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2005 DIGILAW 522 (MP)

Navlesh Pathak v. Dushyant Sharma

2005-04-13

S.K.KULSHRESTHA, W.A.SHAH

body2005
JUDGMENT Kulshrestha, J. -- This revision is directed against the judgment dated 29.11.2004 of the learned Sessions Judge, Bhopal, in ST No. 48/2004 by which the learned Judge has acquitted the respondent Dushyant Sharma of the charge under section 302 of the IPC. The respondent was prosecuted for committing murder of .Jignesh Pandey and Ku. Udita Pathak. According to the prosecution, on there being a report that putrid smell was emanating from Flat No. G-3, Saket Apartment, the police proceeded to investigate the matter after recording the same in the general diary. As the Station House Officer reached the place, suspecting commission of some offence he informed the local unit of Forensic Science Laboratory to come to the spot and thereafter broke open the lock and prepared Panchnama to this effect. After entering the house, in two separate rooms, dead bodies of one male and one female were found and there were marks of injuries on the bodies. Finding that someone had committed murder, a "Dehati Nalish" was recorded. The team of FSL also inspected the place and a spot map was prepared. Efforts were made to get the bodies identified. On the basis of the articles found and the telephone numbers mentioned, persons were contacted and Pankaj Pathak, uncle of Udita Pathak, was, thus, traced, who identified his niece Udita. All the articles lying near the dead bodies were also seized. Enquiry was made from the persons living in the vicinity and their statements were recorded. Since there was no electricity in the flat, the flat was locked for continuing the investigation on the next day. On 27.10.2003, the body of the male found in the flat was identified in the hospital by Krishna Chand Pandey as his son. The evidence collected indicated complicity of accused Dushyant Sharma who on being interrogated, made disclosure with regard to the weapons of the offence. However, on 29.10.2003, he refuted having made any disclosure but again made disclosure on 30.10.2003 with regard to the place where he had concealed dumble and knife. He also informed about his clothes and motorcycle. These articles were duly seized and sent to the FSL for examination. However, on 29.10.2003, he refuted having made any disclosure but again made disclosure on 30.10.2003 with regard to the place where he had concealed dumble and knife. He also informed about his clothes and motorcycle. These articles were duly seized and sent to the FSL for examination. Learned counsel for the applicants has submitted that there was clinching evidence of the deceased Udita having been seen last in the company of the accused and therefore, ·in the absence of the plausible explanation from the accused as to how she died, the accused ought to have been convicted by the Court below Learned Sessions Judge while considering this circumstance has observed that uncle of Udita, while he was examined had not stated that she had left in the company of the accused on his motor-cycle. This apart, this circumstance by itself was not enough to conclusively establish the guilt of accused for reasons more than one. It is not disputed by the learned counsel that the flat in which the putrefied bodies were found was in occupation of four persons including the accused of which one was deceased Jignesh Pandey and the two others were Riyaz Rafiq and Mohd. Aneesh. The police examined Riyaz Rafiq and Mohd. Aneesh as witnesses but merely on suspicion arrested Dushyant Sharma. There is no evidence from the neighbourhood to suggest that on the fateful day Dushyant Sharma was in the flat in which the dead bodies were found murdered. This apart, there was a difference of 12 hours between the death of Jignesh Pandey and Udita Pathak as admitted by the Autopsy Surgeon Dr. Arneet Arora PW 5 and, therefore, at the time Jignesh Pandey was done to death, Udita must have been alive. Had it been that the accused was the person who had killed him, Udita would have raised alarm or rushed to report the matter to the police or other persons. The case of the prosecution is, thus, shrouded in mystery. Though the circumstances alluded to by the learned counsel do create some suspicion against the accused, the suspicion howsoever, strong cannot take the place of proof. The accused cannot be held guilty by a process of elimination by holding that since the other persons have given evidence with regard to their absence from the flat; the accused alone should be held responsible for having caused the death of the two deceased. The accused cannot be held guilty by a process of elimination by holding that since the other persons have given evidence with regard to their absence from the flat; the accused alone should be held responsible for having caused the death of the two deceased. On going through the Judgment of the learned Sessions Judge, we find that learned Judge has duly taken into consideration all the circumstances relied upon by the prosecution and since the circumstances individually did not point to the guilt of the accused in the sense that they were not incompatible with the hypothesis of his innocence, and they did not make a complete chain indicating his guilt, the order of acquittal does not can for any interference, muchless in revision against the acquittal in view of the limitations laid down by the apex Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh and another ( AIR 1962 SC 1788 ) and Satyendra Nath Dutta and another v. Ram Narain ( AIR 1975 SC 580 ). We, therefore, do not see any merit in the present revision. The revision is, accordingly, dismissed.