Govind Prasad vs State Of Madhya Pradesh

This criminal appeal has been filed against the judgment dated 17.10.2007 passed by the Additional Judge to the court of First Additional Sessions

Judge, katni in Session Trial No.214/2006 whereby the appellant- accused has been convicted under Section 302 of IPC for committing murder of his

father-in-law Nandlal and mother-in-law Chanda Bai and sentenced to imprisonment for life along with fine of Rs.1000/- in default of payment of fine,

further RI for one month.Â

In this case it is not controversial that Saroj Bai (PW-10) is the wife of the appellant and deceased Nandlal and Chanda Bai were father-inlaw and

mother-in-law of the appellant. Vivek (PW-11) is the son of the deceased persons and Biharilal (PW-7) is the brother of deceased Nandlal.

The facts of the case as emerged from the findings of the learned trial Court are that originally the appellant was belonging to village Amoda but at

the time of incident, he was residing with his wife Saroj Bai (PW-10) in village Kondiya, Police Station Slimnabad, District Katni where his in-laws

were also residing. The appellant ofenly beaten his wife Saroj Bai (PW-10) and the deceased persons made quarrel with the appellant and prevented

him from making quarrel and beating Saroj Bai. On 28.10.2006 the appellant was sharpening the edge of the axe in the house where his wife Saroj Bai

(PW-10) asked him about sharpening the edge of the axe. Appellant replied that he was going to kill her father and mother. Thereafter, appellant left

the house with axe and went to the agriculture field where Nandlal and his wife Chanda Bai were working. Chanda Bai was at some distance from

Nandlal. First of all appellant assaulted Nandlal with the axe and caused several injuries on his neck, back, head and leg. Nandlal died on the spot then

appellant moved towards Chanda Bai and he also assaulted with the axe and caused several injuries on her head, leg and thigh and on account of the

injuries, she became unconscious and ultimately, on the same day, she also died.

Biharilal (PW-7) after working in his field, he passed by the place of incident and saw the appellant committing aforesaid deeds. Son of the

deceased persons, Vivek (PW-11) was also present in the field where his father deceased Nandlal was working, he also saw the appellant assaulting

his father and mother with the axe and caused deadly injuries. Biharilal (PW-7) lodged the report of the incident which was registered Dehati Nalisi

Ex.P/15 in Police Station Slimnabad, District Katni and on the basis of Dehati Nalisi, FIR Ex.P/1 was registered at Crime No. 345/06 for the offence

under Sections 307, 302 of the IPC against the appellant. During investigation, Dr. S. K. Pathak (PW-9) conducted autopsy on the dead body of the

deceased persons. He opined that nature of the death of the deceased persons was homicidal. On 29.10.2006 the appellant â€" accused was arrested

and on his information, an axe and blood stained cloths were seized which were sent to the FSL and after completion of the investigation, charge sheet

was filed before the JMFC, Katni and after committal of the case to the Court of Session. The case was tried by First Additional Sessions Judge,

Katni. During trial, charge under Section 302 of the IPC was framed against the appellant â€" accused for commission of murder of Nandlal and

Chanda Bai. However, appellant- accused abjured his guilt and claimed to be tried. The defence of the appellant was that he is innocent. Character of

his wife Saroj Bai (PW10) was doubtful and her paramour caused the incident and he has been falsely implicated. In defence, witnesses have been

examined to prove the fact that on the day of incident, he was not present on the spot.Â

Learned trial Court after trial of the case and on the basis of the evidence and material came on record, has convicted the appellant for the

aforesaid charge and sentenced as mentioned earlier. The finding of the learned trial Court is mainly based on the testimony of Saroj Bai (PW10),

Biharilal (PW-7) and Vivek (PW-11) considering corroboration with the medical evidence, Dehati Nalisi Ex.P/15 and recovery of axe on the instance

of the appellant.

The aforesaid finding of the trial court has been assailed on behalf of the appellant / accused on the grounds that the aforesaid witnesses are

tutored, interested and relative of the deceased and no independent witness has been produced. Their testimony is contradictory to the previous

statement given to the police and also contradictory to each other. The conduct of the witnesses, Biharilal (PW-7) and Vivek (PW11) are unnatural.

Name of Vivek (PW-11) is not mentioned in the Dehati Nalisi Ex.P/15. He is later on implanted as eye witness of the incident. FSL report has not

been produced. Therefore, it should be presumed that on the axe no blood stains were found. Hence, recovery of the axe is insignificant and also

cannot be considered as corroborative evidence. Â In the circumstances it cannot be said that the prosecution has succeeded to establish the charge

beyond reasonable doubt. Hence, the prayer is made to allow the appeal and acquit the appellant from the aforesaid charges.

