Ditu @ Jitu @ Jitendra And Anr. vs The State Of Madhya Pradesh
2023 Latest Caselaw 12899 MP

                             -1-


       IN THE        HIGH COURT            OF MADHYA
                            PRADESH
                         AT I N D O R E
                          BEFORE
             HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
             HON'BLE SHRI JUSTICE ANIL VERMA
                CRIMINAL APPEAL No. 744 of 2010

BETWEEN:-
   DITU @ JITU @ JITENDRA AND ANR. S/O
   PEMAJI, AGED ABOUT 45 YEARS, GRAM
1.
   BALDIPADA THANA BILPANK DISTT. RATLAM
   (MADHYA PRADESH)
   DARIYAV BAI W/O DITU @ JITU, AGED ABOUT
   40 YEARS, OCCUPATION: KASHTKARI GRAM
2.
   BALDIPADA THANA BILPANK DISTRICT
   RATLAM (MADHYA PRADESH)
                                                      .....APPELLANT
(BY SHRI V.K GANGWAL ALONGWITH R.R. BHATNAGAR-ADVOCATE)

AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH     POLICE   STATION  BILPANK
DISTT.RATLAM (MADHYA PRADESH)
                                                   .....RESPONDENTS
(BY SHRI H.S. RATHORE-GOVERNMENT ADVOCATE)
This application coming on for a final hearing this day, JUSTICE VIVEK
RUSIA passed the following:
      Heard and reserved on           :     26.07.2023
      Judgment pronounced on       :     09.08.2023
                          JUDGMENT

The appellants have filed the present appeal under Section 374 of Cr.P.C. against the judgment dated 30.06.2010 passed in Session Trial No.177/2009 passed by Sessions Judge, Ratlam whereby they have been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment with fine of Rs. 1000/- each with default stipulation.

The facts of the case in short are as under:-

2- The appellants' son Jaypal (PW-9) was married to Sheetal (hereinafter called ''deceased''). They used to live in Mumbai. On 22.06.2009 they came to Village Badlipada at the request of their parents. According to the P.W.-9, the appellants were not happy with his marriage with the deceased. P.W.- 9 informed the police that today at 11.25 am, he was sitting with his wife/deceased below the tree, his wife fainted and sustained an injury on her chin, he brought her to the house where she died, the said information was recorded in merge report (Ex.P-24) at Police Station Bilpank by Head Constable Ashok Bairagi (PW-12), who started the investigation.

3- Mr. Manish Agrawal (PW-16) Additional Superintendent of Police took the investigation in his hand and Aslok Mathur FSL Officer reached the mortuary of Ratlam Government Hospital to inspect the dead body. Sunil (PW-11) Naib Tehsildar has also reached the hospital and drawn the Lash Panchnama (Ex.P-3). They all found signs of injury on the chin, mouth and blood oozing mouth. Apart from that, no injuries were found. The dead body was sent for postmortem which was conducted by Dr Nirmal Jain (PW-5) on 24.06.2009 who opined that before death, her neck was strangulated as cartilage bone was found fractured. As per his opinion,

she died due to asphyxia, strangulation of the neck within 36 to 48 hours. Postmortem report is Ex. P/5.

4- Manish Agrawal (PW-16) recorded the statement of the parents of the deceased and husband/Jaypal P.W.- 9. The Spot map was drawn (Ex.P/25). The merg investigation revealed that the appellants were not happy with the love marriage of the deceased and Jaypal/ P.W.-9. They wanted to marry Jaypal to their choice of girl after separation from the deceased. On 22.06.2009, Jaypal went to the market with his friend Laxman, the appellants were in the house with the deceased and strangulated her neck. Jaypal P.W.- 9 gave information of death to the parents of the deceased that she died due to a snack bite in order to save his parents. He also gave the wrong information to the police that his wife died below the mango tree. Mr. Agarwal believed him and proceeded against the appellants treating them as accused.

5- On the basis of merg investigation, an FIR No.163/2009 under Section 302 of IPC was registered against the appellants vide Ex. P/27. During the investigation, the appellants were arrested on 25.06.2009 vide arrest memo Ex.P/28 and P/29 respectively and since then they are in jail. Head Constable took photographs of the deceased and crime place (Ex.P/7 to Ex.P/12) and (Ex. P/14 to Ex. P/22). The clothes of the deceased were seized. After completing the investigation, charge-sheet was filed before the Judicial Magistrate First Class from where it was committed to the Sessions Court. Learned Additional Session Judge framed the Charges under section 302 /34 of IPC which the appellants denied and pleaded for trial.

6- The prosecution has examined as many as 16 witnesses and

exhibited 30 documentary evidence. In defence statement of Nandibai and Ramdin were marked as Ex D-1 and Ex. D-2.

7- After evaluating the evidence that came on record, vide judgment dated 30.06.2010, the appellants have been convicted for the offence punishable under Section 302/34 of IPC and sentenced to Life Imprisonment. Being aggrieved by the aforesaid judgment, the appellants before this Court.

We have heard learned counsel of the parties and perused the entire record.

