Meena @ Muniya @ Munni vs State Of M.P.
2022 Latest Caselaw 6631 MP

                            1
          Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                   DIVISION BENCH

                   G.S. AHLUWALIA

                                  &

     RAJEEV KUMAR SHRIVASTAVA J.J.

                  Cr.A. No. 777 of 2011

             Meena @ Munia @ Munni

                                 Vs.

              State of M.P.
_______________________________________
Shri Padam Singh along-with Shri Udayveer Singh and Shri Rajendra
Jain, Counsel for the Appellant.
Shri C.P. Singh Counsel for the State.

Date of Hearing                  : 02-5-2022
Date of Judgment                 : 04-May-2022
Approved for Reporting           :

                             Judgment
                            th
                          04 - May -2022

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the Judgment and Sentence dated 6-7-2011 passed by

Sessions Judge, Vidisha in S.T. No.219 of 2010, by which the

Appellant has been convicted under Section 302 of IPC and

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

sentenced to undergo Life imprisonment and a fine of Rs. 2000/- in

default R.I. for 6 months.

2. The necessary facts for disposal of the present appeal in short

are that on 2-5-2010, an information was sent from Distt. Hospital,

Vidisha that at 3:30 A.M. in the night, Kamlesh Nagar, who got

injured in a fighting was brought in an unconscious condition and he

was admitted in Male Surgical Ward and has been referred to

Hamidia Hospital, Bhopal. Copy of Pre M.L.C. was also sent along

with the information. Thereafter, at 7:45 A.M., another information

was sent from Distt. Hospital, Vidisha that Kamlesh Gurjar, who had

sustained injuries in fighting was brought in a serious condition,

therefore, he was referred to Bhopal. The said person has been

brought back in a dead condition from Bhopal. Accordingly, the

information of death was given to the Police Station.

3. Ku. Hemlata Solanki, posted as A.S.I. prepared the Lash

Panchnama after issuing Safina Form. A requisition for post-mortem

of the dead body was sent. The statement of Rajendra was taken on

the same day. The statement of Lalita bai was also taken on the same

day. Spot map was prepared. Blood stained and plain earth was

seized from the spot. Accordingly, FIR in crime No. 313/2010 for

offence under Section 302 of IPC was registered against the

Appellant, who is the wife of the deceased Kamlesh Nagar.

Thereafter, the investigation was handed over to another investigating

officer.

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

4. Thereafter, the investigation was taken over by Ram Babu

Goswami, Head Constable and he arrested the Appellant on 2-5-2010.

Her memorandum was recorded. A blood stained stone was

recovered which was lying under the dressing table. On 3-5-2010,

one bottle was seized on the production of the same by Lalita bai.

Police after completing the investigation filed the charge sheet for

offence under Section 302 of IPC.

5. The Trial Court by order dated 20-8-2010 framed charge under

Section 302 of IPC.

6. The Appellant, abjured her guilt and pleaded not guilty.

7. The prosecution examined Anguribai (P.W.1), Rajendra

(P.W.2), Lalita bai (P.W.3), Pradeep Nagar (P.W.4), Kuldeep Nagar

(P.W.5) Janki Prasad Tripathi (P.W.6) Raviraj Singh (P.W.7), Dr.

Sudhir Jain (P.W.8), Ku. Hemlata Solanki (P.W.9), Satendra Dubey

(P.W.10), Meena (P.W.11), Rambabu Goswami (P.W.12), K.M. Goyal

(P.W.13) and S.S. Solanki (P.W.14).

8. The Appellant did not examine any witness in her defence.

9. The Trial Court by the impugned judgment and sentence

convicted the Appellant for the above mentioned offence.

10. Challenging the impugned judgment, it is submitted by the

Counsel for the Appellant, that although Anguribai (P.W.1) has

claimed herself to be an eye-witness, but no FIR was lodged and only

information which was given to Dr. Sudhir Jain was that the deceased

Kamlesh Nagar has suffered injuries in fighting. The police has

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

suppressed the original FIR. The medical evidence clearly indicates,

that the real story has been suppressed by the prosecution. The

Appellant was residing separately in Bhopal and her case for divorce

was pending against Kamlesh Nagar and She has been arrested from

Bhopal and not from Vidisha as projected by the prosecution.

