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Madhya Pradesh High Court · body

2009 DIGILAW 53 (MP)

NASIR v. STATE OF M P

2009-01-12

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2009
Judgment ( 1. ) THE appellants/accused persons stood convicted under Sections 302 and 201 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and fine of Rs. 25,000/-, in default of payment of fine to suffer additional R. I. for three years and R. I. for 5 years and fine of Rs. 5,000/-, in default of payment of fine to suffer additional R. I. for one year respectively vide judgment dated 27. 01. 03 passed by the learned 1st Addl. Sessions Judge, Mhow district, Indore in Sessions Trial No. 87/2002. Aggrieved by this judgment of conviction and order of sentence, the appellants have preferred this appeal. ( 2. ) ACCORDING to the prosecution case on 02. 09. 01 in Dongargaon Police Outpost. Karim Khalifa lodged a missing report of his nephew Mustakin, aged 8 years who had left the house for viewing Foot Ball match and did not return back. On the basis of this report, in Police Station, Mhow, missing report was also recorded. On 04 01 09 in the morning at 7. 30 AM the dead body of Mustakin was found in military Water Tank. Merg intimation report Ex P/1 to this effect was recorded at the instance of witness Karim (PW-1 ). After preparation of inquest report ex. P/14, Police sent the dead body for postmortem examination which was performed by PW-6 Dr Jain. The postmortem report is Ex. P/10. During the course of investigation, police recorded the statements of prosecution witnesses pw-1 Karim. PW-2 Annu and PW-3 Kanha. On the basis of the statements of. these witnesses, police came to the conclusion that the deceased was lastly seen in the company of the appellants going on a scooter and after two days his dead body was found. Viscera was preserved, but no report of Forensic Science laboratory was filed by the prosecution. Prosecution has filed the FSL report ex. P/17regarding presence of faecal matter in pant of deceased. The appellants were charge-sheeted for commission of offence punishable under sections 302 and 201 of the Indian Penal Code. ( 3. Viscera was preserved, but no report of Forensic Science laboratory was filed by the prosecution. Prosecution has filed the FSL report ex. P/17regarding presence of faecal matter in pant of deceased. The appellants were charge-sheeted for commission of offence punishable under sections 302 and 201 of the Indian Penal Code. ( 3. ) THE appellants have denied the charges and the defence of appellant No 1 nasir was that Karim was having dispute with him as well as with his maternal grand-father in regard to money of Mosque Committee because of which he has been falsely implicated and a case was pending on the basis of the report lodged by the father of Nasir. The defence of appellant No. 2 Amin Kaliya was that he was falsely implicated because of friendship with Nasir. They have examined DW-1 Mohammad Hasan. Learned trial Court, after examining the prosecution and defence witnesses and hearing both the parties, convicted and sentenced the appellants as described herein-above. ( 4. ) HAVING heard learned counsel for the parties and after perusing the entire record, we are of the view that the conviction of the appellants is not sustainable on the basis of the evidence available on record. Conviction of the appellants is based on circumstantial evidence i. e. motive and last seen of the deceased in the company of the appellants on the basis of evidence of PW-1 Karim, PW-2 Annu, pw-3 Kanha and PW-7 Mehboob. ( 5. ) THE first question for consideration by this Court is whether the prosecution has been able to establish beyond reasonable doubt the homicidal death of deceased. ? Prosecution has examined PW-6 Dr Anil Jain, Assistant Surgeon who conducted and issued postmortem report Ex. P/10. According to Dr Jain, deceased died because of asphyxia and possibility of asphyxia was due to drowning. The death was accidental in nature. Dr Jain proved postmortem report ex. P/10. Dr Jain has not been declared hostile by the prosecution; He also stated in examination-in-chief about sending of femur bone and viscera for Diatoms test, but the report of Diatoms Test from Medico Legal Expert has not been filed by the prosecution. In cross-examination, Dr Jain has deposed that he did not find any injuries on neck and if deceased would have been killed, before drowning, some kind of mark of injury and mark of resistance would have been available on his body. In cross-examination, Dr Jain has deposed that he did not find any injuries on neck and if deceased would have been killed, before drowning, some kind of mark of injury and mark of resistance would have been available on his body. It is also evident from the postmortem examination report as well as the statement of Dr Jain that the dead body of deceased was almost decomposed. There is no eye-witnesss account, therefore, on the basis of medical report, it is not proved positively that the deceased met a homicidal death. For conviction under section 302 of the Indian Penal Code, prosecution is required to prove the first ingredient as envisaged in section 299 of the Indian Penal Code in regard to homicidal death. ( 6. ) LEARNED trial Court while appreciating the evidence of Dr Jain in para 9 of the impugned judgment, has referred a passage of Modis Jurisprudence and toxicology available. at page 289 in 22nd Edition about symptoms of death by drowning. The Supreme Court in the case of Pyara Singh Vs. State of Punjab (AIR 1977 SC2274, in para 7 has observed as under:- "it is true that the High Court has relied on a number of books on medical jurisprudence to support the evidence of Dr jatinder Singh. We feel that it was not necessary for the High court to do so unless the books were put to the expert. Recitals in the books do not provide a sufficient guide to determine the truth or falsity of the testimony of an expert," (Also see : Masji Tato Rawool and