Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 777 (MP)

Ramesh v. State of M. P.

2010-08-04

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
JUDGMENT A.K. Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 10.11.2000 passed by learned Forth Additional Sessions Judge, Gwalior, in Sessions Trial No. 207/90 convicting appellant under section 302/34 of IPC and thereby sentencing him to suffer life .imprisonment and fine of Rs. 2,500/- in default, three months further R.I. this appeal has been preferred by the appellant under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that on 22.2.1990 one Yashpal Wadhva gave information to Station Officer In-charge, Gwalior Prakash Singh at Hajira Chauki that his brother Onkar (hereinafter referred to as "the deceased") is not traceable and a missing report in that regard in police Station, Padav, has already been made. The said Yashpal Wadhva made suspicion against Chandu Maratha and appellant Ramesh and told that if they are interrogated, the whereabouts of his brother (the deceased) can be traced out. Thereafter, Station Officer In-charge Prakash Singh made enquiry from Police Station, Padav, and by sending Head Constable Devesh, accused persons Chandu Maratha and appellant Ramesh were searched. After the appellant was found, on 24.2.1990 at Police Chauki Hajira in presence of witnesses Virendra and Roshan Singh, he gave information about killing of the deceased. The said momorandum statement under section 27 of the Evidence Act .was reduced in writing. According to memorandum statement of appellant, after killing the deceased, his dead-body was thrown in the well. On the basis of memorandum statement, at the instance of appellant, from the well of Ramsingh Thekdar situated at Talaiya Mohalla, the dead-body of the decease was taken out and seized. Necessary Panchanama in that regard was also prepared. The dead-body of the deceased was identified by Devendra Wadhva to be that of his brother who is the deceased. The witnesses were called and Panchayatnama of the dead-body was prepared. The dead body of the deceased was sent for postmortem. According to the autopsy surgeon, the deceased had died on account of drowning. 3. After the investigation was over, a charge-sheet was submitted against the appellant and other accused persons Chandu @ Chandra Prakash, Pappu @ Suresh and Rajkumar. However, except the appellants all other accused persons were absconding. 4. The dead body of the deceased was sent for postmortem. According to the autopsy surgeon, the deceased had died on account of drowning. 3. After the investigation was over, a charge-sheet was submitted against the appellant and other accused persons Chandu @ Chandra Prakash, Pappu @ Suresh and Rajkumar. However, except the appellants all other accused persons were absconding. 4. The learned trial Judge framed the charge punishable under section 302/ 34 of IPC against the appellant which he denied and requested for the trial. The learned trial Court thereafter examined certain witnesses and also proved the documents. The defence of appellant is of false implication and the same defence he set forth in his statement recorded under section 313 of CrPC. However, in support of his defence, he did not examine any witness. 5. The learned trial judge after appreciating and marshalling the evidence, came to hold that charge under section 302/34 of IPC has been found to be proved against the appellant, as a result of which, convicted him and passed the sentence which we have mentioned hereinabove. 6. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 7. We have heard Shri Yogesh Chaturvedi, learned counsel for the appellant, and Shri P.N. Gupta, Public Prosecutor for the respondent/State. 8. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 9. In the present case, there is no direct evidence available against the appellant and the prosecution has based its case solely on the basis of circumstantial evidence. The law in regard to the circumstantial evidence is well settled. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the following tests have been framed by apex Court in order to hold that accused is of guilty of murder : "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the following tests have been framed by apex Court in order to hold that accused is of guilty of murder : "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 10. Basing the aforesaid tests in our mind, we shall now examine the evidence placed on record. Looking to the case of prosecution, we find that-broadly the prosecution has based its case against the appellant on three circumstances. The first circumstance is that the deceased was seen last in the company of appellant; the second one is that some quarrel took place between the accused persons, including the appellant, and the deceased; and the third and last one is that on the basis of memorandum statement of appellant leading to recovery, the dead body of the deceased was seized from a well. 11. So far as the evidence of last seen is concerned, the prosecution has examined Chandrakanta Wadhva (PW-8), who is the mother of the deceased. According to her, on 22.2.1990 in the afternoon accused persons, namely Chandu Maratha, Rajkumar, Pappu and appellant Ramesh came to her house, where the deceased offered them a cup of tea and thereafter all these five persons went away at 12 in the afternoon from her house. At 12.30 in the afternoon, her neighbour was taking an electric connection from a pole which was installed in front of her house, at that juncture, this witness tried to call the deceased. At 12.30 in the afternoon, her neighbour was taking an electric connection from a pole which was installed in front of her house, at that juncture, this witness tried to call the deceased. Further, she says that at 12.30 p.m., she received a telephone of the deceased who told that he could not come to home and at that juncture she heard the sound of some quarrel which was taking place. Thereafter, she disconnected the telephone. From the statement of this witness, we find that 4 accused persons, including the appellant, came to her house where a cup of tea was offered to them and thereafter all the accused persons, including the appellant, carried the deceased with them. However, if we scan the testimony of Kulbhushan (PW-9), we find that at 3 pm some quarrel took place between the deceased and four accused persons, including the appellant, on the point of specs. This witness separated the deceased and four accused persons, including the appellant. Thereafter all the accused persons, including the appellant, went away towards Hazira. This statement has been so stated by this witnesses in his