Further, the complainant Ku. Hemlata Solanki, A.S.I. herself had

recorded the FIR. Even the evidence has been created because at the

time of initial inspection, the police had not found any stone on the

spot.

11. Per contra, the Counsel for the State has supported the

prosecution story as well as the findings recorded by the Trial Court.

12. Heard the learned Counsel for the Parties.

13. Before adverting to the facts of the case, this Court would like

to consider as to whether the death of Kamlesh Nagar was homicidal

in nature or not?

14. Dr. Sudhir Jain (P.W.8) had medically examined the injured

and found following injuries :

Examine Kamlesh Nagar son of Phool Singh caste Banskar resident

of Toppura Ward, Vidisha.

H/o assault by stone

Injury

(i) Lacerated wound right forehead 3 cm x 0.5 cm x bone deep blotted blood present

(ii) Lacerated wound over left side forehead 2 cm x 0.5 cm x muscle deep clotted blood present.

(iii) Lacerated wound over left Pinna 3 cm x 05 cm partial

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

evulsed Pinna. Bleeding present

(iv) Abrasion over right Cheek 3 cm x 3 cm oozing present.

Pt. is unconscious, pupil partially dilated x-ray skull C.T. Scan head Referred to H.H. Bhopal Deptt. Of Neurosurgery for needful.

3:40 A.M.

2-5-2010 The M.L.C. is Ex. P.12

15. Dr. Sudhir Jain was cross-examined. In cross-examination, he

admitted that in his Pre MLC he had not written that any first aid was

given. He on his own stated that treatment is mentioned in the

treatment sheet. He admitted that treatment sheet is not filed. He

had written the depth as bone was visible. As X-ray was not done,

therefore, he cannot say as to whether there was any fracture or not?

16. Dr. K.M. Goyal (P.W. 13) has conducted the post-mortem of

the dead body of Kamlesh Nagar and found following injuries :

      (i)    A stitched wound 4 cm long over right side of
      forehead
      (ii) A stitched wound 3 cm long over left side of
      forehead

(iii) A lacerated wound 3 cm x 2 cm x skin deep over left pinna of ear

(iv) Abrasion 3 cm x 3 cm right cheek.

Bleeding from nose, mouth and both ear present Blood clots present inside the mouth.

All injuries are ante-mortem.

On Internal Examination subdural hemorrhage was found over both frontal region of brain with fracture of base of skull and collection of blood.

In stomach black fluid with cots of blood were found. Cause of death was coma due to intra-craniel hemorrhage (Head injury). Time passed since death is within 24 hours. The post-mortem report is Ex. P.17.

17. This witness was cross-examined. In cross-examination, he

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

stated that the cause of death of hemorrhage. He admitted that he had

not mentioned the width and depth of injury no.1. Injury no. 2 was

also stitched. He had not opened the stitches. Injury no.3 was not

stitched.

18. Although Dr. K.M. Goyal (P.W. 13) has stated about the

injuries, but surprisingly, he did not open the stitches and did not try

to find out the depth of the injuries. In the present case, the

allegations are that a 20 Kg stone was pelted on the head of the

deceased, therefore, depth of injuries was important. Thus, this lapse

on the part of the autopsy surgeon shall be considered at the later

stage.

19. Anguribai (P.W.1) has stated that her house and the house of

Kamlesh are adjoining to each other. Her mother-in-law resides in a

room situated in front of the room of this witness. It was mid night.

She heard the noise of falling something and heard the noise of

groaning. She came out of her room and saw that the room of her

younger-brother-in-law was opened and saw that the Appellant was

pelting stone on the head of Kamlesh. Kamlesh was lying on the

ground. She got frightened and went back to her room and informed

her husband. Both of them came out and saw that the appellant was

running away from the room of Kamlesh. Her husband went to the

room of Kamlesh, whereas She unlocked the door of her mother-in-

law which was bolted from outside. She informed the incident to her

mother-in-law. Thereafter, they searched for the Appellant but could

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

not find. Thereafter her husband and nephew Kuldeep took Kamlesh

to hospital in an auto.

20. In cross-examination, she stated that the Appellant was married

to Kamlesh about 14 years back. Appellant is residing in Bhopal and

never comes to Vidisha. Some Court case was also there between the

Appellant and Kamlesh. During the pendency of the Court case, the

Appellant was residing in Bhopal along with her mother. She had

tried to convince the Appellant during Court case. It is true that

during Court case, the deceased was residing in the adjoining house.

