Madhya Pradesh High Court
Shobharam And Anr. vs The State Of Madhya Pradesh on 1 March, 2023
Author: Vivek Rusia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 909 of 2010
BETWEEN:-
1. SHOBHARAM AND ANR. S/O RATAN BHIL, AGED
ABOUT 20 YEARS, OCCUPATION: LABOUR VILL.
GURJAR BIRMAVAL PS BILPANK DISTT. RATLAM
(MADHYA PRADESH)
2. KAILASH S/O GOBA BHIL, AGED ABOUT 24 YEARS,
OCCUPATION: LABOUR VILLAGE GURJAR PARA
BIRMAVAL P.S BILPANK (MADHYA PRADESH)
.....APPELLANTS
(MS. SHARMILA SHARMA, LEARNED COUNSEL FOR THE APPELLANTS)
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION BILPANK DISTT. RATLAM (MADHYA
PRADESH)
.....RESPONDENT
(SHRI NITIN SINGH BHATI, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT/STATE)
--------------------------------------------------------------------------------------------
Reserved on : 22.02.2023
Pronounced on : 01.03.2023
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, Hon'ble Shri Justice Vivek Rusia delivered the
following:
JUDGMENT
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
This appeal arises from the judgment dated 29.07.2010 passed by the
IVth Additional Sessions Judge, Ratlam, District Ratlam in S.T.No.115/2009
whereby the appellants have been convicted under Section 302/34, 201 of IPC
and sentenced to undergo life imprisonment, 1 Year R.I.each with a fine of
Rs.5,000/-, Rs.1,000/- each and in default of payment of fine to further
undergo 2 Years R.I.
2. The prosecution story in short is as under:
A. On 09.04.2009, Nandibai the mother of Soma S/o Narayan Bheel went to
the river to take bath but did not return till the evening 6 P.M., then Soma and
his wife Sitabai went to search for her but only clothes of Nandibai were found.
They came back with the thought that she might have gone somewhere. The
next day i.e. on 10.04.2009 also she did not return home. In the evening, Devi
Singh informed Soma that her mother is lying dead near the river. Soma and his
brother went there and saw the dead body of their mother without a head one
hand and one foot lying. They thought that the animals might have damaged the
dead body. They brought the dead body home and cremated it without
informing the police.
B. After 2-3 days, Shobharam and Kailash were telling in the village that they
have cut the throat of one and they would cut the throat of another and will go
to jail. This was overheard by Bharat, the son-in-law of Soma. Prem S/o Kalu
also heard and communicated to Soma. Kallu, suddenly appeared as an
eyewitness that he saw Shobharam and Kailash assaulting Nandibai with Farsi
and Sword. On the basis of said information, Soma lodged an FIR at Police
Station Bilpank on 02.05.2009 which was registered at Crime No.117/2009 for
offences under Sections 302, 201-A, 34 of I.P.C. against the appellants.
Signature Not Verified
C. The appellants were arrested and on their disclosure one Farsi and Sword
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
were seized. From Soma passport size photographs and a pearl necklace were
seized. The clothes of Nandibai were also recovered from the house. Kailash
was arrested on 02.05.2009 vide Ex.P-4. His memorandum under Section 27 of
the Indian Evidence Act was recorded in which he disclosed the place of crime.
In the second memorandum Farsi was also recovered from an open place vide
Ex.P-10 and in the third memorandum skull of Nandibai, a bunch of hair and a
jaw were recovered near the agricultural field of Banjara vide Ex.P-11. Later on
appellant No. 2 Shobharam was also arrested and on his memo, one sword was
recovered vide Ex.P-12. On 03.05.2009 spot map was prepared and stones
containing the blood stain, small pieces of bones, a white pearl necklace and
broken bangles were recovered vide Ex.P-9. The two pearl necklaces were
identified by Soma vide Ex.P-14, and the seized articles were sent for FSL
examination. As per the FSL report Ex.P-22 human blood was found only on
the stone and no blood was found on Farsi and Sword. After completing the
investigation, the charge sheet was filed and the trial was committed to the
Sessions Court. The appellants denied the charges and pleaded for a trial.
D. The prosecution examined 14 witnesses as PW-1 to PW-14 and exhibited
22 documents. In defence, the appellants examined one Radheshyam (DW-1)
and got exhibited the statements of Kalu and Bharat under Section 164 of
Cr.P.C. After evaluating the evidence which came on record, the appellants
have been convicted and sentenced for the offence as stated above. Hence, this
appeal before this Court.
We have heard the learned counsel for the parties and have perused the
record.
3. Vide letter dated 03.06.2009, the Superintendent of Police, Ratlam sent the
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
bones to the Director of Medico-Legal Institute, Government of M.P. Dr
R.P.Soni (PW-14), Senior Forensic Specialist sent a report Ex.P-21 on
09.06.2009 with the findings that the bones are of human origin and they belong
to the same individual, sex appears to be of a female aged about 60 plus minus
five years. Injuries present on the bone were caused by hard blunt-edged sharp
objects sufficient to cause death and as such death will be homicidal in nature.
Duration of death is 6-12 weeks from the date of receipt of bones i.e.
09.06.2009.
