1 Cr.A.613/2001 & Cr.A.706/2001 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE BEFORE HON.SHRI JUSTICE P.K.JAISWAL & HON.SHRI JUSTICE I.S.SHRIVASTAVA.JJ. CRIMINAL APPEAL NO.613/2001 Ramesh s/o Bhawarlal Deswali Vs. State of M.P. Thro' P.S. Kurawar Dist.Rajgarh CRIMINAL APPEAL NO.706/2001 Smt.Phool Kuwarbai w/o Ajabsingh Vs. State of M.P. Thro' P.S.Kurawar Dist. Rajgarh .......................................................................................... Shri R.K.Trivedi, advocate for the appellant/s. Shri C.R.Karnik, G.A. for respondent State. .......................................................................................... J U D G M E N T (Delivered on 17- 08 -2011) Per I.S.Shrivastava.J. Both these appeals have been preferred by the appellants being aggrieved by the judgment dated 11.05.2001 passed by the Court of Shri V.P.S.Chouhan, A.S.J., Narsinghgarh, Dist. Rajgarh (Biora) in S.T. No. 123/99 by which the appellants Phool Kuwarbai and Ramesh have been convicted under S. 302 of the I.P.C. and sentenced to life imprisonment along with fine of Rs.2000/- and under S. 201 of the I.P.C. with R.I. for 3 years and fine of Rs.500/- each. 2. According to prosecution case Gowardhan informed at Police Station Kurawar on 3.9.99 that his Jamai Ajabsingh is missing since previous evening and on search he was not found. Hence he went to village Jhadkiya for search. His sister Phool Kuwarbai informed him that shoes of Ajabsingh are kept near well of Kamalsingh Teli. She informed that her husband Ajabsingh after eating food came out at about 1.00 p.m. and has not returned home. Thereafter Gowardhan went with Bapusingh to the well and in the torch 2 Cr.A.613/2001 & Cr.A.706/2001 light he saw dead body of Ajabsingh was floating in the well. Due to night they could not go to the police station. Hence on 3.9.99 he informed at police station on the basis of which Merg No. 32/99 was registered. During investigation it was found that the place of incident was house of Phool Kuwarbai where blood stains were found on the wall and in the earth and to hide them, relevant portion was painted by cow dung. His beddings -pilow, mat, matress were also stained with blood. The dead body of Ajabsingh was recovered from the well. It was having an incised wound from right side of the neck to mouth. It was found that deceased was murdered in the house and thereafter his body was thrown into the well to destroy the evidence of murder. Hence FIR was registered against the unknown persons at Crime No. 143/99. During investigation it was found that Ajabsingh was the husband of Phool Kuwarbai and co-accused Ramesh was her paramour. Both murdered Ajabsingh and to destroy the evidence, threw his dead body into the well and put his shoes near the well to show his drowning in the well. On the informtion of Ramesh, the used axe was recovered which was sent to FSL with other articles of beddings. They were found containing human blood. After investigation challan was filed. After trial the appellants were convicted and sentenced as mentioned above. 3. It has been argued by the appellants' counsel that they have been falsely implicated in the case. There was no evidence of murder to connect the appellants with the crime. The statements of witnesses were recorded with delay which was not explained. The statement of Lokendra PW.5 son of deceased, was not reliable because it was against his police statement recorded under S. 161 of the Cr.P.C. and his age was only 10 years at the time of incident. This was the case of drowning into the well and the case against appellants was 3 Cr.A.613/2001 & Cr.A.706/2001 not proved on the basis of evidence produced before the trial court. Hence appeal be allowed. 4. It has been argued by respondent's counsel that the case was proved on the basis of prosecution evidence produced before the trial court. The appellants failed to give plausible explanation about the death of Ajabsingh. Phool Kuwarbai did not inform to any person that her husband was missing and she herself did not try to search him while she was knowing the fact that shoes of Ajabsingh were placed near well. She did not go to the well. The dead body of Ajabsingh was floating in the well as seen by her brother Gowrdhan PW.4. Appellant Ramesh was the paramour of her sister Phool Kuwarbai and used to go to the house of Phool Kuwarbai. With her aid he killed Ajabsingh and on his information the axe was seized. From the FSL report, the axe and seized articles of beddings, were found to contain human blood. Therefore, appellants were rightly convicted for the murder of Ajabsingh. The appeal being devoid of merits, be dismissed accordingly. 