Generally Kamlesh used to live with his mother and sometimes he

used to have meals with this witness. She admitted that on some

occasions, Kamlesh used to drink. In the night of incident, the

Appellant was sleeping in the room of her mother-in-law. She had

heard the noise of falling of some heavy object or stone, thereafter

clarified that it might be of falling of some person. She admitted that

She had also heard groaning. She admitted that She must have taken

2-3 minutes to come out of her house. She saw that Kamlesh was

lying on the ground and the Appellant was sitting by the side of

Kamlesh. The Appellant had also noticed her. When she went there,

the Appellant was assaulting by stone. The stone was pelted on

forehead of Kamlesh. The floor was cemented. The Appellant had

come on the third day to disclose the stone. It is true that the stone

was lying in the same room in which Kamlesh was assaulted.

21. Rajendra (P.W.2) has stated that he was awaken by his wife

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

who informed that the Appellant is assaulting Kamlesh. Accordingly,

he came out of his room and saw that Kamlesh was lying injured and

the Appellant was running away. They took the injured to Hospital.

Where stitches etc were given and was referred to Bhopal. Kamlesh

died on the way to Bhopal, but still they took him to Hospital where

he was declared dead and accordingly, they brought him back to

Vidisha and post-mortem was conducted in Vidisha Hospital. Lash

Panchnama, Ex. P.1 was prepared. The dead body was handed over

to him and its acknowledgment is Ex. P.2. The spot map, Ex. P.2 was

prepared by the police. Blood stained earth and plain earth was

seized vide seizure memo Ex. P.4. The police had also seized one

stone on the disclosure made by the Appellant. The memorandum is

Ex. P.5. The Appellant had informed that the stone is lying under

Diwan Box. Accordingly, the stone was seized vide seizure memo

Ex. P.6. The weight of stone was about 15-20 Kg. The Appellant was

arrested vide arrest memo Ex. P.7. This witness was cross-examined.

22. In cross-examination, he stated that Court cases were going on

between the Appellant and the deceased. Case was instituted at

Bhopal and Kamlesh used to go to Bhopal to attend the case. He

fairly admitted that during the court case, he had never met with

Appellant. Kamlesh used to consume liquor on some occasions. He

had started consuming liquor during the court cases. He did not

lodge the report, because he had already informed the police on

mobile, and he was directed by police that first of all he should take

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

the injured to Hospital and FIR shall be written at a later stage. The

FIR was lodged by his wife. The FIR was lodged at about 4-5 in the

night. His wife had gone to the police station along with his nephew

Anand. His wife had informed him that FIR has been lodged. Anand

had also informed him. He further stated that they had returned to

Vidisha at about 7 in the morning. Spot map was prepared at 11-12

P.M. He admitted that the room of Kamlesh was open at the time of

arrival of police. He admitted that the police had seized earth. The

stone was not seized at that time, because the police was not aware of

the location of stone. He further admitted that the floor is cemented

and blood stained earth was seized after removing cement. The stone

was lying about 1 ½ ft away from the place from where earth was

seized. Stone was kept at a short distance from the pillow. He denied

that Appellant used to keep the stone in his room. On the very same,

the police had brought the Appellant and her memorandum was

recorded in his presence. He admitted that he had seen the appellant

in the police station.

23. Lalita bai (P.W.3) has stated that in the evening, the Appellant

and Kamlesh were fighting with each other on some issue. Thereafter,

Kamlesh went away and came back at 10:00 P.M. Dinner was offered

to him. Thereafter, she offered additional Vegetable to Kamlesh and

in the meanwhile the Appellant brought Vegetable for Kamlesh. She

saw that the Appellant had mixed something in the vegetable. She

thought that some medicine must have been mixed. After having his

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

dinner, Kamlesh went to sleep and when She requested the Appellant

to go to bed, then She replied that this witness may sleep, and She

will sleep later-on. On her insistence, the Appellant slept in her room

along with her daughter. In the night, her elder son and daughter-in-

law were shouting. She tried to open the door, but it was locked from

outside. Anguri bai (P.W.1) opened the door and informed that the

Appellant has run away after assaulting Kamlesh by stone.

