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Madhya Pradesh High Court · body

2008 DIGILAW 1330 (MP)

Dallu Basore v. State of M. P.

2008-11-17

R.S.GARG, U.C.MAHESHWARI

body2008
JUDGMENT : R.S. Garg, J. (1) The appellant dallu s/o gokul basore being aggrieved by the judgment dated 30 - 8 - 2008 passed by the learned first additional sessions judge, damoh, in sessions trial no. 219/2005 convicting the appellant under section 302, ipc and sentencing him to undergo life imprisonment and pay fine of rs. 500/ - , in default of fine to undergo r. I. For four months, and also convicting him under section 201, ipc sentencing him to undergo r. I. For 7 years and pay fine of rs. 500/ - , in default of fine to undergo further r. I. For four months, the substantive jail sentence to run concurrently, has filed this appeal. (2) The prosecution case in brief is that complainant achhelal ahirwar (p. W. 2) lodged a report (exh. P - 3) at police station nohta, district damoh on 28 - 8 - 2005 at about 10. 45 p. M. That on the said date at about 3. 00 p. M. When he went to the bus stand he found that his son reenu and the accused dallu were having hot exchange of words in relation to a sum of rs. 500/ -. He tried to patch up the matter and, thereafter, both of them left the spot with an assurance to the complainant that they would settle their matter. Upto 7. 00 p. M. When his son did not come back then he informed about the fact to chouda ahirwar (p. W. 10) , ganesh ahirwar (p. W. 9) , khanju ahirwar (p. W. 6) and his own nephew simbhu (p. W. 7). Each of them went to khamaria and at about 8. 00 p. M. He was informed that the accused persons mathura basore, chironji basore, prahlad basore and the present appellant dallu basore were shifting the dead body of reenu from the house of accused chironji to the house of dallu. When the four accused persons had found that they were seen they ran away from the said spot. After receiving the information achhelal ahirwar (p. W. 2) , ganesh (p. W. 9) and simbhu (p. W. 7) went to the house of dallu and found that the dead body was lying in supine condition. It was found by them that the murder was committed by throttling. After receiving the report the police registered the offence and proceeded for investigation. It was found by them that the murder was committed by throttling. After receiving the report the police registered the offence and proceeded for investigation. The police authorities went to the place where the dead body was found, issued notices to the witnesses and prepared different panchanamas/memos. Certain articles were also recovered from the spot. The dead body was sent for post - mortem. The post - mortem was conducted by dr. K. Awaya (p. W. 1) who reported that the cause of the death was internal haemorrhage and throttling/asphyxia. The post - mortem report is available on record at exh. P - 2. Panchanama of the spot was prepared, the inquest was prepared and on conclusion of the investigation challan was submitted before the court. Four accused persons were arrested and were produced for their trial. As the accused persons denied commission of the offence they were subjected to trial. After the trial the learned court below except convicting the present appellant acquitted all the accused persons. (3) Shri garg, learned counsel for the appellant after taking us through the evidence available on record and findings recorded by the court below submitted that the findings recorded by the court below are patently perverse. The court below has not looked into the fact that the accused does not have the palms and as both of the palm are amputated below wrist the accused could not commit the murder, the dead body was being shifted from the house of chironji to the house of dallu and if the accused chironji was to be acquitted then there was no evidence to connect dallu in the alleged crime. That the court below was absolutely perverse in its approach in observing that if the nail marks were found on and around the neck then such nail marks could be caused by toe nails. It is submitted by him that it would be almost impossible for a person who does not have hands to firstly put the deceased on ground and, thereafter, throttle him with the help and assistance of the legs/feet. (4) Shri r. S. Patel, learned additional advocate general for the state, supported the case of the prosecution and also supported the findings recorded by the learned court below. (5) Undisputedly there are no eye - witnesses to the incident. (4) Shri r. S. Patel, learned additional advocate general for the state, supported the case of the prosecution and also supported the findings recorded by the learned court below. (5) Undisputedly there are no eye - witnesses to the incident. The prosecution case hinges upon the testimony of achhelal (p. W. 2) who had seen the accused in the company of the deceased and statements of ganesh (p. W. 9) and simbhu (p. W. 7) who had stated that they had seen that the dead body of the deceased was being shifted from the house of chironji to the house of dallu. Apart from that there is no other evidence to connect the accused with the alleged crime. (6) So far as statements of simbhu (p. W. 7) and ganesh (p. W. 9) are concerned those are the statements where they simply say that the body of the deceased was being shifted from the house of chironji to the house of dallu. Recovery of the body from the house of dallu cannot connect the accused with the alleged crime because undisputedly from the statement of simbhu (p. W. 7) and ganesh (p. W. 9) it would clearly appear that the dead body was being shifted from the house of chironji to the house of dallu. It is not even the prosecution case that the murder was committed in the house of dallu and the dead body was recovered from dallu's