Madhya Pradesh High Court
Bane Singh Parihar vs State Of M.P. on 3 March, 2022
Author: Subodh Abhyankar
CRA No.553/2008
1
High Court of Madhya Pradesh, Jabalpur
Bench at Indore
D.B.: Hon'ble Shri Subodh Abhyankar
Hon'ble Shri Satyendra Kumar Singh, JJ.
Criminal Appeal No.553/2008
Bane Singh s/o Bhadav Singh Parihar
Age - 50 years,
R/o Village - Biglakhedi, District - Shajapur
At Present: - Hathiwala Parisar,
Ramghat, Ujjain, District Ujjain.
Versus
The State of Madhya Pradesh
Through - P.S. Mahakal,
District Ujjain
*****
Ms. Sonali Gupta, learned counsel for appellant.
Mr. Amit Singh Sisodiya, learned Panel Lawyer for the respondent / State of
Madhya Pradesh.
*****
JUDGMENT
(Delivered on this 3rd day of March, 2022)
Per Subodh Abhyankar, J.
This appeal under Section 374 (1) of the Code of Criminal
Procedure, 1973 has been filed by the appellant being aggrieved of his
conviction and sentence.
The appellant stands convicted by the impugned judgment
dated 26.02.2008, passed by the learned 7th Additional Sessions Judge (Fast
Track), Ujjain District Ujjain (MP) in Sessions Trial No.335/2007, whereby,
while holding the appellant guilty, the learned Judge of the trail court has
sentenced him, as herein below: -
Accused Conviction Sentence Fine Sentence in
Amount default of
payment of fine
Bane Singh s/o 302 of IPC Life Rs.5,000/- 6 months
Bhadav Singh Imprisonment
Parihar
201 of IPC 1 year Rs.1,000/- 2 months
CRA No.553/2008
2. The facts in brief, giving rise to the present appeal are that on
24.08.2007, the deceased Kamla Shankar s/o Mishrilal left his house from
Ved Nagar, Ujjain on his scooter bearing registration number MP-13, Y-
4275, to Bank to take pension, but as he did not turn up till evening, a
missing person report No.56/2007 was lodged at 23.40 hours at Police
Station Neelganga, District Ujjain (MP) and the case was investigated upon;
during investigation, an information was received by one Abhishek (PW-4),
that on 24.08.2007 at around 11:00 O'clock he had seen the deceased Bane
Singh along with the present appellant Bane Singh near Guru Akhada,
which lead the Police to inquire about the appellant's whereabout near Guru
Akhada and when the appellant was interrogated, he informed that he has
strangulated the deceased Kamla Shankar and after tying his body, has kept
it in the bathroom in the Hathiwala premises. Thus, a Marg Intimation
No.50/2007 was registered under Section 174 of the Code of Criminal
Procedure, 1973 and after preparing inquest (Naksha Panchayatnama), the
body was sent for postmortem to the District Hospital, Ujjain and a case at
Crime No.375/2007 was registered against the appellant for offence under
Sections 302 and 201 of Indian Penal Code, 1860. From the possession of
the appellant a golden chain, a ring, a watch, and bank passbook, ration card
and scooter key and from the scooter's dicky, deceased Kamla Shankar's
driving license was seized and the Hathiwala premises from where the body
was seized, an old bedsheet including a mattress were also seized. In the
postmortem report, Dr. Ajay Sharma (PW-3) has found that the body was
CRA No.553/2008
decomposed and had the ligature marks on its neck and trachea was
compressed; the cause of death is said to be asphyxia, due to strangulation
and time is said to be between 36 hours to 72 hours.
3. After the investigation, the charge sheet was filed and the case
was committed to the Sessions Court and after recording the evidence, the
learned judge of the trial Court, vide its judgment dated 26.02.2008, has
convicted and sentenced the appellant, as aforesaid. Hence, this appeal.
4. Counsel for the appellant has submitted that it is a case of
circumstantial evidence only, as there is no eye witness account to connect
the appellant with the alleged offence; and the recovery of the dead body as
also the articles like gold chain, ring are also doubtful for the reason that in
the initial missing person report, there is no allegation of the deceased
having golden chain or a ring or a watch on his person. Apart from that,
gold chain and ring have also not been identified by the complainant; and
merely if he has taken those articles on supurdagi, it cannot be inferred that
the articles belong to the deceased only and recovered from the appellant.