Thereafter, she went to the room of Kamlesh and found that he was

lying in pool of blood. Thereafter, her son Rajendra and grand son

Kuldeep took him to hospital. Kamlesh died on his way to Bhopal.

Police came on the next day and closed the door of the room of

Kamlesh. Thereafter, on the third day, She had handed over a red

coloured bottle which was lying in the room of Kamlesh. The bottle

was seized vide seizure memo Ex. P.8. This witness was cross-

examined.

24. In cross-examination, she admitted that the marriage of

Kamlesh and Appellant had taken place about 13-14 years back. It is

true that after some time of marriage, the Appellant went back to

Bhopal and instituted the case of divorce. She stated that the

Appellant went back to Bhopal in the year 2009. It is true that

Appellant was sleeping in her room. She did not inform to Kamlesh

that Appellant has mixed something in vegetable. She admitted that

the Appellant did not meet him on the day of incident and even on

next day. Kamlesh resides separately from his elder brother, but used

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

to eat with her. On the next day, the police had not seized any thing

from the room of Kamlesh but had instructed to close the door.

Seizures were made on the third day of incident. The police had

come at about 12 P.M. on the third day. On the said day, stone, bottle

and earth were seized. She denied that the Appellant was not in the

house on the date of incident.

25. Pradeep Nagar (P.W.4) has stated that after the death of

Kamlesh, he went to the house of Kamlesh in order to enquire as to

whether the Appellant has been arrested or not? He saw that the

Appellant was sitting there. Her memorandum, Ex. P.5 was recorded

and on her disclosure a stone weighing approximately 15 kg was

seized which was kept under the dressing table. The seizure memo is

Ex. P.7. After three days of incident, the police had seized one bottle

vide seizure memo Ex. P.8. This witness was cross-examined.

26. In cross-examination, he stated that Rajendra and deceased are

his uncles. His house is at a distance of 1 km from the house of

Rajendra. He was informed by his aunty about the death of Kamlesh.

Incident took place on 1-5-2010. Stone was not seized on the third

day, but it was seized on 2-5-2010. Stone and bottle were seized on

same day.

27. Kuldeep Nagar (P.W.5) has stated that in the intervening night

of 1/2-5-2010, he was in his house. His aunty knocked his door and

informed that the Appellant has assaulted Kamlesh who is lying in an

injured condition. Accordingly, he took him to Vidisha Hospital in

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

his auto. Thereafter, he was referred to Bhopal. While they were on

their way to Bhopal, Kamlesh died. They took him to Hamidia

Hospital at Bhopal, where he was declared dead. Accordingly, he

brought him back by the same Ambulance. Lash Panchnama, Ex. P.1

was prepared. After the post-mortem, his dead body was received

and supurdaginama is Ex. P.2. Spot map Ex. P.3 was prepared.

Blood stained earth and plain earth was seized vide seizure memo Ex.

P.4. Safina form is Ex. P.9. This witness was cross-examined.

28. In cross-examination, he fairly conceded that his police

statement was not recorded and he had never told any body that his

aunty had informed him about the incident.

29. Janaki Prasad Tripathi (P.W.6) has stated that he had brought

the cloths of deceased from the hospital in a sealed packet which was

seized by Bundela vide seizure memo Ex. P.10.

30. Ravi Raj Singh (P.W.7) has stated that he had taken the dead

body for post-mortem along with requisition. The requisition for

post-mortem is Ex. P.11. The cloths of the deceased were handed

over to him in a sealed packet which were given to Bhagwant Singh

Bundela who seized vide seizure memo Ex. P. 10.

31. Ku. Hemlata Solanki (P.W.9) has stated that She had received

the enquiry of merg no. 38/10. She had issued Safina form, Ex. P.9,

and Lash Panchnama, Ex. P.1 was prepared. Thereafter, dead body

was sent for post-mortem along with requisition, Ex P.11. She had

recorded the statements of Rajendra and Lalita on the same day. On

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

the information of Rajendra, spot map Ex. P.3 was prepared. The

blood stained earth and plain earth were seized from the spot vide

seizure memo Ex. P.4. FIR No.313/2010, Ex. P.16 was registered on

the same day. Thereafter, the investigation was done by other

investigating officer. She was cross-examined.

32. In cross-examination, She stated that S.H.O. of Police Station

was Shri Jain. She admitted that below her signatures on FIR, Ex.

