Ubed vs State of Madhya Pradesh

This appeal has been preferred by the appellants being aggrieved by the judgment dated 28.12.2007 passed by Sessions Judge, Chhindwara in Sessions Trial No.118/2007, whereby the appellants were convicted for the offences punishable under Sections 302 & 201 of the IPC and sentenced to life imprisonment and R.I. for two years with fine of Rs.10,000/- and Rs.1,000/- respectively. In default of payment of fine, further one year R.I. and two months R.I.

It is not in dispute that the appellants are husband and wife and they are parents of the deceased (Anita).

According to the prosecution case, on 21.03.2007 at village Ghorad the daughter of the appellants was missing. On 22 nd March 2007 at about 1:45 p.m., when appellant Godri was returning back to his home after searching the deceased Anita, he found dead body of Anita in the field of Obedur Rahman. She was pregnant about 22-24 weeks. On the intimation of the appellant no.1, merg report was registered by the Police Station Bichchua, District Chhindwara. After inquest, it was found that death of the deceased was caused by the appellants by throttling her

neck. They confessed their guilt before some villagers. Therefore, FIR has been registered against the appellants for offence under Sections 302 and 201 read with Section 34 of the IPC. After completion of investigation, charge sheet was filed before the competent Court. The case was committed to the trial Court.

Learned trial Court framed charges for offence under Sections 302 & 201 of the IPC against the appellants for committing murder of their daughter. The appellants abjured guilt and claimed that they are falsely implicated. However, no defence witness has been examined.

The trial Court after considering the evidence and material available on record, convicted and sentenced the appellant as mentioned above, on the basis of their extra judicial confession and testimony of their other children namely Manu Bai (PW-5) and Chetram (PW-12).

The aforesaid findings have been challenged by the appellants on the ground that they are innocent and falsely implicated by the police.

There were so many drawbacks in the investigation, which were ignored by the learned trial Court. Learned trial Court has also ignored the cross-examination of minor witnesses namely Manu Bai (PW-5) and Chetram (PW-12). Further, no definite opinion has been given by Dr. Naresh Lachwani (PW-10) about the cause of death. Panchnama (Ex.P/4) is not admissible as per law under the definition of "extra judicial confession" of the accused persons. The police failed to investigate about the person responsible for the pregnancy of the deceased. Role of Obedur Rahman was suspicious, whereas the dead body of the deceased was found in his

field. Hence, the appellants prayed to set aside the impugned judgment and they be acquitted from the charges levelled against them.

Learned Govt. Advocate for the respondent/State has submitted that the appellants have rightly been convicted. The judgment does not deserve to be interfered with.

Having regard to the arguments advanced by learned counsel for the parties at length, the record of the trial Court perused.

The main point for determination in this appeal is that-whether the trial Court has committed any illegality in convicting and sentencing the appellants under Sections 302 & 201 of the IPC.

It is not in dispute that the appellants were parents of the deceased. The deceased was about 18 years old unmarried girl. It is also not in dispute that as per the testimony of Dr. Naresh Lachhwani (PW-10), the deceased was killed by throttling of her neck and at that time she was pregnant for about 22-24 weeks. Therefore, definitely there was a motive behind the incident to kill the deceased. It is surprising that the dead body of the deceased was found in field nearby residence of Obedur Rahman (PW-1). As per opinion of Dr. Naresh Lachhwani (PW-10), he conducted the postmortem of the deceased's body on 23.3.2007. At that time, the dead body of the deceased was almost decomposed. Therefore, Dr. Naresh failed to give a definite opinion with regard to the cause of her

death. He found a ligature mark over her neck. Thus, Dr. Naresh opined that death of the deceased may be caused by throttling of her neck.

Generally, it is very difficult for any parents to cause death of their own daughter in such a manner. Definitely, there was some reason behind the incident, therefore, it was necessary for the investigating authority to find out the person, who was having physical relation with the deceased.

The fact narrated by Ramlal (PW-7) in Ex.P/4 is that on 21 st March, 2007 at about 10:00 p.m., the appellant slapped the deceased and next day early morning, Manu Bai (PW-5) informed Ramlal about throttling of neck of the deceased by the appellant Godri. Ramlal (PW-7) was working under Obedur Rahman. Dead body of the deceased was found at about 9:30-10:00 a.m. and on the same day, at about 5:00 a.m., Ramlal knew some part of incident from sister of deceased Manu Bai (PW-5). It is unnatural conduct of Ramlal (PW-7) that he had not tried to verify about the condition of his niece Anita just after the information.

