Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 993 (MP)

Ganpat v. State of M. P.

2009-08-18

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

body2009
JUDGMENT Samvatsar, J. --1. This appeal is preferred by accused appellant Ganpat who is convicted for commission of the offence under section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. two thousand, in lieu thereof, to undergo additional one year's rigorous imprisonment vide judgment dated 25/4/1998 delivered by Sessions Judge, Vidisha in Session Trial No. 40/98. 2. As per the case of prosecution, deceased Bhikamsingh used to play cards with accused Pappu and Ganpat and used to come late in the night. On 30/7/1997, i.e. in the previous night, accused Pappu came to the house of the deceased where both of them watched TV. Thereafter, Bhikamsingh went to the house of Pappu for playing cards. Next day morning i.e. on 31/7/1997 since deceased could not wake up, Bhagwansingh came to the courtyard to awake him. When he lifted the quilt which the deceased was wrapping, he found an injury on the chest of Bhikamsingh and he was lying dead on the cot. On the cry of Bhagwansingh, his wife Kamlabai and neighbors reached the spot. 3. Complainant lodged report of the incident at police station, on the basis of which a criminal case was registered against the accused for commission of the offence under Section 302 of IPC. The police after completing the investigation filed challan against accused Pappu who was juvenile and present appellant Ganpat. Accused Pappu being juvenile, was tried by the juvenile Court and was found guilty of commission of the offence under Section 302 of IPC. 4. So far as present appellant is concerned, he was charged for commission of the offence under Section 302 read with S. 34 of IPC and the Sessions Court has convicted him for commission of the aforesaid offence and sentenced him accordingly. Hence, this appeal at the instance of accused assailing his conviction and sentence. 5. In the present case, there is no eye witness to the incident. Only eye witness who has supported the case of the prosecution is Hamam Singh (PW 8), but this witness is disbelieved by the Sessions Court in paragraphs 22 and 23 of the impugned judgment. 6. So far as other evidence is concerned, Kamlabai (PW1) the mother of the deceased. She says that she came to know about the incident only when she went to awake the deceased. 6. So far as other evidence is concerned, Kamlabai (PW1) the mother of the deceased. She says that she came to know about the incident only when she went to awake the deceased. She says that in the previous night at about 8.00 accused Pappu had come to their house and watched TV programme Chitrahar. Thereafter the deceased and accused Pappu, both went to the house of accused Pappu for playing cards. She was preparing meal at that time. She does not know when the deceased returned back to his house. So from her evidence, at the most, it is proved that the deceased had gone to the house of the accused previous night for playing cards. 7. Bhagwansingh (PW2) is the father of the deceased. He has also narrated the same facts. He says that accused Pappu had come to their house in the night at about 8.00. Accused Pappu and the deceased watched TV for sometime and then went to the house of accused Pappu. Deceased returned back in the night. But this witness does not know when the deceased returned back to his house. 8. Lalsingh (PW3) is a neighbour of the deceased. He says that after hearing cry of Bhagwansingh, he went to the spot and saw the dead body of the deceased lying on a cot. Blood had spread over the cot and clothes of the deceased were also stained with blood. This witness in paragraph 2 of his cross examination says that he had signed the spot map (Ex.P/2). In paragraph 11, he says that he had seen a Dhoti hanging on a rope of the house of Ganpat for drying which was seized by the police. According to him, some blood stains were found on the said Dhoti. 9. Manoj Kumar (PW 4) says that he used to play cards with the deceased. This witness also urged to accompany them. On the date of incident, he has not gone to the house of Pappu for playing cards. 10. R.N. Sharma (PW 5) is the investigation officer, who investigated the crime and gave out the details of the investigation. He recovered blood stained clothes from the house of the accused. 11. Surajsingh (PW6) is a witness who says that in the evening, Pappu had come to call the deceased. 10. R.N. Sharma (PW 5) is the investigation officer, who investigated the crime and gave out the details of the investigation. He recovered blood stained clothes from the house of the accused. 11. Surajsingh (PW6) is a witness who says that in the evening, Pappu had come to call the deceased. He further says that a day prior the date of incident, he had seen accused Pappu and the deceased playing cards. They were gambling. Deceased had won the game and therefore, there was a quarrel between them. Accused Ganpat asked his son Pappu to call. the deceased next day so that they can recover the money lost by Pappu from the deceased. 12. Dr. Ramesh Chandra Sonkar (PW7) had conducted autopsy of the dead body of the deceased and proved the post mortem report. He found the death homicidal in nature. 13. Hamamsingh (PW8), of course, claims to be an eye witness to the incident, but is disbelieved by the Sessions Court. 14. Thus, the total evidence in the case in hand is that some blood stained clothes were recovered from the house of the present appellant. It is an admitted position that accused Pappu who is convicted for commission of the offence under Section 302 of IPC is the son of present appellant Ganpat. 15. The question in the present case is, is there any evidence to show that present appellant had shared common intention with accused Pappu in committing the murder of the deceased or whether the present appellant has committed the murder of the deceased. 16. Only evidence against the present appellant is that blood stained clothes were recovered from his house. Accused Pappu being the son of the present appellant, it is quite natural that after commission of the crime, Pappu might have put those clothes in the house of the present appellant as both of them were residing jointly. This it self is not sufficient to hold that present appellant had shared the common intention with accused Pappu in commission of the crime. 17. Present is a case, which hinges on circumstantial evidence. In a case of circumstantial evidence, the chain of circumstances must be complete and every possibility is to be established by the prosecution linking the accused with the commission of the offence. Mere recovery of a cloth from the house of the accused is not sufficient to convict him. 18. 17. Present is a case, which hinges on circumstantial evidence. In a case of circumstantial evidence, the chain of circumstances must be complete and every possibility is to be established by the prosecution linking the accused with the commission of the offence. Mere recovery of a cloth from the house of the accused is not sufficient to convict him. 18. So far as question of common intention is concerned, it is for the prosecution to prove that there must be common intention to commit the crime prior to the incident. Subsequent assistance to the accused who has committed the offence under Section 302 of IPC by another accused is not sufficient to convict the latter with the aid of Section 34 of IPC because common intention is to be found prior to the incident and not thereafter. 19. In the case before us, there is no iota of evidence on record to show that present appellant had shared common intention with accused Pappu in doing away the deceased Bhikamsingh. In such circumstances, the Sessions Court has committed grave error in convicting the present appellant with the aid of Section 34 of IPC. 20. Resultantly, this appeal succeeds and is allowed. Impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charge levied against him. 21. Appellant is on bail. His bail bonds and sureties stand discharged. Amount of fine, if deposited, shall be refunded to him.