P.16, S.H.O/Incharge S.H.O. has been mentioned. She claimed that

on the said day, She was day officer from 6 to 14:00. She admitted

that during her duty hours, Shri Jain had not come. She admitted that

Jyoti Nigam is senior to her but claimed that She had never instructed

Jyoti Nigam to investigate the matter. She has stated that she had

obtained the signatures of Rajendra and Lalita on their merg

statements. She reached on the spot at about 11:30 A.M. She

prepared the spot map at 11:50. She had inspected the room minutely

and She did not find any blood stained stone in the room. The room

of Kamlesh is adjoining to room of Munne Shah and there is no street

in between.

33. Satendra Dubey (P.W.10) has stated that Ward boy, District

Hospital Vidisha had brought the information, Ex.P.14 and on the

basis of which, merg no. 38/2010 was registered. Information

regarding death of Kamlesh is Ex. P.15.

34. Shri Krishna Meena (P.W.11) has stated about the information,

Ex. P.14 received from the Distt. Hospital, Vidisha.

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

35. Rambabu Goswami (P.W.12) is the investigating officer, and is

posted as Head Constable. On 2-5-2010 he arrested the Appellant

vide arrest memo Ex. P.7 and her memorandum Ex. P.5 was recorded

and one stone which was lying under the dressing table was taken out

by the Appellant and was seized vide seizure memo Ex. P.6. On 3-5-

2010, Lalita bai produced one bottle which was seized vide seizure

memo Ex. P. 8. This witness was cross-examined.

36. In cross-examination, he stated that he had received the

investigation on 2-5-2010 at 02:00. He recorded the memorandum of

the Appellant on 2-5-2010 at 17:25. She was arrested on the same

day at 17:55. She was arrested after the seizure was made. The

Appellant was arrested from her house. He had reached the house of

the Appellant at 17:20. The Appellant had not come to the Police

Station. He admitted that at the time of seizure, the room of the

deceased was open.

37. This witness was again recalled and in examination-in-chief, he

stated that on 2-5-2010 at 17:40 he had seized the stone on the

memorandum of the Appellant. The stone is Article A.

38. S.S. Solanki (P.W.14) has stated that he had sent the seized

articles to F.S.L. Bhopal along with draft Ex. P.18 and the F.S.L.

report is Ex. P.19.

Whether prosecution has withheld the original FIR

39. On 2-5-2010 an information, Ex. P.13 was sent by District

Hospital, Vidisha to S.H.O., Police Station Kotwali, that at 3:30,

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

Kamlesh Nagar has been brought in an injured condition who has

suffered injuries in a fight. Thus, it is clear that no information was

given to Distt. Hospital Vidisha by Rajendra (P.W.2) that Kamlesh has

been caused injuries by the Appellant by pelting stones.

40. Similarly in another information, Ex. P.14 which was given by

Distt. Hospital, Vidisha to S.H.O., Police Station Kotwali, Distt.

Vidisha, it was mentioned that the injured was referred to Bhopal, but

he has been brought back to Distt. Vidisha in a dead condition and in

this information it was also mentioned that Kamlesh had sustained

injuries in a fight. Accordingly, Merg intimation, Ex. P.15 was

registered. Thus, it is clear that at the initial stage and even after the

death of Kamlesh, Rajendra (P.W.2) did not disclose that injuries have

been caused by the Appellant.

41. Further, Rajendra (P.W.2) in his cross-examination has stated

that he did not lodge the report, because he had already informed the

police on mobile, and he was directed by police that first of all he

should take the injured to Hospital and FIR shall be written at a later

stage. The FIR was lodged by his wife. The FIR was lodged at about

4-5 in the night. His wife had gone to the police station along with

his nephew Anand. His wife had informed him that FIR has been

lodged. Anand had also informed him.

42. The police has not filed the copy of FIR lodged by Anguri bai

(P.W.1). Anguri bai (P.W.1) has not stated that She had lodged any

report. Anand has not been examined by the Police. Thus, it is clear

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

that either Rajendra (P.W.2) has suppressed the material information,

by taking a stand that his wife had lodged the report, or the police has

deliberately withheld the FIR lodged by Anguri bai (P.W.1).