5. Counsel has also submitted that the body of the deceased was
found from a bathroom of the building (Hathiwala Premises) which was
being used as a Dharmashala and as such, the possibility of any other
person (s) committing the aforesaid offence cannot be ruled out, as the
appellant was not the sole occupant of the building; and apart from that
admittedly, the body had also started putrefying and was also having strong
smell and thus, it is not possible for any other person not to locate the body.
CRA No.553/2008
6. It is further submitted that even the spot from where the body
has been recovered is also disputed, as in the inquest (Naksha
Panchayatnama) Ex.P/5, the body is said to be recovered from the first
floor of the building (Hathiwala Premises) whereas in the recovery memo
Ex.P/8, it is mentioned that the body was lying on the second floor wrapped
in a bed sheet. Thus, it is submitted that when the prosecution itself is not
sure about the place of incident, the appellant cannot be convicted on the
basis of such weak evidence.
7. Counsel has also drawn the attention of this Court to the
deposition of PW-11 Prahlad Narayan who had given the room on rent to
the appellant in the aforesaid building (Hathiwala Premises) and who has
stated in his cross-examination that the appellant Bane Singh was given a
room on the third floor of the building. He has also admitted that there was
no restrictions regarding any movement of the persons who used to come in
the building. Thus, it is submitted that the place of incident is apparently
has not been proved beyond reasonable doubt and the benefit of which
ought to have been given to the appellant.
8. The attention of this Court has also been drawn to the
deposition of PW-8 Kailash who is a witness to Ex.P/7 the seizure memo of
the body as also the other seizure memos Ex. P/9, Ex.P/10, Ex.P/11 to
Ex.P/14, Ex.P/5 and Ex.P/16 to submit that although he is a seizure witness,
however, he is not more than a pocket witness as he has also been suggested
that he has been a witness in hundreds of cases on behalf of the prosecution
CRA No.553/2008
and is a regular witness of Mahakal Police Station.
9. To substantiate her submissions, counsel has drawn the
attention of this Court to paras 7, 8 and 9 of this witness wherein he has
been cross examined regarding various other criminal cases as also the
names and designation of police personnel of Mahakal Police Station.
Thus, it is submitted that the statement of this witness cannot be relied
upon.
10. The attention of this Court has also been drawn to the
deposition of PW-7 Om Prakash, Head Constable who has also stated that
when they went to Hathiwala Parisar, they found that the room of the
appellant Bane Singh was locked and they came down and while they were
standing there, they saw a man approached them and it was informed that
the said person is the appellant only. Counsel has submitted that had the
appellant been involved in the aforesaid case, he would certainly have run
away from the crime scene, if the case of the prosecution is that he had also
concealed the body in the same premises in the bathroom of second floor
where he was residing. Thus, it is submitted that the prosecution has not
been able to prove its case beyond reasonable doubt and to connect the
chain of event so complete so as to obviate any other possibility, other than
the guilt of the accused.
11. Counsel for the respondent / State, on the other hand, has
opposed the prayer. It is submitted that no illegality has been committed by
the learned Judge of the trial Court while appreciating the evidence.
CRA No.553/2008
12. The attention of this Court has also been drawn to the
deposition of PW-4 Abhishek who is an independent witness and had last
seen the deceased in the company of the appellant when the deceased
Kamla Shankar Chourey was parking his scooter in front of the Akhada and
Bane Singh was also accompanying him and when he asked the deceased
Kamla Shankar Chourey as to what brought him there, he told him that he
had come with Bane Singh. After seeing Kamla Shankar on 24.08.2007,
this witness went to Indore and came back at around 06.30 PM. On the
next date, he came to know that Kamla Shankar is missing since a day, at
that time, he informed Kamla Shankar's son Manoj Chourey, that he had
seen Kamla Shankar, the other day along with appellant Bane Singh.
