HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.2376/2005
State of M.P.
Hon’ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.
Shri Anand Nayak, Advocate for the appellant.
Ms. Manju Khatri, amicus curiae.
Shri P.K. Singh, Govt. Advocate for the State.
Per: Vijay Kumar Shukla, J.-
In the present appeal challenge has been made to the
order dated 24-10-2005 passed by the learned Additional Sessions
Judge, Multai, District Betul in S.T. No.72/2005 whereby the
appellant has been convicted under Section 302 of the IPC and
sentenced imprisonment for life and fine of Rs.1000/-, in default, to
undergo further rigorous imprisonment for one year; and under
Section 201 of IPC to suffer rigorous imprisonment for 7 year and
fine of Rs.500/-, in default of payment of fine amount to suffer
further rigorous imprisonment for six months.
2. The prosecution case, briefly stated, is that on 22-01-
2005 at about 12 0’clock in the noon a written information was given
by the appellant to the Police Station, Bordehi, District Betul
regarding missing of his wife – Kantabai. It was informed that on
19-01-2005 in the night around 10 PM after taking dinner the
deceased was sleeping in her room and in the morning at about 7
AM when the appellant got up, he found that the deceased was not
in the house. Thereafter, the police has registered the said complaint
3. The appellant had further informed to the police that the
dead-body of the deceased is lying in the well, then the police
registered the `Marg’ intimation and after postmortem vide autopsy
report (Ex.P-18) , offence punishable under sections 302 and 201 of
the IPC was instituted.
4. After due investigation the police filed the charge-
sheet/challan to the court of learned Judicial Magistrate First Class,
Multai which in turn, committed the matter to the Court of Sessions
5. The learned Additional Sessions Judge after recording
the evidence of prosecution and defence witnesses found the
accused-appellant guilty for lynching of the deceased and also
causing disappearance of evidence; and eventually convicted and
sentenced to the accused-appellant has has been stated hereinabove.
On discovery statement of the appellant, a shawl of the deceased
was recovered vide Ex.P-8. The discover statement of the accused-
appellant is Ex.P-7. Dr. R.C. Udainya conducting the autopsy was
examined as (PW-10).
6. Counsel appearing for the appellant submitted that the
prosecution has alleged that there was extra judicial confession to
Mahngulal (PW-1), Mahobai (PW-2) and Hari Buade (PW-5).
However, these prosecution witnesses have turned hostile and,
therefore, there is no extra judicial confession. Counsel for the
appellant submitted that the case of the prosecution is based on
circumstantial evidence and from the entire evidence, it cannot be
held that the chain of circumstances is complete in order to prove
the case beyond reasonable doubt against the appellant. He
submitted that the trial Court erred while considering the `Marg’
intimation and based the judgment of conviction on the same.
7. The counsel for the appellant further contended that the
seizure of the shawal vide Ex.P-8 has not been proved by the
witnesses. The prosecution witnesses Sanjay, the Kotwar (PW-6)
and Dinesh (PW-7) have turned hostile. It is also contended that as
per provision of Section 27 of the Evidence Act, the statement made
before the police officer under custody is not admissible. Learned
counsel further argued that the shawl which is alleged to be seized at
the instance of the appellant was not properly sealed when it was
sent for forensic examination. He submitted that that the Medical
Officer has not mentioned that the shawl was recovered in a sealed
8. First we proceed to dwell upon the first argument of the
counsel for the appellant that the conviction is based relying on
some part of the `Marg’ intimation (Ex.P-17). It is true that the FIR
or `Marg’ intimation cannot be read as an evidence against an
accused. However, in the present case in the statement under
Section 313 of the CrPC a specific query was made that whether the
accused had lodged the `Marg’ intimation, he admitted the said part.
Once he has admitted the said part and on his statement, the dead-
body of the deceased was recovered from the well, it cannot be held
that the conviction is bad on this ground, because the learned trial
Court has made a reference to the said statement made in the `Marg’
9. The next argument of the counsel for the appellant is
that that recovery of shawl vide Ex.P-8 cannot be referred by the
prosecution, because seizure of the said article has not been proved
by the witnesses – (PW-6) and (PW-7), who have turned hostile.
Upon perusal evidence of Sanjay (PW-6) it is found in the very first
part of the statement that he has admitted his signature as Ex.P-7.
