Gudda vs State Of Madhya Pradesh

This appeal under Section 374(2) of the Code of Criminal Procedure (hereinafter shall be referred to as “Cr.P.Câ€) has been filed arising out of

the judgment of conviction and sentence dated 5.11.1999 passed by VII Additional Sessions Judge, Jabalpur in Sessions Trial No.656/97 acquitting the

accused Basanta, son of Nirpat Kachhi while appellant Gudda has been convicted for the offence under Section 302 of the IPC and directed to

undergo imprisonment for life and also for offence under section 201 directing three years R.I. with fine of Rs.1000, in default six months R.I.

The case of the prosecution, in brief, is that Dimmo Bai (deceased) is the wife of appellant Gudda. Their marriage was solemnized 12-14 years

back. From the wedlock, appellant and Dimmo Bai were having three children. Juggo Bai (PW1) and Shyamlal (PW3) are the mother and father of

the deceased Dimmo Bai. As alleged, the appellant joined the marriage of younger sister of Dimmo Bai namely Gango Bai. At that time appellant

Gudda was demanding Rs.20,000/- from the mother and father of the deceased for starting some business. Thereafter, they came back to village

Tekaria. On 23.7.1997, the appellant and Dimmo Bai leaving behind their children at home, left the house. When for 2-3 days they did not return,

Basanta, father of the appellant informed the Police Chowki Bargi Nagar on 31.7.1997 regarding their missing. The Rojnamcha Sanha Ex.P/31 was

lodged by Moolchand Tiwari, (PW22). Thereafter, co-accused Basanta visited village Malara and informed the complainant about their missing. After

1-2 days, the complainant Shyamlal came to the house of the accused persons at village Sarai. The complainant asked Gudda about Dimmo Bai at that

time also he demanded Rs.20,000/-. Thereafter, everyone started searching Dimmo Bai in the ponds, wells and forest. While searching, some pieces

of broken glass bangles were found. One silver bangle of Santan Sate was also found. Pieces of bones, lower jaw, petticoat and saree was also found

lying there which has been identified by the complainant Shyamlal and the report to that effect was lodged in Police Station Barela which was

registered as Rojnamcha Sanha No.337/11.8.97 (Ex.P/21). Thereafter, the police registered the Marg and other formalities of preparation of

Panchayatnama Lash and recovery of the pieces of bones, clothes, pieces of bangles were made as per Ex.P/21. The bones were sent for medical

examination. Dr. D.K. Sakalle (PW10) gave his report Ex.P/8 indicating that these bones are of a female and she was eaten up by wild animals. As

per the report of Dr. D.K. Satpathy Ex.P/15, the bones are of the human female who may be upto the age 25 years and the duration of death cannot

be decided. After registration of the offence at Crime No.157/97, F.I.R. got registered and statement of witnesses were recorded under Section 164

of Cr.P.C. before P.C. Gupta, Judicial Magistrate First Class, Jabalpur. Some of the witnesses have said that they saw the dead body floating in the

culvert. Some of them has stated that accused said that he has killed Dimmo Bai. Accordingly, the offence was registered under Sections 302 and 201

of the IPC against the accused/appellant Gudda as well as co-accused Basanta under Section 201 of the IPC and the challan has been filed in the

Court of Competent Magistrate.

On found the offence is triable by the Court of Sessions, the committal Court committed the case to the Sessions Court which was assigned to the

VII Additional Sessions Judge for trial.

Learned trial Court found it to be a case of circumstantial evidence and collected the circumstances to the effect that the deceased and the

appellant were missing since 24.7.1997 to which Rojnamcha Sanha entry was recorded at 593/31.7.97. No explanation regarding whereabouts of his

wife has been putforth from the accused/appellant that after attending the marriage of the sister-in-law Gango Bai and on coming back to village

Tekaria. The witnesses Gopal, Santosh Kumar, Sukhlal, Gokul Prasad, Prakash and Hukum Prasad Dubey saw the dead body floating in the culvert

and the clothes, pieces of glass bangles, one silver bangle of santan sate, pieces of bones and lower jaw were found. The accused has not made any

attempt to search his wife. Before the Judicial Magistrate First Class, Jabalpur the statements were given under Section 164 of the Cr.P.C. that the

appellant killed his wife. Taking note of all these circumstances, the trial Court acquitted the accused Basanta looking to the fact that he has got

registered the Rojnamcha Sanha entry regarding missing of the deceased and that no plausible explanation about the conduct of the appellant is

available in a case of circumstantial evidence, directed to undergo the sentence as described hereinabove.

Learned counsel for the appellant and amicus curiae representing the appellant contends that in a case of circumstantial evidence, having doubt on

the conduct of the accused, is not sufficient to convict him until the prosecution has proved the case bringing cogent evidence of motive, last seen,

recovery on the instance of accused corroborated by medical or scientific evidence. In absence to it, the conviction of the appellant is wholly

unwarranted, therefore, he may be acquitted in the facts of the case.

On the other hand, learned Government Advocate representing the State contends that the trial Court has duly appreciated the conduct of the

appellant which is found suspicious, however, looking to the other material available on record, he has rightly been convicted and directed to undergo

the sentence as described in the impugned judgment to which interference by this Court in this appeal is not warranted.

