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Madhya Pradesh High Court · body

2007 DIGILAW 957 (MP)

RAMESH v. STATE OF M. P.

2007-09-03

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2007
Judgment ( 1. ) S.K.Kulshrestha, J. This appeal is directed against the judgment dated 25th April, 2007, passed by the learned Additional Sessions Judge, Sendhwa, District Badwani(M.R) in Sessions Trial No.61/2005 by which the learned A.S.J, has convicted each of the appellants under Section 302 of the I.P.C. read with Section 34 thereof and also under Section 201 of the I.P.C. and sentenced them to suffer imprisonment for life and fine of Rs.500/-and also rigorous imprisonment for three years and fine of Rs.250/-, respectively thereunder. ( 2. ) While the case was fixed for hearing on admission and I.A. No.3294/2007 for suspension of sentence and grant of bail, in view of the controversy involved and the glaring infirmity in the appreciation of the evidence, with the consent of the learned counsel for the parties, the appeal was finally heard. ( 3. ) The appellants have been prosecuted for the said offence on the ground that they caused the death of their brother Balam by causing injuries with an axe and thereafter, disposed of his body by burying it, with a view to screen the offence committed by them. According to the case of the prosecution, on 20/07/2005, at about 7.00 or 7.30 p.m., the deceased, husband of complainant Chuntibai(P.W. 10), had gone to the field to see his crops. Since, he did not return by the time expected, a report was lodged on 23/07/2005, on the basis of the information given by Richa son of Tebda(P.W.4) and Richa son of Surbhan (P.W.5) to the effect that he had been killed by her brothers-in-law by causing injuries and had thereafter, burried him. ( 4. ) On the basis of the report lodged by the complainant, the police arrived at the place of the incident and prepared the spot map. Autopsy Surgeon was called to conduct the autopsy of Balam. The accused persons were arrested and on the basis of the information furnished by them recorded under Section 27 of the Evidence Act, seizures were made and the seized articles were sent to the Forensic Science Laboratory. After completion of the investigation, the accused were prosecuted. ( 5. ) On charges being leveled against the accused persons for offence under Section 302 I.P.C., in the alternative 302 read with Section 34 of the I.P.C, and Section 201 thereof, the accused denied having committed any offence. After completion of the investigation, the accused were prosecuted. ( 5. ) On charges being leveled against the accused persons for offence under Section 302 I.P.C., in the alternative 302 read with Section 34 of the I.P.C, and Section 201 thereof, the accused denied having committed any offence. They pleaded that they have been falsely implicated. However, on trial, the learned A.S.J., found the appellants guilty as herein above stated and convicted and sentenced them. It is against this conviction that the present appeal has been filed. ( 6. ) Learned counsel for the appellants has submitted that there are no eyewitnesses to the incident and the conviction is based mainly on the alleged extrajudicial confession and report of the Forensic Science Laboratory, which indicates human blood on articles other than Article F which was only blood stained. Learned counsel, therefore, submits that all the circumstances even if taken together at their face value, do not constitute evidence which shows that offence is not established against the appellants. ( 7. ) The learned Dy. A.G. has controverted the contention of the learned counsel for the appellants and has stated that there is nothing that shows effective extra judicial confession, articles seized from the accused persons were also found lood stained and article other than Article F were having stains of human blood. Once it was satisfactorily demonstrated, that articles were blood stained having human blood, the accused should have explained how they sustained blood stains. Under these circumstances, the learned Dy. A.G. has supported the judgment of the trial Court, and contended that it does not call for any interference. ( 8. ) We have heard the learned counsel for the parties and perused the judgment of the trial Court. ( 9. ) It is clear that there are no eye-witness, the learned Judge has taken into consideration two circumstances, namely :- (1) That the accused persons had made extra-judicial confession of Chuntibai(P.W. 