Rajesh @ Raja vs State Of Madhya Pradesh

Vivek Rusia, J

The present appeal has been filed under Section 374 of Cr.P.C., against the judgment dt.4.8.2007, passed by the Addl. Sessions Judge, Narsinghgarh, District Rajgarh (Biaora), in Sessions Trial No.62/2006, by which the appellant has been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.1000/-and also convicted under Section 392 read with Section 397 of IPC and sentenced to undergo 10 years RI with fine of Rs.1000/-. In default of payment of fine 1 year additional S.I. on each count. Both the sentence have been directed to run concurrently.

As per prosecution story, on 14.5.2006 at about 8.00 PM, Jagdish son of Devchandra, resident of Gram Biral Khedi gave information in the police station Ekrela that Laxmibai (the deceased) wife of Sita Ram Harijan, went for grazing her goats and she is found dead in forest of Kundiwale. There is an incised wound on her neck and her legs cut from ankle are also lying there. He received this information by Bhuria Harijan. The aforesaid information disclosing commission of crime was registered under Section 302, IPC under crime no.122/06, against unknown person. Dehati murg was also registered and the police reached to the scene of crime and found the dead body of the deceased (Laxmibai) lying and her son was also there sleeping over her upper body . Some articles like steel glass, sleepers, shoes of a child were also lying there. The dead body panchnama was prepared. The FSL and finger prints experts were summoned.

After investigation, it was found that the deceased Laxmibai went to the forest with her child for grazing her goats. Near about 5.00 PM, Pawan (PW6) and Savitri @ Bhuribai (PW8), (both are minors) saw her sitting with the present appellant, thereafter, they returned to the village. In the evening near about 6.00 to 7.00 PM, Pawan heard noise that goats of the deceased have been returned to the village, but she did not come back then, local villagers namely Radheysham, Inder Singh, Ghudilal went to the Kundiwala forest to search her and they found the dead body of the deceased with amputated legs. There was no silver anklet, which she used to wear on her legs. She was last seen alive with accused near about 5.00 PM thereafter, no one saw her alive. On the basis of suspicion, the accused was interrogated. He admitted that he slayed the deceased Laxmibai, for silver anklet, which he has kept below the stone in the forest. He has also disclosed that one axe has also been concealed in shrubbery. Both the articles were recovered in the presence of witnesses. The blood stains were found over the axe. The clothes, which the accused was wearing at the time of committing the crime were recovered from his house in which very faint blood stains were there. All the articles were sent to the FSL Laboratory Rau.

After completing the usual investigation, challan was filed and the trial was committed to the Sessions Court where the appellant abjured his guilt and pleaded for trial. The charges under Section 302 of IPC and 392 read with Section 397 of IPC were framed against him.

In order to prove the charges beyond reasonable doubt against the appellant, the prosecution examined as many as, 29 witnesses. The prosecution tried to establish the charges on the basis of circumstantial evidence and in order to prove the charges, following circumstances were projected before the court :-

(i) The deceased used to go forest for grazing her goats.

(ii) The deceased used to wear the silver anklet in her legs.

(iii) On the date of incident, she did not return to village but her goats were returned.

(iv) The local villagers went to the Kundiwala forest and found the dead body of the deceased with two years of son.

(v)On the date of incident near about 5 to 6 PM, PW6 Pawan and Savitribai saw the appellant with the deceased near by the scene of crime.

(vi) The accused gave the information under section 27 of the Evidence Act.

(vii)On information given by the accused the silver anklet, axe, trouser, and shirt were recovered.

(viii)Blood stains were found over the axe and its handle.

(ix) Blood stains were found over the pair of silver anklet.

(x)The husband of the deceased Sitaram identified the pair of silver anklet.

After appreciating the evidence, the learned Sessions court has held that the prosecution has successfully proved all the aforesaid circumstances that offence was committed by the accused appellant beyond all the reasonable doubt and accordingly, vide judgment dt.4.8.2007 has convicted him under Sections 302 of IPC and 392 read with Section 397 of IPC and sentenced him as mention above. Hence, the present appeal before this court.

