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2006 DIGILAW 288 (MP)

Vinod Patel v. State of M. P.

2006-02-21

DEEPAK VERMA, RAKESH SAKSENA

body2006
JUDGMENT SAKSENA, J. -- 1. Appellant has filed this appeal against the judgment dated 13.5.1992 passed in Sessions Trial No. 258 of 1990 by 9th Additional Sessions Judge, Jabalpur, convicting the appellant under sections 302 and 201 of IPC and sentencing him to life imprisonment and rigorous imprisonment for five years. 2. In brief, the prosecution case is that in the evening of 3.5.1990 in village Kelwas, appellant Vinod, accused Khemkaran and Gopal @ Ramgopal, Ramgopal Jhariya (PW 7), Rajesh Patel and Pintoo @ Ranjeet (deceased) were viewing television in the house of Ayodhya Prasad. They stayed there till 7 O’ clock in the evening and thereafter they went away. Appellant Vinod called Pintoo, Ramgopal, Rajesh Patel and went at the house of Tek Singh. Accused Ramgopal and Khemkaran also accompanied them. Vinod, Khemkaran and Ramgopal took Pintoo in a room of the house. It is said that there appellant gave a notebook to Pintoo as Pintoo had accused him of stealing his notebook. Pintoo did not accept that notebook and asked for his notebook which was stolen. On this, Vinod abused Pintoo and after felling him, mounted on his chest and strangulated him. Khemkaran and Ramgopal (accused) caught hold of his head and legs. Ramgopal (PW 7) and Rajesh Patel, on seeing this, ran away from the spot. Vinod Kumar and Khemkaran, after keeping the dead body in a gunny bag, took it on a cycle and threw it in a dry rivulet near Kelwas-Pipariya passage. In the night when Pintoo did not return home, his father Raj Kumar Usrete (PW 1) made a search and ultimately lodged the missing report on 4.5.1990 at Police Chowki Goreghat. This report was recorded by Head Constable Dayaram in Rojnamcha No.81. During inquiry, R.S. Choudhary, Sub-Inspector (PW 18) arrested the accused persons on 5.5.1990 and on the information of accused Khemkaran discovered the dead body of Pintoo from the rivulet which was seized vide seizure memo Ex. P-4. On the same day, on the information furnished by appellant, a gunny sack, a rope and a cycle were discovered from his house and seized vide seizure memo Ex. P-9. Police seized some hair entangled in the hand of Pintoo's body vide seizure memo Ex. P-8. Police also seized the sample of hair of the head of accused persons vide seizure memo Ex.P-5. P-9. Police seized some hair entangled in the hand of Pintoo's body vide seizure memo Ex. P-8. Police also seized the sample of hair of the head of accused persons vide seizure memo Ex.P-5. It is said that on the dead body, some jute fibres of the gunny sack were also found which were seized by the police. All the seized articles were sent to FSL for chemical examination. As per the FSL report (Ex. P-26), hair of appellant were found similar in characteristic with the hair found in the hand of Pintoo. The fibers of gunny sack found on the dead body were also found similar to those of the gunny sack seized on the information of appellant. On gunny sack human blood was also detected, however, no group could be determined as the blood had disintegrated. 3. On post-mortem examination, Dr. A.K. Yadu (PW 19) found injuries on the neck of the deceased. There were contusions on chin, front of neck and left cheek and there were nail marks on the neck. In his opinion, the death was caused by asphyxia due to throttling. The time elapsed since death was within 2 to 3 days. After investigation, the charge-sheet was filed and the case was sent for trial. 4. Since the accused Khemkaran and Ramgopal were juveniles, they were sent to Juvenile Court for the trial. 5. Before the trial Court, prosecution rested its case on the circumstantial evidence as there was no direct evidence available. The circumstances by which the prosecution sought to prove the case against the appellant, comprised of the evidence of last seen together, discovery of gunny sack, rope and cycle on the information of appellant Vinod and the report of FSL, according to which, the hair of the appellant were found similar to the hair found in the hand of the dead body. The trial Court, relying upon the evidence adduced by the prosecution, held the appellant guilty and convicted and sentenced him as mentioned earlier. 6. Learned counsel for the appellant submitted that the evidence adduced by the prosecution was not or definite nature and was insufficient to prove the guilt of the appellant. On the other hand, learned counsel for the State submitted that the circumstantial evidence adduced by the prosecution was of conclusive nature and was sufficient for holding the appellant guilty. 7. 6. Learned counsel for the appellant submitted that the evidence adduced by the prosecution was not or definite nature and was insufficient to prove the guilt of the appellant. On the other hand, learned counsel for the State submitted that the circumstantial evidence adduced by the prosecution was of conclusive nature and was sufficient for holding the appellant guilty. 7. We have heard the learned counsel for the parties and perused the evidence and material on record. Ramgopal (PW 7), who is a child witness of about 13 years of age, deposed that he along with Pintoo, Rajesh, Ramgopal and Khemkaran had gone to see television at the house of Garak Dada (Ayodhya). They had seen television till 8 O’ clock in the night. Thereafter, Vinod (appellant) and Ramgopal called him and Khemkaran. Vinod and Ramgopal took Pintoo in the house of Tek Singh (PW 16). He went back from the outside of the house and did not find Pintoo thereafter. After 3 days Pintoo was found dead. This witness has been declared hostile. He has been confronted with his police statement (Ex.P-12) on various points. In cross-examination he has denied that he had gone to his house when there had been interval in the picture which was going on in television. He has been confronted with the part of his police statement (Ex. P-12) where he had stated that in the evening at 7:30 p.m., on interval, al1 of them had gone to their houses. He denied that accused Ramgopal had called him from his house. He was confronted on this point from his police statement wherein he had stated that at 8 O'clock in the night Ramgopal Patel and Rajesh Patel had called him from his house. He denied that Ramgopal had told him that Vinod Patel was calling