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Madhya Pradesh High Court · body

2005 DIGILAW 1280 (MP)

State of M. P. v. Than Singh

2005-12-14

J.K.MAHESHWARI, S.K.KULSHRESTHA

body2005
Judgment ( 1. ) THE State has preferred this appeal against the judgment dated 26-8-1996 of the learned Addl. Sessions Judge, Manawar, District Dhar in S. T. No. 142/95 by which the learned Judge has acquitted the respondents/accused as also the two co-accused of the charges under Sections 302/34 and 394 of the IPC. The State had applied for leave to appeal against the acquittal of all the three accused but since the leave was granted only against accused Than Singh s/o Jahar Singh, the appeal is confined against his acquittal only. ( 2. ) THE facts, in brief, leading to the prosecution of the respondents are that a report with regard to the unnatural death of deceased Tal Singh was made by Bahadur (P. W. 6) at Police Station, Gangwani on the basis whereof, Marg No. 29/94 was registered. After recording the FIR, the inquest was held as required under Section 174, Cr. PC. In the report, it was stated by Bahadur that on 21-9-1994 at about 8 A. M. his father Tal Singh had escorted his sister Kamli Bai to take her to Village Kota. On 22-9-94 at about 9. 30 A. M. , Than Singh had called on him and informed that the body of his father was lying on Pipalda road. He, therefore, along with his uncles son Bharo Singh, rushed to the place and found that his father was lying dead. He reported the matter to the police Gandhwani. The investigation commenced during which it was found that the deceased had injuries on his head and that he had been done to death while he was robbed of his 12 bore gun. After necessary investigation including seizure of the blood-stained and controlled earth and the license of the gun, the accused were prosecuted. However, on account of the absence of evidence implicating the accused or making out their complicity, accused were acquitted and hence this appeal by the State against the acquittal of the respondent. ( 3. ) THE learned Counsel for the State submits that the evidence of the prosecution is clinching and the fact that not only the accused had committed murder of Tal Singh, his gun was also taken away which was recovered from his possession, clearly indicate that after committing the murder of the deceased, the accused fled away with his gun. ) THE learned Counsel for the State submits that the evidence of the prosecution is clinching and the fact that not only the accused had committed murder of Tal Singh, his gun was also taken away which was recovered from his possession, clearly indicate that after committing the murder of the deceased, the accused fled away with his gun. These circumstances amply establish his complicity and, therefore, the learned Addl. Sessions Judge committed manifest illegality in acquitting the respondent/accused. ( 4. ) WE have heard the learned Dy. Advocate General and perused the record. ( 5. ) TO unfold the prosecution case, nine witnesses have been examined. P. W. 1 Bharo Singh has not supported the prosecution, P. W. 2 Lakpat is a panch witness to the seizure of articles like shoes and chappals, P. W. 3 Suresh Singh is also a seizure witness while P. W. 4 Amar Singh Yadav had prepared the spot map being Patwari of the area. P. W. 5 Dr. P. K. Porwal conducted autopsy and gave report Ex. P-6. P. W. 6 Bahadur is son of the deceased while P. W. 7 Kamli Bai is daughter who has testified to various facts. P. W. 8 Bhutria was examined to prove the arrest memo and memo under Section 27 regarding the disclosure made by the accused while P. W. 9 J. S. Gautam, Asstt. Sub Inspector, has referred to the steps taken by them in the investigation. ( 6. ) P. W. 5 Dr. P. K. Porwal has deposed that he was posted as Asstt. Surgeon in the Community Health Centre, Gandhwani on 22-9-94 when dead body of deceased Tal Singh was brought to him for post-mortem. On external examination, he had found that on the right cheek, there was abrasion measuring 6 x 5 cms and blood was flowing out from the right ear. On the head, there was abrasion measuring 4x3 cms. Skin had pealed off at various places in the elbow and below the knees. In the report Ex. P-6 he has expressed that the cause of the death of deceased was due to head injury and damage to the brain. The crucial question that falls for our decision is that whether the homicidal death of Tal Singh was on account of any act of the respondent/accused. ( 7. In the report Ex. P-6 he has expressed that the cause of the death of deceased was due to head injury and damage to the brain. The crucial question that falls for our decision is that whether the