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Madhya Pradesh High Court · body

2009 DIGILAW 415 (MP)

GORU ALIAS GORIYA v. STATE OF M P

2009-04-01

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
Judgment ( 1. ) THIS appeal has been directed by the appellant against his conviction and sentence passed by the learned Seventh Additional Sessions Judge (Fast Track Court), Ujjain in Sessions Trial No. 248/04 dated 22. 09. 2005 whereby convicted the appellant under Section 302 of the IPC and sentenced to R. I. for life with fine of Rs. 500/-, in default of payment of fine, additional R. I. for 6 years and under Section 201 of the IPC and sentenced to R. I. for 6 months with fine of rs. 200/-, in default of payment of fine additional R. I. for 2 months. ( 2. ) ACCORDING to the prosecution case, on 10. 12. 2003 at 7. 00 a. m. PW-1 Shahid lodged a report in Alot Police Station recorded by Station House Officer m. S. Parmar that on 09. 12. 2003, in the morning, at 7. 00 a. m. , his brother Ajju had gone to work as labour from their house and did not return back upto evening shahid inquired from Shabbir and Babloo about deceased Ajju at which Babloo informed him that yesterday at 11. 00 a. m. he had sent Ajju from Village Kherapeer to Alot with his motorcycle to bring Rs. 1,500/-from Village but he did not return back. PW-1 Shahid alongwith Shabbir, Arif and Amjad went in search of deceased ajju and they were iuformed by PW-8 Arif alias Bhayyu Khan that yesterday on 09. 12. 2002 at 1. 00 p. m. he had seen appellant taking deceased on motorcycle forcibly on a road going to Talod. On this information all reached at Talod and came to know that Ajju in day time at 12. 30 p. m. went on motorcycle towards alot and appellant after purchasing liquor from liquor shop had also gone towards alot. In search they found motorcycle lying at a road of Iliyakhedi and dead body of Ajju was lying inside the bushes by the side of the road. They noticed injuries on the right side of the eye and face seems to be caused by stone and marks of pressure by rope on the neck were also present. According to Shahid, his brother ajju was murdered by the appellant on account of previous ill-will. On the basis of this report, merg No. 0/2003 was registered and PW-17 Assistant Sub Inspector shri Parmar started its inquiry. According to Shahid, his brother ajju was murdered by the appellant on account of previous ill-will. On the basis of this report, merg No. 0/2003 was registered and PW-17 Assistant Sub Inspector shri Parmar started its inquiry. The spot map Ex. P/39 and P/40 were prepared. Police photographer PW-10 Jadhav took photographs Ex. P/13 to P/30 of the dead body and the spot. Blood stain and controlled earth were seized from the spot alongwith one silver ring on which word "ms" was engraved through seizure memo Ex. P/5. From the spot motorcycle No. MP43-K-4050 was also seized. Seized articles were sent for query to Civil Hospital Mahidpur. PW-22 Babulal rane recorded Dehati Nalishi and same was sent to Head Constable PW-18 vijay Singh on the basis of which he registered FIR (Ex. P/44 ). Seized articles were sent to Forensic Science Laboratory. Dead body was sent for postmortem examination and the same was performed by PW-11 Dr. Dineshchand Saxena, who also issued postmortem report (Ex. P/31 ). Appellant was arrested on 03. 06. 2004 and on completion of investigation, appellant was charge-sheeted for commission of murder of deceased Ajju. ( 3. ) APPELLANT refuted the charges and claimed for trial. He did not examine any witness in defence. Learned Trial Court found the prosecution case proved on the basis of the evidence adduced, and convicted and sentenced the appellant as described here-in-above. ( 4. ) BEFORE the Trial Court as well as before this Court homicidal death of deceased Ajju is not challenged, same is also proved on the basis of the evidence of Dr. Dineshchandra Saxena and postmortem report (Ex. P/31) proved by him. Dr. Saxena found in all 7 injuries on the person of deceased and deceased died because of excessive bleeding. Injuries were ante-mortem in nature and death was homicidal. ( 5. ) LEARNED counsel for the appellant has submitted that conviction is based mainly on the circumstance of last seen together and prosecution has examined pw-8 Arif @ Bhayyu to prove this circumstance. Learned counsel has pointed out material contradiction and omissions and submitted that statement of Arif is not reliable for convicting the appellant. ( 6. ) ON the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned Trial Court ( 7. Learned counsel has pointed out material contradiction and omissions and submitted that statement of Arif is not reliable for convicting the appellant. ( 6. ) ON the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned Trial Court ( 7. ) HAVING heard the learned counsel for the parties and after perusing entire record carefully, we are of the opinion that prosecution has failed to establish its case against the appellant beyond reasonable doubt. ( 8. ) PW-1 Shahid is the brother of deceased, who lodged the report (Ex. P/ 1 ). According to this witness, PW-8 Arif @ Bhayyu took the deceased on motorcycle, on 09. 12. 2003, at 12. 30-1. 00p. m. , from some distance of Village talod towards Village Jhuthawad and committed his murder between Talod and Patan. This information was given to him by PW-8 Arif @ Bhayyu at his house situated in Alot town. After receiving this information PW-1 Shahid @ sahid alongwith 5-6 persons reached on the spot on motorcycle and found the dead body and police was also present there. From the spot they had gone to the Police Station and he lodged the report Ex. P/1. He has also stated that appellant was having ill-will with his elder brother Sharif because of which appellant committed murder of his younger brother Ajju. ( 9. ) PW-8 a solitary eye witness examined by the prosecution to prove the circumstance of last seen together of deceased in the company of the appellant, has deposed that on 09. 12. 2003 at 10. 