Madhya Pradesh High Court
Babulal vs The State Of Madhya Pradesh on 6 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
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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. 759 of 2014
BETWEEN:-
BABULAL S/O BENIRAM, AGED ABOUT 40 YEARS, OCCUPATION: NOT
MENTIONED, R/O VILLAGE SAKATLI, P.S. BADNAWAR, DISTRICT DHAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI AKHILESH KUMAR SAXENA, ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. GOUTAMPURA, INDORE, DISTRICT INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS. VARSHA THAKUR, GOVERNMENT ADVOCATE.)
CRIMINAL APPEAL No. 1648 of 2014
BETWEEN:-
GANGARAM S/O SHIVAJI, AGED ABOUT 60 YEARS, R/O VILLAGE
SAKTALI P.S. BADNAWAR, DISTRICT DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI KAUSHAL SISODIYA, ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THROUGH P.S. GAUTAMPURA, INDORE, DISTRICT INDORE (MADHYA
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 06-03-2024
18:51:37
-2-
PRADESH)
.....RESPONDENTS
(BY MS. VARSHA THAKUR, GOVERNMENT ADVOCATE.)
Reserved on : 22.02.2024
Delivered on : 06.03.2024
--------------------------------------------------------------------------------------------------------
This appeal coming on for orders this day, Justice Vivek Rusia
passed the following:
JUDGMENT
Regard being had to the similitude of the offence, with the consent
of the learned counsel for the parties, both the appeals are heard finally
and decided by this common judgment.
1- The appellants have filed the present appeal under Section 374 of
the Code of Criminal Procedure, 1973 being aggrieved by the judgment
of conviction dated 29.04.2014 passed by Additional Sessions Judge,
Indore, District Indore (M.P.) in Sessions Trial No.1145/2012 whereby
the appellants have been convicted under Section 302/34 of IPC and
sentenced to undergo Life Imprisonment with fine of Rs.1,000/- each
with default stipulation.
The case of the prosecution, in brief, is as follows: -
2- The late Ambaram was engaged as a Gardener in Shiv Temple
Gautampura, Indore. On 24 - 25.05.2012 in the night he was sleeping in
the temple after taking a meal. At near about 01:00 a.m. four persons
came in two motorcycles out of which one was co-brother Gangaram
(present appellant) of the deceased Ambaram and another was Babulal
(present appellant). They lifted Ambaram from his hands and legs
brought him near the gate of the temple and administered the poisonous
substance in his mouth. Ambaram's health started deteriorating, his
family members took him to the Government Hospital where he died on
26.05.2012. One Subhash, an employee of the Government Hospital
sent information to Gautampura Police Station where merg No.15/2015
(Ex.D/1) was registered. Sub-Inspector R.S. Malviya (PW/9) started the
merg investigation, he recorded the statement of Rajesh, Bhagat Singh,
Gowardhan, and Girdharilal. He called 5 witnesses, drew the Safina
form (Ex.P/12), and thereafter prepared a Naksha Panchayatnama. He
sent the dead body of Ambaram to the Government Hospital for autopsy.
3- During the investigation, he recorded the statements of Ambaram,
Anjabai, Gangaram, Ishwar, and Rajesh and included them in the merg
investigation. Dr. Lokesh (PW/11) submitted the post-mortem report,
the Viscera was sent to the FSL Indore. As per the Viscera report
(Ex.P/21) organophosphorus pesticides, namely Profenofos was found
in the body of the deceased. Accordingly, the FIR at Crime No.126/2012
was registered under Section 302/34 of IPC. Further investigation was
started by DSP (PW/12). In the investigation, the police came to know
that wife Shyamubai, son Rakesh, daughter Krishna, and Santoshbai had
left the deceased for the last 14 years and living with co-brother
Gangaram. The police arrested Gangaram and Babulal vide Ex.P/4 and
Ex.P/5 and on disclosure by Gangaram a bottle of poisonous medicine
in which phosphorus 50%EC was printed. After completing the
investigation, a charge sheet was filed against Gangaram and Babulal,
the trial was committed to the Sessions Court, where the charges under
Section 302/34 of IPC were framed which they denied and pleaded for
trial.
4- The prosecution examined as many as 12 witnesses and exhibited
22 documents. In defense, the appellant did not examine any witnesses.
The Learned Additional Sessions Judge after appreciating the evidence
came on record vide judgment dated 29.04.2014 the appellants have
been convicted and sentenced as stated about. Hence, this appeal before
this Court.
We have heard learned counsel for the parties and perused the
record.
