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Madhya Pradesh High Court · body

2009 DIGILAW 683 (MP)

GANESH v. STATE OF M P

2009-06-16

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant Ganesh being aggrieved by the judgment dated 15. 9. 1995 delivered by learned First Additional Sessions judge, Chhindwara in Sessions Trial No. 237/1992 convicting the appellant under Section 302 I. P. C sentencing him to undergo rigorous imprisonment for life has filed this appeal. ( 2. ) THE prosecution case in short is that on the fateful day i. e on 22. 5. 1992 at about 5. 00 p. m when Mohan s/o Shyamlal was at his home, in an Ambassador car WGJ 6655 Mohan singh Parmar, Ganesh and two other persons came to his house and took Mohan (the deceased) with them. At about 11. 30 in the night in the said car Mohan was brought back and as he was unable to walk he was held by others (might have been lifted by others) was brought to his house and was handed over to Lata (P. W. 1) widow of the deceased. The deceased was taken inside the house and was made comfortable on a bed laid on the ground. In the morning on the calls made by Lata (P. W. 1) when the deceased did not wake up the body was touched by the widow and she found that the deceased had died. The matter was thereafter reported to police, the police made various investigations and thereafter the body was sent for postmortem. The doctor conducting the postmortem found that the stomach had ulcerations, there were traces of liquor and a pesticide known as organo phosphorous. He found that the death was homicidal in nature. The viscera was preserved and sent to the Forensic Science Laboratory who in their turn found that the viscera contained organo phosphorous a pesticide and the said chemical led to the death. ( 3. ) THE prosecution agency after concluding the investigation filed the charge sheet against the accused ganesh, Sukhdev and Rajendra Singh. On completion of the trial accused Sukhdev and Rajendra Singh were acquitted but as the appellant Ganesh stands convicted he has filed this appeal. ( 4. ) SHRI S. C. Datt, learned Senior Counsel for the appellant, after taking us through the evidence and the findings recorded by the learned Court below submitted that the conviction is based upon surmises, presumptions and conjectures and simply because the prosecution was in a position to create some suspicion against the accused. ( 4. ) SHRI S. C. Datt, learned Senior Counsel for the appellant, after taking us through the evidence and the findings recorded by the learned Court below submitted that the conviction is based upon surmises, presumptions and conjectures and simply because the prosecution was in a position to create some suspicion against the accused. It is submitted that chain of the circumstances is not complete and the prosecution has left voids between the circumstances and on basis of such evidence a finding cannot be recorded against the interest of the accused. It is also submitted that from the statements of lata (P. W. 1) it would clearly appear that the deceased and the present appellant were thick friends and there were no reason for the accused to commit murder of the deceased. It is also submitted that the accused is not to be benefited by committing the murder and as the prosecution failed to prove the motive the Court below could not convict the accused. It was also submitted that the suspicion howsoever strong it is cannot take place of the positive proof. It was further contended that the evidence of last seen is also not of positive nature because from the statements of P. W. 14 Hafiz Khan, the driver of the Ambassador car, it would clearly appear that the car suffered some breakdown and for that reason the deceased, accused and one Mishraji boarded another jeep went to the township and at the bus-stand of the township the deceased was seen again and thereafter the deceased had gone to different places and was not in the company with the accused. It was also submitted that the burden to prove that the accused and the accused only has committed the crime is on the prosecution and there is no burden upon the accused. It was also submitted that if some of the persons are prosecuted on the allegations that they were seen last in the company of the deceased and few out of those are acquitted then the remaining out of them cannot be convicted. It is submitted that the accused is entitled to be acquitted. ( 5. ) SHRI R. S. Patel, learned Additional Advocate General for the State, on the other hand submitted that the prosecution has proved the case beyond any shadow of doubt. It is submitted that the accused is entitled to be acquitted. ( 5. ) SHRI R. S. Patel, learned Additional Advocate General for the State, on the other hand submitted that the prosecution has proved the case beyond any shadow of doubt. It is submitted that the prosecution could prove that the deceased was taken from his home by the accused. The accused all through was in the company of the deceased and the deceased was brought back by the accused in a drunken condition and even at that point of time the deceased was not in a position to walk properly and thereafter the deceased died. It is also submitted that the circumstances brought on the record complete the chain which can bear the burden of the conviction. ( 6. ) WE have heard the parties at length. So far as principles relating to circumstantial evidence and appreciation of the same are concerned reference to number of authorities cited at bar is not required because the principles as we understand are : (a ). The circumstance should be such from which the guilt, a finding into the guilt is recorded and the circumstances are cogent and firm. (b ). The circumstances should be positive, clinching, definite and must have the tendency unerringly pointing towards the guilt of the accused. (c ). The circumstances taken cumulatively should complete the chain from which there is no escape from the irresistible conclusion that within all human probability the crime was committed by the accused and the accused only. (d ). The circumstantial evidence in order to sustain conviction must be complete. It must not have the loopholes or cracks in the same and it should not be capable of any explanation. (e ). The circumstances if are simply creating suspicion rather strong suspicion against the accused and there is no other positive evidence then benefit of every doubt should go to the accused. ( 7. ) KEEPING in mind the above principles, we propose to scan and scrutinize the evidence. ( 8. ) FROM the statements of P. W. 1 Lata, widow of the deceased, it would positively appear that at about 5. 