Madhya Pradesh High Court
Chindhu vs The State Of Madhya Pradesh on 7 August, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
1 CRA-1502-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 7 th OF AUGUST, 2024
CRIMINAL APPEAL No. 1502 of 2012
CHINDHU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Ms.Anjali Mishra, Advocate for Appellant.
Shri Nitin Gupta, Government Advocate for State.
ORDER
Per: Justice Vivek Agarwal
1. This appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 is filed by Appellant Chindhu S/o. Mohan Gond being
aggrieved of judgment dated 2.6.2012 passed by learned Sessions Judge,
Betul in Sessions Trial No.281/2011 convicting appellant Chindhu for the
offence under Section 302 of the Indian Penal Code, 1860 (for short "I.P.C")
and sentencing him to undergo life imprisonment and fine of Rs.500/- with
default stipulation of six months' additional rigorous imprisonment.
2. The prosecution case in short is that complainant Monga Dhurve
had lodged a report at Police Station Jhallar on 13.9.2011 that he is resident
of Village Kumbhi. He is running a Pan Shop. At his house, he is residing
with his wife Dasiya and mother Mangli. Appellant Chindhu used to accuse
his mother of Jadutona. On 12.9.2011 at about 7:00 PM, appellant Chindhu
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had taken his mother Mangli to his residence. At that time, he asked Chindhu
as to whether he wants to kill his mother. Chindhu replied that he will not
cause any harm to his mother. According to the complainant at about 4:00
AM, Chindhu had visited his house and informed him that what is to be done
with his mother and when he asked not to do anything with his mother and
said that he will send his mother to another village then Chindhu kept the
mother alongwith him for the whole night. On the next day, he had seen that
at about 2:00 PM, when he had gone to Jungle to answer call of the nature
then on his return, he was informed by Kotebai (PW.5) and Budhiyabai
(PW.4) that Chindhu had taken his mother towards Jhiriya (water body) and
he should go and look for his mother. On their intimation, he had visited
Jhiriya and found his mother lying in a water pool. There were injuries on
her left eye and also on the lower lip and back.
3. It is the case of the prosecution that Budhiyabai (PW.4) had
informed Mongia (PW.1) that Chindhu was saying that he had killed Mangli
and thrown her into Jhiriya. The allegation is that on the charge of magic etc,
Chindhu had killed his mother and had thrown her at Jhiriya. The merg
intimation/FIR was recorded at No.59/11 against Chindhu. Crime
No.135/2011 was registered against the appellant for the offence under
Sections 302 & 201 of the I.P.C. The postmortem of Mangli was carried out
by Dr.Amit Nagvanshi (PW.6). Appellant Chindhu was arrested. His
memorandum under Section 27 of the Indian Evidence Act, 1872 was
prepared. According to Dasiya (PW.2), deceased Mangli was kept in illegal
confinement by Chindhu and his wife Nimmobai. The charge sheet for the
3 CRA-1502-2012
offence under Sections 302 & 201 of the I.P.C was filed in the Court of
Judicial Magistrate First Class against appellant Chindhu and his wife
Nimmobai and thereafter vide order dated 22.11.2011, the case was
committed to the Court of Sessions where learned Sessions Judge recorded a
finding of acquittal with regard to Nimmobai but convicted the appellant
Chindhu for the offence under Section 302 of the I.P.C & sentenced him as
mentioned in Paragraph No.1 of this judgment.
4. Ms.Anjali Mishra, learned counsel for the appellant submits that
appellant Chindhu is innocent. He has been falsely implicated in this case on
the basis of surmises and conjectures. It is a case of circumstantial evidence
but the chain of circumstances is not complete. There is no eye-witness to the
incident. There are major contradictions in the evidence of the eye-witnesses.
The appellant Chindhu has been convicted on the basis of surmises and
conjectures and, therefore, the conviction recorded qua the present appellant
Chindhu is uncalled for. Reading the evidence of Mongia (PW.1), who is son
of deceased Mangli, it is pointed out by learned counsel for the appellant that
Chindhu had kept his mother for the whole night for Jhadphoonk. In the
morning, Mongia had sent his wife Dasiya to call for his mother but the
accused had not sent her back. At 12 noon, he had seen his mother as she had
gone to answer call of the nature and had crossed his house in front of him.
