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Kunwarlal vs The State Of Madhya Pradesh on 25 October, 2017

HIGH COURT OF MADHYA PRADESH : JABALPUR

Criminal Appeal No.2376/2005

Kunwarlal
-Versus-
State of M.P.

CORAM :

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.

JUDGMENT

(25.10.2017)

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.
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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

on 22-01-2005.

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

for trial.

5. The learned Additional Sessions Judge after recording

the evidence of prosecution and defence witnesses found the
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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)
4

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

packet.

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’

intimation.

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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
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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

cover.

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
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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.

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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

the appellant.

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
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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

ac.

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