00 5. 30 pm the present accused with some of his colleagues came to the house of the deceased, had some talks with the deceased, thereafter the deceased boarded the car and the car went away. ( 8. ) FROM the statements of P. W. 1 Lata, widow of the deceased, it would positively appear that at about 5. 00 5. 30 pm the present accused with some of his colleagues came to the house of the deceased, had some talks with the deceased, thereafter the deceased boarded the car and the car went away. From her statements it would also appear that in the pitch of the night the present accused brought back the deceased, the accused was with some of his colleagues, the deceased entered in the house, he was made comfortable on the bed and thereafter in the morning he was found dead. From this evidence it positively appears that the deceased had gone with the accused and the accused brought him back. ( 9. ) FROM the statements of P. W. 7 Rampratap a person working in the petrol pump, it would only appear that the white Ambassador came to the petrol pump. They had purchased some petrol and at that time accused and the deceased were in the car. From the statements of one rajkishore Singh, Advocate, it would again appear that these persons in the company of the accused had gone to the house of the deceased. The deceased boarded in the car again and, thereafter, P. W. 10 Rajkishore Singh and his uncle alighted from the car and thereafter the car went away. The further positive evidence of P. W. 14 Hafiz Khan, driver of the car, is available on the records. From his statement it would clearly appear that all concerned had boarded in the car they had gone to the petrol pump for purchasing of petrol. However, thereafter the car suffered some breakdown therefore, the accused, the deceased and some Mishraji boarded a jeep and went to the nearby township. After getting the car repaired hafiz Khan (P. W. 14) went to the township and at that place the deceased met him. It would also appear from his statement that at that time the deceased was all alone. The deceased boarded the car and went to the house of some Sapan chakravarty. The deceased stayed for about 15 minutes in the house of Sapan Chakravarty and thereafter again came out. They came back to the bus stand. It would also appear from his statement that at that time the deceased was all alone. The deceased boarded the car and went to the house of some Sapan chakravarty. The deceased stayed for about 15 minutes in the house of Sapan Chakravarty and thereafter again came out. They came back to the bus stand. The deceased went to some unknown place and returned after about 1 hour and at that point of time the accused came to the car. The deceased and accused boarded the car. The car came back to he house of the deceased, the deceased was not in a position to walk properly and therefore, he was assisted by the accused. This is the sum total of the evidence. ( 10. ) UNDISPUTEDLY the accused was last seen in the company of the deceased but at this point of time it cannot be kept in the oblivion that at the first instance the accused was in company of number of others including P. W. 10 Rajkishore singh. If number of the persons were seen last in the company of the deceased then positive finding cannot be recorded against one of them that he was the only person last seen in the company of the deceased. So far as statements of p. W. 7 Rampratap are concerned they would also not help the prosecution but, undisputedly Hafiz Khan (P. W. 14) has stated that accused, the deceased and Mishraji boarded a jeep and went to the nearby township. Statements of Rajkishore Singh (P. W. 10) would also not help and assist the prosecution because he himself was in the company of the deceased. From the statement of P. W. 14 Hafiz Khan it does not appear that at any point of time the accused and deceased in company consumed liquor. His statements are giving dent to the prosecution instead of supporting them when he says that he has seen the deceased all alone at the bus stand and thereafter the deceased had gone to the house of Sapan Chakravarty and thereafter he had gone to some unknown place. From all this evidence it cannot be said that from the time of departure from the house of the deceased and till time of return to the house of the deceased, the deceased was all through in the company of the accused. From all this evidence it cannot be said that from the time of departure from the house of the deceased and till time of return to the house of the deceased, the deceased was all through in the company of the accused. It may create a suspicion that the accused might have administered poison but the suspicion would not be sufficient to convict the appellant. ( 11. ) UNFORTUNATELY the prosecution despite knowing that the deceased and accused had gone in company of some Mishraji did not make any investigation to know that where the accused and the deceased parted, and that when they were in the jeep or left the jeep they had consumed liquor. Unfortunately the prosecution agency did not make any investigation into the fact that after the return from the house of Sapan Chakravarty where the deceased had gone. ( 12. ) IT is to be seen that the prosecution came with the case that the deceased was last seen in the company of the three persons but if the two have been acquitted then the said acquittal would certainly give a dent to the reliability of the prosecution story and the allegation that the accused was author of the crime. ( 13. ) AT this stage non-availability or absence of the motive would also assume importance. Undisputedly deceased Mohan and accused Ganesh were thick friends. They had no dispute. They were drinking and dining together and they had such good relations that the accused could come to the house of the deceased. P. W. 1 Lata clearly stated that there was no enmity between the deceased and the accused. If there was no enmity between the two then there could be no motive because the accused could not be benefited by the murder. The other evidence if is shaky and non-reliable then in our opinion the accused on strength of such evidence cannot be convicted. The findings recorded by the Court below in our considered opinion call for interference. We set aside the findings and hold that the prosecution failed in bringing home the guilt. ( 14. ) THE appeal is allowed. The conviction recorded and sentence awarded to the accused are set aside. The accused is on bail. The accused be set at liberty. His bail bonds are discharged.