Thereafter, he has stated that the said article was not seized before
him, but he has admitted his signature on the said document. In the
same manner, another seizure witness Dinesh (PW-7) has also
admitted his signatures on Ex.P-7, Ex.P-8 and Ex.P-9. These
witnesses were declared hostile, but so far as their signatures are
concerned, they have admitted the same. In criminal law contents of
the documents are not required to be proved, as attestation part of a
Will or other co-related documents are required to be proved under
Section 68 of the Evidence Act.
10. The next argument on behalf of the appellant is that a
statement recorded under Section 27 of the Evidence Act is a
statement made before the Police Officer under custody, is not
admissible. There is no dispute about the said proposition of law,
however, under Section 27 of the Evidence Act, the information
which leads recovery to a fact is admissible to that extent only. The
shawl of the deceased which was recovered on the disclosure
statement of the appellant from a box in the house of the appellant,
was found to be in a rope shape and the Dr. R.C. Udainiya (PW-10)
stated in his report that the shawl was returned in a sealed cover.
Further, in Ex.P-15 which is an application seeking report of the
doctor in respect of the seized shawl also reveals that the shawl was
kept in a proper sealed envelop and a note was also appended that
after examination, the shawl should be returned in a proper sealed
11. Thus, upon perusal of Ex.P-15 and taking into
consideration the statement of the Investigating Officer H.L.
Sharma, it cannot be held that the seized shawl was not properly
sealed and there was any kind of manipulation in the forensic
examination of the shawl.
12. Upon perusal of the postmortem report and the
testimony of Dr. R.C. Udainiya, it is found that there was undigested
½ Kg food in the stomach of the deceased. The injuries on the
person of the deceased were found to be ante-mortem in nature.
Presence of the undigested food in the stomach of the deceased and
taking into consideration that the intimation by the accused that they
had taken the dinner at about 10 0’clock, it can safely be concluded
that the deceased died within a short duration of 3 to 4 hours after
taking the dinner. The food takes at least more than 4 hours to
digest. In the present case we find that as per sequence of facts, the
wife-deceased of the accused-appellant is said to be missing from
19-01-2005. On 21-01-2005 the appellant informs the police about
the missing of his wife and on 22-01-2005 he again informs the
police that he had seen the dead-body of the deceased floating in a
well situate in his field at the distance of approx. 300 mitres from his
house. Upon his statement the dead-body was recovered and
thereafter the police registered the FIR on 26-01-2005 after
conducting preliminary investigation. There is no explanation that
how the appellant came to know about the dead-body floating into
the well. From 19-01-2005 to 22-01-2005 he could not see the well
which was hardly 300 mitres away from his house.
13. From the record it is seen that on two occasions,
proceedings under Section 125 CrPC for grant of maintenance were
registered; and the statement of the mother of the prosecutrix Dasiya
(PW-12) is important wherein she has stated that her daughter often
used to make complaints that the appellant was beating her and he
was trying to get rid of her. She has stated in para 3 of her
deposition that her last meeting with the deceased was one month
before the incident and she had made a complaint about the beatings
of the accused-appellant.
14. Counsel appearing for the appellants further submitted
that the cause of death is not clear as per the post-mortem report.
Upon perusal of the post-mortem report, it is clear that all the
injuries on the person of the deceased were found ante mortem in
nature and there is no cross-examination in this regard to the
statement given by the doctor. In absence of any cross-examination
in this regard, opinion of the doctor cannot be discarded. Counsel
for the appellant referred to the judgments passed by the Apex Court
in the cases of the State of Punjab vs. Bhajan Singh and others,
AIR 1975 SC 258 and State through Central Bureau of
Investigation vs. Mahender Singh Dahiya, (2011) 3 SCC 109.
These were the cases where the Hon’ble Supreme Court was dealing
with the appreciation of evidence in an appeal against the order of
acquittal. Therefore, these judgements would not be of any aid to
15. In view of the discussion hereinabove, we find that
evidence of the prosecution is creditworthy and inspires confidence
in the mind of the Court and by no any stretch of imagination, it
cannot held that the accused-appellant has been falsely implicated.
The material evidence and the facts of the case, spells out a
complete chain of circumstances against the appellant in order to
prove the guilt beyond any reasonable doubt.
16. Accordingly, the appeal sans merit and hereby
dismissed. No order as to costs.
17. Before parting with the case, we must put on record our
unreserved appreciation for the valuable assistance rendered by the
learned amicus curiae. The High Court Legal Services Committee
shall remit fees of Rs.4000/- (Rs. four thousand only) to the learned
counsel who has assisted this Court.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge