Meghraj vs The State of Maharashtra

A.B. Chaudhari, J.—Being aggrieved by the Judgment and Order dated 30th April, 2012 passed by learned Sessions Judge, Gondia, in Sessions Trial No. 95 of 2010, convicting and sentencing the Appellant-accused for the offences punishable under Sections:

[a] 302, Indian Penal Code [Life Imprisonment and fine of Rs. 10,000/-, in default, Rigorous Imprisonment for six months], and

[b] 201, Indian Penal Code [Rigorous Imprisonment for five years and fine of Rs. 5,000/-, in lieu thereof, Rigorous Imprisonment for three months],

the present appeal was filed by the appellant.

FACTS:

Briefly stated, the prosecution case is that Mona alias Madhu was the daughter of Rekhabai Parihar, resident of Koradi, Distt. Nagpur, whose marriage was performed with the appellant-accused three years before the incident. One year after the marriage, Mona conceived, but the appellant-accused was pestering her to terminate the pregnancy and Mona refused to do so. The appellant had threatened to kill her and a report to that effect was lodged with a Police Station at Nagpur. The appellant had given an undertaking to Police Station not to trouble her. After settlement of dispute accordingly, Mona and appellant-accused went to cohabit at Tedwa. In April, 2010, Mona delivered a female child and that time Rekhabai had gone to see her. Lateron, Mona and accused visited Nagpur. Accused informed Rekhabai that he would have a residence at Nagpur. In the meanwhile, Mona stayed at her mother''s place. Thereafter, Mona went back to the house of the accused at Tedwa. On 26th August, 2010, when deceased Mona had gone to Tedwa, Rekhabai received an information from the police that Mona was murdered at Tedwa and hence she went to Tedwa and thereafter to Govt. Hospital at Gondia where she took custody of the dead body of Mona.

The case of the prosecution is that on 28th August, 2010, Devlal Matre gave telephonic information to Police Outpost at Kati in the morning that a murder was committed at the house of the accused. Police party rushed to Tedwa and visited the house of the accused, which was locked and, therefore, they made search for the accused, traced him out and brought him to his house. When the house was unlocked, a dead body in a gunny bag was found inside the house, the gunny bag was stained with blood, blood-stained axe with hairs on its blade, and pieces of bangles lying in the room. Injuries were seen on head and neck of the deceased. A white colour Barmuda pant and a shirt, which had blood stains, were seen on the floor. The Investigating Officer recorded Panchanama and seized the articles. The accused was arrested and was sent for medical examination. DNA test was carried out after taking the blood sample of the accused and it was found in the DNA test that the girl child born to Mona was of the appellant. Trial was held. Learned Trial Court held the appellant guilty of the offence of murder and hence convicted and sentenced him. Hence this appeal.

In support of the appeal, learned counsel for the appellant Mr. Dahat vehemently argued that there is absolutely no evidence to show that the house in which deceased was found dead was under occupation of the appellant. The prosecution did not examine a single witness to show that at any point of time, or on the date of the incident, the appellant resided in the said house. On the contrary, the appellant was residing at Nagpur in search of work at the relevant time and house was in the custody of his family members. A witness has admitted the said fact that the house was not in possession and occupation of the appellant. According to him, it was for the prosecution to prove its case which it failed to do so. Admittedly, there is no eye-witness, nor any circumstantial evidence, except the fact that the appellant was the husband of the deceased and nothing more. The earlier incident of threatening to terminate pregnancy etc., cannot lead one to record a finding of conviction. The prosecution did not collect evidence of the neighbouring witnesses about the presence of the appellant-accused at the relevant time. Merely because the appellant opened the lock of the house and that he was found sitting at the place of one Ajay Ghodeswar that by itself would not be a proof to convict him of the offence of murder. The counsel then contended that the Trial Court convicted the appellant on the material which is not at all sufficient and on the basis of which the conviction could be made.

Learned Addl. Public Prosecutor supported the impugned Judgment and Order and submitted that though there is no ocular evidence, the circumstantial evidence that Mona was the wife of accused and she had gone to reside at Tedwa is enough to convict the appellant. The Trial Court has rightly found the appellant guilty of the offence of murder. She, therefore, prayed for dismissal of the appeal.

