Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 1069 (MP)

Santosh S/O Aadiram Kushwah v. State Of M. P.

2009-08-31

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 28-4-2009 passed by learned Special Judge appointed under Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (hereinafter referred to as "the Adhiniyam"), Gwalior in Special Case No. 6/08 convicting the appellant under sections 302, 394 of Indian Penal Code as well as under section 13 of the Adhiniyam and thereby sentencing him to suffer life imprisonment and fine of Rs. 500/-, seven years RI and fine of Rs. 500/-and three years RI respectively, in default of fine, further RI of 50 days with further stipulation that all the sentences shall run concurrently, this appeal has been preferred under section 374(2) of Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that on 31-10-2007 at 8.15 P.M., complainant-Hemant Kumar Joshi along with his brother-in-law Ramkishan and father-in-law Ram Gopal came to Police Station Dabra and lodged the report that he is a resident of village Arru and having his house in meat market at Dabra. His father Durga Prasad (hereinafter referred to as "the deceased") is employed on the post of Compounder in Government Hospital. On 31-10-2007 his father after his duty hours went to the village, at that juncture, complainant was supervising the crop of 'paddy', later on complainant and the deceased came to Dabra, where complainant alighted at his house and the deceased went to village Arru on the motorcycle. On the way nearby Jaggu key Cheer some unknown persons in order to kill the deceased, fired the gun and the bullet hit the chest of the deceased. The younger brother of the complainant-Vijay brought his father to the hospital along with villagers of the village. On coming to know about the factum of murder of his father, complainant also went to the hospital, where his younger brother informed about the incident. On examining the deceased by the complainant he found him to be dead. 3. On the basis of such information of complainant, Merg case under section 174 of Criminal Procedure Code was registered and thereafter, FIR was also registered. The investigating agency after investigating the matter, submitted a charge-sheet against the appellant and also against co-accused Santosh Kushwah. 4. Learned Special Judge framed the charges punishable under sections 302, 394/397 of Indian Penal Code and also under section 13 of the Adhiniyam. The investigating agency after investigating the matter, submitted a charge-sheet against the appellant and also against co-accused Santosh Kushwah. 4. Learned Special Judge framed the charges punishable under sections 302, 394/397 of Indian Penal Code and also under section 13 of the Adhiniyam. The other co-accused namely Banti Razak was charged under section 412 of Indian Penal Code as well as under section 13 of the Adhiniyam. Needless to say acquitted co-accused Banti Razak refuted the charges and requested for the trial. 5. In order to prove the charges, prosecution has examined as many as 11 witnesses and placed Ex.P/1 to Ex.P/24 the documents on record. The defence of appellant is of false implication and that of alibi and in support of the defence acquitted co-accused Banti Razak examined one Ramswaroop (DW-1). 6. Learned Trial Judge on the basis of the evidence placed on record came to hold that the charge under section 13 of the Adhiniyam has not been found to be proved against co-accused Banti Razak, as a result of which, acquitted him from the said charge. However, learned Trial Judge came to hold that charge under section 412 of Indian Penal Code has not been found to be proved against acquitted co-accused Banti but an offence under section 411 has been made out against him. Eventually, he has been sentenced to pay fine amount of Rs. 2,000/-. 7. Learned Special Judge on the basis of the evidence placed on record came to hold that charges have been proved against the appellant, hence, he has been convicted and has been sentenced as mentioned hereinabove. 8. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 9. The contention of Shri Shailendra Singh, learned counsel for the appellant is that the sole evidence which the prosecution is placing reliance against the appellant is so-called extra-judicial confession before Kailash Kumar Joshi (PW-2) and Ram Kishan Joshi (PW-7) who are brother-in-law and son-in-law of the deceased which is highly unnatural. Further, it has been contended by learned counsel that there is no direct evidence against the appellant and the prosecution has based its case on the basis of circumstantial evidence. Further, it has been contended by learned counsel that there is no direct evidence against the appellant and the prosecution has based its case on the basis of circumstantial evidence. The contention of Shri Shailendra Singh learned counsel is that prosecution has not even collected the evidence of last seen and in absence of any eye witness to the incident, merely on the basis of alleged extra-judicial confession that too, two months after the incident, appellant cannot be roped. 10. On the other hand, Shri Bansal, learned Public Prosecutor argued in support of the impugned judgment. 11. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 12. Learned counsel for the parties submitted that except extra-judicial confession of appellant, there is no evidence against him. The recovery of mobile phone is from co-accused Banti Razak and he has been sentenced to fine. According to us, it is difficult to digest that appellant would confess his guilt before Kailash Kumar Joshi (PW-2) and Ram Kishan Joshi (PW-7) who are brother-in-law and son-in-law of the deceased. There is nothing on record in order to demonstrate that appellant is related to these two witnesses. On the other hand, since these two persons are thickly related to the deceased. Even for the sake of arguments, if it is held that the appellant has committed the offence of killing the deceased, why he will admit his guilt and would state his confession to the witnesses who are stranger to him and are thickly related to the deceased. 13. On going through the testimony of Kailash Kumar Joshi (PW-2), we find that he is a hostile witness. Thus, the only witness which remains is Ram Kishan Joshi (PW-7). On going through paras 4 and 5 of his testimony, we find that appellant went to his place and admitted his guilt to him. Further, he has admitted that earlier to the date when the guilt was admitted by the appellant before him, both of them were not knowing to each other. According to us, if that is the position, no prudent man would digest this fact that an accused will confess his guilt before a person who is total stranger to him. Further, he has admitted that earlier to the date when the guilt was admitted by the appellant before him, both of them were not knowing to each other. According to us, if that is the position, no prudent man would digest this fact that an accused will confess his guilt before a person who is total stranger to him. On going through the testimony of this witness, we find that after near about two months of the incident, the alleged extra-judicial confession has been made by the appellant to this witness. It would be condign to mention here that in para 2 of his testimony, this witness put his inability that appellant is the same person who had given extra-judicial confession to him. 14. The Supreme Court in Balbir Singh vs. State of Punjab, (1999) 9 SCC 30 has held that ordinarily extra-judicial confession should not be accepted without corroboration. The decision of Balbir Singh (supra) has been placed reliance by the Division Bench of this Court in Baldu @ Baldua vs. State of M. P., 2003(3) M.P.H.T. 504 . The Division Bench of this Court in Baldu @ Baldua, 1997(1) Vidhi Bhasvar 209, has categorically held that the extra-judicial confession is a weak type of evidence. Since, there is no corroboration of alleged extra-judicial confession of the appellant by any independent witnesses, hence, we hereby hold that prosecution has utterly failed to prove its case beyond all reasonable doubts against the appellant. 15. For the reasons stated hereinabove, the appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by learned Trial Judge is hereby set-aside. The appellant is acquitted from all the charges. Appellant is in jail, he be set at liberty forthwith, if not required in any other case.