Bhuri Bai vs State of Madhya Pradesh

S.K. Dubey, J.

In this appeal the appellant/accused has challenged her conviction u/s 201, Indian Penal Code, and sentence of seven years'' rigorous imprisonment, passed on 2840-1986 in Sessions Trial No. 109 of 1985, by Additional Sessions Judge, Ashoknagar, District Guna.

The facts leading to this appeal are thus:

The acquitted accused Kallu alias Kalyansingh, who was married to deceased Sulochana, had developed illicit relationship with the appellant: therefore, there were always bickerings and quarrels between Kallu and his wife, and this was the subject of village gossip; hence, Arjunsingh (P. W. 1), father of Kallu, asked Kallu to live separately. It is said by the prosecution that there were quarrels also between the deceased and the appellant. Therefore, to remove the obstacle in the way of illicit relationship between Kallu and the appellant, the two accused conspired to get rid of Sulochana from their way. Hence, in the intervening night of 19th and 20th April, 1985, Kallu and the appellant both committed the murder of Sulochana by strangulation; the body was brought about 3 furlongs away from the residence of the deceased, to a ditch of quarry behind ''Chamada Ghar, '' where the body was covered with stones and earth. On 22-4-1985 Kallu went to his father and told him that Sulochana was not found. On it, P. W. 1 Arjunsingh told him that she might have gone to her parents'' house. On enquiry from the parents it was found that she did not reach there; a report (Ext. P/1) of ''Gumshudi'' was lodged at P. S. Isagarh by P. W. 1, wherein P. W. 1 entertained his suspicion on the appellant. On 24-4-1985 the appellant was arrested vide arrest memo (Ext. P/2) in the presence of ''Panch'' witnesses P. W. 2 Babulal and Harnam Singh (P. W. 6). After arrest at about 7. 15 a. m. , it is said, in the presence of P. W. 6 Harnam Singh and P. W. 10 Nagendrakumar, cousin brother of the deceased, the appellant gave information leading to discovery of the dead body of the deceased vide Ext. P/8 and at 8. 10 a.m. in the presence of P. W. 6 and P. W. 10 the naked body of the deceased was recovered from the said ditch by P. W. 13 M. A. Hasmi who also recovered clothes of the deceased lying near the dead body vide ExtP/6. After preparing spot map (Ext. P/10), P. W. 13 at about 11 a.m. lodged the first information report (Ext. P/19), thereon a case at Crime No. 78 of 1985 for offences under Sections 302/34 and 201, Indian Penal Code, was registered against the two accused. The dead body was sent for post mortem. P. W. 9 Dr. V. R. Ratnakar performed autopsy and gave his report (ExtJP/14), according to which the cause of death was asphyxia as a result of strangulation, death being homicidal in nature.

After investigation, the ''challan'' was filed against both the accused persons. The accused denied the offence and raised the plea of false implication. During trial, the prosecution examined P. W. 1 Arjunsingh, father of Kallu, P. W. 2 Babulal, brother-in-law (Sadhy Bhai) of Kallu, P. W. 3 Nanna, P. W. 4 Nathansingh, P. W. 5 Shivshankar Sharma, P. W. 6 Harnamsingh, brother of Kallu, P. W. 7 Lalu, Ramnath Garg P. W. 8, P. W. 9 Dr. V. R. Ratnakar, P. W. 10 Nagendrakumar, cousin brother of deceased Sulochana, P. W. 11 Jaisingh Sodi, who made an entry of Ext. P/1 in the Daily Diary, P. W. 12 V. S. Bhadoria, who performed some part of the investigation, and P. W. 13 M. A. Hasmi, the investigating officer. The trial Court after evaluating the evidence, acquitted both Kallu and the appellant of the offence u/s 302, Indian Penal Code, holding that there was no evidence to hold them guilty. The trial Court also acquitted co-accused Kallu of the offence u/s 201, Indian Penal Code, but convicted and sentenced the appellant as aforesaid.

Shri V. K. Saxena, Counsel for the appellant, and Shri C. S. Dixit, Deputy Government Advocate for the State, were heard. Record perused.