5. Considered the arguments. Record of the trial Court perused. 6. From the statement of Dr.K.C. Dube, who conducted postmortem of Ajabsingh on 3.9.99 and gave P.M.report Ex.P.2. It revealed that time of death of Ajabsingh was between 2-3 days from the time of postmortem. He found one incised wound from right angle of mouth to left supra scapular region cutting to and fro right mandible skin, mussels cartoid artery and vein of right side of neck, tongue oesophagas trachea and central vertibral column just above cervical protrabonee antemortem and incised wound 5 cm x 1 cm.x skin depth lies horizontally over surface of right shoulder joint. According to his opinion the death of Ajabsingh was due to shock which was due to severe 4 Cr.A.613/2001 & Cr.A.706/2001 haemorrhage 7. According to Gowardhan PW.4, his father came to him from Jhadkiya to Pilukhedi at about 5.00 p.m. and told him that his brother-in-law (deceased) is missing. Thereafter he along with Bapusingh reached Jhadkiya from Pilukhedi at about 8.00 p.m. Phool Kuwarbai was at her house. When he asked her as to what happened then she told that shoes of Ajabsingh are near Kundi (well). Then he went with Bapusingh to the well situated near the house of Kamalsingh and saw that near the well nylon shoes of Ajabsingh were kept. In the light of torch he saw the dead body. It was about 9.00 p.m. At about 12.00 p.m. in the night he returned to Pilukhedi with Bapusingh. In thenight he was not having means therefore, in the morning he lodged report at police station and thereafter police came with him at Jhadkiya where dead body was taken out from the well. It was dead body of Ajabsingh which was having injury on the neck and scapular region. Panchnama of dead body and spot map were prepared. 8. Kamalsingh PW.1 deposed that he went to Kurawar with Chowkidar Punia and returned at 6.00 p.m. After some time Punia told him that Jamai Saheb (deceased) is lying in the well go and see. Then he said to him to call Patel and other persons. It was night hence no one came there. Chowkidar Punia remained near the well for whole night. In the morning some one informed the polilce hence police came there. Thereafter brothers of Phool Kuwarbai took out the dead body from the well which was having injuries on the neck and below the ear, prepared the Panchnama and sent the dead body to Narsinghgarh. He further deposed that deceased was living with his wife and children in the house of Bhawarlal. After 2 -3 days of incident, police came and took him to the house of Bhawarlal 5 Cr.A.613/2001 & Cr.A.706/2001 where police saw beddings – pillow, matress, quilt were stained with blood. Hence police seized them. He identified the articles A- Mat, B-pillow, C- quilt and D-another quilt (Godadi). The earth and wall where Jamai Saheb (deceased) used to sleep, was painted with cow dung. The seizure memo Ex.P.1 bears his signtures. 9. In the cross-examaination this witness replied that Jamai Saheb (deceased) came to his village 5 – 6 months before. Earlier he was living with his father-in-law at village Jhadkiya. In this way from the statement of this witness it reveals that the dead body of deceased was recovered from the well and he was having an injury on his neck and below the ear. From the house of the deceased blood stained articles of beddings A to D were seized and the earthen wall was painted with cow dung. 10. Shri B.L.Sharma PW.7 A.S.I. deposed that in the investigation of Merg No. 32/99 he reached Mohalla Nayapura of Jhadkiya. He called the witnesses by notice Ex.P.4. The dead body of Ajabsingh was lying in the well. It was this witness who inspected the well. The well was 14' in depth in which water was filled upto 10' and 4' it was empty. Diameter of the well was 12'. It was having no boundary wall. 2 ft. away from the well a pair of shoes were kept. The part of neck of deceased was visible. He prepared Panchnama Ex.P.5 and spot map Ex.P.7. Thereafter with the help of witnesses he took out the dead body out of the well and found that the deceased was having a deep axe like wound from neck to face. They were three in numbers. The depth of the wound was about 4 – 5 fingers. The bone of face was cut and scapula was also injured. Thereafter he prepared Panchnama Ex.P.7. On investigation of the house of Ajabsingh he found that the place where Ajabsingh was residing, was painted with cow dung and blood stains were 6 Cr.A.613/2001 & Cr.A.706/2001 seen on the wall. He prepared map Ex.P.6 and sealed the house and shoes. 