5- On 26.05.2012 at 8:30 Vide Ex.D/1, a merg No.15/2012 was
registered at police station Gautampura on an information received from
PHC Gautampura about the death of Ambaram S/o Rupaji Balai aged
about 70 years. Ambaram was taken to PHC Gautampura at 11:15 on
25.05.2012 as a patient of poisoning intake for treatment. On
examination, his blood pressure was found 160/90, his pulse was found
86 per minute, foul smell from his mouth, and medicines were
prescribed. The matter was reported to the police and a statement of
Ambaram was recorded in which he disclosed that he was sleeping on
the campus of Shiv Temple after taking dinner at near about 1:00, four
persons came in two motorcycles out of which one was his co-brother
Gangaram and another was Babulal. Gangaram administered the
poisonous medicine from the glass and thereafter his condition
deteriorated. His family member took him to the Government Hospital
where treatment was provided to him. He also disclosed that his wife
Shyamubai, son, and daughters left him 14 years ago and went along
with Gangaram. Thereafter, he expired hence, the FIR was registered
under Section 302 IPC against the appellant Gangaram and Babulal.
6- The police recorded the statement of Gangaram brother of the
deceased Ambaram under Section 164 of Cr.P.C. before the Magistrate.
According to him, he reached the temple and found Ambaram lying in
front of the gate of the temple in a semi-conscious condition. Two-
quarters of the liquor, one glass, one small box of poison, and one knife
were found lying there. Ambaram said to him that Gangaram and
Babulal came there with two others and poisoned him. He disclosed this
incident to Ishwar gave information to the police called 108 Ambulance
and took him to the hospital. Ishwar has also recorded his statement
under Section 164 of Cr.P.C. before the Magistrate and supported the
version of Ambaram. So far as the cause of death is concerned, the FSL
report established that Ambaram died because of the poisonous
substance as organophosphorus pesticide was found in his stomach. As
per the FSL report, the said substance was found in empty bottles of
quarters, glass, and small bottles (Article-C) seized from the spot.
7- The police prepared the spot map as well as Naksha
Panchayatnama. Article-C is a bottle that was recovered from the place
of incident on 25.05.2012 which was sent for FSL which is evident from
the letter dated 09.07.2012 (non-exhibited) and as per the evidence of
the statement of Gangaram under Section 164 of Cr.P.C., one small
poison box (zeher ki dibbi) was also lying along with the two liquor
bottles and a glass of quarter near Ambaram in the temple premises. In
order to connect this present appellant with this incident, the police
seized one bottle in which Profenofos 50% EC was printed from the
house of Gangaram but that bottle has not been sent for FSL to prove
that the poisonous substance which Gangaram administered in the
mouth of Ambaram is the same which is found in his house.
8- Gangaram (PW/1) is the only witness to whom the deceased
disclosed the name of the present appellant. He saw that one "dawai ki
dibbi" was lying along with the liquor on the campus. According to
Gangaram, the police recorded the statement of Ambaram also in the
police station. As per the seizure memo (Ex.P/2), the police recovered
one country-made liquor bottle, an empty quarter bottle, one small glass,
a vegetable cutter (a knife) and poisonous medicine printed phosphorus
50% EC. The seizure memo was prepared on 25.05.2012 and the bottle
of the same description was recovered from the house of Gangaram
which was not sent for FSL. Except for the statement of the deceased
and Gangaram, no other witnesses have supported the case of the
prosecution. The wife and children of the deceased had already left him
14 years ago and were living with accused Gangaram.
9- After 14 years Gangaram had no motive to administer the
poisonous substance to the deceased. Even the deceased did not disclose
why Gangaram and Babulal gave him poison with the help of others.
The deceased was living alone in the temple, he was aged about 70
years, present appellant Gangaram was also aged about 68 years at the
time of the incident, therefore, there was no reason for Gangaram to
administer the poisonous substance to the deceased. So far as other
appellant Babulal is concerned, he had no enmity with the deceased, he
is not even in relation with Gangaram and deceased Ambaram. The
police did not investigate with respect to the other two persons who
came on the motorcycle along with the appellants. The police did not
care to take fingerprints from the articles recovered from the scene of
the crime which could have been the best connecting piece of evidence
against these appellants. The statement of the deceased recorded by the
police is not admissible in the evidence. Hence, except for the version of
Gangaram who saw the deceased outside the temple is not sufficient to
uphold the conviction. The phosphorus pesticide is normally available to
every farmer's house in the village, therefore, based on the mere
recovery of one bottle of phosphorus in the house of Gangaram he has
wrongly been connected with this crime. Even otherwise, they have
been in jail since the date of their arrest i.e. 21.06.2012, and have
completed more than 12 years of jail sentence.
10- In view of the above, Criminal Appeal No.759 of 2014 and
Criminal Appeal No.1648 of 2014 are allowed. The judgment dated
29.04.2014 passed by Additional Sessions Judge, Indore, District Indore
(M.P.) in Sessions Trial No.1145/2012 is hereby set aside. Appellants -
Babulal and Gangaram be released from jail if they are not required in
any other case.
11- Let the record of the trial Court be sent back along with a copy of
this judgment.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Divyansh