Learned Govt. Advocate appearing for the respondent / State has opposed the aforesaid contentions and contended that although Saroj Bai (PW-

10), Biharilal (PW-7) and Vivek (PW-11) are relatives of the deceased persons but merely on this ground, their testimony cannot be doubted. The

appellant is near relative of them and the deceased persons were also their near relatives. They were the last persons implicated the appellant falsely

leaving the actual culprits. In this case there are no material contradictions and omissions in the testimony of the aforesaid witnesses and their

testimony is supported with the medical evidence and the FIR, non-production of the FSL report is insignificant when the case is based on the

testimony of the eye witnesses. Hence, the appeal be dismissed.

Having considered the contentions of learned counsel for the parties and on perusal of the record, in the case it is not controversial that deceased

Nandlal and Chanda Bai were died on 28.10.2006 on account of the injuries sustained to them and the nature of death was homicidal. Autopsy

Surgeon Dr. S. K. Pathak (PW-9) has categorically stated that on the body of deceased Nandlal, he found four incised wounds on head, back, right

knew in which bone was also cut and the injury was ante mortem caused by sharp and hard object and injury was sufficient to cause death in ordinary

course of nature and he prepared PM report Ex.P/17. He further stated that on the body of deceased Chanda Bai, he found seven incised wounds

namely on head, neck, arm, right breast, right side of the waist, right side of back and one abrasion on breast. All the injuries were ante mortem

caused by sharp and hard object and death was caused due to aforesaid injuries and excessive bleeding and he prepared report Ex.P/18. He further

stated that the aforesaid all injuries may be caused by axe. Â

Aforesaid testimony of the Autopsy Surgeon Dr. S.K. Pathak (PW-9) has remained unimpeachable. There is no hesitation to hold that nature of

death of the deceased persons Nandlal and Chanda Bai was homicidal. Â

Now the crucial question is that whether the appellant is the person who caused death of the aforesaid deceased persons. Wife of deceased, Saroj

Bai (PW-10) has stated that on the day of the incident, in the morning time, the appellant was sharpening the edge of the axe, she asked him that

where he was going with the axe then the appellant replied that he was going to cut her parents then she was about to inform her parents. The

appellant had beaten her and she was beaten to the extent that she became unconscious and the appellant ran away. After some time when she heard

hue and cry and noise of weeping, she was told that the appellant has murdered her parents.

Vivek (PW-11), a 12 years child witness has stated that at the time of incident he was with his father Nandlal, at about 10 O’clock the

appellant came in the field with the axe and assaulted his father several time with the axe and caused injuries on his head, leg and back of his father

who fell down. Thereafter, the appellant rushed towards his mother who was working in another field at some distance. Before it, he made cry then

his uncle came to the spot and he also saw the incident then they also went towards Chanda Bai where he found the appellant assaulting her with the

axe and Chanda Bai became unconscious. She was taken to the house on a cot where the police came.

Biharilal (PW-7) has also stated that he was coming back from his field. He heard cry of Vivek then he reached to the field of Nandlal where he

saw that the appellant was assaulting Nandlal with axe. Nandlal sustained injuries on his head, neck and right leg and he died on the spot. On account

of fear, he did not interfere in the matter. Thereafter, the appellant ran away. When he and Vivek were going towards Chanda Bai who was working

at some distance in the field they saw the appellant assaulting Chanda Bai with the axe. Chanda Bai sustained injuries on neck, head, thigh and

thereafter the appellant fled away from the spot. On making hue and cry, some people gathered on the spot and Chanda Bai was alive and taken to

the house on cot where she died. He lodged Dehati Nalisi Ex.P/15 to the police Slimnabad.

Anil Shukla (PW-13) Investigating officer, has stated that on 28.10.2006 he wrote Dehati Nalisi Ex.P/15 on the instance of Biharilal (PW7).

During the investigation on 29.10.2006 the appellant / accused was arrested and arrest memo Ex.P/22 was prepared. On interrogation the appellant /

accused disclosed the fact with regard to the place where the axe was lying. Memorandum Ex.P/4 was prepared. On the instance of the appellant,

one blood stained axe was recovered and seized as per seizure memo Ex.P/5. Seizure witness Pawan Sharma (PW-3) and Biharilal S/o. Narayan

Prasad (PW-4) have also stated and corroborated the aforesaid statement of the Investigating officer.

Learned trial court relying on the aforesaid evidence came to the conclusion that the appellant / accused have committed homicidal death of the

deceased persons intentionally.