10), Chuntibai which was in turn, transmitted to the Police and ; (2) There were blood stains on the articles seized from the accused persons and that of the deceased. ( 10. ) With reference to the evidence of extra-judicial confession, Richa son of Tebda (P.W.4) and Richa son of Surbhan(P.W.5) have been examined. They have, however, not stated that they had witnessed the actual killing of the deceased. ( 10. ) With reference to the evidence of extra-judicial confession, Richa son of Tebda (P.W.4) and Richa son of Surbhan(P.W.5) have been examined. They have, however, not stated that they had witnessed the actual killing of the deceased. Richa son of Tebda(P.W.4) has admitted in the cross-examination that Ramesh and Kalsingh had not been visiting their house before and even after the incident. The learned Judge has observed that it was not shown by the defence why the said witness was not visiting their house. One simply wonders as to how the defence was in a position to read the mind of a person and to show why he was not visiting their house or were not on amicable terms. Statement of Richa son of Surbhan(P.W.5) is also to the same effect. ( 11. ) The learned A.S.J. has examined the testimony of Richa son of Tebda (P.W.) and Richa son of Surbhan(P.W.5) in the backdrop of the testimony of Chuntibai(P.W.1O), wife of the deceased. Chuntibai has deposed that Richa had informed her that her husband has been killed by her brothers-in-laws and buried in the field. She has also stated that between them, partition of the land has already taken place, but there was a dispute of her husband with Narsingh and it was obvious that her husband was killed. ( 12. ) In the context of the above statement, it is luculent that the motive ascribed to the appellants for killing their own brother is not established as nothing has been brought to show that appellants were partisan with Narsingh and they wanted the deceased to be exterminated to remove the obstacle. ( 13. ) Batibai(P.W.12), daughter of the deceased, deposed in the Court that she had gone to the house of the appellants and the appellants were not found there, but she had seen some blood stained clothes in the house. The learned A.S.J, has believed and acted upon the testimony of Richa son of Tebda (P.W.4) and Richa son of Surbhan(P.W.5) as projected by Chuntibai (P.W.10) and Batibai(P.W.12). ( 14. ) The learned A.S.J, has observed that the accused persons had not stated that the witnesses Richa son of Tebda(P.W.4), Richa son of Surbhan (P.W.5), Chuntibai(P.W.10) and Batibai (P.W. 12) were enmically disposed towards them and, therefore, they had been falsely implicated. ( 14. ) The learned A.S.J, has observed that the accused persons had not stated that the witnesses Richa son of Tebda(P.W.4), Richa son of Surbhan (P.W.5), Chuntibai(P.W.10) and Batibai (P.W. 12) were enmically disposed towards them and, therefore, they had been falsely implicated. We may point out that nothing has been brought on record to prove that accused had any motive for which they were tempted to kill the deceased. ( 15. ) This takes us to the second limb of the prosecution case. Ajay Sengar (P.W.13) investigated the case and on 24/7/05, he prepared the spot map (Exhibit-P/12). Accused Ramesh and Kalsingh, who had been arrested under Arrest Memo(Exhibit-P/14 and P/15) and they had given intimation with regard to the place where the dead body of the deceased had been burried of which memorandum Exhibit-P/16 was prepared. He also revealed the place which was smeared with blood, which was recorded in Exhibit-P/17. Information was also given with regard to the axe. An axe was seized, which was allegedly used by the accused persons, vide memorandum Exhibit-P/18 and another axe from accused Kalsingh was seized vide Exhibit-P/19. A handkerchief was seized from accused Ramesh vide Exhibit-P/20. Apart from seizing the blood stained clothes, a turban was found near the spot which was seized by the Investigating Officer. All these articles were sent to the Forensic Science Laboratory for examination vide letter Exhibit-P/22 and the report Exhibit-P/24 of the Laboratory was received. ( 16. ) We may, at the outset observe that insofaras memoranda pertains to the place where dead body was buried and blood stains were found, it does not strengthen the case of the prosecution. The report with regard to the place where dead body was buried had already been made by Chuntibai(P.W. 10) on the basis of the information given to her by Richa son of Tebda(P.W4) and