He had called his mother but she did not respond and when he had gone to
answer call of the nature at 2:00 PM then Kotebai informed him that Chindhu
killed his mother at Jhiriya. It has come on record that Kotebai is Bua of
Mongia (PW.1). He admits that Budhiyabai is his sister. Richabai (PW.8) is
4 CRA-1502-2012
his sister-in-law. The other witnesses have not supported the prosecution
case and, therefore, the finding of acquittal should have been recorded by the
Trial Court.
5. Learned Government Advocate for the State supports the impugned
judgment of conviction and submits that all the circumstances point out
towards the guilt of the present appellant and it is very common amongst the
tribal community to take revenge from persons allegedly involved in magic
etc.
6. We have heard learned counsel for the parties and gone through the
material available on record.
7. PW.1 Mongia, Son of Deceased Mangli, admits in Paragraph No.3
of his cross-examination that when his mother had crossed his house at about
12 noon to answer call of the nature then she had not talked to him. She was
alone. She had gone to the house of Chindhu. PW.1 Mongia admits that
when somebody has to move from the house of Chindhu towards Jhiriya then
houses of Budhiyabai and Kotebai are not on the way. The aforesaid fact is
corroborated from the Spot Map (Exhibit P/5) where it is shown that the
house of complainant is marked as "D" on a turning of a road on the other
side whereas the house of Chindhu is marked as "C". Jhiriya is on the east of
the house of Chindhu after crossing the main road and is marked as "A". The
distance between "A" and "B" i.e. the distance from main road to Jhiriya is
mentioned as 100 yards, therefore, the distance between the house of
Chindhu to that of Jhiriya is approximately about 200 yards. In Paragraph
No.10 of his cross-examination, Mongia (PW.1) admits that Kotebai
5 CRA-1502-2012
informed him that Chindhu had asked her as to whether the old lady
i.e.mother of Mongia (PW.1) had come on that side or not. Kotebai had
informed only this much to Mongia (PW.1) and this was at about 2:00 PM.
Thus, the evidence of Kotebai (PW.5) becomes important because she had
not informed the complainant about Chindhu taking his mother towards
Jhiriya, a fact admitted by Mongia (PW.1).
8. There is contradiction in the evidence of Mongia (PW.1) and
Kotebai (PW.5). Kotebai (PW.5) in her examination-in-chief deposes that on
Tuesday, Chindhu had caught hold of Mangli and had taken her towards
Jhiriya. This happened at about 2:00 PM. She says that Chindhu had returned
back early from Jhiriya. She says that Chindhu had informed her that he had
murdered Mangli. She improvises and says that Chindhu had informed this
fact to everybody in the Gali. In cross-examination, Kotebai (PW.5) admits
that Dasiya (PW.2) and Budiyabai (PW.4) had gone to the market at about 12
noon and had returned back at 3-4 PM. She admits that when Chindhu was
returning from Jhiriya and was speaking about the act then nobody was there
in the Gali. She admits that she had never given this information about
Chindhu speaking of committing murder to anybody. She admits that the
police had come to the village but she had not given this information to the
police. She admits that the police had interrogated her. Kotebai (PW.5)
admits that Mangli was her Nanad. She says that Richabai (PW.8) had
returned home in the evening after preparing meals. She leaves home at
11:00 AM to go to the school. She admits that when Budhiyabai (PW.4) had
returned from the market then she had no conversation with Budhiyabai
6 CRA-1502-2012
(PW.4) about the incident. She admits that when she was at her home, she
was not knowing that where was Mongia and she had not seen Mongia. She
admits that Chindhu had visited Jhiriya and then gone to his house. She
admits that the house of Chindhu is not on the way to the house of Kotebai
(PW.5).
9. Thus, it is evident that Kotebai (PW.5) is not a reliable witness. She
had given two facts; (1) when she was at her home, she was not knowing as
to where was Mongia. She had not seen Mongia, which means that she had
not given intimation to Mongia about Mangli being taken by Chindhu to
Jhiriya and (2) she admits that the house of Chindhu is on a different way and
her house will not come if one has to travel from Jhiriya to the house of
Chindhu. In cross-examination, this witness admits that Mangli had gone to
answer call of the nature but she had gone towards Jungle and not towards
Jhiriya. However, no separate Jungle is shown in the Spot Map (Exhibit P/5)
and it appears that the plantation on Part-B leading to Part-A i.e.Jhiriya, is
the forest, therefore, it is evident that the forest and Jhiriya are in the same
direction and Jhiriya is infact within the forest. There is a Pagdandi from the
main road close to the house of Chindhu through which he could have
travelled to Jhiriya. The house of Mongia is on the other side of the road. He
admits in his cross-examination that the house of Kotebai (PW.5) is 4 feet
away from his house. Her house is in front of his house and, therefore,
Kotebai (PW.5) is not a reliable witness inasmuch as if Chindhu would take
somebody to Jhiriya, he will not cross the house of Kotebai (PW.5) as has
been admitted by her. Hence, the testimony of Kotebai (PW.5) is not
7 CRA-1502-2012
reliable.
