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Madhya Pradesh High Court · body

2010 DIGILAW 1166 (MP)

Halku v. State of M. P.

2010-11-23

M.A.SIDDIQUI, RAKESH SAKSENA

body2010
JUDGMENT Rakesh Saksena, J. 1. Appellant has filed this appeal against the judgment dated 12.11.2003, passed by I Additional Sessions Judge, Chhatarpur, in Sessions Trial No. 123/2003, convicting him under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 5000/-. 2. In nutshell, the prosecution case is that in the night of 23.03.2003, at about 9.00 O'clock, deceased Shivnath, after taking meals, went to sleep in the outer verandah of his house. In the night, his son Mulchandra had gone to keep vigil on the field and his wife, daughter-in-law and children were at home. In the morning, when inmates of the house got up, they saw Shivnath lying dead on the cot. There were number of injuries on his neck and face by some sharp edged weapon. In the morning of 24.03.2003 Mulchandra went to Police Station, Loudi and lodged a report. Marg No. 11/2003 was registered. During investigation, it was revealed that Appellant committed murder of Shivnath by an iron Bakhar (a kind of plough having a wide share). On the information furnished by Appellant, said Bakhar was recovered and seized from the garbage lying behind the house of Appellant. 3. Dead body of Shivnath was sent for postmortem examination to Primary Health Centre, Loudi, where Dr. S.S. Chourasiya (PW-12) conducted the autopsy and found 5 incised injuries on the nose, mandible, chin and neck of the deceased. Postmortem report is Ex. P/14. After investigation, charge sheet was filed and the case was committed for trial. 4. Accused/Appellant abjured his guilt and pleaded false implication by the sons of deceased. According to him, they, in connivance with the police, wanted to grab his land. 5. There was no direct evidence in the case. Case rested mainly on the circumstantial evidence of extra judicial confession allegedly made by the Appellant before Ram Prasad (PW-2) and Kallu (PW-5) and recovery of Bakhar, weapon of the offence, at his instance. 6. Learned Additional Sessions Judge, relying upon the aforesaid circumstances, held the Appellant guilty of committing murder of deceased Shivnath and convicted and sentenced him as mentioned above. 7. 6. Learned Additional Sessions Judge, relying upon the aforesaid circumstances, held the Appellant guilty of committing murder of deceased Shivnath and convicted and sentenced him as mentioned above. 7. Learned Counsel for the Appellant submitted that the trial Court gravely erred in placing implicit reliance on the evidence of extra judicial confession allegedly made by the Appellant to Ram Prasad (PW-2) and Kallu (PW-5) and the evidence of recovery of Bakhar from the garbage lying behind the house of Appellant. Learned Counsel for the State, on the other hand, justified and supported the conviction of Appellant. 8. We have gone through the entire evidence on record. 9. It was no longer disputed that deceased died of homicidal injuries. It is reflected from the evidence of Mulchandra, Ram Prasad (PW-2), Smt. Dhansi Bai (PW-3), Raja Bhaiya (PW-4) and Kallu (PW-5) that they saw number of injuries caused by some sharp edged weapon on the face, neck etc. of the deceased. When they saw him, he had already died. On getting information about the death of deceased, ASI Ramnath (PW-13) went to spot and after conducting inquest proceedings prepared memorandum (Ex.P/12) and sent the dead body of deceased for postmortem examination. From the evidence of Dr. S.S. Chourasiya (PW-12) it is established that on 24.3.2003 when he was posted as Block Medical Officer in Primary Health Centre, Loudi, he conducted postmortem examination of the dead body of Shivnath. According to him, he found following injuries on his body: (1) Incised wound 4 cm x 0.5 cm. bony deep on nose. Bone was cut. (2) Incised wound 5 cm x 0.5 cm. bony deep on left side of face. (3) Incised wound 6 cm x 0.6 cm. bony deep on the left side of face. Mandible fractured. (4) Incised wound 6 cm x 0.5 cm. bony deep on chin. Mandible fractured. (5) Incised wound 10 cm x 5 cm horizontally placed on neck interiorly below the thyroid cartilage cutting whole thickness. All the wounds were spindle shaped with clear cut margins and stained with blood. In wound No. 5, both carotid arteries, veins and windpipe were cut. In his opinion, cause of death was shock caused by excessive haemorrhage from the wound on neck. His postmortem report is Ex.P/14. It was thus clearly evident that deceased Shivnath died of homicidal injuries. 10. In wound No. 5, both carotid arteries, veins and windpipe were cut. In his opinion, cause of death was shock caused by excessive haemorrhage from the wound on neck. His postmortem report is Ex.P/14. It was thus clearly evident that deceased Shivnath died of homicidal injuries. 10. As far as evidence of extra judicial confession made by the accused is concerned, Ram Prasad (PW-2), who is son of deceased did not state about the extra judicial confession in his examination-in-chief and he was declared hostile by the prosecution. In cross-examination, he admitted that he had given statement to police (Ex.P/6) that when he and Kallu Lodhi (PW-5) were standing near the school, accused came to him and told that he had killed his father, and that some day he would kill him too and went away. This witness admitted that since the day incident occurred, police remained present in the village. On next day of the incident, when police was in the village, accused was also present in the village. The day on which accused talked to him, police was at his house. After talking to him, since accused had gone out, he did not disclose to police that he was there. He further stated that when accused told to him about the incident, about 20 persons were present there. Kallu (PW-5) had heard accused saying the above fact. According to him, he disclosed about the aforesaid confession by the accused to his brother Mulchandra (PW-1) and Raja Bhaiya (PW-4). It is significant to note that Kallu (PW-5) did not support the version given by Ram Prasad (PW-2). He denied that in his presence accused told to Ram Prasad (PW-1) that he had killed his father and he would also kill him. This witness was declared hostile. As far as evidence of Mulchandra (PW-1) and Raja Bhaiya (PW-4), who happen to be the real brothers of Ram Prasad (PW-2), they did not say that Ram Prasad disclosed the fact of confession made by accused to him. Thus, the evidence of Ram Prasad on the point that he disclosed about the making of confession by accused to Mulchandra (PW-1) and Raja Bhaiya (PW-4) remains uncorroborated. Thus, the evidence of Ram Prasad on the point that he disclosed about the making of confession by accused to Mulchandra (PW-1) and Raja Bhaiya (PW-4) remains uncorroborated. Apart from it, it appears highly suspicious that for no rhyme or reason accused would have made confession of his guilt before the son of deceased and that too in presence of about 20 persons and on the day when police was present at the house of deceased. 11. In Ratan Gond v. The State of Bihar AIR 1959 SC 18 , the Apex Court observed: It is enough to state that usually and as a matter of caution, Courts require some material corroboration to such a confessional statement, corroboration which connects the accused person with the crime in question, and the real question which falls for decision in the present case is if the circumstances proved against the Appellant afford sufficient corroboration to the confessional statement of the Appellant, in case we hold that the confessional statement is voluntary and true. In Maghar Singh v. State of Punjab AIR 1975 SC 1320 , the Apex Court further observed: The evidence furnished by the extra-judicial confession made by the accused to witnesses cannot be termed to be a tainted evidence and if corroboration is required it is only by way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone. 12. Examining the evidence of extra judicial confession allegedly made by the accused to Ram Prasad (PW-2) in the light of above factual legal proposition, we find that the evidence of Ram Prasad (PW-2) was highly suspicious. It was not corroborated even by his real brothers viz. Mulchand (PW-1) and Raja Bhaiya (PW-4). In these circumstances, we hold that trial Court committed error in taking into consideration the evidence of extrajudicial confession against the Appellant. 13. The next submission made by the learned Counsel for the Appellant was that the evidence of recovery of Bakhar at the instance of Appellant was not sufficient to hold the Appellant guilty of the commission of murder of deceased, as it was not established that the said Bakhar was the weapon of offence. 14. 13. The next submission made by the learned Counsel for the Appellant was that the evidence of recovery of Bakhar at the instance of Appellant was not sufficient to hold the Appellant guilty of the commission of murder of deceased, as it was not established that the said Bakhar was the weapon of offence. 14. From the evidence of Investigating Officer Ramnath, ASI (PW-13) it is revealed that on 29.3.2003 he interrogated the accused in the presence of witnesses Pappu (PW-6) and Halka (PW-10) and recorded memorandum (Ex. P/8) and in accordance accused took out a Bakhar from the garbage lying on the back side of his house. He seized the same vide seizure memo Ex.P/9 and sent the same for examination to FSL, Sagar. The report of FSL, Sagar was Ex.P/17. The evidence of investigating officer finds support from the evidence of Pappu (PW-6) and Halka (PW-10). Both the witnesses deposed that accused gave information and a Bakhar was got recovered from the garbage kept behind his house. Thus, it is established that a Bakhar was recovered and seized from the possession of accused. On perusal of FSL report (Ex.P/17), it is revealed that the said Bakhar contained stains of human blood. Learned Counsel for the Appellant, however, placed reliance on the case of Kansa Behera v. State of Orissa AIR 1987 SC 1507 and contended that where there is clear evidence about the dimensions of the stains of the blood on the weapon seized from the possession of the accused and blood group of the stains, if tallied with the blood group of deceased, only then the recovery of weapon from the accused would be incriminating against him. In case of Kansa Behera (supra), Apex Court held that "the evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference can be drawn." 15. In the present case, though vide FSL report Ex.P/17, the blood of the deceased was detected to be of Group "B", but the group of the blood stains found on Bakhar could not be detected. Therefore, in our opinion, it cannot be concluded with certainty that Bakhar recovered from the possession of the accused was used in commission of murder of deceased. Therefore, in our opinion, it cannot be concluded with certainty that Bakhar recovered from the possession of the accused was used in commission of murder of deceased. It is a settled rule of circumstantial evidence that each of the circumstances relied upon by the prosecution have to be established beyond doubt and all the circumstances put together must lead to the only one inference i.e. the guilt of accused. As discussed above, both the circumstances sought to be proved by the prosecution against the accused were not sufficient to hold the accused/Appellant guilty of commission of murder of the deceased. Apart from it, there was absolutely no evidence on record to indicate any motive on the part of accused to have caused death of the deceased. 16. In the light of above discussion, in our opinion, the Court below was wrong in convicting the Appellant on these facts. The appeal is, therefore, allowed. The conviction and sentence passed against the Appellant are set aside. Appellant, who is in custody, shall be set at liberty forthwith, if not required in any other case. 17. Appeal allowed.