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PETITIONER: INDRADEO MISHRA ETC.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       10/12/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKARTHE 10TH DAY OF DECEMBER, 1996PRESENT:HON’BLE MR.JUSTICE M.K.MU KHERJEEHON’BLE MR.JUSTICE S.P.KURDUKARSOMRAJ  DUTT,      R.K.  SHUKLA,  SR.  ADVS.,  UMA  DU TTA,  S.C.MAHESHWARI, R.C. VERMA, MS. SANDHYA GOSWAMI, ADVS. WITH THEMFOR THE APPELLANTS.U.N . BACHAWAT,  SR. ADV.,  PRASHANT KUMAR, ADV. FOR UMA NATHSINGH, ADV. WITH HIM FOR THE RESPON DENTJ U D G M E N TTHE FOLLOWING JUDGMENT OF THE COURT WAS DELIVERED:INDRADEO MISHRAV.STATE  OF MADHYA PRADESHWITHCRIMINAL APPEAL NO. 761 OF 1989ANANG MISHRAV.STATE OF MADHYA PRADESH

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      Indradeo Mishra  (A-2), a  middle aged widower had kept Laxamin Bai  (since deceased)  as his  mistress. He  was  an employee of  the Western Coal Fields Ltd. and admittedly had a company  quarter at  Banwari site.  He   also had  his own house at  Tilsara. He was living at Tilsara with Laxamin Bai whereas the  company quarter at Banwari site was occupied by Chandrika Prasad  (A 3-  acquitted) who  was said  to  be  a student. Indradeo  Mishra (A-2) is having a son Anang Mishra (A-1) and two daughters, namely, Bimla and Kamla. The family members of  Indradeo Mishra  did not  approve the conduct of their father who had kept a mistress and this gave a rise to frequent quarrels between Anang Mishra(A-1) and Laxamin Bai. Anang Mishra firmely believed that the conduct of his father had brought  disrepute to their family as they belonged to a higher caste  (Brahmin) whereas  Laxamin  Bai  was  a  Panka (Scheduled Caste). 2.   Three villages  i.e. Banki  Mongra,  Banwari  Bandhawar Para and  Tilsara are  situated near the Western Coal Fields Ltd.(for short  ’WCF Ltd.’) having a police outpost at Banki Mongra. Various  labour colonies  existed in  these villages and around WCF Ltd. 3.   It is  alleged by the prosecution that Anang Mishra (A- 1) on  15-7-1981 met his father at Tilsara and asked Laxamin Bai to  leave the  house .  Anang Mishra  (A-1) and  his two sisters,  namely,   Bimla  and   Kamla  beat   Laxamin   Bai mercilessly and  drove her  out of  the house. After locking the house, they alongwith their father Indradeo Mishra (A-2) left Tilsara. 4.   On 16-7-1981, Indradeo Mishra (A-2) finding the lock of his house  broken, lodged  a report  at Banki  Mongra police Outpost for  house breaking  and theft  of some utensils. In the FIR,  name of the suspected persons, viz., Hari Dass and Sunder Dass  (PW 9), real (A-1) and Laxamin Bai had gone. It

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was alleged by the prosecution that Laxamin Bai was not seen alive thereafter. 5.   Jait Ram (PW 1), the maternal uncle of Laxamin Bai with whom she was staying asked Sunder Dass (PW 9) to go and make inquiries about  her at Tilsara and Banwari. After coming to know that  she   was not  found at both these places, Sunder Dass (PW  9) lodge  a missing  report on  20-7-1981 at Banki Mongra police  outpost . On the very same day, her dead body was found  towards the  jungle side  near Nala under Besaram tree. On getting that information, constable Malan Singh (PW 5) went to the spot for keeping a watch during the night and on the  following day  i.e. 21st  July, 1981, ASI J.P. Singh (PW 17),  reached the  spot and commenced the investigation. The dead  body   was found  in a  very decomposed condition. After the  inquest on the dead body was held, it was sent to the hospital  for post mortem examination. Dr. B.S. Narvaria (PW 18) conducted the autopsy on 22-7-1981 and noted as many as nine  ante mortem  incised injuries.  He opined  that the death  was   caused  due  to  excessive  haemorrhage.  After completing the  necessary investigation,  a charge sheet was submitted against Anang Mishra (A-1), Indradeo Mishra (A-2), and Chandrika  (A-3) under  Section 302 read with Section 34 of the  Indian Penal  Code for  committing  the  brother  of Laxamin  Bai,   were  mentioned.   