Chole Lal vs The State Of Madhya Pradesh
2022 Latest Caselaw 5239 MP

                                     Cr.A. No. 3272/2016
                             1

   IN THE HIGH COURT OF MADHYA PRADESH AT
                  JABALPUR

  BEFORE: HON'BLE SMT. JUSTICE NANDITA DUBEY

            CRIMINAL APPEAL No. 3272/2016

Between:-
     CHOTELAL, S/O MOTILAL ULADI,
     AGED ABOUT 35 YEARS,
     R/O CHOBA, POLICE STATION GHUGRI,
     DISTRICT MANDLA,
     (MADHYA PRADESH)
                                  .....APPELLANT

     (By Ms. Pooja Gajra, Advocate as Amicus Curiae )

     AND

     THE STATE OF MADHYA PRADESH,
     THROUGH P.S. GHURGI,
     DISTRICT MANDLA (MADHYA PRADESH)

                                          .....RESPONDENT
     (By Mrs. Priyanka Mishra, Govt. Advocate)


     Arguments heard on   : 09.12.2021
     Order delivered on     11.04.2022
                                           Cr.A. No. 3272/2016
                                  2


                       JUDGMENT

This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 29.09.2016 passed by Sessions Judge, Manda (M.P.) in S.T. No.42/2016, whereby the appellant has been found guilty for the offence punishable under Section 304-Part I of the I.P.C. and sentenced to undergo Rigorous Imprisonment for ten years with fine of Rs.1,000/- with default stipulation.

2. As per prosecution, appellant went to the house of deceased at 10.00 P.M. in the night of 29.11.2015, where some altercation took place between the appellant and deceased Chandan Singh and the appellant then assaulted Chandan Singh with a wooden stool (peedha), as a result of which Chandan Singh became unconscious and died while being taken to the hospital. This incident was witnessed by Sunaina (P.W.-1), wife of deceased, who then informed Bhadde Singh (P.W.-3) on phone. Bhadde Singh thereafter went to the house of deceased and found him lying unconscious. One Shivlal lodged the complaint, on the basis of which, Dehati Nalishi (Ex. P-14) was recorded. The autopsy of the body of deceased was conducted by Dr. D.K. Markam (P.W-11) on 30.11.2015, who found 9 injuries caused by hard and blunt object and one bone fracture on the right side of the Cr.A. No. 3272/2016

temporal region. According to the doctor, the death was homicidal and occurred within 24 hours of the postmortem. The doctor also examined the accused had found two injuries, both simple in nature caused by hard and blunt object. The accused was arrested and on his memorandum, a blood stained stool (peedha) was recovered from the open courtyard of deceased's house.

3. After investigation, the charge sheet was filed. The trial Court framed charges against the accused/appellant as aforestated. The accused/appellant abjured the guilt. It was pleaded that it was Bhadde Singh, who alongwith others assaulted the deceased. It was stated that Bhadde Singh has beaten him and locked him inside the room.

4. The trial Court relying on the testimony of Sunaina (P.W.-1), Krishna (P.W.-8) and Ramkalibai (P.W.-9) has convicted and sentenced the appellant as aforestated.

5. I have heard the learned counsel for the parties and perused the record.

6. It is an admitted fact that accused and deceased are near relatives. Accused is the maternal uncle (mama) of the deceased. P.W.-1 Sunaina, though initially claimed to be the eye witness of the incident has admitted in her cross-examination that Cr.A. No. 3272/2016

she was told about incident by Ramkali (P.W.-9), who had gone out first for washing the utensils, while she was inside the house serving the food to other persons present there. She has further admitted that it was late in the night and quite dark outside. She has further stated that at that time she also saw Bhadde, who caught hold of accused and locked him in the room.

7. Whereas Ramkali, who was examined as P.W.-9 has stated that she was informed by P.W.-1 Sunaina that the accused has beaten up the deceased and when she came out of the house, she found that deceased lying unconscious and the accused was also lying there. Thereafter, Chhotelal was locked up in the room by Bhadde. The aforestated testimony makes it clear that neither Sunaina (P.W.-1) nor Ramkali (P.W.-9) is the eye witness to the incident. Further, P.W.-8 Krishna Maravi, who is six years old is also not an eye witness as she was informed about the incident by her nani.

8. P.W.-1 Saunaina in her statement has also admitted that her deceased husband and the accused were sitting outside in the open courtyard and consuming alcohol. Bhadde (P.W.-3) has stated that on the date of incident at around 8.30 P.M., P.W.-1 Sunaina came to his house to inform that the accused had done marpeet with her husband. He has also admitted that Parwatiyabai, mother of the deceased has made allegations against Cr.A. No. 3272/2016

him that he has murdered her son and falsely implicated the accused. P.W.-7 Shivlal, who lodge the Dehati Nalishi and also the brother of the deceased is also not an eye witness, as he was informed about the incident on phone and when he reached home, he was told by his mother, sister-in-law Sunaina (P.W.-1) and her maternal aunt that Bhadde alongwith other villagers had murdered Chandan Singh (deceased) and falsely implicated the accused. His statement is fully corroborated by P.W.-15 P.S. Tilgam, Investigating Officer, who admitted that Parwatiyabai, Sunanina (P.W.-1), Ramkalibai (P.W-9) and Shivlal (P.W.-7) had given him an application dated 03.12..2015, which is exhibited as Exhibit D- 1 that the accused has been falsely implicated by Bhadde.

9. P.W.-2 Mahesh Kumar, who was the witness of spot map has stated that while making the spot map (Ex.P-10), one wooden peedha was found lying in the open courtyard and the same peedha was lateron shown as recovered from Chhotelal by the police. P.W.-6 Jalsa Singh, who was the witness of the shav panchnama has also stated that at the time when the panchnama was made it was not known as to who has murdered the deceased. Moreover, Ex.P-5, which was the property seizure memo shows that on 30.11.2015, at around 11.30 A.M., one wooden peetha, which was stained with blood was found from the open courtyard and the recovery of blood stained peetha on the basis of Cr.A. No. 3272/2016

memorandum of the accused has been made on the same day, i.e., on 30.11.2015 at 5.20 P.M. Exhibit P-10, the spot map made on 30.11.2015 at 11.30 A.M. also shows that one blood stained Peetha and one blood stained stick was also found lying on the spot map, however, there is nothing in the record as to why this blood stained stick was not seized and sent for FSL. Furthermore, the peetha that was shown as recovered on the basis of memorandum of the accused, the blood stains were found disintegrated, hence no inference could be reached with regard to the same.

10. Accused in his defence has stated that while he was consuming alcohol with Chandan (deceased), Bhadde some persons accompanying him had assaulted him. He received injury on the face and became unconscious. He has further stated that he has not given any memorandum regarding the recovery of peetha.

11. The aforestated evidence on record clearly shows that there was no eye witness to the incident, though Bhadde has stated that Sunaina (P.W.-1) had come to his house at around 8.30 P.M. in the night and called him, however, no such statement has been made by Sunanina (P.W.-1). Under the circumstances, in my considered opinion, the prosecution has failed to establish its case.

12. It is settled law that the prosecution has to prove the guilt of the accused beyond reasonable doubt and it is also the Cr.A. No. 3272/2016

settled position of law in criminal justice that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other towards his innocence, the view which is favourable to the accused should be adopted.

13. Accordingly, the appeal filed by the appellant is hereby allowed and his conviction under Section 304 part-I of the I.P.C. is hereby set aside. He be released forthwith, if not required in any other case.

(Nandita Dubey) Judge 11/04/2022 gn SMT. GEETHA NAIR 2022.04.12 09:41:28 +05'30'