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Madhya Pradesh High Court · body

2013 DIGILAW 1283 (MP)

Madan v. State of M. P.

2013-10-24

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT G.D. Saxena, J. 1. The present appeal under Section 374 of the Code of Criminal Procedure, 1973 is preferred by the appellant-accused from the jail, challenging the legality and validity of the judgment and order of conviction and sentence dated 11th August, 1999 passed by the learned Sessions Judge, Shivpuri in S.T. No. 135/98 whereby at the end of trial, the appellant came to be convicted for the offence punishable under Sections 302 and 404 of I.P.C. and was asked to undergo sentence of life imprisonment and rigorous imprisonment for three years, respectively and also to pay a fine of Rs. 1000/- for each offence; and in default to make payment of fine, he is directed to undergo rigorous imprisonment for three months. Of course, the learned trial Judge has held that the both the sentences shall run concurrently. The facts in short are that on 11th May 1998 at about 9 a.m., as usual, Smt. Parmobai, mother of Champalal (complainant) went to the field for grazing buffaloes. After evening, the buffaloes returned back, but she did not turn up. Champalal then accompanied with his brother went in search of her to the place of grazing. When he reached, he found the dead body of Smt. Parmobai lying beneath the Pippal tree. The ornaments which the deceased normally used to wear, i.e., Silver chain (Kaddi) and gold pin (Long) were missing from the body. One wooden stick and one pair of chappals were found near the dead body. Accordingly, the F.I.R. was lodged by the complainant at Police Station Survaya. During investigation, the accused was arrested and at his instance, the silver and gold ornaments which the deceased were wearing before her death and which were missing from her body were recovered from his possession. Those ornaments were identified by the son of the deceased. After investigation, the charge-sheet was filed before the Criminal Court, having jurisdiction. After committal, the accused was tried for the alleged offences and was convicted and sentenced as mentioned herein above. 2. This appeal is filed from Central Jail, Gwalior. It seems to be pending waiting for its turn since long as no one appeared from the Legal Aid Cell to appear and defend the accused. Even on the last date when the matter was fixed, nobody appeared. 2. This appeal is filed from Central Jail, Gwalior. It seems to be pending waiting for its turn since long as no one appeared from the Legal Aid Cell to appear and defend the accused. Even on the last date when the matter was fixed, nobody appeared. In such circumstance, Shri R.K. Sharma, Advocate was requested to appear as Amicus Curiae for defending the accused/appellant, which he accepted. We heard him at length on behalf of accused/appellant alongwith learned Public Prosecutor for the respondent/State. 3. On perusal of the judgment, it appears that the case mainly rests upon the circumstantial evidence. The F.I.R. was lodged by Champalal (PW-8), son of deceased just after half an hour of recovery of dead body of his mother in Police Station Survaya, which is 8 k.m., away from the spot. He deposed in his evidence that on 11th May 1998 in the evening he found during search his mother Smt. Parmobai lying dead underneath the tree in agricultural field of his uncle. He marked the injuries on the neck and head of his mother. He stated that his mother usually worn the silver chain (Kadia) in her legs and gold pin in nose which were found missing from the dead-body. After 20-25 days of the death of his mother, he identified the silver chains and gold pin belonging to his mother before Anil Sharma (PW-1), Deputy Sarpanch of village Panchayat. He signed on the identification memo (Ex.P/1). 4. Anil Kumar Sharma (PW-1) Deputy Sarpanch of village Panchayat deposed that on 9th June 1998 at about 11 a.m., in Panchayat Bhawan, he conducted the identification of articles, viz. the silver chain and gold pin which he received from the police. Champalal son of the deceased identified those silver chain and gold pin of his mother. 5. H.S. Tiwari (PW-11) at the relevant time was posted as Deputy Inspector in Police Station Survaya district Shivpuri. He deposed that on 11th May 1998 at about 8.30 p.m., on oral report of Champalal (PW-8) son of deceased, he wrote FIR and registered Crime No. 27/1998 for offence under Sections 302 and 397 of I.P.C. against unknown accused. During investigation on 12th May 1998, he prepared the memo of dead body (Ex.P/5), thereafter prepared Spot map (Ex.P/8) and also seized one wooden stick and one pair of chappals from the spot vide seizure memo (Ex.P/9). During investigation on 12th May 1998, he prepared the memo of dead body (Ex.P/5), thereafter prepared Spot map (Ex.P/8) and also seized one wooden stick and one pair of chappals from the spot vide seizure memo (Ex.P/9). He sent dead body for postmortem to the District Hospital Shivpuri. He arrested the accused on 15th May 1998 by arrest memo (Ex.P/2) and the accused under custody, disclosed about the articles (the silver chain and gold pin) which information was recorded by him vide memorandum (Ex.P/4). Thereafter, the accused produced the said articles, which were seized in the presence of witnesses Kalyan (PW-9) and Gayalal (PW-2) by vide seizure-memo (Ex.P/3). He recorded the case diary statements of witnesses Champalal, Shivdayal, Bhagirath, Geetabai, Siyawar, Prahalad, Amerlal and Chirongilal. The seized articles from accused were sent to Anil Sharma for their identification by Champalal, son of deceased. 6. Dr. S.P.S. Raghuvanshi (PW-10) was posted as Medical Officer in the District Hospital Shivpuri. He deposed that on 12th May 1998 at about 10-30 a.m. he conducted postmortem on the body of Smt. Parmobai, wife of Patturam, aged 65 years, resident of village Dhuvani and found external ante-mortem four contusions of different size on the cheek, left side of chin, mid chin with fracture of mandible, left side of face in maxillary region and four abrasions of different size on left shoulder, left shoulder posterior aspect, left side of neck, and on left ankle. He noted the superficial burn injuries with burst blisters present over left elbow, left side of chest with corresponding back, left thigh, left leg lateral aspect, left side of neck and face. On dissection he found fracture of Mandible and Maxilla bone. Trachea and Oesophagus canal were congested. Mode of death was asphyxia as a result of throttling. The period of death from postmortem was 12-24 hours. In cross- examination, he admitted that the deceased had received several blows or multiple injuries over the body may be caused by several blows and the burnt injuries may be caused by contacting the body with some heated hard substance. The said postmortem report (Ex.P/11) is written and signed by him. 7. It is well settled that in cases where the evidence is of a circumstantial nature, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. 