Hence, they went to Neelganga Police Station and informed this fact to Om
Prakash, Head Constable and from there, they went to Akhada where this
witness Abhishek had last seen the deceased with the appellant, they found
that Priya Scooter of the deceased was parking nearby which was seized
from the spot and thereafter, they went to Bane Singh's room and
subsequently, Bane Singh also came and also hesitated after seeing the
police personnel and the other persons inquiring about him and although at
that time, he did not inform them anything, however, after some time, as he
was also afraid, he disclosed that he has committed the murder of the
deceased. Bane Singh took them to the second floor and in the latrine,
adjacent to porch, they found a body wrapped in a bed sheet.
13. Heard learned counsel for the parties and perused the record.
CRA No.553/2008
14. From the record, it is found that the missing person report was
lodged on 24.08.2007 at 23.30 hours by complainant Manoj Chourey (PW-
1), the son of the deceased stating that the deceased had left the house to
inquire about his pension. The pamphlet regarding the missing person is
also placed on record as Ex.P/2. So far as the recovery of the dead body of
the deceased is concerned, it is not by any chance that it was recovered but
it was the PW-4 Abhishek who had last seen the deceased with the appellant
Bane Singh on 24.08.2007 at around 01.00 O'clock and in fact, he also had
a conversation with him in which the deceased also informed him that he is
accompanied by the appellant Banesingh. Thereafter, he left for Indore on
25.08.2007 and subsequently, when he came back and was informed that
the deceased is missing, he went to the son of the deceased and thus, on the
information provided by PW-4 Abhishek, the Police reached on the spot
where they also met Bane Singh and Bane Singh lead them to that body
which was lying in a bathroom wrapped in a mattress and bed sheet. It is
also found that the body of the deceased was covered by a mattress and then
a bed sheet was also wrapped around it. It might be possible that the smell
of the body was not prominent to be felt by other persons, especially when
the body itself was kept in a bathroom.
15. It is also found that certain articles have also been recovered at
the instance of the appellant vide Ex.P/9 wherein two keys were fond in his
possession, one was of a house and the other one was of the scooter of the
deceased. Vide Ex. P/10, the appellant has also got recovered a gold chain,
CRA No.553/2008
a ring and a watch, which has been proved by PW-8 Kailash, who has
supported the case of the prosecution and has not turned hostile but
admissibility of his evidence has been challenged on the ground of him
being a pocket witness. Although the presence of this witness PW-8
Kailash is doubted by the defence, but PW-1 Manoj has not been cross
examined on the point that he has not received the articles so seized on
Supurdagi and the appellant has also not claimed the aforesaid articles.
16. It is also found that vide Ex.P/14, the Driving License of the
deceased Kamla Shankar was also recovered from the dicky of his scooter,
which was recovered at the instance of the present appellant only as its key
was also recovered from him, coupled with the fact that the Police has
reached to the appellant not through this witness PW-8 Kailash, but through
an independent witness PW-4 Abhishek, who had not only seen the
deceased with the appellant, but had also spoken to him at that time and the
deceased had informed him that he is with the appellant only. And soon
after the appellant was approached by the Police, the body was recovered.
PW-4 Abhishek is also a witness to the recovery and his testimony is found
to be of a sterling character. It is also found that the appellant has not
claimed any of the articles which has been seized from him; and in fact, the
seized gold chain, gold ring, scooter along with its key and wrist watch has
been given to son of the deceased and has not been claimed by the
appellant. It is true that the articles seized from the appellant ought to have
been identified by the prosecution from the son of the deceased, but its
CRA No.553/2008
absence does not lead to the innocence of the appellant.
17. In such facts and circumstances of the case, this Court has no
hesitation to come to a conclusion that the chain of event is so complete so
as to obviate any other possibility other than the guilt of the appellant. The
learned Judge of the trial Court has not faulted in convicting the appellant,
as aforesaid.
18. In view of the same, Criminal Appeal No.553/2008 being
devoid of merits is hereby dismissed; and impugned judgment dated
26.02.2008 passed by the learned 7th Additional Sessions Judge (Fast
Track), Ujjain District Ujjain (MP) in Sessions Trial No.335/2007 is hereby
affirmed.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
Pithawe RC
RAMESH CHANDRA PITHWE
2022.03.03 18:38:45 +05'30'