30 a. m. he had seen the deceased Ajju going on motorcycle in Village Talod and appellant was also going with him after seeing he had gone to Alot and when brother of Ajju asked him as to whether he had seen his brother Ajju, he disclosed him about going of the deceased in the company of the appellants towards Jhuthavad. Arif has no where stated about exact time of last seen of appellant and deceased going on motorcycle and any kind of information given to PW-1 Shahid regarding commission of murder of deceased by the appellant. Arif has been declared hostile by the prosecution and confronted with his case diary statement Ex. P/ 11. Arif has no where stated about exact time of last seen of appellant and deceased going on motorcycle and any kind of information given to PW-1 Shahid regarding commission of murder of deceased by the appellant. Arif has been declared hostile by the prosecution and confronted with his case diary statement Ex. P/ 11. Looking to the statement of PW-1 Shahid and PW-8 Arif @ Bhayyu, we are finding clear contradiction about information given by Arif to Shahid. Shahid has stated that Arif disclosed about commission of murder of deceased by the appellant at a particular place tod motorcycle was also lying on or near the scene of occurrence whereas Arif has not stated so. PW-1 has also stated that when they reached on the scene of occurrence, police party was already present there and thereafter they returned back to the police station and he lodged the report (Ex. P/1 ). ( 10. ) DECEASED was seen in the company of the appellant by PW-8 Arif 5 bhayyu, on 09. 12. 2003, at 3. 30 a. m. , in Village Talod whereas Shahid has given the time disclosed to him by witness Bhayyu 12. 30 to 1. 00 p. m. PW-1 sub Inspector Parmar has stated that on 09. 12. 2003 telephonic message was received in Police Station that one dead body was lying on Iliyakhedi road and he reached on this information where PW-1 Shahid was present and he recorded report (Ex. P/1 ). Ex. P/1 is the merg intimation report recorded on the spot whereas according to PW-1 Shahid, they all went to Police Station alot where report was lodged. Ex. P/1 was recorded on 10. 12. 2003 at 7. 00 a. m. If information of last seen was given to witness Shahid by witness Bhayyu on the same day as well as about commission of murder of deceased by the appellant, the report Ex. P/1 should have not been recorded on the next day and that too as merg intimation. The merg intimation (Ex. P/1) is disclosing altogether a different story than the statement given by PW-1 Shahid. PW-1 shahid has no where stated that he alongwith his brother and other friends went in search of the deceased. According to merg intimation report (Ex. P/1), deceased was taken away forcibly on motorcycle by the appellant. The merg intimation (Ex. P/1) is disclosing altogether a different story than the statement given by PW-1 Shahid. PW-1 shahid has no where stated that he alongwith his brother and other friends went in search of the deceased. According to merg intimation report (Ex. P/1), deceased was taken away forcibly on motorcycle by the appellant. In Court pw-1 Shahid has deposed that Bhayyu disclosed about commission of murder of deceased by the appellant on a particular place, if this was so, there was no question of going alongwith the friends and relatives to search the deceased as mentioned in merg intimation report Ex. P/1. All the proceedings recorded by the police are of dated 10. 12. 2003 and not of 09. 12. 2003. Copy of the intimation about telephonic message received on 09. 12. 2003 was not filed by the police in Court. Through seizure memo (Ex. P/5) on 10. 12. 2003 at 10. 30 a. m. alongwith blood stain heavy stone, one silver ring on which english capital word "ms" was engraved, but no evidence has been collected by the investigating agency, who was the owner of this ring and what is full form of word "ms" ( 11. ) LOOKING to the contents of merg intimation report Ex. P/1, statement of pw-1 Shahid and statement of PW-8 Arif, there is much difference about time of last seen together and the time of finding the dead body as well as distance between two places. PW-23 Kalu Singh has stated that at 11. 00 a. m. deceased came to his shop and got filled air and went away. He has no where stated that appellant was in his company, on the contrary in the cross-examination he has specifically stated that deceased came alone. The prosecution witness Shabbir has turned hostile, who had sent the deceased with motorcycle to bring Rs. 1,500/ -. ( 12. ) IT is pertinent to mention here that information was received at Police station on 09. 12. 2003 about presence of dead body on the road and PW-17 shri Parmar also reached there, but inquest was prepared on 10. 12. 2003. The time of inquest is not mentioned in the inquest report Ex. P/39. Photographs of the deceased were also taken on 10. 12. 2003. There is no explanation given by the prosecution as to why on 09. 12. 2003 inquest proceeding could not be recorded. 12. 2003. The time of inquest is not mentioned in the inquest report Ex. P/39. Photographs of the deceased were also taken on 10. 12. 2003. There is no explanation given by the prosecution as to why on 09. 12. 2003 inquest proceeding could not be recorded. ( 13. ) SUPREME Court in case of State of Goa V/s. Sanjay Thakran and another (2007 Vol. 2 Supreme Court Cases (Cri.) 162) has in detail considered the law of circumstantial evidence in paragraph 29, 30 and 34 to 36. Para 34 is reproduced here-in-below :- - Para 34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and When the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to he rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was ho possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. ( 14. ) IN view of the aforesaid dicta, on visualization of the circumstantial evidence first of all prosecution has failed to prove exact time when the deceased was seen in the company of the appellant and if it is considered then there was a long gap seeing the appellant in the company of the deceased and finding his dead body as well as dead body was found on a public road, therefore, only on the basis of this circumstance it cannot be said that the appellant was the perpetrator of the crime. ( 15. ) IN view of the aforesaid discussion, this appeal is allowed. Conviction and sentence of the appellant as passed by the Trial Court is hereby set aside, learned Trial Court is directed to release the appellant forthwith if not wanted in any other criminal case. Office is directed to send a copy of this judgment alongwith the record to the Trial Court. Appeal allowed.