43. It is true that a cryptic information regarding commission of

offence cannot be treated as an FIR, but the information given by

Rajendra (P.W.2) on mobile should have been mentioned in the

Rojnamchasanha. Even that has not been produced by the Police.

44. When the assailant was known, then why FIR, Ex. P.16 was

lodged after the merg inquiry? Further, the police has not filed the

copies of the merg statements of Rajendra (P.W.2) and Lalita bai

(P.W.3).

45. In view of the evidence of Rajendra (P.W.2), it is clear that the

prosecution has suppressed the FIR lodged by Anguri bai (P.W.1).

When the Appellant was arrested and from where?

46. It is the case of the prosecution itself, that the Appellant was

residing in Bhopal with her mother and case of divorce was pending

against Kamlesh. According to Lalita bai (P.W.3), the Appellant was

sleeping in her room along with her daughter. Anguri bai (P.W.1) and

Rajendra (P.W.2) have merely stated that they saw that the Appellant

was running away. However, they are completely silent about the

whereabouts of her daughter. It is not the case of the prosecution that

the Appellant ran away after leaving her daughter in the house of

Anguri bai (P.W.1), Rajendra (P.W.2), Lalita bai (P.W.3). Further

more Anguri bai (P.W.1) in para 5 of her cross-examination has stated

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

that on the third day of incident, the Appellant was brought by police

and She pointed about the stone which was used by her. The incident

had taken place in the intervening night of 1/2-5-2010. Therefore, if

her evidence is accepted, then it is clear that the Appellant must have

been brought on or after 3-5-2010 for the purposes of recovery of

stone.

47. Lalita bai (P.W.3) in para 5 of her cross-examination, has stated

that the Appellant was brought by police on third day of incident and

specifically stated that She had not met with the Appellant on the day

of incident and even on the 2nd day of incident. In para 6 of her cross-

examination She has also stated that the police had come on the third

day of incident to recover stone, blood stained and plain earth etc.

48. However, Rambabu Goswami (P.W.12) in para 3 of his cross-

examination, has stated that on 2-5-2010 itself he had arrested the

Appellant from her house/place of incident. Whereas it is not the

case of Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita bai (P.W. 3)

that the Appellant was staying back in her matrimonial house even

after the incident. Thus, the place of arrest of the Appellant is highly

doubtful.

49. Further, the Appellant in her statement under Section 313 of

Cr.PC. has specifically stated that She was arrested from Bhopal.

50. Thus, the prosecution has failed to prove that the Appellant

was arrested on 2-5-2010 from the place of incident, but in fact, the

explanation given by the Appellant that She was arrested from

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

Bhopal is trustworthy. Thus, it is clear that the prosecution has

wrongly projected that the Appellant was arrested on 2-5-2010 from

the place of incident.

Recovery of Stone

51. It is the case of the prosecution that on 2-5-2010, a blood

stained stone was recovered on the disclosure made by Appellant and

the stone was lying under the dressing table.

52. As per seizure memo, the stone was recovered on 2-5-2010 at

17:40, Ex. P.6. The width of stone was 20 inch, length was 9 inch

and thickness was 4 inch. As already pointed out, Anguri bai (P.W.1)

and Lalita bai (P.W.3) have specifically stated that the Appellant was

brought by the Police on the third day of incident. Thus, by no

stretch of imagination, the stone can be seized on 2-5-2010. Further

more, it is the evidence of witnesses, that after the incident, the room

of Kamlesh was open and the police had instructed them to lock/close

the door. It is not the case of the prosecution, that the door of the

room of Kamlesh was sealed by Ku. Hemlata Solanki (P.W.9). It is

also not the evidence of Rambabu Goswami (P.W.12) that he had

opened the seal of the room.

53. Further, Ku. Hemlata Solanki (P.W.9) who had inspected the

room on 2-5-2010 some time between 11:30 to 11:50 P.M., did not

notice any stone in the room, although the room was minutely seen.

54. Rajendra (P.W.2) in para 6 of his cross-examination has stated

that the stone was lying at a distance of 1 ½ ft. from the place from

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

where blood stained earth was seized. He has also stated that stone

was lying at a short distance from the pillow. As per prosecution

case, blood stained earth and plain earth was seized by Ku. Hemlata

Solanki (P.W.9) on 2-5-2010 at 12:05 P.M., vide seizure memo Ex.