8. The said postmortem report (Ex.P/11) is written and signed by him. 7. It is well settled that in cases where the evidence is of a circumstantial nature, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person. 8. In the case of Shobhau v. State of M.P. (1998 Cri.L.J. 3934) considering the aforesaid aspect this court observed as follows:-- 5. In a case where the entire case of the prosecution rests on the circumstantial evidence, all circumstances from which conclusion of guilt is to be drawn must be fully established. It is well settled that there is a long distance between 'may be true' and 'must be true'. The prosecution has to travel all the way to establish fully the chain of evidence which should be consistent only with the hypothesis of the guilt of the accused and this circumstance should be of conclusive nature and definite tendency. They should be such as to exclude every hypothesis but one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive; but cumulatively must form unbroken chain of events leading of the proof of the guilt. If these circumstances or some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of the hypothesis. In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct evidence to the commission of murder and case rests entirely on circumstantial evidence, the circumstances relied must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. See Kishore Chand v. State, AIR 1990 SC 2140 : 1990 Cri LJ 2289. 10. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. See Kishore Chand v. State, AIR 1990 SC 2140 : 1990 Cri LJ 2289. 10. In the circumstances after the recovery of gold and silver articles at the instance of the accused, which have been identified as that of the deceased, the accused has not claimed these ornaments to be his own, in the opinion of this Court, the accused would only be liable to be convicted under Section 404 of the Indian Penal Code for removing dishonestly the said articles knowing that such property was in possession of the deceased and was on the person of the deceased at the time of the death and the accused was not legally entitled to such possession. 11. Therefore, on over all circumstances of the case which have come on record, in the opinion of this Court, the conviction of the appellant-accused cannot be maintained under Section 302 of the Indian Penal Code while he cannot escape his conviction under Section 404 of the Indian Penal Code. 9. Bearing the above principles in mind, let us see whether the guilt of the appellant has been proved beyond reasonable doubt. 10. On perusal of the entire evidence coupled with medical evidence on record, it appears that death of Smt. Parmobai was homicidal and was caused by beating several blows and thereafter by throttling of neck. Lastly, an attempt was made to burn the body by some heated substances. The time of death, as per postmortem report (Ex.P/11) is matched with the time of her missing and before search of dead-body by her son Champalal (PW-8). Another circumstance is that after four days, accused was arrested and on his information as recorded in memorandum by the Investigating Officer H.S. Tiwari (PW-11) on account of which the incriminating articles, namely, silver chain and gold pin which were worn by the deceased before her death and which were missing from the dead body were subsequently recovered from the possession of the accused and identified by Champalal, son of deceased (PW-8) in the presence of Anil Kumar Sharma (PW-1), Up Sarpanch of village Survaya. The aforesaid identification memo (Ex.P/3) of the seized property is on record. The aforesaid identification memo (Ex.P/3) of the seized property is on record. Except the above circumstances, no other incriminating circumstance appeared from the material evidence on record which may implicate the accused beyond reasonable doubts with the alleged commission of crime. In the absence of evidence of last seen and that of unusual conduct of the accused like absconding or motive of the crime or other correlated circumstantial evidence on record which may lead to the crime of murder by accused only on the basis of recovery of articles on the information under Section 27 of the Evidence Act which have been identified as belonging to the deceased from the possession of the accused, even if that evidence is taken to be trustworthy, will not be sufficient proof against the accused for holding him murderer. At the most it may give rise to suspicion against him; but the suspicion cannot take place of proof. Therefore, in such circumstances, it would be hazardous to maintain the conviction of the appellant/accused under Section 302 of I.P.C. In this context, reference may be made to the decision rendered in Joga Gola v. State of Gujarat, ( AIR 1982 SC 1227 ). 11. Thus, in the present scenario of the facts and law as discussed above, the only circumstance which remained is that of recovery of gold and silver articles at the behest of the accused, which have been identified as belonging to deceased, as the accused has not claimed these ornaments to be his own. Having thus examined the case from that angle in the light of the law, in the opinion of this Court, the accused would only be liable to be convicted for commission of offence under Section 404 of the Indian Penal Code for removing dishonestly the said articles knowing that such property was in possession of the deceased and was on the person of the deceased at the time of the death and he was not legally entitled to such possession. 12. Therefore, on the face of the totality of the above circumstances and the cumulative effect thereof, in our considered view, the conviction of the appellant-accused cannot be maintained for offence under Section 302 of I.P.C., while he cannot escape his conviction under Section 404 of the Indian Penal Code and the sentence awarded to him, which he has already served. 13. 13. Resultantly, the conviction and sentence of the appellant under Section 404 of I.P.C. is maintained whereas the conviction and sentence of the appellant for offence under Section 302 of I.P.C. are set aside. As the appellant has already served the substantial sentence, he shall be released forthwith, if not required in any other criminal case. In the manner indicated aforesaid, the appeal stands partly allowed.