In this appeal the aforesaid evidence has been assailed on the ground that Vivek (PW-11) is not an eye witness. He has been falsely implanted

later on. Biharilal (PW-7) in the Dehati Nalisi Ex.P/15 and Police Statement Ex.D/1 has not disclosed the name of Vivek (PW-11) as an eye witness

stating that he was present at the time of incident. However, in the statement given in the court he has stated that at the time of incident Vivek (PW-

11) was present in the field where his father Nandlal was working. In the statement given in the trial he has stated that he reached on the spot after

hearing cry of Vivek (PW-11) and then he had also gone with Vivek to another field where Chanda Bai was assaulted by the appellant / accused. But

about all these things nothing has been disclosed at the time of recording of Dehati Nalisi Ex.P/15 and police statement Ex.D/1. In these

circumstances, presence of Vivek (PW-11) at the time of incident on the spot is highly doubtful.

So far as the testimony of Biharilal (PW-7) is concerned, it is also suspicious that if he reached on the spot on hearing cry of Vivek (PW11) and

presence of Vivek is found doubtful then reaching on the field of this witness is also doubtful. His conduct is also not natural. He is brother of the

deceased Nandlal even he did not take any step to save his brother and wife of the brother as well. He did not make any hue and cry to gather the

persons working nearby the place of incident. Even he did not make any effort to take Nandlal for treatment. On his body or cloths no blood stains

have been found. If a person on account of fear did not take any step to save his brother then his statement that thereafter he followed the appellant /

accused to reach another field where the appellant allegedly assaulted Chanda Bai. This conduct of this witness further creates doubt on the credibility

of him. Before the trial court, he has falsely implanted Vivek (PW-11) as an eye witness of the incident. He has also falsely stated that the appellant /

accused was not working as mistri (Manuval) while this fact has been admitted by the wife of appellant, Saroj Bai (PW-10). The witness has

deliberately denied the aforesaid facts as it has been alleged against him that he and the appellant were mistri against each other and there was

business rivalry between them. The circumstance shows that Biharilal (PW-7) is not fully reliable witness. His statement cannot be relied merely on

the ground that some part of the statement of this witness is consistent with the Dehati Nalisi Ex.P/15 and indicates to cause injuries which were

found by the medical expert on the presence of the deceased persons. Recovery of the blood stained clothes and the axe on the instance of the

appellant / accused is insignificant as there is lack of FSL report establishing the presence of blood stains. Similarly, the statement of Saroj Bai (PW-

10) is also not credible. She has stated that on the day of incident she was beaten by the appellant to the extent that she became unconscious but there

is no medical evidence with regard to sustaining any injury on her person. Even she has not stated in the chief any motive about causing the incident.

In the cross examination also she has simply admitted that occasionally the quarrel were taken place between the appellant and her. She has not

whispered any word that on account of the quarrel between the appellant and her, the deceased persons had made any complaint to the appellant or

made any interference or given any threat so that the appellant could cause death of her parents. In these circumstances, the statement of Saroj Bai

(PW-10) does not corroborate the testimony of Biharilal (PW-7). As per Dehati Nalisi Ex.P/15, Biharilal (PW-7) has disclosed that on making hue and

cry by him, one Ravi Choudhary and some people resident of the same village reached on the spot and thereafter Chanda Bai was brought to home on

a cot. But none of such witness has been produced by the prosecution and there is no explanation of it, this circumstance shows that material

independent witnesses were not produced deliberately. In the circumstances, it will be presumed that if they were produced then they would not have

supported the prosecution version. Â

In this case in the incident two persons have been murdered but simply on this reason alone, the appellant cannot be held guilty for committing

murder of two persons. In such type of cases where the punishment is imprisonment for life or death, evidence to prove the guilt must be crediable

beyond the reasonable doubt. If the testimony is suspicious and doubtful having no independent corroboration then a person cannot be convicted

merely on the basis of surmises and conjecture. The finding of the learned trial Court regarding conviction of the appellant on the basis of statement of

Biharilal (PW-7) cannot be maintained. Â Â

In this case, on behalf of the appellant in defence Sudama Prasad (DW-1), Raju (DW-2) and Vaishali (DW-3) have been examined with regard to

plea of alibi. But such plea has not been taken in the statement recorded under Section 313 of Cr.P.C. Apart from it, statements of the aforesaid

witnesses do not establish that the appellant’s presence on the date and time of the incident was not possible at the place of incident. Hence, the

aforesaid evidence is immaterial. However, as discussed earlier, the prosecution case has not been found to be proved beyond reasonable doubt.

Therefore, the aforesaid infirmity in the defence evidence does not affect the aforesaid finding of this Court.

In view of the aforesaid discussions, considered finding of this court is that the prosecution has completely failed to prove its case beyond all

reasonable doubts that the appellant had murdered the deceased Nandlal and Chanda Bai. Hence, the appeal is allowed. The impugned judgment of

conviction and order of sentence awarded by the trial court against the appellant for the offence under Section 302 of the IPC is hereby set-aside. He

is acquitted of the aforesaid offence. He is in jail. He is directed to be released forth with, if not required to be detained in any other case.

A copy of this order be sent to the trial court and the jail authorities concerned for information and necessary compliance. Â