Ms. Rekha Shrivastava, learned counsel for the appellant emphatically contended that the learned session court has erred in convicting the appellant even though prosecution case was full of material irregularities and inconsistent depositions of the witness . She pointed out that initially police arrested Pawan (PW6) and kept him whole night in the police station. He was directed to bring the axe, pharsa and stick etc. He was not permitted to go to village till completion of the investigation. These facts have been admitted by Pawan (PW8) himself in the cross examination and Ramnarayan (PW16). She has also drawn attention of this court towards the statements of Bharat Singh (PW9), who stated that the clothes and other seized articles were kept in the bag and the same were not shown to him. She further submitted that as per the statement of Dr. Prem Narayan Shakya (PW25), two weapons were used to kill the deceased but the police have only recovered the axe. In the forensic report, no blood stains were found over the trouser, shirt of the appellant or on the soil etc. The blood stains over the axe were also very faint. The appellant has been made accused only on the basis of statements of Pawan (PW6) and Savitri @ Bhuri Bai (PW8) who are minor and it is not possible for them to see the appellant sitting with Laxmi bai from the distance of half km. There was no enmity between the appellant and the deceased and no motive has been established by the prosecution. He was not enlarged on bail by the trial court as well as this court , therefore, he has already undergone 12 years of jail sentence. It appears that in order to save the (PW6) Pawan, the present appellant has been made accused and Pawan has been made ocular witness, therefore, he is entitled for acquittal.

The Learned government advocate appearing for the state submitted that the prosecution has established all the circumstantial evidence in this case. On disclosure of the appellant, the police have recovered the aforesaid articles in presence of the witnesses. The appellant has committed the murder of Laxmibai, for the silver anklet, which was duly identified by her husband. Hence, the learned Sessions judge has not committed any error while convicting the appellant under Section 302 of IPC and 392 read with Section 397 of IPC.

On the careful consideration of the submission of the rival parties and after going through the records the issue that falls for consideration is '' whether the prosecution has proved the charges against the appellant on the basis of circumstantial evidence".

As per the post-mortem report and the statement of (PW25) Dr. Premnarayan Shakya, the deceased died due to the excessive bleeding and the injury on her neck. The appellant has not challenged the cause of death of Laxmibai in this appeal; therefore, there is no necessity to re-appreciate the evidence again in this appeal. Hence, the finding recorded by the learned Sessions Judge in respect of the cause of death of the deceased is hereby affirmed.

The learned Addl. Sessions Judge has discussed all the circumstances mentioned as above behind the commission of crime. So far the circumstances 1, 2, 3, 4 and 10 are concerned, the same have successfully been successfully proved by the prosecution by way of evidence and the counsel for the appellant has failed to point out any obstinacy in the same.

Only circumstance No.5 is required to be examined as to whether the appellant was last seen with the deceased near about 5.00 to 6.00 PM in the forest area by PW6 Pawan and Savitribai @ Bhuribai PW8. Since PW6 was aged about 15 years, therefore, the learned trial court asked certain questions and thereafter, found him capable of giving evidence in the court hence he was permitted to depose in the court. According to him, he went to the forest for grazing his goats and Savitribai @ Bhuribai was also there along with him. Near about 5.00 PM, he unconcernedly noticed the accused sitting with the deceased (Laxmibai) near the scene of crime. Thereafter, he came to his house along with the goats and slept in the house. The police came in the village then, he came to know that Laxmibai was killed, but he is not aware even today as to how she was killed and who went to the forest to take her. He has been declined hostile by prosecution. In cross examination, he admitted that he saw the accused and Laxmibai from the distance of half km. and tried to explain in the court that the distance is same as the distance between court and Narsingarh bus stand and he took 45 minutes to reach to the court from the bus stand. In cross examination he admitted that he went to the forest near about 7.00 PM to collect the sour mango and remained there ½ hour and came back near about 8.00 PM in the house, but he was not aware about the murder of Laxmibai till 9.00 PM. Thereafter he went to sleep and awakened by the police. The police took him to the police station and he remained there up to 11.00 PM and in the night he was asked by the station officer to bring an axe from the village. He was directed to remain out of the village till completion of the investigation. He further admitted that he did not disclose about the murder of the deceased to any villager. In his statement recorded by the police section 161 of CrP.C. he disclosed that he came to the village from the forest and had a bread and came to know about the search of the deceased about 7 to 7.30 PM and 4 to 5 persons went to the village and found that Laxmibai was lying there with amputated legs. There is omission and contradiction in his statement. In cross - examination, he admitted that he went to the village to collect the sour mango and remained there for ½ hour. He has also admitted that he was sleeping in the house and after awakening by the police, took him to the police station and directed him to bring axe and not to leave the village till the investigation is completed. In view of the above statement of Pawan is not inspiring the confidence of this court. It appears that in order to save himself from suspicion of police he has named the appellant.