Before I deal with the appeal on merits, it would be worthwhile to mention a fact that the learned Deputy Government Advocate could not point out whether the State has preferred any appeal against the acquittal of Kallu under Sections 302 and 201, Indian Penal Code, and of the appellant u/s 302, Indian Penal Code.

Learned counsel for the appellant attacked the manner in which the investigation was conducted, and contended that the central figure of the crime, Kallu alias Kalyansingh was cleverly saved by the prosecution witnesses, some of whom are near and dear relatives of Kallu, in collusion with the investigating officer; the appellant, who is a poor woman and deans utensils for her livelihood, having two children, has been made a scapegoat so as to clear the way for the acquittal of Kallu, so that he may go scot free and may enjoy life. Shri Saxena took this Court through the evidence and contended that the evidence of discovery is inadmissible, as it is clear from the evidence that before the appellant was taken in custody, the place where the dead body was buried was known to the Police. The contention, in my opinion, has got a force.

P. W. 10 Nagendrakumar has stated in para 4 of his cross-examination that Bhuribai was arrested at about 2 p. m., on 23-4-1985, prior to the date of information and discovery; after 1, 1/2 hours of her arrest, Bhuribai gave her statement leading to the discovery. At that time, Babulal (P. W. 2) and Harnamsingh (P. W. 6) were present at the Police Station, on it at about 3 p. m. the Police wrote certain papers. In para 5 the witness stated that, thereafter, they all went to the spot and saw the dead body buried, but as it was getting dark, the Police did not recover the body and asked 6-7 persons to remain there to have a watch and guard of the body. In para 6 the witness admitted that the dead body was recovered on the next day morning at the instance of the appellant.

P. W. 2 Babulal, though not a witness to Exts. P/8 and P/9 stated in para 3 that Bhuribai was called from her house and was arrested; when interrogated, she did not give information thereupon a woman Constable was called from Guna, on whose interrogation, Bhuribai gave the information leading to the discovery. In para 6 the witness stated that P. W. 1 lodged ''Gumshudi'' report (Ext. P/1) between 4 and 5 p. m. on 22-4-1985, thereafter, Bhuribai was called in the night, who gave information leading to the discovery; the Police with the appellant went to the spot at 8 a.m. on the next day.

The other witness to information and recovery, P. W. 6 Harnamsingh in para 2 of his cross-examination, stated that after lodging of the report (ExtP/1) Bhuribai was arrested at about 10 a. m. on the next day; she did not give any information then, but gave information after 24 hours or thereafter of her arrest. The witness admitted that the place where the dead body was found is a public place and is accessible to all.

P. W. 13 M. A. Hasmi denied and specifically stated that the appellant was arrested on 244-1985, who after arrest gave information leading to the discovery. In para 8 the witness admitted that when Bhuribai was being interrogated a woman Constable was in the Police Station.

Looking to this evidence of information and discovery, which is definitely inconsistent and contradictory to the contents of Exts. P/8 and P/9, it is clear that the Police had already the information and knowledge of the dead body being buried in the ditch, from where it was recovered. To negative this fact, P. W. 10 Nagendrakumar was not declared hostile. Therefore, this evidence cannot be ignored and has to be taken as part of the prosecution version. (See Sukhram Vs. State of M.P., and a Division Bench decision of this Court in Bhagatram v. State of M. P. 1990 MPLJ 770 : 1991 MPJR 75). In such state of affairs, in my opinion, the contention of Shri Saxena is right that it was a device of the investigating agency to turn an ordinary recovery into a discovery in order to utilise the provisions of Section 27 of the Evidence Act, so as to admit the evidence against the appellant. In fact, the information did not come from Bhuribai who was in custody of the Police from the morning of 244-1985. Section 27 of the Evidence Act is a proviso to Section 26, which cuts down the operation of Sections 24 and 25 as well, the Section comes into play only when the discovery of a fact is made in consequence of some information received from a person accused of any offence, who has deposed in Police custody. It is settled that a fact previously discovered by the Police from other source cannot be regarded as discovery, when the same information is received again from the accused with the object of making his statement admissible; to make such a statement admissible, it is necessary that the statement is made before the discovery and not thereafter.