8- As stated above, merg report of unnatural death was recorded at Rojnamcha No.776 on 23.06.2009 at about 11:25 on the information given by Jaypal (P.W.-9) son of these appellants. According to him, he lives in Mumbai and works as Social Worker in Sanskar Sanstha Sign Koliwada. On 22.06.2009, he came to the village alongwith his wife Sheetal. In the evening time he was sitting with his wife below the tree, his wife fainted and sustained injuries on her chin. He took her to the house where she died. The para 10 of merg dated 23.06.2009 is reproduced below:-

10- Brief Facts: eSa cMyhikMk jgrk gWw rFkk cEcbZ esa laLdkj laLFkk lkbZu dksyhokM+k esa lks'ky odZj gWwaA fnukad 22-06-09 dks eSa rFkk esjh iRuh f'kryckbZ nksuksa lqcg vius xkao cM+yhikM+k vk;s FksA 'kke dks eSa rFkk esjh iRuh tkWaQy ds >kM+ ds uhps cSBs Fks esjh iRuh vke dk >kM+ ns[kus ds fy;s xbZ rks ogkWa ,dne pDdj vkdj fups fxj xbZ Fkh o csgksa'k gks xbZA fxjus ls <ksMh esa pksaV yxh FkhA eSa esjh iRuh dk mBkdj ?kj ij yk;k tgkWa ij mldh e`R;q gks xbZ gSA yk'k ?kj ij j[kh gSA lwpuk djrk gWwa dk;Zokgh fd tkosA gLrk- vaxzsth esa t;ikyA uksV& exZ eqLrHkk dk;e dj tkWap iz- vkj- 390 gksrhyky ds ftEes dh xbZA

9- After recording merg, the Executive Magistrate, Ratlam went to the

house with five witnesses and prepared Naksha Panchnama. Since he found injuries on the head and blood oozing from the neck and mouth of the deceased, he advised for postmortem which was carried out on 24.06.2009 at 11:45. As per the doctor's opinion the cause of death was due to throttling resulting in shock between 36 to 48 hours. On the basis of this report, Manish Agrawal (PW-16) Additional Superintendent of Police lodged an FIR that Ramdeen and Nandibai parents of the deceased informed that these appellants were not happy with the marriage of Jaypal to his daughter. They wanted to do the second marriage of Jaypal. Their son-in-law gave information about the death of the deceased. They came to Ratlam and saw the injury on the chin of Sheetal. They had a suspicion that these appellants had murdered their daughter. The statement of Jaypal was also recorded under Section 161 of Cr.P.C. in which he took summersalt and made an allegation against her parents. Jaypal entered into the witness box as PW-9. According to him at 4-4:30, he went to the market alongwith his friend Laxman and returned at 07:00 pm and saw his wife sleeping.

When he tried to wake her, her parents said that she is not well and let her sleep. After taking tea again when he went to wake up his wife , he found her dead. The parents said to him that she went to the field and fainted. He gave information to the parents of the deceased that his wife died due to snake bite ,who told him that without postmortem do not cremate her. He gave information to the Police and got recorded the merg, thereafter police started the investigation. According to him, he is not aware of how his wife died. Only his parents were in the house at the time of the incident, thereafter, he was declared hostile. In para 15 in cross-examination, he admitted that he gave information to inlaws that Sheetal died because of a snake bite. He has also admitted to the recording of merg intimation but

gave an explanation that at the instance of his father, he informed the police as stated in Merg, therefore, Jaypal has given the opposite statement which he gave Merg intimation. He is not a reliable witness whose testimony can be accepted to convict his parents i.e. the appellants. As per Merg intimation, his wife fainted below the mango tree and sustained the injury, thereafter, he himself brought her to the house where she died. On the basis of suspicion, these appellants are implicated in this case.

10- Laxman (PW-1), Ganesh (PW-2),Ramesh (PW-3) and Jagannath (PW-4) have stated that they have no knowledge of how the deceased died. Harji (PW-10), Ramdin (PW-13) and Nandibai (PW-14) have not made direct allegations that these appellants killed the deceased. According to Ramdin (PW-13), the Jaypal informed him about the death of Sheetal due to a snake bite. He also admits that after the marriage, Jaypal took her daughter to the house where she died. Ramdin (PW-13) also deposed that he has suspicion on these appellants because they were living in the same house, therefore, only on the basis of suspicion, these appellants have been made accused but no investigation has been carried out that they committed the murder of deceased.

11- So far as motive is concerned, the only evidence is that they were not happy with the marriage whereas Ramdin (PW-13) says that, his daughter went to the village 3-4 times after the marriage. Jaypal (PW-9) in cross examination admitted that after marriage, he came to the village two times with his wife. He has also admitted that his mother came to Mumbai and lived with his wife. In our opinion learned Additional Session Judge ought to have taken action against Jaypal (PW-9) for giving false evidence in the Court against her parents.

12- Manish Agrawal (PW-16) Additional Superintendent of Police prepared a spot map on 24.06.2009 at 17:30. In the photographs, the deceased is seen wearing a number of bangles in both hands and a blouse and petticoat with no wrinkles in it. The condition of the dead body in the photograph nowhere reveals that any force was used or scuffle took place while throttling her neck. Had she resisted the throttling her bangles would have been broken. It appears that she was brought into the house dead, therefore the initial version of Jaypal (P.W.-9) recorded in the Merg appears to be correct that he died below the tree and she was brought dead to the house thereafter gave information to her parents that she died because of snake bite. The postmortem report revealed that she died because of strangulation. The Jaypal (PW-9) changed her version and made allegations against her parents. The manner in which the investigation was carried out by the Investigation Officer Manish Agrawal ASP creates doubt that in collusion with Jaipal P.W.- 9, he implicated the appellants in this crime. It is too late to order a fresh investigation into this crime.

13- In view of above, Criminal Appeal is allowed. The judgment dated 30.06.2010 passed in Session Trial No.177/2009 passed by Sessions Judge, Ratlam is hereby set aside. Appellants be released from jail, if they are not required in any other case.

Let the record of the trial court be sent back along with judgment.

                   (VIVEK RUSIA)                                     (ANIL VERMA)
                     JUDGE                                             JUDGE
         praveen




Digitally signed by PRAVEEN
Date: 2023.08.09 15:48:48
+05'30'