him. He disowned that Ramgopal Patel had taken both of them to the house of Tek Singh. On critical analysis of the evidence of this witness we find that this witness has material1y improved upon his version given by him to police during investigation. He denied that Ramgopal had told him that Vinod Patel was calling him. He disowned that Ramgopal Patel had taken both of them to the house of Tek Singh. On critical analysis of the evidence of this witness we find that this witness has material1y improved upon his version given by him to police during investigation. Before the Court, his evidence is that appel1ant and other accused persons had taken Pintoo to the house of Tek Singh from the house of Ayodhya Prasad where they all were viewing television, whereas his statement recorded during investigation was that all had gone back to their houses in the interval and Ramgopal had called him and Rajesh Patel from his house. This witness is a child witness, his statement was recorded by the police on 5.5.1990, i.e., after two days of the alleged occurrence. In view of the improvements made by him before the Court, in our considered opinion, it would not be safe to rely on his testimony. 8. Preetam Lal (PW 3) has deposed that at about 8 p.m., he had seen the appellant and accused Khemkaran going on a cycle. Khemkaran was sitting on the front part of the cycle and Vinod was riding it. They were carrying a gunny bag on the cycle. 3-4 days after this, he had heard that Pintoo had been murdered. In our opinion, the evidence of this witness is of no avail to prosecution, as by his evidence no incriminating inference against the appellant is possible. Merely carrying a gunny bag on the cycle, in the absence of any indication that it contained the dead body, cannot be taken as an incriminating circumstance. 9. As far as the evidence of discovery of dead body on the information of co-accused Khemkaran is concerned, it cannot be treated a circumstance against the present appellant. Merely carrying a gunny bag on the cycle, in the absence of any indication that it contained the dead body, cannot be taken as an incriminating circumstance. 9. As far as the evidence of discovery of dead body on the information of co-accused Khemkaran is concerned, it cannot be treated a circumstance against the present appellant. Discovery of gunny bag, rope, and a cycle at the instance of appellant, is also of no value and cannot be accepted as an incriminating circumstance against the appellant, for the reason that it is absolutely unnatural that a person carrying a dead body in a gunny sack with a view to screen the offence will take out the body from the sack before throwing the same and will bring the bag back to his house and secondly, the blood stains detected on the gunny sack, though found to be of human origin by Serologist yet it could not be determined that the blood group of the stains matched with the blood group of deceased. In the absence of that evidence, cannot be held that the gunny sack seized from the house of the appellant was used for carrying away the dead body. 10. So far as FSL report (Ex. P-26 and Ex. P-27) are concerned, according to which, the hair seized from the hand of the deceased were similar to that of the hair of appellant and the fibers found on the dead body were similar to that of gunny bag seized from the house of the appellant, they are insufficient to conclusively establish that they belong to the same person and origin respectively. Though in the opinion of expert, both the hair were of human head origin and were similar in their morphological and microscopical characteristics, yet no definite opinion was given establishing their origin from one and same person. So far as the opinion with respect to fibers is concerned, the fibers seized from the dead body and those taken from the gunny bag were similar. On the basis of the aforesaid opinions of mere similarity, it cannot be held to have been conclusively established that both were same. 11. So far as the opinion with respect to fibers is concerned, the fibers seized from the dead body and those taken from the gunny bag were similar. On the basis of the aforesaid opinions of mere similarity, it cannot be held to have been conclusively established that both were same. 11. In Modi's Medical Jurisprudence and Toxicology (22nd Edition) at page 191 it has been observed that "unless an adequate number of hair is obtained as questioned hair, the sophisticated and very highly sensitive method like the neutron activation analysis may also be scientifically unconvincing and unsuitable for Court use." Thus, in our considered opinion, the report of Forensic Expert cannot be taken as an incriminating circumstance against the accused-appellant. 12. Besides above, it is also important to note that Dehati Nalishi of the incident (Ex. P-14) was recorded by R.S. Choudhary Sub-Inspector (PW 18) on 5.5.1990 at 13:10 p.m., whereas the discovery of the gunny sack, cycle and rope was made at 17:30 p.m. on the same day i.e. about four hours after the recording of Dehati Nalishi. On perusal of Dehati Nalisru it is found mentioned that the aforesaid articles were kept in the house of the appellant and the dead body was thrown in the rivulet on Kelwas-Pipariya passage. In para 4 of his statement R.S. Choudhary (PW 18) has admitted that by the time he had recorded Dehati Nalishi, he had knowledge that the gunny sack and other articles had been concealed by Vinod in his house. 13. In Padala Veera Reddy v. State of A.P. ( AIR 1990 SC 79 ) it was laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: . 13. In Padala Veera Reddy v. State of A.P. ( AIR 1990 SC 79 ) it was laid down that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: . "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing forwards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability, the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 14. On due consideration of the facts and circumstances appearing in the present case, we find that the prosecution has failed to establish beyond reasonable doubt that the appellant had committed the murder of the deceased and had caused the evidence of commission of the offence to disappear. 15. Accordingly, the appeal is allowed, the judgment of conviction passed by the trial Court is set aside and the appellant is acquitted. He is on bail, his bail bond stands discharged.