Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 857 (MP)

Omprakash S/o Nandram Lohar v. State of M. P.

2007-08-07

S.K.KULSHRESTHA, W.A.SHAH

body2007
JUDGMENT : S.K. KULSHRESTHA, J. 1. The appellant Omprakash has filed this appeal against his conviction under section 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs. 200/- as also under section 201 of the Indian Penal Code and sentence of seven years rigorous imprisonment and fine of Rs. 200/- vide judgment dated 1-4-1998 of the learned Additional Sessions Judge, Sardarpur, District Dhar in Session Trial No. 47/1995. 2. The appellant was tried with four co-accused but while acquitting the other accused persons, the appellant alone has been convicted on the ground that he committed murder of Manoj aged 11 years and thereafter buried his body to screen the offence committed by him. 3. According to the case of the prosecution, a report was lodged on 30-4-1993 by Nanuram s/o Nandaji at Police Station Sardarpur that a putrid smell was emanating from the place where somebody's trousers were lying and a human head was seen under the stones. On the basis of this information, a case of unnatural death was registered vide No. 18/93 under section 174 and the enquiry commenced. On 1-5-1993, Sub-Inspector Lahari along with Naib Tehsildar Hirve and other witnesses proceeded towards the place and recovered the skeleton buried under stones as also half looser and black trouser of a child about 10 or 11 years of age. During enquiry it was found that someone had killed the boy aged 10 or 11 years and had concealed the body under the stones by the side of the culvert. Report of the missing person had been lodged by (PW-2) Mangilal to the effect that his son was missing. It was stated that on 16-4-1993 Sardar and Prakash had come to the house and had taken away Manoj and thereafter, Manoj was not seen alive. During enquiry by the Police it was learnt that the appellant and the co-accused had taken him as they were involved in witchcraft and with a view to strike a treasure, the boy Manoj was killed and was buried. On the basis of the said information, P.S. Sardarpur registered a case under section 302 and 201 of the Indian Penal Code. During investigation, the bones were forwarded for medical examination and were examined by Dr. Suresh Kumar Mundra (PW-16) who gave report Ex. P/27. On the basis of the said information, P.S. Sardarpur registered a case under section 302 and 201 of the Indian Penal Code. During investigation, the bones were forwarded for medical examination and were examined by Dr. Suresh Kumar Mundra (PW-16) who gave report Ex. P/27. While other incriminating articles were seized from the co-accused who have been acquitted, the prosecution alleges that on the information Ex. P/26 under section 27 of the Evidence Act given by the appellant with regard to the whereabouts of a piece of pipe used in the commission of the offence, the same was seized vide Panchnama Ex. P/7. After completion of the investigation, the appellant along with four co-accused was prosecuted and while the trial Court by the said judgment acquitted the co-accused, the appellant has been convicted. It is against this conviction that the present appeal has been filed. 4. Learned Senior Counsel for the appellant submits that evidence against the appellant is circumstantial and the solitary circumstance pressed into service against the present appellant is that the deceased Manoj was seen last in the company of the appellant. Learned Counsel has, therefore, referred to the testimony of (PW-1) Ramesh, (PW-2) Mangilal, (PW-3) Kamlabai, (PW-4) Mukesh, (PW-6) Savita and (PW-7) Arvind on whom reliance has been placed by the trial Court in founding the conviction. He has further stated that the prosecution has failed to prove that the skeleton exhumed was the skeleton of child Manoj 11 years. 5. Learned Dy. Advocate General, per contra, has submitted that there was clinching evidence in the testimony of (PW-3) Kamlabai with regard to the present appellant having taken away Manoj and thereafter the child was not seen alive leading to irresistible conclusion that it was the present appellant who had taken him away and thereafter had not accounted for his whereabouts. 6. We have heard the learned Counsel for the parties and perused the record. 7. The prosecution examined, in all, 16 witnesses to prove its case. As pointed out above (PW-1) Ramesh, (PW-2) Mangilal, father of the deceased, (PW-3) Kamlabai, mother of the deceased, (PW-4) Mukesh brother of the deceased, (PW-6) Savita sister of the deceased and (PW-7) Arvind were examined on the question of the deceased having been seen last in the company of the present appellant. 8. As pointed out above (PW-1) Ramesh, (PW-2) Mangilal, father of the deceased, (PW-3) Kamlabai, mother of the deceased, (PW-4) Mukesh brother of the deceased, (PW-6) Savita sister of the deceased and (PW-7) Arvind were examined on the question of the deceased having been seen last in the company of the present appellant. 8. Before embarking upon the exercise of sifting the evidence of these witnesses, it would be advantageous to make a brief reference to the medical evidence adduced in the present case. It is not disputed that what was exhumed from the earth was only a skeleton and some clothes were lying near by the place where the deceased had been buried. In his testimony (PW-16) Dr. Suresh Kumar Mundra has categorically admitted that he could not say whether the skeleton was of a male or of female. He has also admitted that he has not stated the measurements of the bones of the skeleton. The learned Additional Sessions Judge has considered the medical evidence in paragraph 15 of the impugned judgment and has recorded a definite finding that it was not proved beyond doubt that skeleton which was sent to the Doctor for examination was that of deceased Manoj. He has also stated that even if it was not proved that the skeleton was of deceased Manoj, the prosecution case was not affected. 