The  said  complaint  was investigated by  HC Vikram  Singh (PW  12)  who  during  the investigation alleged  to have  recovered  certain  utensils from Laxamin  Bai and  asked her  to report to the outpost , Banki Mongra on 18-7-1981. Accordingly, she went  there with her cousin  Mohar Dass (PW 2) and brother Sunder Dass(PW 9). Malan Singh  (PW 5),  a constable  on duty  took Laxamin Bai alongwith him  and produced  her before  the  Magistrate  at Korba on   18-7-1981.  She was then released on furnishing a personal bond  and in the same evening she returned to Banki Mongra alongwith  Malan Singh  (PW 5)  where she  met Sunder Dass (PW  9) at bus stand and expressed her desire to return to the village. At that time, Indradeo Mishra (A-2) was also waiting at some distance. Laxamin Bai then met her Advocate, Mathani, who  had earlier got her release on personal bound, in a  hotel near  bus stand  whom she  narrated  the  entire story. She  also expressed  her desire to stay with Indradeo Mishra (A-2)  regardless of  whether he  would keep  or kill her.  Accordingly she then went to Indradeo Mishra (A-2) and thereafter both  of them  proceeded towards  the jungle side enroute  to  the  Labour  Colony.  Anang  Mishra  (A-1)  and Chandrika (A-3)  were also  then present at bus stand. Anang Mishra (A-1)  then asked  Malan Singh  (PW  5)  as  to  what happened in  the Court?  After coming  to know  that she was released on  furnishing a  personal bond,  he and  Chandrika proceeded in  the same  direction in  which Indradeo  Mishra murder of Laxamin Bai. 6.   The appellant  denied the  accusation levelled  against them and  pleaded that  they were  innocent  and  have  been falsely implicated  in the  present crime.  They prayed that they be acquitted . 7.   The   prosecution   case   entirely   rested   on   the circumstantial evidence. In order to prove the complicity of the  accused,   the  prosecution   relied     upon   various circumstances and  led  oral  and  documentary  evidence  in support thereof.  The star witnesses of the prosecution case were Malan Singh (PW 5), Sonu Ram (PW 6), Sunder Dass (PW 9) and Jait Ram (PW 1). 8.   The learned  Addl.  Session  Judge,  Disapur  (M.P)  on appraisal of  oral and  documentary evidence  on record held that the prosecution had proved various vital circumstantial evidence. These  proved circumstances  were pointer  to  the

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guilt of  Anang Mishra  (A-1) and  Indradeo Mishra  (A-2) of committing the  murder of  Laxamin Bai.  The  learned  Trial Judge accordingly convicted them under section 302/34 of the Indian Penal  Code and  sentenced both  of  them  to  suffer imprisonment for life. However, the learned Trial Judge gave benefit of  doubt to   Chandrika  Prasad (A-3) and acquitted him of  the said charge. Being aggrieved by the judgment and order of  conviction passed  by the  trial court,  both  the convicted accused  preferred an  appeal to the High Court of Madhya Pradesh  at Jabalpur  Bench and  the learned Division Bench vide   it s judgment and order dated 25th April, 1987, dismissed the  same and  affirmed the  judgment and order of the trial  court .  It is  against this  judgment and  order passed by  the High Court Indradeo Mishra (A-2) on obtaining Special leave  has filed  Criminal Appeal  No. 632  of  1988 whereas Anang  Mishra has  filed Criminal  Appeal No. 761 of 1989 in  this Court challenging the legality and correctness of the  judgment and  order passed  by the High Court. Since both these appeals arise out of a common judgment , they are being disposed of by this judgment. 9.   