11. Shri Dhanpal Singh PW.8 Investigating Officer deposed that on the report of Gowardhan Singh, he registered Merg intimation report Ex.P.9 and thereafter sent B.L.Sharma, A.S.I on the spot. On 4.9.99 Sharma reported him about the incident. Thereafter he went to the village Jhadkiya and inspected the house of the deceased Ajabsingh. It was the witness who found that the wall of the room of Ajabsingh was recently painted by cow dung which was having blood stains. On minor inspection of the clothes mat, quilt and pillow he found blood stains. Thereafter he seized them and prepared seizure memo Ex.P.1. On suspicion he interrogated Ramesh Deshwali. On 13.9.99 he gave information about the recovery of axe. Hence he prepared memo Ex.P.3 and arrested him and prepared arrest memo Ex.P.4 and went to the house of accused Ramesh where he produced the axe which was seized by him and seizure memo Ex.P.11 was prepred. The axe was blood stained. Thereafter through S.P. he sent seized blood stained clothes, axe and soil to FSL. FSL report is Ex.P.15. From the FSL report Ex.P.15, it reveals that blood was found on article 'A' -axe, 'B'-soil, 'D' -Chatai , 'E' -pillow and 'F' and 'G'- Godadi (quilts). From the report Ex.P.16 sent by the Serologist and Chemical Examiner to the Government of India, it was found that Iterms 22 Godadi(quilt) and Item 23 Godadi (quilt) (Article 'F' and 'G') were stained with human blood. 12. Therefore, from the evidence it was found that the dead body of deceased Ajabsingh was recovered from the well. He was missing for the last two days. Soil, walls and Articles 'A', 'B', 'D', 'E', 'F' and 'G' were blood stained. 13. The conduct of accused Phool Kuwarbai was suspicious in this case because her husband was missing for 7 Cr.A.613/2001 & Cr.A.706/2001 last two days but she did not try to search him and inform to any other person that her husband is missing. Her brother and father were in the same village but she did not inform them that her husband is missing. 14. From the statement of Gowardhan PW.4 it reveals that he lodged the report on 3.9.99. One day before his father informed him at about 5.00 p.m. that his brother-in- law (deceased) is missing. At about 8.00 p.m. he came tohis sister Phool Kuwarbai. She informed him that shoes are kept near the well. Then he went there and saw the dead body in the well and shoes near the well. Next day he lodged the report. This shows that while Phool Kuwarbai was knowing the fact that shoes of the deceased are placed near the well then she did not go to the well to search her husband or enquire from the neighbourers or inform her father, brother that her husband is missing. From the spot map Ex.P.6 it reveals that the house of the deceased where Phool Kuwarbai was living, the well is about 100 feet away hence it was not far. It was very natural when Phool Kuwarbai was knowing that the shoes of her husband are placed near the well, then naturally she could have suspicion and could have searched her husband in the well. From the statement of B.L.Sharma Ex.P.7 it reveals that well was only 4 feet empty. It means that water level was only 4 feet below the ground where dead body was floating. Hence it was visible to all if Phool Kuwarbai had gone to search her husbnd, then naturaly she could have seen dead body of her husband. But she did not go there. This reveals her guilty state of mind. Willfully she was avoiding to serch her husband and go to well while she was in the knowledge that shoes of deceased husband were kept near the well. 15. Lokendra PW.5 son of deceased, aged 10 years,deposed that Phool Kuwarbai is his mother and he 8 Cr.A.613/2001 & Cr.A.706/2001 knows the accused Ramesh present in the Court. On the date of incident at 11.00 p.m. he was sleeping in his house and hearing noice he awoke. He saw that his mother assaulted his father by one axe and accused Ramesh assaulted two times by the axe to his father. Thereafter both the accused persons threw his father into the well and kept shoes of his father near the well. Seeing this he ran away to the school but his mother went there and caught his both the hands and called Ramesh to come soon and to kill him. Thereafter he bited on the hands of his mother and getting rid off from his mother he ran