Indradeo
Mishra and Anang Mishra Vs. State of Madhya Pradesh [1996] INSC 1578 (10 December 1996)
M.K.
Mukherjee, S.P. Kurdukar S.P.Kurdukar.J.
ACT:
HEAD NOTE:
THE
10TH DAY OF DECEMBER, 1996 Present:
Hon'ble
Mr. Justice M.K .Mukherjee Hon'ble Mr. Justice S.P. Kurdukar Somraj Dutt, R.K. Shukla,
Sr. Advs., Uma Dutta, S.C.Maheshwari, R.C. Verma, Ms. Sandhya Goswami, Advs.
with them for the appellants. U.N. Bachawat, Sr. Adv., Prashant Kumar, Adv. for
Uma Nath Singh, Adv. with him for the Respondent J U D G E M E N T The
following Judgment of the Court was delivered:
WITH CRIMINAL
APPEAL NO. 761 OF 1989
J U D
G M E N T
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 (Brahim) 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 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 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 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 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 occurence. 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 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 circumtance, namely, that A-1 and 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.
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