others V/s State of Maharashtra [ 1971 (3) SCC 416 ] and State ofm. P. V/s Sanjay Rai [ 2004 (10) SCC 570 ]. In the light of above-mentioned legal position, the passage of Modis Medical jurisprudence could not be relied upon as the same was not put to Dr Jain to explain the same. ( 7. ) LEARNED trial Court has taken into consideration so many extenuating circumstances which are not available in the record and gave finding for homicidal death of deceased. In our considered view, the prosecution has failed to establish that deceased met a homicidal death. ( 8. ) LEARNED trial Court has placed reliance on the testimony of PW-1 Karim, uncle of deceased Mustakin. In our considered view, the prosecution has failed to establish that deceased met a homicidal death. ( 8. ) LEARNED trial Court has placed reliance on the testimony of PW-1 Karim, uncle of deceased Mustakin. Karim has not stated any-thing in regard to enmity with the appellants, but in cross-examination para 19, he admitted that he had a quarrel with maternal grand-father of appellant No. 1 Nasir on account of dispute over mosque amount. At the same time he also stated that they were not having any kind of personal dispute or quarrel. He has denied the defence suggestion that he collected amount of donation for Mosque and there was quarrel when he was asked to submit its account. He was confronted with the Dehati Nalishi ex. P/1 wherein the fact of taking of deceased by the appellants is not mentioned and he failed to explain this material omission which amounts to contradiction. On careful perusal of the statement of this witness, we are unable to hold that he was having any kind of such enmity because of which the appellants could have committed murder of deceased. ( 9. ) FOR the circumstance of last seen together, the learned trial Court has placed reliance on the testimony of PW-2 Annu, brother-in-law of the deceased but he was not a witness of last seen together. He deposed that he was disclosed by Mehboob (PW-7) that three persons were providing ground-nut to the deceased. Thereafter, he received information of dead body lying in the tank. Further say of this witness is that the appellants were found in a STD Booth and when he asked as to where they had telephoned, they torn the slip. In cross-examination para 5, he admitted that he disclosed his doubt on the appellants. The testimony of this witness is not for seeing the deceased lastly in the company of the appellants. The statement of this witness with regard to information given to him by PW-7 Mehboob is not admissible in evidence because Mehboob has nowhere stated that he gave information regarding taking of deceased by appellants to this witness Annu as the same is hit by the law of hear-sav evidence as envisaged under section 60 of the Indian Evidence Act. ( 10. ( 10. ) THE next witness relied upon by the learned Court below is P W-3 Kartha who was declared hostile by the prosecution and cross-examined by the A G P kanha has deposed that in the evening between 6. 00 and 7. 00 PM the appellant amin Kaliya and two other persons were sitting on a scooter going towards ambedkar Garden and he could not see the faces of those. two persons. In cross-examination he was confronted with his case-diary statement Ex. P/7 and he denied the contents thereof. We are unable to gather any evidence from the statement of witness Kanha regarding circumstance of last seen of the deceased in the company of appellants. ( 11. ) THE last witness is PW-7 Mehboob who has testified that between 6. 00 and 7. 30 in the evening on a common road he had seen the appellants going with a boy on scooter. He has specifically stated that he was not knowing that boy. In para 2, he has also stated that he was threatened by the appellant Amin by showing a knife-that if he would disclose this fact to any body, he would be done to death and because of fear, he did not disclose this fact to any body and in the same night he went to Ratlam because of death of son of his brother-in-law. He was interrogated by the police after three days of his arrival from Ratlam. In examination-in-chief, no-where he has deposed that the appellants were going with the deceased Mustakin and he was able to identify the said boy. The dead body was not got identified by this witness by the police during the course of investigation to establish the fact that the deceased was seen in the company of the appellants two days prior to finding of the dead body in the water-tank. He also admitted in cross-examination that he did not disclose this fact to the police. The statement of this witness is also not sufficient to establish the circumstance of last seen of deceased before two days of finding of the dead body, In a case of circumstantial evidence, the prosecution is required to prove beyond reasonable doubt each and every circumstance against the accused forming complete chain pointing out unerringly towards the guilt of the accused excluding all reasonable hypothesis of innocence in his favour. In the instant case, the prosecution has failed to establish beyond reasonable doubt homicidal death of the deceased, motive of the appellants to commit murder and the evidence of last seen of the appellants with the deceased. The judgment and finding of the learned trial Court is based on improper appreciation of evidence as well as conjecture and surmises since the offence of committing" murder of deceased Mustakin has not been duly established against the appellants, no question of committing the offence punishable under section 201 arises against them. ( 12. ) AS a consequence of the foregoing factual and legal discussion, this appeal deserves to be and is hereby allowed. The conviction and sentence of the appellants for the offences punishable under sections 302 and 201 of the Indian Penal Code are hereby set-aside. Appellant Amin Kaliya is in jail. The trial/ Court is directed to release him forthwith if not wanted in connection with any other criminal case. Appeal allowed.