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Madhya Pradesh High Court · body

2001 DIGILAW 24 (MP)

Bhujbal v. State of M. P.

2001-01-04

C.K.PRASAD, USHA SHUKLA

body2001
JUDGMENT 1. Dhola Singh is appellant No.3 in Criminal Appeal No. 439/89. He has also preferred appeal from the jail, which has been registered as Criminal Appeal No. 493/89. Both the appeals arise from a common judgment and as such, they are being disposed of together. 2. Appellant No.1 Bhujbal and appellant No.2 Suddhu were charged for an offence under section 302 of the Indian Penal Code for causing the death of Boya alias Samelal. They have further been charged along with appellant No.3 Dola Singh for offence under section 201 of the Indian Penal Code. Sessions Judge, Balaghat by his judgment dated 3rd April, 1989 passed in S.T. No. 12/&9, held appellants 1 and 2 guilty for offence under section 302 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. All the appellants have further been found guilty for offence under section 201 of the Indian Penal Code. However, the learned Judge has not awarded separate sentence to appellants No. 1 and 2, but has awarded rigorous imprisonment for five years to appellant No. 3 Dhole Singh for this offence. Aggrieved by the same, appellants have preferred this appeal. 3. According to the prosecution, a Panchayat was held in village Dorli on 25.2.1988 in which appellants No.1-and 2 admitted that they owe a sum of Rs. 292/- to the deceased Boya alias Samelal. In the said panchayat, these appellants further agreed to pay a sum of Rs. 92/- on the following day and balance amount of Rs. 200/- later-on. According to the prosecution, thereafter the deceased left in the company of the aforesaid appellants and was not seen alive thereafter by any person. Prosecution story further is that on 4.3.1988 at 6 a.m. appellant No.3 went to the residence of the Patel Shriram (PW 4) and informed him that on 26.2.1988 while he was breaking stone in the orchard of appellant Suddhu Singg he found the dead body of Boya alias Samelal hanging from a mango tree. Appellant Dola Singh is further alleged to have narrated to PW 4 Shriram that on the said date, without informing anybody, he along with the other appellants took the dead body to the Jhiriya Nala and burried the same there. PW 4 then called Sarpanch PW 3 Keharsingh and in his presence appellant Dola Singh narrated the incident. Thereafter a report was lodged to the Police (Ex. PW 4 then called Sarpanch PW 3 Keharsingh and in his presence appellant Dola Singh narrated the incident. Thereafter a report was lodged to the Police (Ex. P-14) on 4.3.1988 at 4.30 p.m. 4. After receipt of the information, Sub-Inspector of Police PW 6 Y.K. Naik along with the Tehsildar and PW 7 Dr. T.P. Bhojak went to the Jhiriya Nala and on the memorandum of the appellants, recovered the dead body of Boya from Nala. The dead-body was sent for post-mortem examination to PW 7 Dr. T.P. Bhojak who found one ligature mark around the neck just above the thyroid cartilage. As regard the cause of death, the doctor gave his opinion as follows : -- "No definite opinion as to the cause of death could be ascertained as the dead body is' in the advance stage of putrefaction. Viscera preserved in three bottles for chemical analysis. Fourth bottle contains upper part of trachea. Age of the death within about last 8 to 10 days from the time of P.M. Examination." 5. Police after investigation submitted charge sheet against appellants No.1 and 2 for offence under section 302 of the Indian Penal Code and against all the appellants for offence under section 201 of the Indian Penal Code. The case was ultimately committed to the Court of Session for trial. Appellants denied to have committed any Offence and their plea is that they have falsely been implicated in the case. 6. During the course of trial, prosecution altogether examined 7 witnesses. PW 1 Dhanpal Pancheshwar is the patwari of the village and has prepared the sketch map of the place of occurrence (Ex.P-1). PW 2 Bihari is a witness who has narrated about the panchayat in which appellants No.1 and 2 have admitted that they owed a sum of Rs. 292/-, to the deceased. PW 3 Keharsingh is the Sarpanch of the village in whose presence the Panchayat had taken place and appellants No.1 and 2 admitted to have owed a sum of Rs. 292/- to the deceased and promised to give a sum of Rs. 92/- on the following day and balance amount at a later stage. 