Richa son of Surbhan(P.W.5). ( 17. ) Under these circumstances, it is not a case of any fact having been discovered in pursuance of the information given by the accused and therefore, the documents prepared under Section 27 of the Evidence Act do not help the case of the prosecution. ( 18. ) In the F.S.L. Report(Exhibit-P/24), the turban (Article-A/1), Shawl (Article- A/2), Shirt(Article-A/3), Underwear(Article-A/4), earth and gravel (Article-B and C), Safa i.e. turban (Article-D), Shawl( Article-E) and axe (Article-F) were examined. ( 18. ) In the F.S.L. Report(Exhibit-P/24), the turban (Article-A/1), Shawl (Article- A/2), Shirt(Article-A/3), Underwear(Article-A/4), earth and gravel (Article-B and C), Safa i.e. turban (Article-D), Shawl( Article-E) and axe (Article-F) were examined. It was stated that Articles A/1, A/2, B, D and E were stained with human blood and Article-F was stained with blood only. ( 19. ) Learned counsel for the appellants has also stated that from the blood found on the articles, no inference of guilt of the appellants can be drawn unless, any other cogent and reliable evidence is found to substantiate the same. It may also be pointed out that the a\e( Article-F) was found stained with blood only and not with human blood. The report does not disclose the blood group. 20 The fact of extra-judicial confession made by Richa son of Tebda(P.W.4) and Richa son of Surbhan(P.W.5) and disclosed after three days to Chuntiba/(P.W. 10) clearly creates doubt as to whether any such extra-judicial confession was made to these witnesses. The witnesses have related the extrajudicial confession, according to the prosecution, in unison, which appears incredible. It belied the well settled rule that everybody has his own way of expressing an event and in such a case, it is not expected that the witnesses had informed the widow of the deceased Chuntibai(P.W. 10), in the same words as uttered by Chuntibai(P.W. 10). The delay in relating their extra-judicial confession to the wife of the deceased and also to the fact that the accused persons had no reason to make such a confession before the strangers as observed by the learned A.S.J, that they were not on visiting terms, appears unnatural and incomprehensible. This part of the evidence, therefore, deserves to be discarded. 21. Coming to the prosecution evidence with regard to circumstances of blood having been found on articles seized from the accused, it is noticed that while other articles were stated to be stained with the human blood, Article F was found stained only with blood. The learned A.S J. has found that this piece of evidence corroborates the evidence with regard to extra-judicial confession. What nexus the learned AS.J. has found between the extrajudicial confession and the blood on these Articles is beyond comprehension. One has to borrow the material from record and not from his imagination. The learned A.S J. has found that this piece of evidence corroborates the evidence with regard to extra-judicial confession. What nexus the learned AS.J. has found between the extrajudicial confession and the blood on these Articles is beyond comprehension. One has to borrow the material from record and not from his imagination. The evidence of extra-judicial confession having been found unnatural, it does not leave room for harbouring a notion that blood found on the articles corroborates the testimony of extrajudicial confession. The finding of the blood on the articles seized from accused though creates suspicion against the accused, the suspicion however strong, cannot take place of proof. In view of these circumstances, the report of the F.S.L. does not conclusively establish the guilt of the accused 22. In the case of circumstantial evidence, each circumstance should point to the guilt of the accused and should not be compatible with any hypothesis of his innocence. The circumstances taken together should make a complete chain pointing to the guilt of the accused and should not be such as can be explained and indicate his innocence. The two circumstances relied upon by the prosecution do not fall in the category of the circumstances which clinchingly prove the guilt of the accused persons. Thus, the accused persons are entitled, atleast to the benefit of doubt. 23. In the above framework, the prosecution has failed to prove the guilt of the appellants. The appellants are therefore, acquitted. The appellants are in Jail. They be released forthwith if not required in connection with any other crime.