10. Budhiyabai (PW.4) deposes that Chindhu had consumed alcohol
and had made Mangli also to consume alcohol. In the postmortem report
(Exhibit P/8), there is no mention of any alcohol being found in the stomach
of Mangli. Dr.Amit Nagvanshi (PW.6), who conducted the postmortem, had
not reported presence of alcohol in the stomach of deceased Mangli. The
doctor mentioned that the mode of death was asphyxia caused by drowning.
Dr.Amit Nagvanshi (PW.6) categorically deposes that there was half
digested food in the stomach. Some food was also available in the small
intestine and there was stool in the large intestine. He had seen one injury on
the left shoulder measuring 4X6 cm. This witness did not say anything about
the presence of alcohol. There is no cross-examination of Dr.Amit
Nagvanshi (PW.6) on this aspect.
11. Budhiyabai (PW.4) admits in her cross-examination that Kotebai
(PW.5) is her mother-in-law. Contrary to Kotebai (PW.5), Budhiyabai
(PW.4) says that she had not gone to the market. She admits that the son of
Chindhu, who was ill, is now fine. She again deposes that Chindhu had made
Mangli to drink a lot. Mangli was ill. She was suffering from pain of joints.
She used to walk with support. She admits that her house is close to the
house of Mongia (PW.1). She admits that the villagers visit Jhiriya to answer
call of the nature. She deposes that when Chindhu was narrating that he had
killed Mangli, thereafter Mongia had come. She admits that she had never
informed this fact to anybody that Chindhu had informed that he had killed
Mangli and this fact was being narrated by her for the first time in the Court.
8 CRA-1502-2012
She admits that she had no talk with Mongia (PW.1). She admits that when
someone has to move from the house of Chindhu to Jhiriya then her house
will not come on the way. The testimony of Budhiyabai (PW.4) is not
trustworthy because firstly, her mother-in-law Kotebai says that she had gone
to the market and secondly she deposes that when Mongia had narrated the
incident, that time nobody was available at her home and, therefore,
Budhiyabai (PW.4) is not a reliable witness.
12. Dasiya (PW.2) admits that she had gone to call for her mother-in-
law but she was not allowed to come and thereafter she had gone to the
market from-where she had returned at about 2:00 PM and at that time, an
old lady, whose name is not known to her, had informed her that Chindhu
killed her mother-in-law, therefore, she had returned from the market to the
village. In cross-examination, she admits that at market, she was informed
that somebody had killed her mother-in-law. She admits that the distance
between her village and market is about 1 hour. She had returned back to the
village at about 3:00 PM. She did not meet her husband, who had gone to the
police station. In Paragraph No.3, she states that it was Nimmobai, wife of
Chindhu, who had come to their house to call for her mother-in-law. She had
not informed this fact to the police.
13. Thus, there is contradiction in the evidence of Mongia (PW.1) and
Dasiya (PW.2) inasmuch as Mongia (PW.1) deposes that on 12th evening at
7:00 PM, Chindhu had taken his mother Mangli to his house whereas Dasiya
(PW.2) says that it was Nimmobai, who had taken the deceased to her house
and not Chindhu, therefore, the testimony of these witnesses too is not
9 CRA-1502-2012
reliable. She is also not a witness of last seen, who had seen the deceased in
the company of Chindhu. Even Mongia (PW.1) had not seen the deceased in
the company of Chindhu. Kotebai (PW.5) too had not seen the deceased in
the company of Chindhu. Richabai (PW.8) is also a witness, who exaggerated
the facts. She narrates in her examination-in-chief that Chindhu had come to
her school to inform that he killed old lady Mangli and he was going to jail.
In cross-examination, she admits that she had come to the school at 11:00
AM for preparing meals and had come back at 4:00 PM. She admits that two
maids, namely, Mangraya and Poona were also with her in the school and
they had come back with her to the village. In Paragraph No.4, she admits
that when she was in the school, she had not met Chindhu, therefore,
narration of this witness that Chindhu had come to the school, gets falsified.
