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XI-BC-22 3-<q -qi<U!M<<, Wal'WlS; fic) ^ lifi^W Al' l^'^<i^& isp'wh-y[%a •^I-UCTI i(6*iK» SiI^F <Ei^ -^s^^^ ^w DIVISIONBENCH: HON'Bt, -wiIa'flt>W)TiI~$fe*5^(d< ._ % ^ff^t ^W - ESHRrL.C.BHADOO & HON'^LE SHRI DNIRENDRA MISHRA, JJ CRIMINALAP^EAL N0. 2139 of 1996 Appellants B Vi Respondent tagwatRam tate bf Madhya Pradesh :Shri Abhay Tiwari, teameci c$unsel for the appellant. . Shn' U.N.S.Deo, leamed Go\jt. Advocate for th®State/respondent. .0 Rft^ 3 U&G M E NT " (02|03.20Q6) L,C.BhadoOi_J By.this appeal under Secfjon 374 C2) of the Code of Grimjrial Proeedure the aecused/apRellar^ has- questioned tb® l^ality - ahd correctness of the judgment of c^nyiction and order of sentence dated 15.1Q.96passed byleamed^First^djtipnal.SessioreJudge.Amhjkapurin S.T. No. 118/92 wherebythe (§^med;^teiditJOBa! Sessions Judge after holding the accusecf/appelfant guilty,f6r,the eommjssiof) ofmurderof one Suiii Bai convicted him i^der S|'ctions^3Q2:8nd 436 of the IPC ;and sentenced him to undergo^vin}prisonmeht for life and rigorous '~h"mnw"l^ ,,:,.,,. Case ofthe prosecution, in brief, i^thatcieceasedSuili Bai,wifeofP:Vy,-3: Moga) wasresidipS ina thafched^utand shewas-havinggciats.Hersons were residinfl[;wparately.^ In thejihtecvertma night of 1St?^^^a^ ^^^Ra-^ - ^ r' i [EiSwTrtsaaia XI-a3-22 . iM -i|j<lil?i^, »'3'y-li6,^9!wy :. ^a^N^^ flWWl SBW* ^aswag ;IicftR)^)^I ^tflq>"y%^T ^i^^s ^•^I^t ^i^a -2--J January iay^,tne nyi OT syiii yai w^s set on nre upon wnich suili Bai raised screams ahd called his sons namely Patni Bai, Nanheri Bai and Mt|niya Bai~(P.W.-7) came and tried to ^xtinguish the .fire buf they couid ii^t "extinguish the fire. At-that time |edthreatenirtgthemwhereuponthe aGcasedcamewithfheBa/uaandstarl daughter in laws of Suili Bai Tarr tc 'Srafe^'ffl^^ &<fil;<n!«»!i ; ^%^^0*3 'dK^l; and their.wives. Her sons, wives i^ards the forest aiong with their children. Thg accuseditjappellant ccimr^itted 'theft ofthree. goats and when 'Suili Baj trieci to sto^him h& assaylte]:t toer ^Suili Bai) with the Ba/ua and thereafter l^ sotct the ^goate in^ c^nsrcleration of Rs. 500/- tfi one Fakhruddin Ansari. The Ejrsf to^m^ioff Report ExP^ was lodged by^. P.W.-2 .Sogal. P.W.-9 Sur^ndra Gin Sections 436 and 302 of the IPC reac' giving notice P-1 to the p^neFias an^i prepared Panctinama F'-2 6f the body of Suili Bai. ^16od stained aod ( under P-3 from the place df occurrejice. The burnt articles 6f .Suili Bai were taken into possession from her, memqrandum. of the accused/app® Ihouse under P-4\and P-5. On the |lant Ex. E'-8, •three goats were recovered under P-19. The iren Farfe and blood steihed clothes were taken into possession under P-10. Th after registering the crime under rod to the pface of o6currenc& after lain soil was taken into possession 5 body ofSuili Bai was sent for post mortem examination and Dr.J', Sai P.W.-8 conducted the post mQrtem and submitted the post mortem repo<t,P-16 in:which h& opined that ofr aecbunt of head injury ^nd coma Sul| Aftercompletipn oftheinvestigationc^ Juductal Magistrate First Glass,.Am^ikapur who jn turn committecl the ca§eto the Sessions Judge from wh^ Judge received the qase on transfer fo| Bai d1ed and death was homicidal. arge sheet was filed in the Gourt of re the learned Additio.nal Sessions •r .' ;'• :.•- ..'• ...'- •trial.',': ••.:. •.."•. 1:11' .. • ; %<-- S-HC-22 l^dtiSs^y. .^•^<^?i. jsvwa 'aBg J7 4. 5, 6. 7. d-<^.r<U<ljrty, ^anl.yi^jiax!)^ Sil^TTra^ __.--^.A^[d-;S£^(li :@1- iiwii axaifli 1 ne prosecution in oraer to accused/appellant examjned nine wj also recorded under Section 313 oftthe prosecution evidenee appearing agai|ist falsely implicated in the^ erime and innocent, , ; gstaniisn tne- cnme against m® tnesses. State of the accused was : Cr.P.C. in wbicH hff.denied the him and stated that he has been Ithe witnesses are liars and he is After hearing the arguments of Addrtjonal for the accused/appellanf, leairned and sentencecLtheaccused/appellarl this judgment. Public Prosecutor and counsel ^dditiorfal Sessiphs Judge^corivicted as mentioried in paragrapirone of We have heard Shri Abha^ tiwari ccjunsel fdr the accused/appeilaht and Shri U.N.S.Deo^ learried <S.A. for the Homicidal deathof Suiti Bai is riot in d As far as the involvement of the murder of Suili Bai arid setting the learned counsel for the clinching evidence. to connect the P.W.