292/-, to the deceased. PW 3 Keharsingh is the Sarpanch of the village in whose presence the Panchayat had taken place and appellants No.1 and 2 admitted to have owed a sum of Rs. 292/- to the deceased and promised to give a sum of Rs. 92/- on the following day and balance amount at a later stage. PW 4 Shriram is the Patel of the village to whom appellant No.3 Dola Singh is alleged to have stated about the dead-body of the deceased hanging in the orchard of appellants No.1 and 2 and act of burrying of the dead-body in the Jhiriya Nala. PW 5 A.L. Pandey is the Deputy Ranger who has prepared the sketch map (Ex.P-15) of the place of occurrence. PW 6 Yogendra Kumar Naik is a Sub-Inspector of Police who has investigated the case and recorded the statement of the witnesses. PW 7 Dr. T.P. Bhojak is a doctor who has conducted the post-mortem examination of the dead-body. 7. There is no eye-witness to the occurrence and the prosecution had made endeavour to establish the charge on the basis of circumstantial evidence. The trial Court placing reliance on the evidence of the prosecution witnesses has found appellants No.1 and 2 were last seen with the deceased, had motive to commit the offence and on account of recovery of the dead-body at the instance of the appellants; found that the chain of circumstantial evidence leads to the guilt of the appellants and accordingly held appellants No.1 and 2 guilty for offence under section 302 of the Indian Penal Code. 8. Mr. S.L. Kochar appears on behalf of the appellants in Criminal Appeal No. 439/89. Sri S.K. Gangrade, P.L. appears on behalf of the State. Mr. Kochar appearing on behalf of the appellants submits that for conviction of appellants No.1 and 2 for offence under section 302 of the Indian Penal Code, prosecution is obliged to prove beyond all reasonable doubt that the death of Boya alias Samelal was homicidal in nature. He points out that the prosecution has not been able to prove that the death of Boya alias Samelal was homicidal in nature and, as such, conviction of appellants No.1 and 2 for offence under section 302 of the Indian Penal Code is fit to be set aside. He points out that the prosecution has not been able to prove that the death of Boya alias Samelal was homicidal in nature and, as such, conviction of appellants No.1 and 2 for offence under section 302 of the Indian Penal Code is fit to be set aside. He further submits that the chain of circumstantial evidence placed on record is not such that it points out to the guilt of the appellants and as such appellants are entitled to be given the benefit of doubt. Mr. Gangrade, P.L., however, appearing on behalf of the State, submits that the death of Boya alias Samelal was homicidal in nature and the circumstantial evidence relied on by the prosecution is such that it points to the guilt of the appellants and as such the judgment of conviction of the appellants is not fit to be interfered with by this Court. 9. Having appreciated the rival submissions, we find substance in the submission of Sri Kochar. It is relevant here to state that PW 7 Dr. Bhojak who has conducted the post-mortem examination has clearly stated that no definite opinion as to the cause of death could be ascertained as the dead-body was in the advanced stage of putrefaction. It is worth mentioning here that the learned Judge while convicting the appellants has not given a categorical finding that the death of Boya alias Samelal was homicidal in nature. In the words of the learned Judge --"It is possible that the death had occurred on account of strangulation". On these materials it cannot be held beyond all reasonable doubt that the death of Boya alias Samelal was homicidal in nature. 10. Further, we are' of the opinion that the circumstantial evidence relied on by the prosecution is not such that it points out to the guilt of the appellants only. It is relevant here to state that during the course of trial, witnesses did state that after the Panchayat, the deceased left along with appellants No.1 and 2, but in the earliest report given to the Police (Ex. P-14), it has not been stated that the deceased left in the company of appellants No.1 and 2. It is relevant here to state that during the course of trial, witnesses did state that after the Panchayat, the deceased left along with appellants No.1 and 2, but in the earliest report given to the Police (Ex. P-14), it has not been stated that the deceased left in the company of appellants No.1 and 2. Further, the fact of recovery of the dead body at the instance of the appellants cannot be taken into account as the fact of the dead body lying in the Nala was known to the Investigating Officer from before. Even if, appellants No.1 and 2 owed a sum of Rs. 292/- to the deceased and having promised to pay the said amount, this circumstance cannot be said to be conclusive so as to hold the appellants guilty for the offence. We are of the considered opinion that the prosecution has not been able to prove beyond all reasonable doubt that appellants No. 1 and 2 have committed the murder of Boya alias Samelal so as to make them liable for offence under section 302 of the Indian Penal Code. We are further of the opinion that the material placed on record do not establish beyond all reasonable doubt that offence under section 201 of the Indian Penal Code is made out against the appellants. 11. In the result,-both the appeals are allowed. Judgment of conviction and sentence is set aside. ................................