homicidal death of Tal Singh was on account of any act of the respondent/accused. ( 7. ) THE prosecution has strongly relied upon the testimony of P. W. 6 Bahadur and P. W. 7 Kamli Bai for proving that the accused were responsible for causing the death of the deceased. P. W. 6 Bahadur, son of the deceased has deposed that his father had gone to leave his sister to Village Kota. He was carrying a 12 bore gun. Next day, Than Singh had informed that he was lying dead on the road and when he rushed to the place, he found him lying on the road in injured condition with blood flowing out from his ear and clothes smeared by the blood. He lodged the report and thereafter the Police started investigation. Police has also seized license Ex. P-10 pertaining to the 12 bore gun. A significant feature appearing in the testimony of P. W. 6 Bahadur is that nothing has been stated by him to connect the respondent with the incident in question. He did not identify the gun allegedly seized from the accused. Under these circumstances neither any complicity is made out in respect of the death nor in respect of the gun stolen. ( 8. ) P. W. 7 Kamli Bai, the daughter of the deceased, has stated that her father had escorted her to her matrimonial home in Village Kota and while he had returned alone from there, he was carrying his licensed gun. Thereafter, she learnt that her father was lying dead near the river and when she reached the place where her fathers dead body was lying, she noticed that he had injuries on his head probably caused by stone and in his legs. His gun was missing. The testimony of P. W. 7 Kamli Bai also suffers from the same infirmity as the testimony of P. W. 6 Bahadur. Nothing has been deposed by P. W. 7 to even remotely connect the accused with the injuries found on the body of the deceased or the gun allegedly seized from him. His gun was missing. The testimony of P. W. 7 Kamli Bai also suffers from the same infirmity as the testimony of P. W. 6 Bahadur. Nothing has been deposed by P. W. 7 to even remotely connect the accused with the injuries found on the body of the deceased or the gun allegedly seized from him. Under these circumstances, there is not even an iota of evidence to connect the respondents with the offence under Section 302 and, therefore, no interference appears necessary in connection with the acquittal of the respondent under Section 302 of the IPC. ( 9. ) COMING to the acquittal for the charge under Section 394 of the IPC, it is seen that though witnesses have stated that deceased Tal Singh was carrying a gun while going to Village Kota and according to P. W. 7 Kamli Bai, daughter of the deceased, he was carrying his gun when he was leaving back for his village, the gun was not found. While it is proved that his gun was taken away, there is no evidence to show that the gun allegedly recovered at the instance of the accused was the same gun which belonged to the deceased and which he was carrying while returning from Village Kota. As a matter of fact, seizure of the gun as per Section 27, memo has not been proved as P. W. 8 Bhuteria, witness to the arrest memo and the memo under Section 27 of the Evidence Act, has not supported the prosecution and the Police Officer who prepared those memoranda and allegedly seized the gun, has not been examined. There is total absence of evidence with regard to the recovery of the gun from the accused, firstly, the gun has not been shown to have been seized from the accused or at his instance and secondly it has not been shown that the gun said to have been recovered from him is the same weapon which was being carried by him or which is licensed gun of the deceased. Under these circumstances, on the basis of the alleged recovery of the gun, no inferences of the guilt of the accused under Section 394 can be drawn. ( 10. Under these circumstances, on the basis of the alleged recovery of the gun, no inferences of the guilt of the accused under Section 394 can be drawn. ( 10. ) IN an appeal against acquittal, we are conscious, if the view of the Trial Court is reasonable even if any other view is possible, the view of the Trial Court should be allowed to prevail as the Trial Court has also the opportunity of observing the demeanour the witnesses. The view of the Trial Court in the present case is based on sifting of the evidence and on the basis of marshalling of the evidence the conclusions arrived at by the Trial Court are reasonable, just and proper. In fact, in the state of evidence as discussed above, there appears no room for any other view. We are therefore not inclined to interfere in the order of acquittal passed by the Trial Court. The appeal is, therefore, dismissed.