Learned trial Court convicted the appellants on the basis of the extra judicial confession. They confessed before Obedur Rahman (PW- 1). Obedur Rahman (PW-1) has stated that in the month of March, at about 9:30-10:00 a.m., his servant Yashwant informed him that a body of woman was lying in his orange field, then he along with Natthu and Ravishankar went to the place of incident. Since the dead body of the deceased was found in the field of Obedur Rahman therefore, suspicion was created against the land owner also. It is important to note that, for the corroboration of his testimony, the police neither examined Yashwant, Natthu, Ravishankar nor any lady as stated by Obedur Rahman (PW-1) in his statement. There is also some material defect in the investigation, which was ignored by the learned trial Court.

Obedur Rahman (PW-1) deposed that he went to lodge the report at police station even then, the deceased was his neighbour. He has deposed that firstly he failed to identify the dead body of deceased Anita but he never informed the aforesaid facts to the parents of the deceased, who were his neighbour as shown in the spot map Ex.P/18. He has also deposed that in his presence, appellant Godri father of the deceased also came to the police station. It is important that upto this juncture, none of the appellants confessed their crime before any witnesses or villagers. Obedur Rahman (PW-1) has deposed at paragraph 6 that after lodging the report or next day, the police came at village and interrogated the appellants before him. In presence of police, the appellants confessed that they caused death of their daughter by throttling of her neck by means of a rope. In the presence of police, such type of extra judicial confession cannot be legally accepted to hold the appellants guilty.

We are of the opinion that extra judicial confession/ Panchnama was prepared by Obedur Rahman (PW-1) with some intention on 22nd March, 2007. Obedur Rahman (PW-1) deposed that dead body of the deceased was seen by him and other witnesses at about 9:30-10:00 a.m., and an intimation was given to the police as per Ex.P/13 on 23 rd March, 2007 by the appellant Godri. The wordings of extra judicial confession of the appellants written by Obedur Rahman himself in the following format:-"

"VERNACULAR MATTER OMITTED"

The aforesaid Panchnama was given by Obedur Rahman to the police. Obdur Rahman (PW-1) has deposed in paragraph 12 of his cross-examination that contents of Ex.P/4 were not stated by the appellants personally to him but the aforesaid Panchnama was prepared in a lengthy way and also signed by four witnesses and appellants Godri and Sukri has put their thumb impression. For the corroboration of testimony of Obedur Rahman (PW-1) and the proceeding of Panchnama Ex.P/4, the statements of Anand Rao (PW-3) and Ramlal (PW-7) clearly indicates that Ex.P/4 was written by Obedur Rahman (PW-1) in presence of the police.

In the statement of Manu Bai (PW-5) and Chetram (PW-12), it is found that Ramlal is their uncle and he was working in the field of Obedur Rahman and Obedur Rahman threatened the appellants to confess that they had caused death of their daughter, otherwise they would not be allowed to live in the village. The witnesses have also stated that Obedur Rahman (PW-1) is the "Patel" of their village. He held his influence over the villagers. In such circumstances, Ex.P/4 is not found reliable. We are of the opinion that Ex.P/4 is not a reliable document to hold the appellants guilty for committing murder of their daughter.

There is no eyewitness of the incident. Manu Bai (PW-5) and Chetram (PW-12) turned hostile. No other reliable evidence has been adduced by the prosecution against the appellants. Therefore, we come to the conclusion that learned trial Court wrongly convicted the appellants for committing murder of their elder daughter (Anita).

On the basis of aforesaid discussion, the present appeal filed by the appellants is hereby allowed. The conviction and sentence passed by the trial Court against the appellants is set aside. They are acquitted from the charges of offence punishable under Sections 302 & 201 of the

IPC. If the appellants have deposited the fine amount before the trial Court, the same shall be refunded to them.

The appellant No.2 is on bail. Her presence is no more required before the Court. Her bail bond stand discharged. The appellant No.1 is in custody. It is directed that the appellant no.1 Godri be released immediately, if he is not required in any other case.

Copy of the judgment be sent to the trial Court along with its record for information and compliance.