P.4. Thus, it is clear that the stone was already lying on the spot and

was seen by Rajendra (P.W.2) at the time of seizure of blood stained

earth, but why the same was not seized by the police and why Ku.

Hemlata Solanki (P.W.9) has shown her ignorance about the stone?

Thus, it is clear that the prosecution was suppressing material facts.

Further more, the room in which incident took place was neither

locked nor sealed and the residents of the house had every

opportunity to manipulate the things. Under these circumstances, this

Court is of the considered opinion, that the prosecution has failed to

prove that blood stained stone was seized on the disclosure made by

the Appellant.

Whether the evidence of Anguri bai (P.W.1), Rajendra (P.W.2)

and Lalita bai (P.W.3) is reliable.

55. It is the case of the prosecution that the Appellant was residing

separately in Bhopal and divorce case was pending. The Appellant

had never come to her matrimonial house after separation. But the

prosecution witnesses are silent that under what circumstances, the

Appellant came to her matrimonial house along with her daughter.

56. It is true that the Counsel for the Appellant was not serious in

cross-examining the prosecution witnesses, and himself gave

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

suggestion that the Appellant was sleeping in the room of Lalita bai

(P.W.3), but whether this suggestion given by the Counsel should be

treated as admission on the part of the Appellant ?

57. There is nothing on record to suggest that the suggestion given

by her Counsel that Appellant was sleeping in the room of Lalita bai

(P.W.3) was given on the instructions given by the Appellant,

specifically when She has not admitted the same in her statement

under Section 313 of Cr.P.C. The Appellant has taken a specific stand

in her statement under Section 313 of Cr.P.C. that for the last three

years, She was residing in her parental home and till her arrest, She

never came to Vidisha.

58. It is submitted by Shri Padam Singh, Counsel for the Appellant,

that when overwhelming evidence is available to show that the

Appellant has been falsely implicated, then incorrect suggestion

given by her Counsel to the prosecution witnesses, should not be

given importance. It is submitted that an Advocate must know the art

of asking questions to the prosecution witnesses and if he was

negligent, then the Appellant should not be made to suffer.

59. Considered the submissions made by the Counsel for the

Appellant.

60. It is true that the Advocates must know the art of cross-

examination and must know how to formulate their questions, but any

question asked by the Counsel can also not be ignored as the

questions were put to the prosecution witnesses who were deposing

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

with regard to the incident. But where the Appellant has taken a

specific stand in her statement under Section 313 of Cr.P.C., then this

Court is of the considered opinion, that overall circumstances should

be taken into consideration.

61. According to Anguri bai (P.W.1) she heard the noise of

something falling on the ground and accordingly, She came out of her

room and saw that the Appellant was assaulting Kamlesh. She

immediately rushed back to her room and informed her husband.

When they again came out of their room, they saw that the Appellant

was running away. The room of Lalita bai (P.W.3) was bolted from

outside which was unbolted by Anguri bai (P.W.1). As already held

that none of these witnesses have spoken about the daughter of the

Appellant and further why this important information was withheld

from the hospital and this Court has also come to a conclusion that

the original FIR has been suppressed by the Prosecution.

62. Further, these witnesses are Interested witnesses. According to

Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita Bai (P.W.3), the

Appellant was residing in Bhopal and divorce case against Kamlesh

was pending. Thus, the relations of the witnesses with the Appellant

were not cordial. They had every intention and motive to falsely

implicate the Appellant in order to suppress the very genesis of the

incident. Anguri bai (P.W.1), Rajendra (P.W.2) and Lalita bai (P.W.3)

are the residents of the same house. The burden was on them to show

as to how and under what circumstances, Kamlesh had died a

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

homicidal death. Therefore, in order to avoid said circumstance, they

had very convenient way to get away by falsely implicating the

Appellant.

Why blood stained cloths of the Appellant were not seized.

63. It is the case of Rambabu Gowami (P.W.12) , that the

Appellant was arrested on 2-5-2010 in her matrimonial house itself,

then why her blood stained cloths were not seized. Why no attempt

was made to search out for blood stained cloths of the Appellant.

Recovery of Bottle on the production of same by Lalita bai

(P.W.3)

64. Rambabu Goswami (P.W.12) has stated that vide seizure memo

Ex. P.8, he had seized one bottle on the production of the same by

Lalita bai (P.W.3). The said bottle was sent to F.S.L., Bhopal.

