Charan Kodhar vs State of M.P.

A.K. Shrivastava, J.

Feeling aggrieved by the judgment of conviction and order of sentence dated 17-12-1999 passed by learned Sessions Judge, Chhatarpur, in Sessions Trial No. 82/99 convicting him u/s 302 of IPC and sentencing to suffer Rigorous Imprisonment for life and the fine of Rs. 2000/-, in default of payment of fine further R.I. for one year, the appellant has preferred this appeal u/s 374(2) of the Code of Criminal Procedure, 1973.

In brief the case of the prosecution is that on 25-2-1999 at 10.30 a.m., Village Chowkidar Matadeen lodged first information report that Shankar Patel and Ramu Dhimar told him that Hira Kondar (hereinafter referred to ''the deceased'') is lying dead in front of the door of accused/appellant and blood is coming out from his head. These persons also told him that accused/appellant was carrying a lathi, his clothes were stained with blood and he had fled towards jungle, has killed deceased by lathi, bricks and stones.

After registering the case on the basis of FIR (Ex. P-1), Station Officer Incharge L.P. Yadav came to spot for investigation. At the spot the Investigating Officer prepared Panchnama of dead body; seized ordinary and blood stained earth; sent dead body of the deceased to hospital for post-mortem where post-mortem was conducted by Dr. S.K. Chourasia and opined that the deceased died on account of head injury as a result of shock.

In furtherance to his investigation, the Investigating Officer recorded statements of the witnesses; arrested the accused and at his instance seized his blood stained clothes and a lathi.

After completing the investigation a charge-sheet was submitted in the competent Court which, on its turn, committed the case to the Court of Sessions where the accused was tried.

Learned Trial Judge, after going through charge-sheet, framed charge punishable u/s 302, IPC which was denied by accused/appellant. In order to prove charge, the prosecution examined as many as 11 witnesses and placed Exs. P-1 to P-26, the documents, on record. The defence of accused is of false implication, however, he did not choose to examine any witness in the defence.

Learned Trial Judge after scrutinising the evidence came to hold that appellant did commit offence for which he was charged, as a result of which, convicted him and passed sentence which we have mentioned herein-above. Hence this appeal.

In this appeal Shri S.K. Patel, learned Counsel for the appellant, has contended that the conviction of the appellant is founded on solitary eye-witness Gulzari (P. W. 10) whose evidence suffers from serious infirmities. It has been further contended by the learned Counsel that if the case of prosecution is X-rayed, one can say that it is a case of accident and it can not be said to be a culpable homicide amounting to murder. On these premised arguments, it has been prayed that the appeal be allowed and the appellant be acquitted.

Per contra, Shri S.K. Rai, learned Public Prosecutor, argued in support of impugned judgment.

After having heard learned Counsel for the parties, we are of the view that this appeal deserves to be allowed.

In order to ascertain whether appellant has committed any offence, we shall now examine the evidence led by prosecution. Matadeen (P.W. 1) is a village Chowkidar and is the author of FIR. He has said that he was informed by one Ramu Dhimar that Sarpanch has called him, as a result of which, he went to his house where Sarpanch told him that deceased had died and his body is lying nearby the door of the appellant. Sarpanch directed him to lodge report in police station. This witness, before going to police station, went to spot and found deceased was lying dead nearby the door of appellant, the blood was coming out from his head. The inhabitants of village told him that appellant killed the deceased by throwing bricks on him. This witness has proved FIR (Ex. P-1).

Ramu (P.W. 2) is a formal witness. He had seen the deceased lying at the spot, as a result of which, he informed the Sarpanch and thereafter on the instructions of Sarpanch he called Chowkidar Matadeen (P.W. 1). This witness has categorically stated that umpteen bricks were lying over the body of deceased and he was lying beneath these bricks. This witness saw only legs of the deceased. In cross-examination this witness has said that the entire body of the deceased was covered by several bricks and only legs were visible.

Kamla (P.W, 3) is a formal and hostile witness. He has denied the suggestion in cross-examination that he saw accused and deceased quarreling with each other, he further denied the suggestion that appellant was quarreling and was throwing bricks on deceased. In cross-examination made by defence Counsel he specifically said that there was enmity between the appellant and the deceased.

Smt. Kanchi Bai (P.W. 4), is, the sister-in-law (Bhabhi). This witness is a hostile witness and by the evidence of this witness, the case of prosecution is not supported. Akhilesh Bhargava (P.W. 5) is a Scientist of FSL Unit. He on 15-2-1999 examined the spot and his official photographer Mohd. Ishaq obtained several photographs of the spot. This witness has stated that the dead body of the deceased was beneath of several bricks. This witness has proved photographs (Exs. P-8 to P-13). According to the testimony of this witness, first of all, the photographs were taken when the dead body was covered with the bricks, later on certain photographs were also taken after removing the bricks and it was found that the deceased was lying turtle.

