SHAKUR KHAN Vs. STATE OF M P

JUDGEMENT

(1.) THIS appeal is directed by the accused persons against the judgment and Order dated 4-4-94 passed by IIIrd A. S. J. Shajapur in S. T. No. 179/93 whereby the appellants were convicted for offence under Section 302/34, IPC and sentenced to life imprisonment and to pay fine of Rs. 1,000/- each, in default of payment of fine, six months R. I. in addition.

(2.) THE prosecution case, in brief, was that the appellant Kalloo Bharti @ Kamal Bharti, who was related to the deceased Rameshpuri, was having illicit connection with Sushilabai, wife of the deceased Rameshpuri. He used to make the deceased drink liquor and used to commit sexual intercourse with Sushilabai and used to threaten them. About six months before the date of incident i. e. , 28-1-93, on Sushilabai's complaint, Panchayat was held in village Kamalpur wherein the Panchas rebuked the appellant Kalloo and warned him not to go to the house of the deceased and dishonour Sushilabai. He administered beating to Sushilabai and made her to lodge false report against the deceased and challan was filed in the Court of Chief Judicial Magistrate, Shajapur which was registered as Cr. Case No. 619/92. On 25-1-93, the deceased attended the Court of C. J. M. Shajapur with his counsel Shri Tolaram Chandrawani (P. W. 5 ). The appellant Shakurkhan was also residing in village Kamalpur and had friendship with the appellant Kalloo. Shakurkhan took cycle on rent from Ghanshyam (P. W. 8 ). The appellants went to Chunnilal (P. W. 9) in village Bherawal and purchased one bottle of country liquor. On 24-1-93 the appellant Kalloo went to Ghanshyam (P. W. 4) and made him to write in two letters Exs. P-4 and P-5 that Rameshpuri was committing suicide due to the cruelty committed by Mangu Gir, Bapu Gir, Kailash Gir, Mohan Gir and Ratan Gir, brother and maternal uncles of the deceased. The deceased after 25-1-93 was not seen alive. His dead-body was found in the well of Chunnilal in village Guzari. On his report, Marg No. 3/93 (Ex. D-5) was registered at P. S. Kalapipal by Ramesh Mishra (P. W. 11), S. H. O. He entrusted investigation to ASI M. L. Karare (P. W. 10), who went to the well and took out the dead-body of the deceased from the well and held inquest on the dead-body and prepared inquest Panchnama Ex. P-4. He seized one woolen Shawl, two under-wears, one white plastic bag, one empty bottle of country liquor, two pages of four lined note-book (Exs. P-4 and P-5) vide Ex. P-25. The dead-body of Ramesh was identified by Sushilabai and Bapu Gir, the wife and brother of the deceased. It was sent to Primary Health Centre, Shujalpur for post-mortem examination where Dr. Gopal Mishra (P. W. 12) conducted autopsy thereon. He did not find any injury on the dead-body and could not give any definite opinion regarding cause and mode of death. He collected viscera. On querry Dr. Gopal Mishra opined that the deceased did not die of drowning into the water. It may be possible that the deceased may have been killed by throttling, vide report Ex. P-29. The appellant Kalloo was arrested on 18-2-93 and appellant Shakurkhan on 6-4-93. The appellant Shakurkhan gave information under Section 27 of the Evidence Act that he had concealed the wrist-watch in the field vide memo Ex. P-4, thereafter Shakurkhan led to the Investigating Officer and witnesses to the field near the well from where dead-body of Ramesh had been recovered and dug out and gave the wrist-watch Article A which was seized vide memo Ex. P-15. In identification parade of this watch held by Sarpanch Purshottam (P. W. 6), Sushilabai and Bapu Puri correctly identified the wrist-watch vide memo Ex. P-2. The hand-writing expert compared the letters Exs. P-4 and P-5 with the standard writing Exs. P-6 to P-18 of Ghanshyam (P. W. 4) and opined that the writer of Exs. P-6 to P-18 did not write Exs. P-4 and P-5 vide Ex. P-35. After completion of investigation, challan was filed. The appellants pleaded not guilty and false implication. The learned A. S. J. convicted and sentenced the appellants as stated above. Hence, this appeal.

(3.) SHRI A. S. Thakur, learned counsel for the appellants, submitted that the learned trial Judge committed grave error in convicting the appellants for committing murder of deceased Rameshpuri. He submitted that the circumstantial evidence produced by the prosecution does not lead to the conclusion that the appellants killed Rameshpuri. The deceased was not last seen alive in the company of the appellants. He submitted that the hand-writing expert clearly opined that Exs. P-4 and P-5 were not written by Ghanshyam (P. W. 4 ). On the other hand, Shri P. Verma. learned Dy. G. A. contended that the learned trial Judge rightly convicted and sentenced the appellants.