We have  gone through the judgments of the courts below and we  regret to notice that they did not enumerate/set out the  circumstances  alleged  against  the  accused  and  the evidence in  support thereof  led by the prosecution when it was  very   much  necessary  in  a  case  of  circumstantial evidence. After going through the evidence on record, in our opinion, the  following circumstances  would be  relevant to determine the  complicity of  the appellants  in the present crime:- 1)   Whether Laxamin Bai met with a homicidal death? 2)   Laxamin Bai  was staying  with Indradeo Mishra (A-2) at Tilsara for the last three years as his mistress; 3)   Motive; 4)   Laxamin Bai was last seen in the company of A-2; 5)   Opportunity to  A-1 and  A-2 to  commit the  murder  of Laxamin Bai; and 6)   Recovery of  incriminating articles  i.e. blood stained clothes of A-1. 10.  Coming to  the first  circumstance,  namely,  unnatural death of  Laxamin Bai,  at the outset, it may be stated that it was  not seriously disputed that Laxamin Bai died because of several  injuries sustained  by her. Dead body of Laxamin Bai was  sent to the Primary Health Centre, Katghora, on 21- 7-1981. and  Dr. B.S.  Narwaria (PW  18) on  22nd July, 1981 performed the  post mortem  examination. It  was found  in a highly decomposed  condition. He  noted as many as nine ante mortem incised  injuries on  the  dead  body.  Dr.  Narvaria testified  that  the  death  was  caused  due  to  excessive haemorrhage. It is thus clear that Laxamin Bai met with a homicidal  death and  according to the medical expert, the death in  all probabilities  was caused  sometime between 18 the and  20th July  ,1981. Both  the courts  below,  in  our opinion, rightly  held that  Laxamin Bai  died  a  homicidal death due to ante mortem injuries sustained by her. 11.  To prove  the second  circumstance that Laxamin Bai was staying with A-2 as his mistress at Tilsara, the prosecution strongly relied  upon the  evidence  of  Jait  Ram  (PW  1), maternal     uncle      of     the      deceased,      Mohar Dass (PW  2), Ram Prasad (PW 8), Sunder Dass (PW 9), brother of the deceased and Chatur Dass (PW 10). Jait Ram (PW 1) had stated that Laxamin Bai was staying with Indradeo Mishra (A- 2) as  his mistress  since last  three years at Tilsara. The evidence of  Jait Ram  (PW 1)  finds corroboration  from the evidence of  Mohar Dass  (PW 2),  Ram Prasad  (PW 8), Sunder Dass (PW  9), brother  of the  deceased and  Chatur Dass (PW

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10). Sunder  Dass (PW  9) is the real brother of Laxamin Bai whereas Jait  Ram  is  the  maternal  uncle.  Both  of  them testified that  Laxamin Bai was staying with Indradeo Mishra (A-2) as  his mistress  at Tilsara. Ram Prasad Pandey (PW 8) was a teacher at Tilsara and an independent witness. He also supported the  evidence of  Jait Ram  (PW 1) and Sunder Dass (PW 9).  We, therefore,  conclude that  the prosecution  has proved this circumstance. 12.  The next  circumstance is   motive.  To  prove  motive, prosecution sought to rely upon the evidence of Jait Ram (PW 1), Mohar Dass (PW 2), Ram Prasad (PW 8), Sunder Dass (PW 9) and Chatur  Dass (PW  10). These  witnesses  testified  that Anang Mishra  (A-1) and  his two  sisters did not approve of the conduct  of their father Indradeo Mishra (A-2) and there used to  be quarrels  between them.  It was obvious that the children did  not approve  of the  conduct of  their  father which had  brought disrepute  to the family. Though both the appellant have  denied these  facts but  we see no reason to disbelieve the  prosecution evidence.  We  accordingly  hold that the relation between Anang Mishra (A-1) and Laxamin Bai were not  cordial. Because  of these  strained relations, it was alleged and proved by the prosecution that on 16th July, 1981, Indradeo  Mishra (A-2)  and  Anang  Mishra(A-1)  drove Laxamin Bai  out of  their house  at Tilsara  and locked the same. This  fact stands proved from the evidence of Jait Ram (PW 1),  Sunder Dass  (PW 9)  and Ram  Parsad Pandey (PW 8). They have  stated on  oath that on 16th July ,1981, both the appellants drove  Laxamin Bai  from their house and gave her some  utensils.   