Vinod Brahman vs State Of M.P.
2021 Latest Caselaw 5659 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT
                       INDORE
        D.B. : Hon'ble Shri Justice Vivek Rusia
      Hon'ble Shri Justice Shailendra Shukla, JJ.

                   Criminal Appeal No.213/2008
     Vinod S/o Babulal Ji Brahman, aged
     about 26 years, Occupation- Labour, R/o Appellant (s)
     Village Pipalya Jageer, P.S. & Tehsil
     Sitamau, District Mandsaur (M.P.)

                               Versus
     State of Madhya Pradesh              through
     Police-Station- Sitamau,             District Respondent (s)
     Mandsaur (M.P.)
     Shri Vivek Singh learned counsel for the appellant.
     Shri Amit Singh Sisodia learned counsel for the respondent.


                   JUDGMENT

(Delivered on 20th September 2021) PER VIVEK RUSIA, J: -

Appellant has preferred this appeal under Section 374 of the

Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 31.01.2008, passed by 2 nd Additional Sessions Judge, Mandsaur, District Mandsaur in Sessions Trial No.95/2007, by which the appellant has been convicted for offence under Sections 302 and 394 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment and 10 years R.I. and a fine of Rs.500/- each respectively, with usual default stipulation.

(2). The case of the prosecution, in brief, is as follows: -

Ramsingh (PW-1) gave information to the police on 25.06.2007 that today in the morning at about 08:00 am, his mother Radhabai (Deceased) went to Sasri River to take bath but

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did not return. Then his sister Geetabai (PW-2) went to search her and found Radhabai lying near the bank of the river. She gave information to him, and he went to the river and found Radhabai dead, her head was inside the water and her legs were outside the water. He also found two anklets and one bangle missing from her person. Immediately information was given to the Police Station, the aforesaid information was recorded vide merg No.2/2007 (Ex.P/1). Vide Safina form (Ex.P/2), the police called five witnesses and reached the spot. Naksha Panchnama was prepared vide Ex.P/3. Prima facie, the death was found homicidal, therefore, the dead body was sent for postmortem. The spot map was prepared vide Ex.P/10. As per the postmortem report rigour Mortis was found in the whole of the body, clothes were wet, three metallic bangles on the right hand, golden thread and wooden mala were found on the neck. No marks were found present of a sexual offence. Internal parts of the body were found healthy and as per the final opinion, the death was due to asphyxia as a result of drowning (Ex.P/15).

Police recorded the statement of Geetabai (PW-2) under Section 161 of Cr.P.C. according to which, she went near the river at about 09:00 am and on the way the Vinod (accused) found coming fast from the riverside and his trouser was wet up to the knee height, thereafter she found her mother dead. Her head was inside the river, hairs were wet, and silver anklets and bangle were missing. On the basis of suspicion, police registered an FIR against this appellant under Section 302 and 394 of I.P.C. vide crime No.195/2007 (Ex.P./34). Appellant Vinod (accused) was arrested by the police on 25.06.2007 vide Ex. P/27. His finger was found injured for which he gave an explanation that it was cut from the blade while opening the cement bag. Vide Ex. P/8 his

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memorandum under Section 27 of the Indian Evidence Act was recorded in which he disclosed that he kept the looted silver anklets and bangle in his house. Those articles were recovered vide seizure memo (Ex.P/9). Vide Ex. P/6 , Geeta Bai has identified the anklets and bangle in presence of the executive Magistrate, Sitamau.

On completion of the investigation, police filed the charge- sheet against the Vinod (accused) u/e 394 and 302 I.P.C. . The trial was committed to the Sessions Court, vide order dated 17.08.2007. Vide order dated 04.10.2007, the learned Additional Sessions Judge framed the charges under section 302 and 394 of I.P.C. against the appellant. He denied the charges and pleaded for trial.

(3). The prosecution has examined as many as 13 witnesses as PW-1 to PW-13 and got marked 37 documents as Ex.P/1 to Ex. P/37. The appellant in his defence has got exhibited six documents as Ex.D1 to Ex. D/6.

(4). After evaluating the evidence that came on record, vide judgment dated 31.01.2008, the appellant has been convicted and sentenced as stated above. Hence, this appeal before this Court.

(5). Learned counsel for the appellant submits that the appellant has been convicted on the basis of suspicion shown by the Geetabai (PW-2), she only saw the appellant coming from the riverside and his trouser was wet. The recovery of anklets and bangle from the house of the appellant does not connect him with the charge of murder of Radhabai (deceased). The Radhabai was aged about 80 years. There was a possibility of falling on the stones and died. No sign of strangulation or grievous injuries were found on her body. There was no motive to murder Radhabai (deceased). He is in jail for more than 14 years. At the most

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charges of theft of ornaments of Radhabai (deceased) are said to have been established on the basis of recovery, hence is the appellant is liable to be punished under section 379 of I.P.C. for which he has already undergone the maximum sentence. No offence under section 394 of I.P.C. is made out as the appellant did not commit any robbery by causing hurt. No weapon was recovered from his possession, therefore, he may kindly be acquitted from the aforesaid charges levelled against him.

(6). Learned Government Advocate appearing for the respondent/State support of the impugned judgment by submitting that the appellant was found near the scene of the crime and on his disclosure silver ornaments of Radhabai (deceased) were recovered, which were duly identified by Geetabai (PW-2). The appellant has failed to give any justification for the recovery of ornaments in his house. There is no reason to disbelieve the testimony of Geetabai (PW-2). The injury on lips and legs were found, therefore, the appellant has rightly been convicted for the offence punishable under section 302 and 394 of I.P.C. Hence, the appeal may kindly be dismissed.