Savitri @ Bhrubai (PW8) was aged bout 13 years at the time of incident. She has also turned hostile. The learned trial court did not ask her the question to verify whether she can give evidence in the court. According to her she also saw the appellant sitting with Laxmibai near the scene of crime from the distance of ½ km. In cross - examination, she stated that she came back to the house near about 5.00 PM and she did not disclose about the accused sitting with the deceased in the forest. She remained under the fever for 2 to 3 days and did not go to the forest. The police recorded her statement on 15.5.2006 and she came to know about the murder of Laxmibai in the morning. She saw Pawan (PW6) as well as the appellant in the village, therefore, on the scene of crime, appellant, Pawan (PW6) and Savitribai @ Bhuribai (PW8), all three were there along with the deceased. According to Pawan (PW6) after coming back to the village, he again went to the forest and remained there, for 7 to 8 hours. After returning from the village second time he slept and during this period he did not inform about the deceased seen with the appellant in the village. The police took him to the police station and directed him to bring the axe he was not permitted to leave the village till the investigation is completed, therefore, there was a suspicion over the Pawan (PW6) also, but he has been made witness to prove the theory of last seen against the appellant.

Therefore, the statement of Pawan (PW6) is not inspiring confidence and cannot be relied upon. So far Savitribai @ Bhuribai (PW8) is concerned she was 13 years of age and before recording her statement in the court , the court did not verify whether she can depose in the court being minor witness, therefore, her statement is also not reliable and without corroboration by other evidence.

So far as the circumstances in respect of statement under, Section 27 of the Evidence Act and the recovery of silver anklet and clothes are concerned, Bharat Singh (PW9) was examined as seizure witness and according to him the police has interrogated the appellant accused in his presence and he said that he killed Laxmibai and get recovered the axe handle from the forest and thereafter, memo Exhibit P/10 was prepared in which he has signed. It appears that before seizure Exhibit P/10 was prepared by the police and obtained the signature of Bharat Singh (PW9). In cross examination he has stated that he saw the silver anklet were inside the bag and he did not see them.

Ramnarayan (PW16) was also examined as a seizure witness. In cross examination the police took Pawan (PW6) and the appellant to the police station. Pawan (PW6) took the stick, Pharsi, axe and sword to the police station. He has also not seen the article inside the bag and he believed on the police. Thereafter, he went to the house of the appellant along with the police where, his younger brother gave him clothes of appellant in the bag.

In view of the above, the seizure of the article from the appellant is also doubtful. As per the FSL, no blood stains were found over the axe and the clothes of appellant . There is no FSL report in respect of the blood stains over the pair of silver anklet. According to the police, they were removed after cutting the legs, but no blood stains were found and the police did not send the pair of silver anklet to the FSL.

As per PW25 Dr. Premnarayan Shakya's report, the injuries were caused by two weapons, but the police have recovered only the axe from the Pawan (PW6) or Rajesh, the present appellant. The prosecution has recovered the wooden pieces from the forest, which were cut by the axe, which were recovered at the instance of the appellant, but they was no matching with the ill marks, therefore, the axe which said to have been recovered on the disclosure of the appellant cannot said to have been not used in the offence. Therefore, the prosecution has not proved the case beyond all the reasonable doubt against the appellant, especially the circumstantial evidence to establish the theory of last seen together. Hence, the appellant is entitled for the benefit of doubt.

Resultantly, the appeal is allowed and the impugned judgment dt.4.8.2007, passed by the Addl. Sessions Judge, Narsinghgarh, District Rajgarh (Biaora), in Sessions Trial No.62/2006 is set aside. The appellant is stated to be in jail. He shall be set free forthwith, if not required in any other criminal case.