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Madhya Pradesh High Court · body

2009 DIGILAW 587 (MP)

UDAYPAL SINGH GOND v. STATE OF M P

2009-05-04

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant Udaypal Singh Gond being aggrieved by the judgment dated 22. 6. 1994 passed by learned First additional Sessions Judge, Sidhi in Sessions Trial No. 85/1992 convicting the appellant under Section 302 I. P. C for committing murder of Dasmatia, sentencing him to undergo life imprisonment and pay fine of Rs. 1000/- in default of payment of fine to undergo R. I. for six months and convicting him under Section 324 I. P. C for causing injury to Bitti alias bhagwanti sentencing him to undergo R. I for three years and pay fine of Rs. 500/- in default of payment of fine to undergo R. I for three months has filed this appeal. ( 2. ) THE prosecution case in short is that on 8. 8. 1992 Bittu alias Bhagwanti and the younger son of deceased Dasmatia after taking food were going to bed and when Dasmatia, the deceased, was to take her food, accused Udaypal Singh, a distant brother, came to the house of Dasmatia, she offered him food and prepared bed for him and, thereafter Dasmatia and her children went to sleep in a small room. According to the prosecution the accused entered in the room gave 3-4 blows by means of farsi (Balua) to the deceased, Bitti alias bhagwanti saw the accused causing injuries to her mother, when Bitti started weeping the accused brought out a tangi (Axe) and caused certain injuries to said Bitti by means of the said Axe. In the morning the incident was reported to Daddi singh, maternal uncle of Bitti, the said Daddi Singh and number of the persons came to the spot and found that dasmatia was lying dead. The matter was reported to police at about 8. 00 a. m. On 9. 8. 1992, the police immediately came into action, came to the spot summoned the witnesses, prepared the spot map, prepared the panchanama of the dead body, seized plain and stained earth, a blouse, pillow etc. which were stained with blood. The body was sent for postmortem, the doctor submitted his report. After receiving the report the police arrested Udaypal Singh who gave his statement in presence of the witnesses and at his instance farsi/tangi were recovered. which were stained with blood. The body was sent for postmortem, the doctor submitted his report. After receiving the report the police arrested Udaypal Singh who gave his statement in presence of the witnesses and at his instance farsi/tangi were recovered. The torch and the looted amount were also recovered, the shirt which was on the body of the accused was also seized as it was anticipated that it was stained with blood. On completion of the investigation the charge sheet was filed. ( 3. ) THE accused abjured the guilt, therefore, was put to trial and on conclusion of the trial was convicted and sentenced as referred to above. ( 4. ) IT would be necessary to note even at this stage that p. W. 13 Dr. R. K. Athya found a cut injury on the lower region of the neck admeasuring 14 cm. x 7 cm. , yet another cut injury admeasuring 8 cm x 5 cm on the right side of the neck and another injury admeasuring 10 cm x 2 cm on right side of the neck. On opening of the body he found that the collar bone and the sixth cervical vertebrae were fractured. He also found that the elementary canal was cut and all the injuries were anti-mortem. In the present matter Bitti was projected as eye witness. For the reasons stated in the judgment, the Court below has found that Bitti could not be relied upon because she has changed her entire version. The court below in paragraph 11 has observed that statements of Bitti alias Bhagwanti are unreliable and statement of Daddi Singh also could not be relied upon because in paragraph 11 the said Daddi Singh clearly admitted that up to the time of lodging the report he did not know who was the assailant. However, in paragraph 11 the Court below has found four circumstances against the interest of the accused. The circumstances are as under :- 1. That on 8. 8. 1992 accused came to the house of deceased and on the next morning i. e. 9. 8. 1992 he was not seen in the house and, in the meanwhile, the deceased was murdered. 2. The farsi which was used as weapon of the offence was recovered at the instance of the accused. 3. The shirt of the accused was blood stained, and 4. 8. 1992 he was not seen in the house and, in the meanwhile, the deceased was murdered. 2. The farsi which was used as weapon of the offence was recovered at the instance of the accused. 3. The shirt of the accused was blood stained, and 4. The accused had a reason to commit murder of the deceased and the reason was to commit loot of the money belonging to dasmatia. ( 5. ) SO far as recovery of farsi and shirt are concerned, it has come on the record that some traces of blood were found on the articles but the Forensic Science Laboratory does not say that the blood was human or it was belonging to a particular group. However, from Ex. P/31 it would clearly appear that the articles were sent to the Serologist. Government of India, Calcutta for determination of the nature of the blood and its group. Undisputedly the later report is not on record. ( 6. ) SO far as the motive for committing the murder is concerned, in our opinion the Court below was unjustified in holding that the accused could commit murder for a paltry amount or for stealing the torch. The said circumstance in our opinion is not sufficient to connect the accused with the crime. The only circumstance against the accused now is that the accused came to the house of the deceased in the night of 8. 8. 1992 and, in the morning of 9. 8. 1992 he was not seen in the house or near the house and Dasmatia was found dead. ( 7. ) WHEN the prosecution came out with the case that Bitti alias Bhagwanti had witnessed the incident and the learned judge of the Court below found that she was unreliable then the circumstance in our opinion would not be sufficient to connect the accused with the alleged crime. So far as statements of P. W. 5 Raj Kumar Singh are concerned, he only says that he had seen the accused entering the house of the deceased. It is not in dispute before us that the accused had gone to the house of the deceased, had taken food and stayed overnight but his absence in the morning in itself would not be sufficient to connect the accused with the alleged crime. It is not in dispute before us that the accused had gone to the house of the deceased, had taken food and stayed overnight but his absence in the morning in itself would not be sufficient to connect the accused with the alleged crime. There could be variety of the reasons for the accused not to be seen in the morning. It is also to be seen that Bitti alias bhagwanti (P. W. 4) had clearly stated that she woke up in the morning, called her mother for water, thereafter she consumed water and came back and again went to sleep. According to her she woke up late in the morning and called Jaggi and her maternal uncle. According to the statements she informed her maternal uncle that some insect had bitten her mother and after that Daddi Singh saw her mother in the light of the torch. From this statement it would clearly appear that Bitti alias Bhagwanti was not sure that what really happened. It clearly appears that she was projected as an eye witness but in fact she had not seen anything. ( 8. ) THE circumstances which have been put forth in the records in our opinion do not complete a chain which can bear the burden of conviction of the accused. There are loopholes in the evidence and there are missing links in the circumstantial chain. ( 9. ) FOR the reasons stated above, we are unable to agree with the findings recorded by the learned court below. We set aside the findings and hold that the prosecution has failed in bringing home the guilt. The appeal is allowed. The conviction of the appellant and the sentences awarded to him are set aside. The appellant is on bail. His bail bonds are discharged.