he had sent the seized electric wire for FSL along with the wire which had been recovered from the body of deceased. The FSL draft is Ex.P/28 and the FSL report is Ex.P/30. A perusal of Ex.P/30 shows that both the wires matched with each other in respect of the making colour and the type of metal etc. This piece of evidence implicates Rumaliya (appellant) and proves the prosecution story that it was Rumaliya who had tied up the jute sack (covering the body of deceased) with the wire, part of which was recovered from his possession later on.

30. That as far as the shawl is concerned, the same was subjected to identification by Kalabai (PW/1), the wife of

deceased Harsingh, who has stated that she had identified the aforesaid shawl from amongst 4 - 5 shawls placed alongside. The aforesaid proceedings were conducted by Jayantilal Purohit (PW/16) who states that as per Ex.P/1, the shawl has been identified by the wife of deceased Harsingh. In cross- examination, he states that different kinds of shawls were placed along with the questioned shawl and the other shawls may have been of different colors and sizes. Kalabai (PW/1) states that she could identify the shawl of her husband because her shawl had thread work.

31. Learned counsel for the appellants submits that such kind of identification cannot be considered to be an appropriate method because the shawls placed along with the questioned shawl were not similar in nature. This submission of learned counsel for the appellants is not tenable because a housewife would be presumed to be having an uncanny sense of identifying such household items which were being used constantly and therefore barely because the shawls placed along side may have differed, would not be a material flaw. Thus, it is found proved that the shawl seized from appellant Rumaliya belonged to the deceased Harsingh. Words 'Harsingh' were found to be inscribed on the shawl. The aforesaid circumstantial evidence of last seen, the belongings of deceased in possession of appellants and the recovery of part of wire found around the body of deceased from appellant Rumaliya are such pieces of circumstantial evidence which clearly implicate the appellants in the aforesaid crime.

32. The learned counsel has argued that the conviction cannot be based only on mere suspicion. Learned counsel has cited the Hon'ble Apex Court judgment in the case of Sarvan Singh Ratan Singh vs State of Punjab reported in AIR 1957 SC 637 in support. Another judgment of CK Ravindran vs. State of Kerala reported in AIR 2000 SC 369 has also been relied upon in which it has been held that if the medical evidence is not conclusive, then mere recovery of belonging of deceased can hardly be set to be an clinching evidence. Both the citations were perused and are not found to be applicable in the present case. There is a concrete circumstantial clinching evidence found proved against the appellants and it is not that that there is nothing more than mere suspicion against both the appellants. The pieces of evidence show involvement of appellants not on the basis of mere suspicion but on the basis of proof of hard facts against both the appellants. It is also not a case that there was only recovery of belongings of deceased. Apart from belongings, the last seen theory was also proved and the motive was also established as far as the appellant Rumaliya is concerned. The original motive has later been transformed into motive of committing loot. Thus, the case of C.K. Ravindran (supra) would not bring any succor to appellants. The onus was upon both the appellants to explain last seen theory and possession of incriminating items, which was not discharged. It is clear that a single person could not have carried out the murder followed by dumping the body in a well situated at a distance from the spot of murder.

33. After due consideration of the aforesaid facts and circumstances, conviction under Section 302/34 IPC and

Section 201 IPC stands affirmed. No interference in the quantum of sentence is called for. The appellant Rumaliya has already withdrawn his appeal and appellant Bhaya alias Bobada is in jail and has completed more than fourteen years behind bar. As there is no specific provision for withdrawal of appeal during the hearing, it was considered appropriate to appreciate the evidence with a view to determine the involvement of both the appellants in the aforesaid crime who has later on withdrawn his appeal earlier and due to having suffered the quantum of sentence imposed upon him.

34. Consequently, the sentence imposed upon the appellants by the trial Court is also affirmed. All the jail sentences shall run concurrently.

35. This appeal on the point of conviction and sentence stand dismissed in aforesaid terms.

36. A copy of this judgment along with original record of trial Court be sent to the trial Court for compliance.

37. The disposal of the property shall be as per the order of trial Court.

                 (VIVEK RUSIA)                       (SHAILENDRA SHUKLA)
                    JUDGE                                  JUDGE

  Arun/-


Digitally signed by ARUN
NAIR
Date: 2021.11.12 10:42:53
+05'30'