9. While corpus delicti is not necessary in every case, in circumstantial evidence the absence of proof with regard to the death of the person for which the accused were prosecuted acquires great significance. Only the cases where there is direct evidence of eye witnesses or identification is on account of clothes and other articles found near the body that even in circumstantial evidence one may, in a given case, come to the conclusion that it was the body of the person who was said to have been killed. In the present case, however, the absence of corpus delicti strikes at the route of the prosecution case. 10. Coming to the testimony of the witnesses in regard to the deceased having been seen last in the company of the appellant, we may first refer to the statement made by (PW-1) Ramesh. (PW-1) Ramesh has deposed that Shankerlal was a blacksmith but was also engaged in witchcraft. Co-accused Gopal and Sardar were his sons and Gopal had married Mangilal's daughter Savita. (PW-1) Ramesh has deposed that Shankerlal was a blacksmith but was also engaged in witchcraft. Co-accused Gopal and Sardar were his sons and Gopal had married Mangilal's daughter Savita. He had learnt that Manoj s/o Mangilal had died but he did not have any personal knowledge about it. He has further stated that Manoj had been taken away by accused Sardar and accused Shanker to his house, stating that he will be brought back. 11. (PW-2) Mangilal, father of the deceased, has stated that he had learnt from his wife (PW-3) Kamlabai that Manoj was taken away by the appellant on representing to his mother Kamlabai that since they were working in the house of Sardar, he was taking Manoj with him and that Manoj would return in the evening. Statement of (PW-3) Kamlabai is important as she has deposed that the appellant had come to her and taken away Manoj. In her testimony she has stated that Prakash had come to her house and inquired about Manoj stating that he would take him to the bungalow where he was working as a Carpenter. Thereafter, he had taken away Manoj but since Manoj did not return till evening, when her husband Mangilal arrived, she informed him that Manoj had been taken by Prakash to Mangod Bungalow but he had not returned. Shanker and Gopal, acquitted co-accused, had come to her later and informed that Manoj was sent with Prakash and Sardar. 12. (PW-4) Mukesh is the brother of the deceased. He has deposed to the fact of Prakash having taken away his brother Manoj but he claims knowledge about the said fact, from his mother. (PW-6) Savita, sister of the deceased, has stated that in her presence, Prakash had asked her mother to take deceased Manoj where he was working and that he would bring him back in the evening. (PW-7) Arvind has stated that he had seen Manoj at Rajgarh Bus Stand but he was alone. Manoj had, however, told him that he had come with his brother-in-law Prakash and Prakash had gone to a Hotel to drink water. However, he did not see Prakash at that time. 13. (PW-7) Arvind has stated that he had seen Manoj at Rajgarh Bus Stand but he was alone. Manoj had, however, told him that he had come with his brother-in-law Prakash and Prakash had gone to a Hotel to drink water. However, he did not see Prakash at that time. 13. If the above evidence is examined in proper perspective, while (PW-3) Kamlabai and (PW-6) Savita do state that Prakash had taken away Manoj with him on the pretext that he wanted to take him to the bungalow where he was working, the knowledge derived by (PW-2) and (PW-4) was from (PW-3) Kamlabai. Thus, it is Kamlabai and Savita who had seen Prakash taking with him Manoj. However, subsequent circumstances demolish the theory of the deceased having been seen last in the company of the accused. (PW-1) Ramesh has stated that he had seen Manoj with Sardar and Shanker which contradicts the testimony of (PW-3) Kamlabai, (PW-6) Savita, (PW-2) Mangilal and (PW-4) Mukesh who had learnt from (PW-3) Kamlabai that Prakash had taken away the said child with him. Even assuming that Manoj had been taken away by Prakash, according to the testimony of (PW-1) Ramesh, he was seen in the company of Sardar and Shanker and he does not refer to the presence of Omprakash. 14. The theory of the accused having been seen last in the company of the appellant Omprakash is further demolished by the testimony of (PW-7) Arvind who had seen the deceased alone at the Bus Stand. Under these circumstances, the person who saw the deceased last was (PW-7) Arvind and the deceased had been seen alone. It cannot, therefore, be said that before the death of Manoj, he was seen last in the company of the present appellant. 15. We have already pointed out that the prosecution has failed to prove corpus delicti to show that Manoj had died which was necessary in the facts and circumstances of the present case. Even if it is assumed for the sake of arguments that the skeleton found was that of Manoj, the testimony of the witnesses to the effect that Manoj was seen last with Prakash stands negatived by the evidence of (PW-1) Ramesh and (PW-7) Arvind. We may also record that the report of his missing was lodged on 23rd of April, 1993 while the incident took place on 15th April, 1993. We may also record that the report of his missing was lodged on 23rd of April, 1993 while the incident took place on 15th April, 1993. The report of the missing person lodged by (PW-2) Mangilal, father of the deceased, has also not been brought on record to give a fair idea that right from the beginning the case of the prosecution was that the present appellant had taken the deceased away. 16. The Police recorded the information of the appellant under section 27 vide Ex. P/26 and seized a piece of pipe in pursuance thereof vide Seizure Memo Ex. P/7. The prosecution has not placed any material on record to connect the said article with commission of any offence. 17. In view of the above discussion, it is clear that the solitary circumstance alleged against the appellant of taking away the deceased with him cannot give rise to any assumption that the deceased was in the company of the present appellant before his death specially when (PW-1) Ramesh states that he was in company of co-accused Sardar and Shanker and (PW-7) Arvind had seen the appellant alive and at that time he was alone. For attaching culpability on the theory of the deceased having last been seen together with the accused, the evidence should be of sterling nature and since, as observed hereinabove, prosecution has failed to show that the deceased was last seen in the company of the accused. Merely because the accused, according to the prosecution, had taken him from his house on the representation that he would bring him back, no inference can be drawn that the accused was the last person in whose company the deceased was seen. 18. Accordingly, we find that this solitary circumstance is not incompatible with the hypothesis of the innocence of the accused. The appeal is, accordingly, allowed and the conviction and sentence passed against the appellant for offences under sections 302 and 201 of the Indian Penal Code are set aside and he is acquitted of the charges against him. The appellant is on bail. His bail bonds shall stand discharged.