-7 Muniya Bai hss been exam witness and she has stated that the their house and on hearing the- ^-with hertwo sisters/ in lawsj(Jetf?ara the hyt was buming and accused/aR] was brapd^hmg and said that "if y6u| ttut accased/ap^ellarit titlt scrsbms ^ti|2ri'?i4h( niitA3^^ ^a^ ^^$H ^3^g^^?T; tate. spute. pcused/appeltanf ]n committing the 6f Suili Bai on fjre is concerned, argued that there js no tegal pcused with 'the crime in question. iOed by the prosecution as an sy& was at about 100 yards away frdm of heFmother in law stae alang ) Teached on the spot an^f sawrthat >eliant holding the Ba/ua. in his hand wantfosaveyoyriifetTunaway"on h' r^''^T-^' (^l^^S^ j f. 1 ,'.^'. I E- ' <M'^t'i|f''l^ii^i'y'as,]&<ai<as< ai^s^i Rai»•MI<S<I isti*i <-tii1Ct 1 which they Went towards the fpFest, mother in law With the Ba/us on her resull: of which her mother ifl law cjied; Th^ inciden): was witnessed by herself and twoof her sister inlawsj try to rescue their mother in law. Buij examined by the prosecution. In the •stated that it is incorrectto saythatj setting the hut on fire. At the time o| Officer she ftas stated that she wi| - setting the huton fire butshe does n| not meritioned in her police cliary stal Investigating Officer'atthe time of 913 has murdered her^motherjn l^iitf'and; police diary statement she cgnnot a| to the Inyestigating Officer that -the after seeingthem and if the same d| statement D-2 "she cannot assjgn j examination she has stated that it is I sleeping in :her house. ^The witness accuSed/appellant and assaulting h^-mother in law Suili Bai by acGused Bhagwat has not been rteritrpned iri under 161oftheCr.P.C. Thus, inthi 2°bl^?d1^i'i'^BJS^'^ fel<3 ^-^lA , ^ 2R^93T3{^T ^he aeGUSed/appellaht assaulted her iead,temporal regiori and hand asa as they .were,.frighten®dthey did' not her.two sister in laws have not been cross examinatipn, this witness has she had not witnessed the accused giving statementto the fnvestigating inessed aiicused/appellant Bhagwat. 3tknowifthispartofthestatem6ntis ement D-2. She also disclosed tothe fing statement that accused Bhagwat jf the same does not fmd piaee in her sign any reason: She also djsclosed accusetf was brandishing Ihe Bafoa ses notfind plgce 1n her pplice diary any reason and in further cross- correct to say that she alorig with her sister in laws were sleepmg in their ^ouse and her mQther in law was also rig of settihg the hut on fire by the the police diary.statement recorded i evidehce of this witness before this Court, there is improvement and th^'efore same canngt be belie\ifed and religd upon. IVIoreover, the FiRtJnfcjrmatiQn Repprt (P-6)'was Ipd^ed by nonee!se4hanthebrotherpfMogaljiamelySogaland1nthatalso_itisnot mentioned thafUe accuged assaulNd Suili Bai -or has set the hut of Suiii i?s- K -[-^i^ ^^<1 3H-HG-22 ^-ai ^wiaa, amfai^c,'fiatti^i, NWMt »*n^ .^-^S^J^^ Bai 6n fire. Eyenthequestion ofc< has not been mentioned in the Firs P.W.-2 Sogat has stated that he the news fF&m one Laaburegardii village 6f SuUi Bai and saw thdt h< ciead and her head was covered v» not know how she died and they a; he lodged the repbrt P-6 in the residing separately from her soi enquired from the wife of Khuira Bai then she disclosed that, Bhags he has not witnessed who Aurderj fire. At the .lime of lodging the.K disclosed him that Bhagwat cami same has not been.mentioned il cannot assign' any reason. There^ and P.W.-7 Muniya Bai-it is notj person whp set the hut cin fire and| of witnessing the crime by P.W.-1 P.W.