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2014 DIGILAW 684 (MP)

Rambabu Tengar v. Kamal

2014-06-20

S.K.GANGELE, S.K.PALO

body2014
ORDER 1. Applicant, Rambabu Tenger has preferred this criminal revision under section 397 read with section 401 of CrPC challenging the judgment dated 18.5.2010 passed in Special Sessions Trial No.36/2008 (State of M.P. v. Gyani Chandra and others) pronounced by Special Judge (MPDVPK Act), Shivpuri. 2. In this revision, the complainant, Rambabu Tenger who is father of the deceased, Brijesh Kumar has challenged the acquittal of co-accused/non-petitioners, Kamal, Ramjilal and Virendra. 3. The prosecution story in brief, is that, on 6.11.2007 at about 10.00 a.m. Brijesh Kumar aged about 19 years went to Mangalam Bhawan, Shivpuri for practicing Yoga. He did not return till 4 p.m. Rambabu Jatav, the father of Brijesh Kumar, when did not find his son, reported the matter on 7.11.2011 at Police Station Shivpuri. A guminsan No.60/2007 was lodged. During the investigation of guminsan, on 8.11.2007 a telephone call was received by Rambabu Tengar demanding ransom and also a letter was received demanding ransom for releasing Brijesh Kumar. On this development Crime No.755/07 under section 364A of IPC was registered. 4. The call details of the complainant Rambabu Tenger was checked. During the investigation, the accused, Gyani and accused Kamal were arrested and on the basis of memorandum of Gyani, the dead body of Brijesh Kumar was recovered from the hill. Spot map was prepared. Post-mortem was conducted. Co-accused, Mahendra, Ramji Lal and Virendra were also arrested and on the basis of memorandum of accused Mahendra stone and shoes of deceased were recovered. On the basis of memorandum of Virendra stone was recovered. The dead body was identified and a DNA test was performed. After the investigation charge sheet was filed. Charges levelled against the accused persons under section 364A in alternatively sections 365 and 302 of IPC read with section 11/13 of MPDVPK Act and section 201 of IPC. The accused persons were explained the charges, which they abjured. 5. After the trial, the learned trial Court held accused, Gyani Chandra and accused Mahendra Singh guilty under section 364A of IPC read with section 11/13 of MPDVPK Act and sentenced them to life imprisonment with fine of Rs.1,000/- each failing which they have to undergo three months rigorous imprisonment and under section 201 of IPC, the accused Gyani Chandra Jatav and accused Mahendra Singh were imposed sentence of rigorous imprisonment for three years with fine of Rs.1,000/- each. In lieu of which they have to undergo imprisonment for three months each. 6. Rambabu Tenger, the father of the deceased Ram Prakash has filed this revision against the present non-petitioners/accused persons Kamal, Ramji Lal and Virendra on the ground that the learned trial Court erred in acquitting them. The petitioner prays that the non-petitioners were also the culprits. There is sufficient reason to show that they have committed the offence and requested to set-aside their acquittal order and to sentence them under section 302, 364A of IPC read with section 120B of IPC and section 11/13 of MPDVPK Act in alternatively under section 365 read with section 120B of IPC. 7. On perusal of the record, it is evident that there is no direct evidence available in this case. The learned trial Court on the basis of call details received and on the ground that the dead body was recovered on the memorandum of accused Gyani Chandra and from the evidence received as regarding the letter written by the accused Mahendra Singh, held them guilty. It has also been established, with the support of the evidence of hand-writing expert, that the letter was written by accused Mahendra Singh. 8. As regarding accused, Kamal Singh and Virendra except that the stones were recovered on the basis of their memorandum, no other incriminating evidence has been found. 9. In Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 , the Hon’ble Supreme has held as under :- “(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 completed 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. It is also established by different decisions of the Hon'ble Supreme Court that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established, should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinize the evidence lest suspicion takes the place of proof. 11. Therefore, only legally established circumstances should be taken into account. Mere indignation cannot be considered to bring home the offence. 12. In catena of judgments, the Hon'ble Supreme Court has made it clear that there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that with in all human probability, the act must have been done by the accused, therefore, the evidence found against the accused/non-petitioners, Kamal, Ramji Lal and Virendra cannot be considered to be sufficient and cogent to hold them guilty in the present case. Inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. 13. Having considered all the aspects, in our opinion, the learned Trial Court has not committed any illegality or irregularity in pronouncing the impugned judgment dated 18.05.2010, therefore, it calls for no interference. 14. With these observations, we decline to allow this revision, hence, it is dismissed.