examination-in-chief, hence, from the statement of this witness, it is proved that all the accused persons, including the appellant, went away towards Hazira leaving aside the deceased nearby the shop of this witness Kulbhushan. Nowhere this witness is saying that the deceased also accompanied with the accused persons. The prosecution did not declare this witness to be hostile, and therefore, whatever has been said by this witness, the prosecution is bound by his statement. In this context, we may profitably place reliance on two decisions of Supreme Court Mukhtiar Ahmed Ansari v. State (NCT of Delhi), 2005 SCC (Cri) 1037 and Raja Ram v. State of Rajasthan, 2005 SCC (Cri) 1050. Hence, it is proved that when the accused persons, including the appellant, went away towards Hazira leaving aside the deceased nearby the shop of Kulbhshan, deceased was alive. There is no evidence of any other witness that after leaving aside the deceased nearby the shop of Kulbhushan, these four accused persons were again seen alongwith the deceased. Hence, according to us, there is no evidence of last seen against the present appellant. 12. So far as the evidence of quarrel is concerned, this witness Kulbhushan is not naming the appellant that he quarreled with the deceased. Hence, according to us, there is no evidence of last seen against the present appellant. 12. So far as the evidence of quarrel is concerned, this witness Kulbhushan is not naming the appellant that he quarreled with the deceased. Apart from this, even if for the sake of argument we hold that some quarrel took place at 3 p.m. on 22.2.1990 nearby the shop of Kulbhushan, according to us, unless and until there are other material circumstances, unerringly pointing out the guilt towards the appellant, this alone would not be a determining factor in order to hold that appellant has killed the deceased. 13. So far as the last circumstances that at the instance of appellant the dead-body of the deceased was recovered from a well is concerned, on going through the memorandum statement of appellant (Ex. P-6) recorded under section 27 of the Evidence Act, we find that a disclosure statement was made by the appellant that he alongwith the other co-accused persons killed the deceased and told that he will get the dead-body of the deceased recovered from the well. The seizure memo of the dead-body of the deceased is Ex.P-4. The witnesses to these two documents are Virendra Kumar Sharma (PW-6) and Roshan Singh Kushwah (PW-3). On going through the seizure memo of the dead-body (Ex. P-4), we find that nowhere in this document it has been mentioned that at the instance of appellant, the dead-body of the deceased was taken out from the well of Ramsingh Thekedar situated at Talaiya. Hence, the recovery of dead-I body at the instance of appellant becomes highly suspicious. 14. Apart from this, if we go through the statement of witnesses of recovery and memorandum statement, namely Roshan Singh Kushwah (PW-3) and Virendra Kumar Sharma (PW-6), we find that only this much was stated by the appellant that dead-body of the deceased was lying in the well. Nowhere they are saying that appellant told that he has thrown the dead-body of the deceased in the well. This type of statement has been given by both the witnesses in their examination-in-chief. lf we visualize their statement in proper perspective, we find that at no point of time, the appellant was having possession of the dead body of the deceased. What they have said is that appellant told that the dead body of the deceased is lying in the well. lf we visualize their statement in proper perspective, we find that at no point of time, the appellant was having possession of the dead body of the deceased. What they have said is that appellant told that the dead body of the deceased is lying in the well. According to us, there is vast difference between the two type of statements. If it would have been stated by the witnesses that appellant told that he has thrown the dead-body in the well, it could have been inferred that at some point of time he was possessing the dead-body. However, the statement which he has given indicates that anyhow he gathered the information that the dead-body of the deceased is lying in the well. Unless and until it is there in the evidence of these two independent witness that appellant told that he has thrown the dead-body of the deceased in the well, according to us, mere recovery of the dead-body would not be sufficient to connect the appellant with the crime. In this context, we may profitably place reliance on two decisions of Supreme Court Trimbak v. The State of Madhya Pradesh, AIR 1954 SC 39 and Mujeeb and another v. State of Kerala, AIR 2000 SC 591 . At this juncture, we may also place reliance on a Single Bench decision of this Court Bhagirath v. State, 1958 JLJ 900 para 13. 15. True the investigating officer Prakash Singh (PW-15) has stated that appellant told that he has thrown the dead-body in the well and at his instance the dead-body was recovered. But if we test the testimony of investigating officer vis-a-vis with the evidence of independent witnesses, we find that evidence of independent witnesses appears to be more reliable. Apru1 from this, looking to the seizure memo (Ex. P-4) of the dead-body, which has been prepared by the same investigating officer, we find that nowhere it has been mentioned in it that dead-body of the deceased has been seized at the instance of appellant. In these I state of affairs according to us, the recovery of the dead-body at the instance of appellant becomes highly doubtful. 16. P-4) of the dead-body, which has been prepared by the same investigating officer, we find that nowhere it has been mentioned in it that dead-body of the deceased has been seized at the instance of appellant. In these I state of affairs according to us, the recovery of the dead-body at the instance of appellant becomes highly doubtful. 16. It is well settled in law that if the case rests on circumstantial evidence, then all the circumstances should unite in order to form a complete chain unerringly pointing out the guilt towards the appellant and if that would not be the position, merely on the basis of conjectures and surmises, an accused cannot be convicted. 17. For the reasons stated hereinabove, we are unable to uphold the conviction accorded by learned trial Court convicting appellant under section 302/34 of IPC. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence passed by learned trial Court convicting appellant under section 302/34 of IPC is hereby set aside. The appellant is in jail, he be set at liberty forthwith, if not required in any other case. The amount of fine if deposited be refunded to him.