After having heard learned counsel appearing on behalf of both the parties, it is seen from the record that for motive, the evidence which is brought

by prosecution is of demand of Rs.20,000/- but if we see the evidence of PW1 Juggo Bai and PW3 Shyamlal then it is apparent that the marriage was

solemnized 12-14 years back and some demand was uttered but this falsify to the fact that such demand was reiterated when Shyamlal came at the

house of the accused to search his daughter. In case, the wife of the appellant was missing and her father came at his home to search her daughter

having suspicion on him, he would not make any demand, therefore, this statement primarily indicate the unnatural prosecution story which is not at all

plausible, therefore, the evidence of motive is conspicuously missing. Now, coming on the point of last seen, in the present case, there is no last ween

evidence except to allege that the accused as well as the deceased has left their house on 24.7.1997. No evidence has been brought that when they

left the house on 24.7.1997 no person saw them simultaneously visiting at same place. No cogent evidence has been brought on record that appellant

came alone and went back alone to his home. On the contrary, as per the prosecution case itself, both of them attended the marriage of Gango Bai

then they came back to village Tekaria but not at their home. In such circumstances, prior to commission of offence, both were simultaneously last

seen, is not available on record. In this context, it is relevant to note that place of incident is not the house of the appellant but it is some different

place. The dead body was not found, only bones and clothes were seized. As per the opinion of the Dr. D.K. Sakalle (PW10) Ex.P/8, the cause of

death may be due to bite of wild animals. It is not a case of the prosecution that the accused found running from the place of occurrence after killing

his wife. In absence of such evidence, it can safely be concluded that no last seen evidence is available on record.

It is to be noted here that recoveries as made is not at the instance of accused. However, those recoveries also cannot be connected with the

accused. The other evidence which is brought as per the statement under Section 164 of Cr.P.C. of some of the witnesses before the Judicial

Magistrate First Class before whom it is said that some of the witnesses saw the dead body floating in culvert and one of them has stated that the

appellant said him of commission of murder of his wife. It is trite law that the statements recorded under Section 164 of Cr.P.C. is not a substantive

piece of evidence. It can be used for the purpose of corroboration, omission and contradiction, if any independent evidence has been brought on

record. In such circumstances, the finding recorded by the trial Court relying upon such testimony implicating the accused is unsustainable in law and

such finding stands set aside. If we see the report Ex.P/15 of Dr. D.K. Satpathy, it is clearly opined by him that when the deceased died, it cannot be

decided and age of the female was below 25 years. Therefore, considering the said scientific evidence, it is not proved beyond reasonable doubt that

the accused was having any connection in commission of crime. In absence thereto, only suspicion on the conduct of the appellant is not sufficient

even in a case of circumstantial evidence to convict the appellant. In this regard, Division Bench decision of this Court in the case of Shobhau alias

Shubhau Vs. State of M.P. decided on 30.4.1997 is relevant wherein the court observed as under :-

“In the present case, the prosecution has led evidence to prove three circumstances which we will take up one by one. The first circumstance is of

the recovery of dead body, which is not at the instance of the accused. On post mortem examination performed by Ashok Khare (P.W.18) the cause

of death could not be known as the body was highly decomposed. He was not in a position to opine whether death was homicidal or natural, as he did

not find any external or internal injuries. When the cause of death could not be known on post-mortem, the prosecution ought to have referred the

dead body to Anatomy Expert, which was not done; that being a serious lacuna in the prosecution case in the absence of ligature mark on the body, it

is difficult to hold that the death was homicidal.

To prove an offence of murder the death should be homicidal of which onus in a criminal trial is upon the prosecution. In the absence of legal proof of

the death being homicidal, because of the serious lacuna of not obtaining the report of Anatomy Expert to prove homicidal death, the benefit will go to

the accused and not to the prosecution, as this seals the fate of the prosecution and on this ground the accused cannot be held to legal criminality of

the offence under Section 302 of the Indian Penal Code. SeeT he State Government of M.P. v. Ramkrishna Ganpat Rao 1954 Cri.L.J. 244 : AIR

1954 SC 20, The State of Punjab v. Bhajan Singh 1975 Cri.L.J. 282 : AIR 1975 SC 25 8a Division Bench decision of this Court in Megha v. State in

Criminal Appeal No.231/80(1), decided on 12-10-1982, 1983 MPWN 250 and Division Bench decision on Orissa and Rajasthan High Courts,

Bhagoban Kirsani v. The State 1985 Cri.L.J. 868, Bhanwar Singh v. The State 1988 Cri.L.J. 1054.â€​

In view of the foregoing consideration, in the facts of the case as discussed hereinabove, in our considered opinion, conviction of the appellant for

charge under Section 302 has not been proved beyond reasonable doubt, therefore, the finding regarding conviction stands set aside. Once the offence

of 302 itself has not been proved proving of charge under Section 201 does not arise.

Accordingly, the impugned judgment of conviction and sentence passed by the trial Court stands set aside and this appeal is hereby allowed. The

appellant is on bail, however, his bail shall stand discharged.

At the end, it is our duty to record the word of appreciation in favour of the amicus curiae who assisted the Court in the disposal of the held-up

case which was pending since last about 22 years, however, his assistance is hereby acknowledged.

Office is directed to send a copy of this judgment to the trial Court for the needful.