away to the house of his maternal uncle. There he informed his maternal uncle Gowardhan. At that time he was residing with his mother and father in the house of Ramesh. In the night his maternal uncle Gowardhan came to the well and with the aid of bamboo he saw his father in the well who was dead. 16. About the statement of this witness, it has been argued by the appellants' counsel that he is child witness and his deposition is in the contradiction with the police statement Ex.D.1. In the police statement he does not depose the above incident but he simply has deposed that he was at his house with his mother and father. His father brought small hen and wine to house which was cooked by him. After drink, his father quarelled with his mother at the same time accused Ramesh came there. He pacified the quarel in between his mother and father and did not allow him and his mother to go to his house. They all lived in the house of Ramesh since last 4 – 5 months. Ramesh used to come to his house. Phool Kuwarbai and Ramesh after pacifying him, slept his father. After two days dead body of his father was found in the well situated near his house. Hence it has been argued that statement of Lokendra PW.5 is not admissible in evidence. Respondent's counsel has argued 9 Cr.A.613/2001 & Cr.A.706/2001 that in the circumstances of the case it is reliable. 17. Considered the arguments. 18. Lokendra PW.5 is 10 years' boy of deceased. He gave full statement of the incident that how his father was murdered by his mother and Ramesh. In his police statement Ex.D.1 he has revealed the fact tht accused Ramesh used to come to his house from earlier period and thereafter they came to live in his house since last 4 -5 months. On the date of incident when his father and mother quarelled, Ramesh was there and he pacified the quarel in between his father and mother. In the Court statement he gave the correct history of the incident and in cross-examination he, in para 5, deposed that he did not tell this incident to the police because his maternal grand mother (Nani) was against it and she threatened him that if he tells this fact to the police, then she will send him to jail. But in the night he stated this fact to his maternal uncle Gowardhan. In cross-examination he has deposed that his father was used to drink and Ramesh used to bring wine and provide to his father. 19. The question arises whether the statement of Lokendra PW.5 is acceptable and reliable. So far as reliability of his statement is concerned, it has been held in the case of State of U.P. Vs. Krishna Master and Ors.- AIR 2010 SC 3071 that “There is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate facts in his memory witnessed by by him long ago. It would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate facts in his memory witnessed by him long ago. A child of tender age is always receptive to abnormal events which take place in its life and would never forget those events for the rest of his life. The child would be able to recapitulate correctly and exactly when asked about the same in future.” 20. In the case of Pathan Fatima Vs. State of A.P. - 1995 Cri.L.J. 3613 it has been held that “It may be indicated here that PW.13 was under the custody of the mother and from her 10 Cr.A.613/2001 & Cr.A.706/2001 evidence it transpires that she had to suffer great trauma on account of a licentious and mis-guided mother and despite all imploration, she could not persuade her mother to lead dignified life. She had to live with her mother and accused No.l and it is not at all unlikely that at the initial stage she did not dare making any statement about the said murder but when she was cited as a witness, she wanted to make clean breast of the relevant facts and stated the truth. Her evidence gets corroboration from the depositions of other witnesses and also from the extra-judicial confession proved by PWs. 1,2,3 and 4. We, therefore, do not find any reason to discard the evidence of PW.13.” 