-2 that he received the inforrti ihspire confidenc& bec&us®whafl not been mentioned in their FIR (If 2. : . ' • •" • '; P.W.-1 Batai has^ated that Suili| from the yil|gge and her daught^ 'q*j<!?ti<«-r;*ii^^'I^fe^<fa"WK ^yjFd^ai^B • mmitting theftofgoats bythis accysed infQrmationReport(P-6). l^dged the FIR (P-6) when he received ^ th'e death of Suiti Bai. Hewent to the fr hutwas burnt and one tady was lying jthblood stainedclpth. Theyillagerfrdid [fced: him to; go ariU report and thereafter fciice station. Deceased Suili Bai was is' and theii^ wives and childrQn. He iat anybody came tb the house of Suili /af came holding Farsa in his hand but id Suifi Bai and howthe hut was seton toort he mentioned that wife of Khuira hplding Fafsa in his hand and ifthe th^ First Infbmnafion Report (P-6) he ore frpm the evidenee of P.W.-2 Spgal established that the accused was the he assaulted Suili Bai.and the evidence Muni^ Bai and the.evidence of Sogal from the wif8 of Khuira, does hot iver they have stated in the Court has '-6) and inthe policediary statement D- inforrtiation ajwas residing ataboutonemileaway in taws<were also residjng separately. IK Ki: Rl ;B ••^T^ ^a^ 3:<,3yi.ri!g2<e>ril*fli^-i;wi^3»^ ';tbWb WW»!96f *i '^a^ 'fa'b^ 5ffl8g'W • IgqR'snga aa*iitta.*i^1d •i-- aiftW ^•WiW-ySd —fe4 Suill Ba) W^S.resiaing aii aione in tne jn the moming. The daughter in' law the body 6f Suili Bai 'and nQthiBg else the deceased was not at the resideih cross-examination he hasstated thatl and who murdered his wife was not before whom the identification of the] said to hav®been conducted, has st bears his sighature'. P.13 and P-14 ^l that ndthing was seized before him proceedings were conducted before identified Before trim. • This witnessi evidence of P.W.-5 Bahadur R^m' is.1 memo of P-1 %, P-13 & P-14 bearshisl he identified the gpai, accused anc( examination, he stated that all th'e. statjon. Simiiar is the evidence of P.y fhat sdentification memb P-1.2,P-13 ancj j cross examination he has stated thal identified tKe goat, accusecf and the,/=s werewripen bytheOaroga'antlnotbyl 1 the papers tberefore he signed, 10. jT.hus, there is no evidence to_eonn< jquestion and the judgmenfof convictio|i ^ ' . . • • ..• . • . . .. • . . '"L.- ^ jthe learfiedtriai Couitcannot be sustai l<*1^i^f4H-*H^^f^i^lt9^<STR i&3^^T:3^E?T lufc Tiie bodyofSyili^aiwasseen tf Suili Bai Aas slated that ?he saw liras seen by her. Mc»gal, Husb.and of »ce on the. fatefiil night arid in'the |who. set the hut QfSuili Bai on fire v|ithessed by him. P.W.-4 Janak Dev gpaf, Farsa and the accusec) was sflated that P-12 identification memo Iso bears his signature and stated antf furtherstated that no identification )im. The gbat and Farsa were not has been deciared hbstiie. The '{6 the effect that the jdentification ^iignature but he has not stated that the /::araa; Further jn the crgss |eizyreS were made in the police '•f .. • •• : • '" •- • ••- •• ••:• '' ..'':' . . ' B/.-6 Parmeshwar who has stated P-14 bears his signature butin the he does not remember that who (rsa and has stated that the merrios |him. The Daroga asKed him tb sign jct the accused with the crime in and-order ofsentence passedtby (ied forthe foregojng resisons. It is ^eK^ ^.^^^^•j.^^ ^•^^^ ^^^^^is-^j^i®^ ^S^^^^i^S;?^^^s?<;^ ^ ^^^^^^^^;^ 3S-BC-22 ,a-a! -'o.iiit'ra, •^dl.ytiri, fadi-ay w ^ -wTRf%»ira» SII^T iRRi ._.^-j^^^. ; JgitffgR- SMi®aiiS<l ^w^-y^ ^fll^ ^- 11. dtiS^ e«uia<aftg -7- ynfortunate that sach a brutal murd^j unpunishedon accountofpoor investi|gat!on In the result, the appeal succeeds an<| and sentence imposed oh the accu| 436 of the IPC areset aside and D required inanYother case. --<•" ) Sd/-, ,, - L.C.BHADOO Judge ^t^n^n '^si^*^''^S v.^wSsi and setting the hyt on fire remains thesameisallowed.TheconviGtion ed/appeltant under Seetions 302 & i& be set Bn iiberty^forthwithifnot ^l- .I""'? DHIRENDRA MBHRA "S l Judge j | t- -. /, .1^1 1«S^g» 'S^S.^1 .' ^'-";£'"..."