Laxamin  Bai   thereafter  came  alongwith utensils to  the house  of Jait  Ram (PW 1). The evidence of these witnesses  is quite  consistent and  both  the  courts below committed  no mistake  in accepting  this part  of the prosecution story. We accordingly confirm the said finding. 13.  To supplement  the  motive,  the  prosecution  strongly relied upon the fact of lodging the First Information Report at Banki  Mongra police  station by  Indradeo  Mishra  (A-2) against Laxamin  Bai for  house breaking  and theft  at  his house at  Tilsara. As  a consequence thereof Laxamin Bai was required to  attend the  Court at  Korba. There is intrinsic documentary evidence  on record to indicate that infact such a report  was lodged  by Indradeo  Mishra (A-2).  During the course of  investigation on  17th July,  1981, some utensils were alleged to have been recovered from Laxamin Bai and she was asked  to remain present on 18th July, 1981 in the court of Judicial  Magistrate at  Korba.  It  also  could  not  be disputed that  on 18th  July, 1981,  Laxamin Bai  did remain present in  the court  of Judicial  Magistrate, Korba and on that date,  she  was  released  on  bail  upon  furnshing  a personal bond.  Mohar Dass  (PW 2)  and Sunder  Dass (PW  9) stated that  they also  attended the court alongwith Laxamin Bai. In  regard to  this theft  case, there  is evidence  on record to  show that  Laxamin  Bai  was  interrogated;  some utensils were  seized from  her possession  and she  had  to appear before  the Court  at Korba.  This appears  to  be  a strategy thought  of by  Anang Mishra(A-1)  with the  active assistance of  some of the police official attached to Banki Mongra police  station.  Anang  Mishra(A-1)  could  do  this because he himself was serving in the police constabulary in Madhya Pradesh  and at  the relevant  time, he was posted as constable in  Police lines,  Bilaspur. The prosecution story in this  behalf  has  got  considerable  substance  and  the conduct of  Anang Mishra (A-1) was not free from doubt. From the material  on record  , we  find that  this complaint was lodged by  Indradeo Mishra  (A-2) at  the instance  of Anang Mishra(A-1). There  is also material on record to prove that

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Anang Mishra(A-1)  and his  two sisters used to quarrel with Laxamin Bai  and were  asking her  to leave  the  house  and company of  Indradeo Mishra  (A-2).  However,  there  is  no material on  record to  show that  Indradeo Mishra (A-2) had any quarrel with Laxamin Bai or had any motive to commit her murder. On  the contrary,  the evidence  on record indicates that Indradeo  Mishra (A-2)  was a  widower and  was staying with Laxamin Bai for the last three years at Tilsara and had a very  soft corner  for  her  as  she  served  him  in  all respects. In  view of  these circumstances   we  are of  the considered view that the prosecution evidence on record does not justify;  a finding  that Indradeo  Mishra (A-2) had any motive to  commit the  murder of  Laxamin Bai. At the most , the evidence  on record would indicate that Anang Mishra (A- 1) had  some motive  to see  that his father and Laxamin Bai did not  stay together  and she  be driven out of the house. But in the absence of any further evidence , it would not be proper to  hold that  he (A-1)  had a motive to do away with Laxamin Bai. 14.  The next  circumstance  strongly  relied  upon  by  the prosecution is that Laxamin Bai was last seen in the company of A-2.  To prove  this circumstance, the prosecution saught to draw  support from the evidence of Malan Singh (PW 5). He stated that  he came  alongwith Laxamin  Bai to Banki Mongra police station. Thereafter she met her Advocate, Mathani and narrated the  whole story to him. At the same time, Indradeo Mishra (A-2)  was standing at some distance. Sunder Dass (PW 9) who  was then present asked Laxamin Bai to come alongwith him to  village Tilsara.  