Learned Deputy Government Advocate placing reliance on a decision of the Apex Court in State of U.P. Vs. Deoman Upadhyaya, and a Division Bench decision of this Court in Kadori Nandlal v. State of M. P. 1978 MPLJ 706, contended that for custody it is not necessary that an accused should be arrested first. If information is given by the appellant while she was at the Police Station, that information will be relevant, as Section 27 of the Evidence Act does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of Police Officer or can be said to have been under some sort of surveillance or restriction. But, that is not the case put forward by the prosecution. The investigating officer P. W. 13 M. A. Hasmi has emphatically stated that Bhuribai was arrested on the morning of 244-1985. In para 7 he admitted that on 23-4-1985 Bhuribai was not found, and it was only on 244-1985 at about 5 a. m. that Bhuribai met, when he interrogated her for about one hour, then arrested her and recorded the information memo at 7.15 a. m. and after two hours, he with Bhuribai and witnesses went to make the discovery. In view of the evidence discussed above, and the statement of P. W. 13, it cannot be doubted that the fact of discovery was already known to the Police, but to make a case of discovery u/s 27 of the Evidence Act, Exts. P/8 and P/9 were prepared; therefore, such information given by accused Bhuribai, in the facts of this case, is of no consequence.

For argument''s sake, even if the evidence of P. W. 10 Nagendrakumar is excluded and the evidence of discovery is relied, the conviction of the appellant u/s 201, Indian Penal Code, cannot be sustained. In order to bring home an offence u/s 201, Indian Penal Code, the prosecution has to prove the following ingredients, as laid down by the apex Court in Kodali Purnachandra Rao and Another Vs. The Public Prosecutor, Andhra Pradesh, (1) that an offence has been committed; (2) that the accused knew or had reason to believe the commission of such offence; (3) that with such knowledge or belief he -- (a) caused any evidence of the commission of that offence to disappear, or (b) gave any information respecting that offence which he then knew or believed to be false; (4) that he did so as aforesaid with the intention of screening the offender from legal punishment; (5) if the charge be of an aggravated form, as in the present case, it must be proved further that the offence in respect of which the accused did as in (3) and (4), was punishable with death, or with imprisonment for life or imprisonment extending to ten years.

In the realm of facts, the question is whether the accused knew or had reason to believe that an offence of murder has been committed. There is no credible evidence on record to establish that it was the appellant who brought the dead body to a distance of one Km., and after digging up the pit in the ditch, buried the dead body and covered it with stones and earth, so as to cause the evidence of commission of the offence to disappear with the intention of screening the offender from legal punishment At the most, it may be presumed that the appellant helped the acquitted accused to carry the corpse to the ditch for burying it, if it is the case of the prosecution that Kallu and the appellant had illicit relationship and both wanted to remove the obstacle from their way by getting rid of Sulochana.

As the trial Court having held that the offence u/s 302, Indian Penal Code, is not proved against both Kallu and the appellant, it appears that Kallu bullied the appellant into submission for doing the offence u/s 201, Indian Penal Code. Her act was not voluntary, nor the appellant did the act with the intention of screening the offender from legal punishment. The offence of killing might have been committed by Kallu, who was interested in wiping out all the evidence of murder. But, there is no finding or evidence that the appellant knew or had reason to believe that the offence of murder was committed by Kallu, or she helped Kallu to drag the corpse to the ditch for being buried there, with intent to screen the real offender from legal punishment The appellant''s conduct at the most, shows that she knew the place where the corpse was kept, which may give rise to a grave suspicion, but the central figure having been acquitted and the appellant also having been acquitted of the offence u/s 302, Indian Penal Code, the discovery of the corpse by itself is of no consequence to hold the appellant guilty u/s 201, Indian Penal Code; hence, the appellant is also entitled to acquittal of the offence u/s 201, Indian Penal Code. For that, I place reliance on State of U.P. Vs. Kapil Deo and another, and Mannam Venkatdri and Others Vs. The State of Andhra Pradesh, See also a Division Bench decision of this Court in Sureshchandra v. State, 1986(II) MPWN 59.

In the result, the appeal is allowed; the conviction and sentence of the appellant u/s 201, Indian Penal Code, are set aside and the appellant is acquitted. Her bail bonds shall stand discharged.