21. Similar is the position in this case. Lokendra PW.5 son of deceased, could not give the correct statement of the incident because at that time his maternal grand mother (Nani) was not in his favour and threatened him that if he will tell this incident to any person, then she will send him to jail. At the time of incident, the child was about 9 -10 years old. Naturally he was in fear due to threat of his maternal grand mother. Hence he could not inform the police about the real incident. Secondly he went to his maternal uncle to inform the incident. There were maternal grand mother, maternal father and maternal uncle of the witness; naturally they were not in his favour that their daughter accused Phool Kuwarbai would involve in this case. Therefore, they would not have allowed the child to reveal the true story to police and Gowardhan PW.4 the maternal uncle of child who knew it did not tell to the police the real story. But now when child Lokendra PW.5 came to the Court he dared to state the true version of the prosecution story that how his father was killed which is supported by the medical evidence, statement of Dr.K.C.Dube and the P.M. report Ex.P.2. Therefore, the statement of Lokendra PW.5 gives the true story of the incident and he can not be disbelieved on the ground that he did not tell the truth to the Investigating Officer and stated it after a lapse of time in the Court. His statement is true, natural and as has been discussed above in the case of State 11 Cr.A.613/2001 & Cr.A.706/2001 of UP Vs. Krishna Master (supra) that child will never forget those events for the rest of his life. The age of 9 – 10 years' is the age in which he can understand that what happened and to save him he ran away from the spot to the school and when his mother called his paramour to kill him he saved himself by biting on the hands of his mother and ran away to the house of his maternal uncle. Under the circumstances, statement of Lokendra PW.5 gives a clear picture of the incident which is supported by the other prosecution evidence. 22. In the case of State of M.P. Vs. Ramesh and another -(2011) 4 SCC 786 it has been held by the Apex Court that “Court may rely upon evidence of child witness, in case her deposition inspires confidence of Court and there is no embellishment or improvement” . It has been further held that “only in case there is evidence on record to show that a child has been tutored, can court reject her statement partly or fully. An inference as to whether child has been tutored or not, can be drawn from contents of her deposition.” 23. In this case statement of Lokendra PW.5 is supported by medical evidence. Though in the cross- examination the question has been asked that he has been tutored by his paternal aunt (Bua) but he has replied that it is wrong to say that he was tutored by his paternal aunt (Bua). Statement of child Lokendra PW.5 is very natural and there seems no elements of tutoring about the incident because he ran away from the house and informed his maternal uncle Gowardhan (PW.4) about the incident. 24. Under the circumstances of the case that the accused Phool Kuwarbai did not try to search her husband or ask any other person to search her husband or to inform to her relatives her brother, father which were living in the near place Jhadkiya and specially did not go to the see the well where shoes of her husband were kept, shows that the statement of Lokendra PW.5 is believable and gives true 12 Cr.A.613/2001 & Cr.A.706/2001 story of incident. 25. In case of Phundi Vs. State of M.P. - 1993 JLJ 200 it has been held that “accused is supposed to give plausible explanation of cause of death, failure may be treated the circumstances against him.” 26. In case of Dineshilal Vs. State of Maharashtra (1992) 3 SCC 106 it has been held that “when death caused while deceased is in the custody of the accused, accused is obliged to give a plausible explanation for the cause of death in his statement under S. 313 of the Cr.P.C. In this case no plausible explanation has been given by the accused. Simply they have deposed that blind murder has been foisted on them. 27. In case of State of U.P. Vs. Dr.Ravindra Prakash Mittal – (1992) 3 SCC 300 it has been held that “Presence of accused husband in the company of the deceased wife in the room on the previous night as well as presence of accused in the room next morning, proved motive of murder shown, false pleading of alibi taken by accused instead of giving any plausible explanation for the custodial death, traditional external visible features of strangultion and other internal injuries found, held chain of circumstances lead to the only conclusion of the commission of the offence by the accused.” Therefore, this appeal being devoid of merits, is liable to be dismissed. 28. In this case the conduct of Phool Kuwarbai and her non-explanation about the cause of death of her husband and her silence for not searching her husband or informing to any