Pamma @ Parma (P.W. 6) is a formal witness of arrest as in his presence appellant was arrested. This witness is also the witness of seizure memo of clothes and lathi. In cross- examination, he has admitted that the seizure memo was prepared after one day of the arrest of accused/appellant. This witness further stated that police caused ''Marpeet'' to the appellant.

Jagannath (P.W. 7) is the brother of deceased. This witness has stated that on the next day when he came from his field he found that deceased had died and was lying in front the door of the appellant, according to him, when he arrived at the spot he found deceased lying dead. According to him Gulzari and Kamla Dhimar told that deceased was killed by appellant. Thus, the evidence of this witness is hearsay and is not helpful to the prosecution, however, one important fact came in his testimony that there was no enmity between accused/appellant and the deceased.

Dr. S.K. Chourasia (P.W. 8), is an Autopsy Surgeon and he has performed the post-mortem, the report which of is Ex. P- 18. According to post-mortem report, the deceased died on account of shock and asphyxia due to head injury. Duration of death was found to be between 24 to 48 hours from the date of post-mortem which was conducted on 26-2-1999. From the evidence of Autopsy Surgeon and his report, it is revealed that there was fracture on right parietal bone. The doctor further found that there were multiple lacerated wounds found over right side of head, fore-head, right external ear (upper half) crushed, right half of the head, neck and face was stained by dried blackish blood. Doctor found blackish secretions coming from mouth. Four abrasions were also found on upper half of medial, aspect of right thigh. Some soil was also found on lacerated wounds. Cross-examination of this witness is very important and throw sufficient light on the incident. In the cross-examination, this witness has said that if several bricks falls from up side the injuries sustained to the deceased may come. At this juncture, we have seen the photographs (Ex. P-8 to P-13) and it is found that in Exs. P-8, P-9 and P-12 a heap of bricks is there and legs of deceased are seen. After removing the bricks photographs (Ex. P-11) was taken, in which it is seen that deceased was lying turtle. His face and head were found to be seriously injured. Thus, it can very well be said that the deceased died on account of injuries sustained to him due to fall of several bricks.

L.P. Yadav (P.W. 9) is Investigating Officer. Gulzari (P.W. 10) is an important witness. Indeed on the basis of this witness only, conviction has been accorded by learned Trial Judge. This witness has said that in the night at 10-11 when he was coming from field he found that appellant and deceased were quarreling. They were grippling and were causing ''Marpeet'' to each other. Since he was alone, he did not go nearby them though he asked why they were quarreling, as a result of which, appellant asked to go from the place as he had no concern with the incident. In the morning when he had gone to drink tea in a stall, one Ramdeen Dhimar told him that one person is lying dead and when he went to the spot he found deceased was lying dead and he was beneath umpteen bricks. In cross-examination he has specifically said that ''Marpeet'' was not being taken place in his presence. This witness did not say to anybody in the village about the incident. This witness further says that a day earlier to the incident, appellant and deceased had gone together to discharge the work of labour. There was no enmity between them. In Para 5 of his cross-examination he has specifically said that he can not say how the deceased had died. On going through the evidence of this witness only this much inference can be gathered that the appellant and deceased were scuffling. There is no evidence that appellant inflicted any injury by bricks to the deceased. Virendra Singh (P.W. 11) is a formal witness as he has submitted the report of FSL in the Court.

We have discussed hereinabove the evidence of each and every witness in detail and after scanning them we are unable to found that it was the appellant who killed the deceased. No doubt Gulzari (P.W. 10) has seen appellant and deceased grippling with each other but merely by this piece of evidence the appellant can not be roped in an offence like Section 302, IPC. On going through the photographs (Exs. P-8 to P-13) and the evidence of Autopsy Surgeon, it is revealed that deceased died on account of injuries sustained to him by several bricks blows. It be seen that deceased was lying turtle and beneath the heap of bricks, it appears that a ''Kachcha Wall'' was there and it may be quite possible that on account of scuffling the deceased might have struck the ''Kachcha Wall'', as a result of which, all the bricks fell down over him and he passed away. We are drawing the inference in this manner because there is evidence of doctor and in the post-mortem report (Ex. P-18) soil was found on the person of the deceased. The posture of deceased and the manner in which the heap of bricks is found over him, it can not be said that it could have been thrown by a single person.

Thus, for the reasons assigned hereinabove, we are unable to uphold the conviction accorded by learned Trial Judge. According to us, prosecution utterly failed to prove its case beyond all possible doubt. There is no evidence against the appellant in order to hold that he committed the said offence.

Ex-consequenti, this appeal is allowed, the judgment of conviction and order of sentence passed by the Trial Court is hereby set aside. Though the appellant was allowed on bail by this Court vide order dated 9-10-2002, however, as he could not arrange the surety he is in jail. If that be the position, the appellant be released forthwith, if not required in any other case.