She, however,  refused saying that she would go alongwith Indradeo Mishra(A-2), irrespective of whether he  would keep  or kill her. The witness then stated that thereafter  Indradeo Mishra  (A-2) and Laxamin Bai went along the  road towards  the jungle  side which leads to the Banwari site.  He them  stated that  Anang Mishra  (A-1) and Chandrika (A-3)  who were  standing in  front of  the police chowki enquired  about the  court matter and thereafter went towards jungle side. 15.  Sunder Dass  (PW 9)  who is the brother of Laxamin Bai, stated that when he came to police station, Banki Mongra, he asked Laxamin  Bai to  come alongwith him to Tilsara but she refused and went alongwith Indradeo Mishra (A-2) towards the jungle side.  On 19th July, 1981, when he found that Laxamin Bai did  not come to Tilsara, lodged a missing report(Ex.17) on 20th July, 1981. 16.  We have  very carefully  gone through  the evidence  of Malan Singh  (PW 5)  and Sunder  Dass (PW 9). However, their conduct does  not inspire  confidence in  us to accept it as credible.  Malan   Singh  (PW  5)  during  cross-examination admitted that after the death report of Laxamin Bai was made on 20th  July, 1981,  under Section  174   of  the  Code  of Criminal  Procedure,  he  did  not  tell  the  Investigating Officer that on 18th July, 1981, in the evening, Laxamin Bai went to Banki Mongra bus stand alongwith Indradeo Mishra (A- 2) and  thereafter was  followed by  Anang Mishra  (A-1) and Chandrika (acquitted  accused). Even  on 21st July, 1981, he did not  mention these facts to the Investigating Officer at the place  of occurrence.  He denied  that he knew about the missing report  lodged by Sunder Dass on 20th July, 1981. He admitted that in his arrival report dated 18th July ,1981 he did not mention therein that Laxamin Bai also came alongwith him from  Korba to  Banki Mongra.  The above mentioned vital omissions  rendered  his  evidence  unreliable.  Admittedly, Anang Mishra  (A-1) was  serving in  the police constabulary and this  fact, in our opinion, appears to be the reason why this witness  was not  consistent in  testifying  the  whole

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truth. 17.  Sunder Dass  (PW 9)  is the  brother of Laxamin Bai who stated  that  when  Laxamin  Bai  was  produced  before  the Magistrate at  Korba, he  was present there but did not give any reason  as to why he did not come alongwith her to Banki Mongra. This  conduct of  Sunder Dass (PW 9) appears to us a strange one.  In addition  to this,  if  according  to  this witness, he  saw Laxamin Bai going alongwith Indradeo Mishra (A-2) towards  the jungle  side enroute  to Banwari site and finding that  she did  not come  to Tilsara,  ordinarily the brother would  have gone  to Banwari  site and found out her whereabouts. But  he kept quiet until missing report (Ex.17) was lodged  on 20th July, 1981. The report only recited that his sister  did  not  return  home  and  upon  enquiry  from Indradeo Mishra(A-2)  he told  him that  he did not know her whereabout. The  next  relevant witness on this circumstance is Sonu  Ram (PW  6) who claimed to be the maternal uncle of Laxamin Bai.  He stated  that in  the  month  of  Ashaad  on Saturday, he  came  to  Tilsara  from  Samipal  to  see  his children and  agriculture fields where he met Ram Prasad and Jait Ram  at the  house of  his brother Sudh Ram. Ram Prasad told him that Laxamin Bai  was killed by some one somewhere. From Tilsara,  he   came at  about 4.00  p.m. to jungle side where his sister was staying. He told Ram Prasad that he met Laxamin Bai  on this very Saturday when he was going towards Samipal via  jungle side  at about 8.00 or 9.00 p.m. He then stated that  Laxamin Bai  and Indradeo  Mishra (A-2),  Anang Mishra (A-1) and Chandrika met him near a small pound and on inquiry by  Laxamin Bai,  he told  her that  he was going to Samipal. They  also told him that they were going to Tilsara to leave  Laxamin Bai  at the  house of  her maternal uncle. After about  20/25  days,  when  he  went  to  Tilsara  from Samipal, Ram  Prasad and  Jait Ram told him at Tilsara about the murder of Laxamin Bai. He then went to the police chowki to make  the report.  