According to Lalita bai (P.W.3), the Appellant had mixed something

in the vegetable which was given to Kamlesh. As per the F.S.L.

report, Ex. P.20, Ethyl Alcohol was found. According to the

prosecution witnesses themselves, the deceased used to consume

liquor. Thus, it is clear that the bottle which was made available by

Lalita bai (P.W.3) to the police on 3-5-2010 must be of the deceased

himself and a false story was concocted that the Appellant had mixed

the same in the vegetable of the deceased.

Whether ocular evidence is corroborated by medical evidence.

65. According to Dr. Sudhir Jain (P.W. 8), he had medically

examined the injured and prepared his MLC, Ex. P.12. In the MLC,

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

Ex. P.12, there is no mention of giving any first aid. Even no

treatment sheet has been produced by the prosecution to show that the

injured was given any first aid. On the contrary, in the post-mortem

report, Ex. P.17, stitches were found. According to prosecution, the

injured had died on the way to Bhopal and he was declared brought

dead by Hamidia Hospital. Therefore, it is clear that the injured was

not given any treatment on his way to Bhopal. Then how he got

stitches has not been explained by the prosecution. Dr. Sudhir Jain

(P.W.12) has not stated that he had applied stitches. Even the witness

from Hamidia Hospital has not been examined to show that the

injured Kamlesh was brought in dead condition. No information was

given by Hamidia Hospital, Bhopal to police to the effect that one

person in dead condition has been brought.

66. Further more, according to Dr. K.M. Goyal (P.W. 13), who had

conducted post-mortem, he did not open the stitches and did not

measure the depth of injuries. It is a case of pelting stone. Therefore,

the depth of the injury was important. Why that was not done? Why

the stitches were not opened in order to find out the depth of the

injuries? Further if any injury was caused by pelting stone, then

crush injury would have been sustained by the deceased. No crush

injury was found. Further more, according to the seizure memo Ex.

P.6, the size of the stone was 20 inch wide, 9 inch long and 4 inch

thick. Then the deceased should have certainly received crush injury

and not the injuries which were found on his head.

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

67. Thus, it is clear that the ocular evidence also doesnot find

corroboration from medical evidence, and the medical evidence

completely rules out the ocular evidence.

Why investigation was handed over to Head Constable

68. According to FIR, Jyoti Nigam, S.I. was posted in the police

station. Ku. Hemlata Solanki (P.W.9) was A.S.I. One Shri Jain was

the S.H.O. As per FIR, investigation was handed over to Jyoti

Nigam, S.I., but no investigation was done by her. The prosecution

has not explained as to why the investigation was handed over to

Head Constable and why it was not done by Senior Police Officers.

Recovery of blood stained earth from the spot.

69. According to Anguri bai (P.W.1), Rajendra (P.W.2) the room

had cemented floor. According to Rajendra (P.W.2) blood stained

earth was recovered after removing cemented floor. This explanation

is beyond understanding. When the floor was cemented then why the

blood stained cemented floor was not seized. How the blood would

seep into the ground. Thus, it is clear that the recovery of blood

stained earth is nothing but a camouflage done by the police.

70. Under these circumstances, this Court is of the considered

opinion, that the prosecution has failed to prove the guilt of the

Appellant beyond reasonable doubt. In fact it appears that an

innocent person was falsely implicated.

71. Accordingly, the Appellant is acquitted of the charge under

Section 302 of I.P.C. and is held not guilty.

Meena @ Munia @ Munni Vs. State of M.P. (Cr.A. No. 777 of 2011)

72. Ex-consequenti, the Judgment and Sentence dated 6-7-2011

passed by Sessions Judge, Vidisha in S.T. No.219 of 2010 is hereby

Set aside.

73. The Appellant is in jail. She be released immediately if not

required in any other case.

74. Let a copy of this judgment be immediately provided to the

Appellant, free of cost.

75. The record of the Trial Court be send back along with copy of

this judgment, for necessary information and compliance.

76. The Appeal succeeds and is hereby Allowed.

(G.S. Ahluwalia)                                  (Rajeev Kumar Shrivastava)
          Judge                                                       Judge
                    ARUN KUMAR MISHRA
                    2022.05.04 18:01:10 +05'30'