4. The prosecution examined Soma (PW-1). According to him when his
mother did not return till the evening, he alongwith his wife went near the river
and found the clothes of his mother. He came back to the house and the next
d a y morning, she was searched but not found. Devi Singh of his village
informed him that his mother is lying dead near the river. He found the dead
body of his mother without a neck, one hand and one foot and he cremated the
dead body. He should have informed this recovery of the body to the police
but he did not imagine the murder of his mother. After 3-4 days, Bharat told
them that the present appellants in a drunken condition were telling him that you
have cremated the body, but the head is with them. Apart from Bharat, Prem
S/o Kalu also informed them. According to Soma wife of Shobharam used to
remain ill and he had a suspicion that the deceased Nandi Bai had done some
witchcraft on her. He identified his mother from the pearl necklace lying near
the dead body. Mohanlal (PW-2) also gave the same evidence. When they
found the dead body and the death was appearing unnatural, therefore, it was
their duty to inform about this the police. A postmortem was required to be
done to ascertain the cause of death and the body belonging to Nandibai. There
should be the identification of the body in presence of the police. They had no
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
suspicion of anyone due to which no FIR was lodged. The learned Additional
Session Judge did not appreciate the conduct of Soma and his brother. But
there is no investigation of the dead body which Soma and other family
members cremated was the body of Nandibai. Except for the statement of
Soma and two others, nothing is on record that any cremation was done even in
the Village.
5. The FIR was lodged only when Bharat gave information about these
appellants as they were telling that the head of Nandibai is with them. Although
the police arrested them and recovered the head and other bones. As per the
report of the Scientific Officer, it has been found that it was the bones of a lady
aged about 60-65 years. The cremation of the dead body was done by Soma
(PW-1) and Mohanlal (PW-2). Apart from their statements, there is no evidence
that they cremated the dead body of their mother. Whether their statements are
liable to be believed that they found the dead body which they cremated and
even if they found the dead body, it was the body of their mother, the entire
investigation is not saying anything about it. The only connecting evidence of
these appellants, in this case, is that there was the recoveries of hairs, jaw and
the skull of the lady aged about 60 years.
6. So far as the recovery of arms on discloser of the appellants is concerned,
first Kailash was arrested and on his disclosure Farsi, skull, jaw and a bunch of
hairs were recovered. The police have recorded three memorandum statements.
Fro m Shobharam sword was recovered. The seizure witnesses have turned
hostile and did not support the recoveries. Apart from that on 07.05.2009 one
pearls necklace was seized from Soma vide Ex.P-2 and one pearl necklace was
recovered from the spot also vide Ex.P-9 on 03.05.2009, both were identified
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
by Soma in Test Identification Parade held on 13.06.2009 vide Ex.P-14. These
recoveries and identification were done after 20-30 days from the date of the
incident and surprisingly all articles were lying on the spot hence these materials
did not connect the appellants with this crime.
7. Investigation Officer Prashant Mukadam (PW-13) was examined. He has
admitted that he did not find the dead body of Nandibai and there was no post-
mortem. He reached the spot after 22-23 days after the incident which is
commonplace where the villagers go for a bath, but no one has informed him
about the incident and death. He has also admitted that it was the primary duty
of the informant to give information about the death because prima facia it was
a homicidal death and not by way of an accident. On a specific question asked
by the defence counsel, the informant i.e. Soma and his brother identified his
mother only on the basis of the structure of the body and no evidence in
respect of cremation was found. The DNA examination was not carried out.
There are lots of important connecting circumstances which were not
investigated by the Investigating Officer. When the bunch of hair, skull and jaw
were recovered a DNA examination of them should have been conducted to
establish that it was the dead body of Nandibai. The Investigation Officer also
admitted that on 10.04.2009 he had received the information of the death of
Nandibai, but did not explain as to why the FIR was lodged with so much delay
and even he did not ask the informant about the delay. The incident had taken
place on 10.04.2009, but the information was given on 02.05.2009 which itself
gives ground for the acquittal of these appellants on the benefit of the doubt.
8. The Senior Scientific Officer has been examined as PW-14, who was also
not in a position to tell that the bones of Nandibai were found on the spot. The
appellants had no motive to commit the murder, as it is not a case of loot and
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
murder. There was no suspicion on them. Only on the basis of the statement of
Bharatlal (PW-3) who is the son-in-law of Soma, these appellants were arrested.
Kalu (PW-10) has completely turned hostile. It is a case where a definite
finding cannot be given that Nandibai was murdered on 10.04.2009 and her
dead body was cremated by Soma (PW-1) and Mohanlal (PW-2). No definite
opinion of the Scientific Officer that skull, bones, jaw and bunch of hair
recovered belongs to the deceased Nandibai.
9. The appellants who were at the time of the incident 19-20 years of age have
wrongly been implicated in this alleged crime and unnecessarily kept behind the
bars for more than 12 years. The golden period of their life has been consumed
in jail their future is uncertain now. They are the victim of faulty investigation,
they are entitled to compensation from the State certainly which would not be
sufficient to compensate the losses sustained by them. The State is directed to
pay 1-1 lac to each of them within 4 weeks from today.
Accordingly, this appeal is allowed. The impugned judgment dated
29.07.2010 is hereby set aside. The appellants are set at liberty if not required in
any other case.
The record be sent back to the Court of learned Additional Session
Judge,Ratlam.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
RJ
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 01-03-2023
17:43:42
