Madhya Pradesh High Court
Rakesh Prajapati vs The State Of Madhya Pradesh on 8 February, 2022
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUJOY PAUL
&
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
Criminal Appeal No. 264/2011
Rakesh Prajapati
Vs.
State of Madhya Pradesh
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Shri Chandrapal Singh Parmar, learned counsel for the appellant -
accused.
Shri S.K. Malvi, learned Panel Lawyer for the respondent - State.
=================================================
Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on 8th day of February, 2022)
Per Arun Kumar Sharma, J :
The present appeal is directed against the judgment dated
31/12/2010 passed by Second Additional Sessions Judge (Fast Track
Court), Panna in S. T. No. 95/2006 convicting the appellant under
Sections 302 and 201 of the Indian Penal Code and sentencing him to
undergo imprisonment for life and RI for five years respectively and
to pay fine of Rs.500/- and Rs.200/- for each offence in default to
undergo rigorous imprisonment for two years and for six months
respectively for each offence.
2. The prosecution case in brief is that on 02/06/2006,
complainant Ramdas (PW-18) made a written complaint to Station
House Officer, Police Station-Sunvani alleging that the marriage of
his niece Sunita D/o Kunja Prajapati was solemnized with the
appellant six years ago and thereafter, she used to reside with the
appellant at Village Badkhera. Four months ago Sunita (since
deceased) came to her parental house and on 25/05/2006, the
appellant came there to took the deceased alongwith with him to her
matrimonial home. Thereafter, on 31/05/2006, when the complainant
reached to the matrimonial home of Sunita ,where parents of the
appellant informed him that the deceased and the appellant did not
reach at home. Later on, appellant informed him that after committing
the murder of deceased by cutting her neck and he buried her dead
body near the bore.
3. On the basis of said information, merg intimation number 0/06
(Ex.P/14) was registered and merg inquiry was done. On completion
of merg inquiry F.I.R vide Crime No.58/2006 for commission of
offence punishable under Sections 302 and 201 of the Indian Penal
Code was registered against the appellant. During investigation, on
07.06.2006, the then Naib Tahsildar S.N. Darro (P.W/16) reached at
the spot, recovered dead body of Sunita and prepared lash panchnama
(Ex.P/6). Dead body of the deceased was sent for postmortem to the
Primary Health Centre, Pawai, District-Panna (M.P.), where Dr.
Neeraj Jain (P.W-21) conducted postmortem and prepared report
(Ex.P/39). The spot map (Ex.P/31) was prepared and statements of
witnesses were recorded. Articles belonging to the appellant and
deceased were recovered, vide seizure memo (Ex.P/22) and it was
sent through memorandum (Ex. P/34) along with list of index (Ex.
P/35) for FSL to Sagar. FSL report is exhibited as Ex.P/36 and P/37.
As per the Ex. P/36, human blood was present on clothes of the
appellant and deceased, however, due to dullness of blood stains,
blood group could not be detected. According to Ex.P/37, hair
recovered from the spot belongs to human hair, however, no definite
opinion can be given in this regard. After completion of investigation,
charge sheet was filed against the appellant / accused before the
Judicial Magistrate First Class Pawai, District-Panna (M.P.) from
where the case was committed to the court of Session for trial.
4. The learned trial Court framed charge for an offence
under Sections 302, 201 of the IPC against the appellant / accused.
However, the appellant / accused abjured his guilt and pleaded that he
was innocent and claimed for trial.
5. Learned trial Court after trial of the case and on the basis
of the evidence and material available on record, particularly the
evidence of PW-2 Ramesh Patel, PW-5 Raj Bahadur Singh Gour, PW-
7 Kunja Prajapati, Rajesh Shukla PW-8, S.N. Darro (the then Naib
Tahsildar Pawai, District-Panna)-PW-16, Ramdas- PW-18, S.R. Rai
(Investigating Officer) PW-19 and Doctor Neeraj Jain PW-21 and
considering F.S.L report has convicted the appellant for the aforesaid
charge and sentenced as mentioned earlier.