We have heard learned counsel for the rival parties. We have carefully perused the entire evidence on record that was tendered by the prosecution before Trial Court. Admittedly, there is no eye-witness in the present case. There is no direct evidence in the instant case against the appellant. The evidence of Rekhabai [PW 1], the mother of the deceased Mona, is only to show that the appellant-accused was troubling Mona to terminate the pregnancy and that on 26th August, 2010, Mona had gone back to Tedwa. The incident is of 28th August, 2010. The prosecution has not produced any evidence about the whereabouts of the appellant-accused on 27th and 28th August, 2010. Rekhabai [PW 1] even does not say that she had gone to Tedwa on 26th August, 2010 with the appellant. On the contrary, she has given admission in the cross-examination that the accused used to work at Nagpur and he was residing at Nagpur. The fact that Mona had again gone back to Tedwa for residence after eight days'' stay at her house has been brought by way of omission. Thus, the evidence of Rekhabai [PW 1] does not at all advance the case of the prosecution beyond what is stated above.

Devlal Matre [PW 2] is the husband of the Sarpanch of the Village Panchayat, Tedva. He informed Kati Police Station on telephone that there was a murder at the house of the accused, though he did not visit the house, nor saw any dead body. He did not support the prosecution any further and was cross-examined by APP. Thus, this witness of the prosecution is of no help.

Chitralekha Madan Meshram [PW 3] is the aunt of the appellant-accused. She stated that the house of the accused is at a distance of fifty feet from her house. She stated that Mona had been to Tedwa for delivery. She further stated that she did not know what happened to Mona. She was also cross-examined by the APP for the prosecution, and in her cross-examination, she gave admission that in the first room, father of the accused resides, in the second room, Hirvantabai, and in the third and fourth rooms, she herself resides. The accused resides at Nagpur. Thus, she damaged the case of the prosecution.

Shyamkumar Dadarao Deshpande [PW 4], Police Constable, was on duty at Kati Police Chowky. He visited the house of Meghraj Meshram, which was locked. Hence they went to the house of Ajay Ghodeswar when they found the appellant - accused - Meghram Meshram sitting at the house of Ajay Ghodeswar. He was taken in custody. Then they came to the house of Meghraj Meshram, who unlocked the house. They found one dead body in a gunny bag in the house of Meghraj Meshram. When the gunny bag was opened, they found the dead body of a woman.

All other witnesses, who were examined by the prosecution from the village, have not at all supported the prosecution. A statement of Ajay Sivcharan Ghodeswar under Section 164, Criminal Procedure Code, was recorded, who completely denied the said statement. Surprisingly enough, the prosecution did not bring the concerned Magistrate who recorded his statement under Section 164, Criminal Procedure Code. Thus, even the evidence of Ajay Ghodeswar, which could be brought before the Court that was recorded under Section 164, Criminal Procedure Code, was lost. The investigating machinery did not bring any evidence on record by examining any neighbour to show that the appellant-accused was in his house on the date of incident or prior to the date of incident. As a matter of fact, those who were examined, did not support the prosecution. The evidence of the police constable - Shyamkumar Dadarao Deshpande [PW 4], who is examined and who got the house unlocked, is the only evidence, which shows that the appellant-accused was at the house of Ajay Ghodeswar and he had opened the lock of the house. We do not think, the Court can act on such evidence to hold the appellant guilty of the offence of murder.

We have seen the judgment of the Trial Court. Trial Court has relied upon the Chemical Analyzer''s report etc. But then all the blood-stained articles were found in the house itself and there is no evidence from anybody to show that the clothes, namely Bermuda pant and the T-shirt, belonged to the accused. The prosecution, thus, did not prove its case even by circumstantial evidence and it appears that the appellant was convicted merely by his presence in the house of Ajay Ghodeswar when the police party had come to the village. The benefit of doubt was required to be given to the accused for want of convincing proof to show that appellant was the murderer. Upon re-appreciation of the entire evidence, we do not find any circumstantial or other evidence on record to hold him guilty of the offence of murder. We are inclined to give benefit of doubt to the appellant. Hence we make the following order:--

[i] Criminal Appeal No. 196 of 2012 is allowed.

[ii] The Judgment and Order of conviction and sentence dated 30th April, 2012 passed by Sessions Judge, Gondia, in Sessions Trial No. 95 of 2010 for the offences punishable under Sections 302 and 201 of Indian Penal Code, is set aside.

[iii] The appellant is acquitted of the charge of murder under Section 302, Indian Penal Code.

[iv] He be set at liberty unless required in any other offence.