14. Thus, there is no evidence of last seen. The conduct of Mongia
(PW.1) and Dasiya (PW.2) is doubtful. If narration of Mongia (PW.1) is to
be believed that the appellant visited him in the morning of the day of the
incident and asked him as to what is to be done with his mother then Mongia
(PW.1) not visiting the house of appellant Chindhu to take back his mother
and also not informing anybody in the close locality about the incident
though Budhiyabai (PW.4), Kotebai (PW.5) and Richabai (PW.8) are related
to him and are residing in a close locality, creates reasonable doubt about the
prosecution story that appellant Chindhu had taken deceased Mangli with
him to his house on a previous day. Another doubtful circumstance that on
the day when dead body of Mangli was recovered, at about 12 noon, Mongia
(PW.1) had seen his mother Mangli, but according to Mongia (PW.1), she
10 CRA-1502-2012
was not talking to him. He has not explained this unusual circumstance that
when he had seen his mother Mangli at 12 noon then why did he not follow
her. The third contrary circumstance is that Budhiyabai (PW.4) on one hand
says that deceased Mangli was not in a position to walk without any support
whereas Mongia (PW.1) had seen the deceased alone at 12 noon then how
deceased could have walked to Jhiriya without any assistance. Nobody had
seen deceased Mangli in the company of Chindhu. Though a motive has
been sought to be impleaded that Chindhu used to doubt magic power of
deceased Mangli but when there is a direct contradiction inasmuch as
Mongia (PW.1) deposes that Chindhu had taken Mangli to his house for
treatment of his younger son. Dasiya (PW.2) deposes that when she had gone
to the house of Chindhu, she was informed that he will send back Mangli
after Jhadphoonk of her son. Thereafter, Mangli was seen alone by Mongia
(PW.1) at 12 noon. Nobody had seen Mangli after 12 noon in the company
of Chindhu.
15. In view of such evidence available on record, the conviction of
appellant Chindhu, on the basis of circumstantial evidence especially when
there are no apparent injury marks, no material to support prosecution story
that Mangli was made to consume alcohol and coupled with the fact that the
death of deceased Mangli has been shown due to asphyxia caused by
drowning and it is not a case of the prosecution that Mangli was first
murdered and then put into a water reservoir, cannot be maintained.
16. To prove a case in the teeth of circumstantial evidence, the chain
of circumstances should be complete. There are many missing links in the
11 CRA-1502-2012
chain of circumstances. The prosecution has failed to prove the motive. It has
also failed to prove that the deceased was accompanied by Chindhu. There is
contradiction in the evidence, which causes dent to the prosecution story
inasmuch as Mongia (PW.1) deposes that Chindhu had taken Mangli to his
house for Jhadphoonk whereas Dasiya (PW.2), wife of Mongia (PW.1), says
that it was not Chindhu but his wife, who had taken her mother-in-law for
Jhadphoonk. No aspect of enmity could have been brought on record. The
prosecution has failed to prove the guilt of appellant Chindhu satisfactorily
beyond all reasonable doubts. It is also held by the Apex Court in Manzoor
versus State of Uttar Pradesh AIR 1983 SC 295 that when guilt of accused is
not proved satisfactorily beyond reasonable doubt then the conviction of
appellant cannot be maintained.
17. Thus, in the given circumstances, we are of the opinion that the
prosecution has failed to prove the guilt of appellant Chindhu satisfactorily
beyond all reasonable doubts. We, therefore, allow this appeal and set aside
the judgment of conviction of appellant Chindhu and the order of sentence
imposed upon him vide judgment dated 2.6.2012 passed by learned Sessions
Judge, Betul in Sessions Trial No.281/2011 and direct him to be set at liberty
forthwith, if not required in any other case.
18. In above terms, this appeal is allowed & disposed off.
19. Let record of the Court below be sent back.
20. We are thankful to Ms.Anjali Mishra, learned counsel for
rendering her valuable assistance to the Court as an Amicus Curiae. We will
be failing in discharging our duties if we do not write the words of
12 CRA-1502-2012
appreciation to the Amicus Curiae for giving instant assistance. Since
Ms.Anjali Mishra has put in appearance through Legal Aid, therefore,
remuneration be paid to her by the competent authority on production of a
certified copy of this judgment.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
amit