6. The aforesaid findings of the trial court has been assailed
on behalf of the appellant / accused on the grounds that learned trial
court has not appreciated the evidence in its right perspective and the
case of the prosecution is based on circumstantial evidence. It is also
submitted that there was no eye witness of the alleged incident. As
per F.S.L. report, the hair alleged to have been belongs to the deceased
recovered from the spot did not support the prosecution case. None of
the circumstances has been proved beyond reasonable doubt and none
of the circumstances individually or with cumulative effect is
sufficient to come to the conclusion that none other than the appellant
may be the culprit of the death of deceased. It is accepted that
principal of criminal jurisprudence that the burden is always on the
prosecution and never shifts. Prosecution witness, namely Raj
Bahadur Singh Gaur (PW 5) in his cross examination clearly stated
that the deceased usually went outside from her matrimonial home
without intimating anyone for several days, therefore, merely on the
ground that the deceased was last seen together in the company of the
appellant prior to her death, it cannot be said that the appellant has
committed murder of his wife. The appellant was not having any
motive to commit the murder of deceased. It is well settled that the
accused need not set up specific plea of his offence and adduce
evidence. It is also submitted that most of the prosecution witnesses
have not supported the prosecution case and turned hostile. The
appellant has been found guilty for commission of offence punishable
under Sections 302 and 201 of the IPC on the basis of his
memorandum recorded under Section 27 of the Indian Evidence Act,
which is not legally admissible. There is nothing incriminating against
the appellant for holding responsible for commission of alleged
offence. The finding of the learned trial court is based on surmises and
conjectures which is not sustainable. Hence, learned counsel for the
appellant prays for setting aside of the impugned judgment and
acquittal of the appellant for the aforesaid offence.
7. Learned Panel Lawyer appearing for the respondent /
State has argued in support of the impugned judgment and stated that
the finding of conviction and sentence of the learned trial court is
based on cogent and reliable evidence. Kunja Prajaapati (PW-7) in
para 1 of his statement deposed that the appellant used to harass and
assault the deceased and he identified the dead body of deceased
through her clothes. Doctor Neeraj Jain (PW-21), who has conducted
the postmortem of the deceased, opined that the death of deceased was
found to be homicidal in nature. Although, some prosecution
witnesses have not supported the prosecution case and turned hostile,
however, star witnesses namely, S.R. Rai Ivestigation Officer (PW-19)
and S.N. Darro- the then Naib Tahsildar (PW-16) have fully supported
the prosecution case and merely on the ground that some prosecution
witnesses have not supported the prosecution case and turned hostile,
the testimony and reliability of these witnesses could not be discarded.
In support of his contention, learned Panel Lawyer has placed reliance
on the judgment of Apex Court in the case of Karamjit Singh Vs.
State (Delhi Administration), (2003) 5 SCC 291. Hence, he prayed
for dismissal of the appeal.
8. We have considered the contentions of learned counsel
for the parties and also perused the record. In view of the statement of
autopsy surgeon Dr. Neeraj Jain (PW-21), who was posted at
Community Health Care Center, Pawai on the post of Medical Officer
and performed postmortem on the dead body of the deceased on
07/06/2006, it is proved that the death of the deceased was homicidal
in nature as in the head of deceased a fracture was found and the head
was found separated from the neck. It is opined that the death occurs
due to shock because of ante mortem injury over vital organ (neck) by
hard and sharp object and the internal organs of the deceased were
found sphacelated. Therefore, learned trial Court has not committed
any error regarding finding of nature of the death. Learned counsel for
the appellant has not objected the aforesaid finding. Hence, there is no
hesitation to hold that the nature of the death of the deceased was
homicidal.