house after the murder was committed in dallu's house. It appears that the learned court below while referring the place of recovery as place of offence lost sight of the fact that the prosecution case was that the body was being shifted from the house of chironji to the house of dallu. (7) If the witnesses were saying that the body was being shifted from the house of chironji to the house of accused dallu then the prosecution agency/ police were obliged to go to the house of chironji and make further investigation whether the murder was committed in the house of chironji or not. There is no evidence on record that the police agency made a thorough investigation on the lines suggested by simbhu (p. W. 7) and ganesh (p. W. 9). (8) It has also come on the record that the house of accused dallu is in dilapidated condition. There is no evidence on record that the police agency made a thorough investigation on the lines suggested by simbhu (p. W. 7) and ganesh (p. W. 9). (8) It has also come on the record that the house of accused dallu is in dilapidated condition. Chouda ahirwar (p. W. 10) in paragraph 20, clearly stated that the house of the accused dallu from where the dead body was recovered was lying in an abandoned condition and nobody was living in the said house. It has also come on the record that the accused dallu does not have palms. When this argument was raised before the learned court below surprisingly the court in its zeal to convict the accused recorded an absurd finding that after providing liquor to the deceased the accused murdered him and nail marks found on and around the neck could be caused by toe nails. (9) In our considered opinion the finding is not only perverse but it is contrary to the common understanding of a prudent man. We are sorry to record that the court below did not try to appreciate that if there is none else who can be connected with the alleged crime then it would almost be impossible for a man who does not have the palms to firstly throw an able bodied man on the ground and, thereafter, throttle him with the help of the legs. (10) In our considered opinion the learned court below was absolutely unjustified in recording the findings in paragraph 25. (11) The learned court below has acquitted the co - accused chironji s/o gokul basore. If the body of the deceased was being shifted from the house of chironji and was being kept in the house of dallu then undisputedly the murder of the deceased was committed before the body was kept in the house of dallu. The murder might have been committed at some third place or in the house of chironji. If chironji had been acquitted then the present appellant obviously could not be convicted. This also has to be seen and is to be taken into its true perspective that the body was being shifted from the house of chironji to the house of dallu and a person who does not have palms could not help and assist in shifting the body from one house to another. This also has to be seen and is to be taken into its true perspective that the body was being shifted from the house of chironji to the house of dallu and a person who does not have palms could not help and assist in shifting the body from one house to another. (12) The findings recorded by the court below in relation to the involvement of the accused only on the basis of the fact that at about 3. 00 p. M. The deceased was seen in the company of accused cannot be upheld. It is nobody's case that after the bus stand incident for the entire period the deceased was in company of the accused. (13) In our considered opinion the court below was absolutely unjustified in convicting the accused. We set aside the findings recorded by the court below, allow the appeal and acquit the appellant of all the charges. (14) Before parting with the case, we propose to observe that in a criminal matter the benefit of every doubt has to go to the accused. There is no burden upon the accused to discharge any liability and the prosecution is required to prove the allegations made by them. The conviction of a person cannot be recorded on the basis of whims of a particular judge or on a particular understanding. We are also forced to observe that recording of the conviction by a judge is no guarantee that the judge is honest and acquittal recorded by the judge cannot lead to an allegation that the judge is not conducting himself fairly. When in case like present, the accused is convicted then a wrong message is conveyed to the society and the people who are interested in the matter start believing that the judges/the courts do not appreciate the true facts and are deciding the matter on their own whims and fancies. The observation made by the learned judge in relation to the nail marks caused by the toe nails is not only fanciful but is absolutely perverse and shocks the human understanding and prudence. Even while acquitting the accused, we must observe that acquittal or conviction should be recorded on the strength of the evidence available on the record. There must be proper blending of facts, law and understanding. Even while acquitting the accused, we must observe that acquittal or conviction should be recorded on the strength of the evidence available on the record. There must be proper blending of facts, law and understanding. If people start doubting understanding of the court then that would be a serious dent to the respect of the court. If the public loses confidence in the system then that again would be a bad day for all of us. (15) We direct that a copy of this judgment be sent to the concerned judge for his future guidance and a copy be kept in his service record. (16) The accused is in jail, he be set at liberty. The release warrant be issued immediately for releasing the accused, if not required in any other case.