We have heard the learned counsel for the parties and perused the record of the trial court.

(7). It is not in dispute that the dead body of Radhabai (deceased) aged about 80 years was found near the bank of the river on 25.06.2007. As per Naksha Panchnama (Ex.P/3), the spot 1/2 kilometer away from the village. The river was dry but there was water in some pits. The pit was 40-45 sqft and filled upto the height of the waist and number of stones were lying nearby area . The deceased was bleeding from the teeth, the minor injury was found on her lips, blood on the thumb and abrasions on the legs but no grievous injuries were found. After turning the dead body,

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blood came out from the mouth. The dead body was examined by Geetabai (PW-2) and other women present there but no injuries were found. The postmortem was conducted by Dr. Y.M. Ansari (PW-10) and the postmortem was started at about 02:50 pm i.e. 8- 9 hours from the time of death and rigour mortis was found in the whole of the body of the deceased. No sign of sexual offence was found, and death was due to asphyxia as a result of drowning. In cross-examination, he admitted that there was no sign of strangulation, and the injuries might have been caused while taking out the body from the river. In chief, he has opined that she died because she could not breathe inside the river. The majority of the autopsy findings are related to asphyxia and have no specific link to drowning. The signs of drowning depending on the delay in recovering the body and on the development of the putrefaction phenomenon which alter the positive signs of drowning. One of the signs of drowning would be large amounts of froth present around nostrils and mouth in freshly drowned bodies. This froth is also present in the upper and lower airways. After water inhalation, the lungs may be over inflated, filling the thoracic cavity, generally waterlogged referred to as "emphysema aquosum". No such report has been given by the doctor who conducted the autopsy in this case. It is also medically proven that the body has sunk to the bottom of the site of drowning, will show a pattern of post mortem injuries such as post-mortem abrasion over the forehead, the prominent points of the face, the anterior trunk, the backs of the hands and the fronts of the lower legs. Injuries may also be inflicted bypassing watercraft in navigable waters by stumbling against rocks or by animal activities. Accidental or suicidal injuries due to the way the person falls or enters into the water may also be observed. These kinds of post- mortem injuries can mimic ante-mortem wounds and the

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differentiation between ante and post-mortem injuries is quite difficult because of the lack of the usual criteria of ante-mortem wounds.

In case of death due to drowning one of the signs of immersion is skin maceration becoming visible after various time intervals depending on the temperature of the immersion water. The skin becomes wrinkled, pale and sodden like a "washer woman's skin". The vaginal slide was sent for report vide (Ex.P/15) but during the trial, the report did not receive from FSL. It is clear from the aforesaid evidence that she did not die because of drowning.

(8). According to Ramsingh (PW-1) son of the deceased, she went to the river to take bath but did not return till 09:00 am. His sister went to search for her and said that Radhabai (deceased) has been killed. She did not find the silver ornaments of Radhabai. He also disclosed that Vinod (accused) met in the way and his trouser was wet, thereafter, he reached to the spot and found the dead body.

(9). Geetabai (PW-2) has stated that when she was going to search her mother towards the river, Vinod (accused) was coming fast from the riverside and his trouser was wet up to the knee level. Then she reached the river and found half body of her mother inside the river. She did not find ornaments in her body. She has started weeping during the evidence. On the basis of the aforesaid evidence, this appellant made accused in this case. Since the silver ornaments have been recovered from the house of the appellant, therefore, police have registered the offence of murder and committing the robbery.

(10). So far as the charge under section 302 of I.P.C. is concerned, as per the postmortem report and doctor's evidence, no

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sign of strangulation was found on the body of the deceased. She died because she could not breathe due to asphyxia. At the time of death, she was 80 years old. There is the possibility that she died near the river and this appellant was passing from there and found her dead and looted the ornaments. There is no eyewitness, the appellant has been convicted by the trial court on the basis of circumstantial evidence. Only circumstantial evidence came against this appellant that he was seen coming from the side of river and his trouser was wet and he gave information to Geetabai (PW-2) that Radhabai (deceased) is lying dead. Therefore, the appellant is entitled to benefit of the doubt. Hence, he is acquitted from the charges under section 302 of I.P.C.

(11). So far as conviction under section 394 of I.P.C. is concerned, the ornaments belonging to Radhabai (deceased) was found in the house of the appellant for which he has failed to give any valid explanation. The recovery has been established by the prosecution by examining Shankar Singh (PW-5), Parasmal Unhara, Naib Tehsildar (PW-8) and Geetabai (PW-2). There is no evidence at the time of taking out the anklets and bangle from the body of Radhabai (deceased), she was alive or dead. As per the testimony of Dr. Y.M. Ansari (PW-11), the injuries were found on the body might have been caused while taking out her from the river, therefore, there is an allegation of causing hurt at the time of committing theft of ornaments, thus appellant is liable to punished under section 379 of I.P.C. in place of 394 of I.P.C. for committing theft of silver ornaments of deceased for which maximum sentence is three and appellant has already undergone.

(12). Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:

(i) Criminal Appeal is partly allowed.

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(ii) Appellant is acquitted from the charges under Section 302 of I.P.C.

(iii). The appellant is convicted for the offence punishable under Section 379 of I.P.C. in place of 394 of I.P.C. and sentenced to undergo 3 years R.I. with a fine of Rs. 500/-and 3 months additional RI due to nonpayment.

(iv). Appellant is ordered to be released forthwith if he is not required in any other case.

The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.

              ( VIVEK RUSIA )                       ( SHAILENDRA SHUKLA )
                  JUDGE                                    JUDGE



              praveen/-




Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.22 17:07:49
+05'30'