9. Now, the question is that whether the appellant has
assailed the deceased and caused her death. In this regard, the
prosecution case is based first of all on the circumstance of last seen
of the appellant with the deceased. In this regard, the statement of
Ramdas (PW-18) is on record, wherein para 2, he deposed that on
25/05/2006, appellant came to parental house of deceased for taking
his niece to her matrimonial home. Thereafter, appellant took the
deceased alongwith him. Lateron, on 31/05/2006, when, he went to
matrimonial home of the deceased, where parents of the appellant
intimate him that the appellant and deceased did not come here. On
the basis of suspicion, he made a written complaint of his niece.
Kunja Prajapaati (PW-7) also deposed that Rajesh Shukla (PW-8)
informed him that the appellant told him that he would kill his wife.
Thereafter, the dead body of deceased was found burried in the bore
situated near the land of one Scheduled Community member of
village Badkhera. Police intimated him regarding the dead body of
deceased and identified the dead body and her clothes by him. Thus,
it is clear that the deceased was lastly seen with the appellant prior to
her death.
11. Now the next question is that whether the appellant committed
murder of his wife or not. In this regard testimony of S.R. Rai-PW-19
(Investigating Officer) is relevant, who in paragraph 2, deposed that
during interrogation, he prepared inquest report (Ex. P/24), wherein
appellant informed him about the death of his wife and about the place
from where dead body of the deceased was recovered. Appellant also
informed him about the place where he committed the murder of his
wife, where blood stains of deceased was present and he veiled the
same by soil. Thereafter, he wrote a letter to SDM, Pawai for recovery
of dead body of the deceased. He also prepared identification memo
of dead body (Ex. P/16). Prior to alleged incident, Raj Bahadur Singh
Gaur- PW-5 saw the appellant with his wife sitting near river.
Although, he has declared hostile by the prosecution, however, his
testimony cannot be disbelieved merely on this ground. On the basis
of memorandum recorded under Section 27 of the Indian Evidence
Act before Executive Magistrate, Gagwani, District-Dhar (the then
Naib Tahsildar Pawai, District-Panna) dead body of deceased and
blood stained axe alleged to have been used in the commission of
alleged offence were recovered from the place disclosed by the
appellant, therefore, the aforesaid memorandum is legally admissible.
Appellant has not given any explanation or reason in his statement
recorded under Section 313 Cr.P.C. that he had not committed the
murder of his wife. Thus, the prosecution has successfully proved that
the appellant/ accused caused the death of his wife.
12. In view of the aforesaid discussion, we are of the view
that although some prosecution witnesses have not supported the
prosecution case and turned hostile, however, in the light of judgment
of Hon'ble Apex Court pronounced in the case of Karamjit Singh
(supra), the testimony of star witnesses namely, PW -16-S.N. Darro
(the then Naib Tahsildar) and PW-19-S.R. Rai (Investigating Officer)
could not be discarded. Thus, it is clear that the prosecution has
established beyond reasonable doubts that the deceased was last seen
in the company of the deceased, when she was alive. According to the
medical expert, the injuries found on the body of the deceased may
be caused by hard and sharp object and may be caused by the axe,
which was seized at the instance of the appellant. These
circumstances make out a complete chain to prove the fact that none
else the appellant has assailed the deceased and committed murder of
his wife.
13. Therefore, it is held that the prosecution has proved its
case beyond reasonable doubt and learned Trial court has not
committed any error in coming to the conclusion that the appellant has
committed murder of the deceased.
14. As a result, the appeal being devoid of merit is
Dismissed. The judgment of conviction awarded under Sections 302
and 201 of the IPC and order on the sentence to undergo
imprisonment for life along with fine with default stipulation are
hereby affirmed. The appellant is in jail. He is directed to undergo the
entire jail sentence in accordance with law.
15. A copy of this order be sent to the trial court and the jail
authorities concerned for information and necessary compliance.
(SUJOY PAUL) (ARUN KUMAR SHARMA)
JUDGE JUDGE
skt
SANTOSH KUMAR TIWARI
2022.02.09 11:11:49 +05'30'