He  also  stated  that  after  meeting Laxamin Bai,  he did not know about her death for 20/25 days till he returned to Tilsara. During the cross-examination he admitted that he did not tell about his meeting with Laxamin Bai to  anyone else  except Ram  Prasad and  Jait  Ram.  His evidence is  again totally vague. His statement was recorded by the  police on  12th August,  1981. In  this view  of the matter, we do not feel it safe to accept his evidence. 18.  It is  true that  both the  courts below  accepted  the evidence of  Malan Singh (PW 5), Sunder Dass (PW 9) and Sonu Ram (PW  6) being  reliable one. But in our considered view, they have  totally ignored  the vital  omissions which  were brought on record by the defence. It also needs to mentioned that although  Malan Singh (PW 5) was guarding the dead body from 20th  July, 1981  until it  was sent  for  post  mortem examination on  21st July , 1981 to anybody. The evidence of these three  witnesses was not consistent with human conduct and if  this evidence is discarded, then there is hardly any evidence on  record to  prove that Laxamin Bai was last seen in the  company of  Indradeo Mishra (A-2) and after sometime Anang Mishra  (A-1) and Chandrika followed them. It may also be stated  that the First  Information Report as regards the crime was  lodged on  21st July, 1981 by Jait Ram (PW 1) who is the maternal uncle Laxamin Bai. He stated that he got the information as  regards the  unnatural death  of Laxamin Bai from Sunder Dass (PW 9). After going through the evidence of these witnesses,  in our  opinion, it  would not  be safe to accept the  same and  hold that the prosecution had proved a vital circumstance,  namely, that  Laxamin Bai was last seen in the company of Indradeo Mishra (A-2). 19.  As regards  the next circumstance, namely, that A-1 and

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A-2 had  an opportunity  to commit the murder of Laxamin Bai even it  is assume that they had such an opportunity but the prosecution has failed to connect this circumstance with the present crime. 20.  The prosecution  also sought  to rely upon the evidence of recovery of certain articles (clothes) belonging to Anang Mishra  (A-1).  The  evidence  in  this  behalf  is  totally unsatisfactory  inasmuch   as  it  was  not  proved  by  the prosecution  that  these  articles  were  seized  after  his arrest, pursuant  to a discloser statement made by him under Section 27  of the  Evidence  Act.  The  only  one  article, namely, langot  was shown to have some blood stains of which the origin  could not  be detected. On this slander evidence of blood  stains on  langot, it  would  not  be  correct  to connect Anang Mishra (A-1) with the present crime. 21.  It is  unfortunate  that  the  murder  of  Laxamin  Bai remained undetected as the investigating agency did not take proper  care   to  carry   out  the  investigation.  Various loopholes were  left in  the investigation  and the  present case being  a case of circumstantial evidence, more care was expected on  the part  of the investigating agency. In these circumstances, we  have  no  alternative  but  to  give  the benefit of  doubt to  the appellants  and acquit them of the charge of  committing the  murder of  Laxamin Bai punishable under Section 302/34 of the Indian Penal Code. 22.  In the  result, Criminal  Appeal  No.632  of  1988  and Criminal Appeal  No. 761  of 1989  are allowed. The impugned judgment and  order of conviction and sentence passed by the High Court  is quashed and set aside and both the appellants are given  the  benefit  of  doubt  and  acquitted.  If  the appellants are  on bail,  they stand  discharged from  their bailbonds.