Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 834 (MP)

Virendra@ Ramoo v. State of M. P.

2017-07-18

S.C.SHARMA, VIRENDER SINGH

body2017
JUDGMENT Singh, J. -- 1. The appellants herein were made accused and charged for committing offence punishable under section 302 of IPC. 2. Brief facts of the case are that at about 6:30 p.m., Harshit with his elder brother Mohit went for Darshan at Karni Mata Mandir. After the evening Aarti, Mohit could not find him there. He searched for him, but in vain, he went home, asked his mother, she told that Harshit has not come home, then he informed his father, who came to the temple with“other persons, tried to search him, but could not trace him. The matter was then reported to the police. The police registered a Gumshudagi. After almost one and half year, on information, the police called the appellants and interrogated them. They revealed that after murdering the deceased and swaddling his dead body in a blanket, they threw it (dead body) in the well situated at shambles of house of Muneem Ji. 3. Acting on this information, the police took them to the place which they have pointed out, recovered a skeleton from the said well and sent them for post-mortem. The Doctor opined that the bones are of 11-12 years old human male child, but he could not ascertain cause of death from the bones only. Then the skeleton/bones were sent to the forensic lab and thereafter for DNA test. It was found in the DNA report that the bones are of deceased Harshit. After completing the investigation, the police filed the charge sheet against the appellants, who are later awarded life imprisonment. 4. It is established rather we can say proved that Harshit disappeared on the date of incident and later, his skeleton was found in the well, therefore, we are not delving deep in discussion of the evidence produced by the prosecution to establish these facts. 5. This is a blind murder case. The only question that needs to be considered is whether the appellant had“a role in committing the said crime. There is no direct evidence to connect the appellants with the crime and the case of the prosecution rests on circumstantial evidence only. The prosecution is required to produce cogent evidence leading to culpability of the appellants by framing a complete chain of the circumstances leading to such culpability. There is no direct evidence to connect the appellants with the crime and the case of the prosecution rests on circumstantial evidence only. The prosecution is required to produce cogent evidence leading to culpability of the appellants by framing a complete chain of the circumstances leading to such culpability. As we all know commonly known circumstances are : (i) Motive; (ii) Last seen together; (iii) Recovery of dead body; at the instance of the appellants; (iv) Recovery of other articles at the instance of the appellant; (v) Identification of both body and the articles seized. 6. Keeping in view these circumstances, we will examine the prosecution evidence one by one and first we take ''Motive'' as motive acquires great importance in a case of circumstantial evidence. It is settled principle of law that where direct evidence is scarce or unavailable, the burden of proving the case of prosecution is bestowed upon motive and in such case motive plays an important role. 7. Admittedly there is no evidence of motive in the present case. Neither any enmity nor any greed or demand of ransom is even pleaded by the“complainant. In fact; this is not even the case of the prosecution that the appellant caused the incident due to some enmity or for any demand of ransom. 8. Further; cause of death could also be not ascertained in the present case as Dr. D.S. Badukar opined that he could only find bones and no injury was found on them, therefore, the cause of death cannot be ascertained. Thus, neither motive for the incident was revealed nor it could be establish that the death of the deceased was homicidal as the cause of death could not be discovered. 9. Again there is no evidence that soon before the incident the deceased was seen in the company of the appellants. It is stated by the priest Shiv Prasad Sharma (PW2) that at the time of Aarti in temple he saw the appellant Ranu standing in the crowd of disciples gathered to offer Ashtami Puja of Karni Mata. He did not say anything about the other appellant Kamlesh. Gaurav (PW4) has stated that before the Arti appellant Ranu had taken keys of his motor cycle saying that he had to bring something from the market and returned the same after 30-35 minutes. This evidence does not connect the crime to the criminal. He did not say anything about the other appellant Kamlesh. Gaurav (PW4) has stated that before the Arti appellant Ranu had taken keys of his motor cycle saying that he had to bring something from the market and returned the same after 30-35 minutes. This evidence does not connect the crime to the criminal. Mohit (PW5), brother of the deceased has stated that 2 days prior to the incident the deceased asked him that the appellant Ranu is asking him to accompany him to bring mantle for lantern but he did not permit him stating that today there“will be no power cut, therefore, he did not go with the appellant, but this fact is not mentioned in his police statement and was revealed first time in the Court and all this had happened two days prior to the incident. Therefore, neither it can be relied upon nor it gives any clue to the incident. Thus, nothing against Kamlesh about his presence at the time of the incident and also presence of Ranu is firstly doubtful and secondly if it is assumed as true then keeping in view the occasion i.e. Ashtami Puja, his presence was not unnatural. This evidence produced by the prosecution also cannot be considered as 'last seen together' theory. Thus, this circumstance also does not support the prosecution. 10. Recovery of mortal remains of the deceased on the information given by the appellants is the only circumstance, which the prosecution could produce before the learned trial Court to establish guilt of the appellants. According to the learned trial Court, culpability of the appellants was established on the basis of this evidence. We will discuss this evidence later, but first we would like to mention here that if all this evidence is accepted as true in toto even then, guilt of the appellants cannot be ascertained on such evidence. At the most; the only fact which can be established by all this evidence is that the appellants were having knowledge of the carcass lying there. It cannot be presumed on the basis of“this evidence that the appellants murdered the deceased. It needs something great or some greater degree of evidence to hang a person or to hold a person guilty of such a heinous crime like murder. It cannot be presumed on the basis of“this evidence that the appellants murdered the deceased. It needs something great or some greater degree of evidence to hang a person or to hold a person guilty of such a heinous crime like murder. At the most; it may give rise to doubt that as to how they came to know about the carcass lying in a shambled well and as they had knowledge of the skeleton; therefore, they might be the culprit. But this is only a doubt and this is settled law that doubt however strong it may be cannot take place of the proof. 11. If we take a glance of case law on the subject, we find that in Kanbi Karsan Jadav v. State of Gujarat [ AIR 1966 SC 821 ], the Hon'ble apex Court has held that the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. 12. It is held in Anant Bhujangrao Kulkarni v. State of Maharashtra, reported in [ AIR 1993 SC110], that mere recovery of dead body on the information of the accused is not sufficient to hold him guilty. Para 5(2) and 12 of this judgement are relevant; which reads as under : "5. ...... The High Court has relied“upon the following circumstances to uphold the conviction of the appellant : 1. ........ 2. The dead body of the deceased was found in the Ladni in the portion of the wada which in exclusive possession of the appellant and the appellant had given the information about the place where the dead body was lying. 12. The only circumstances that have been found established are that the deceased was last seen alive in the company of the appellant on October 13, 1975 at about 6 p.m. and that the dead body of the deceased was found in the Ladni near the residential portion of the appellant in Pargaonkar's wada. The said two circumstances, in our opinion, cannot be said to be inconsistent with the innocence of the appellant and on the“basis of these two circumstances alone, it cannot be held that the appellant was a party to the murder of the deceased. The said two circumstances, in our opinion, cannot be said to be inconsistent with the innocence of the appellant and on the“basis of these two circumstances alone, it cannot be held that the appellant was a party to the murder of the deceased. The conviction of the appellant for the offence under section 302 read with section 34, IPC cannot, therefore, be upheld."� 13. In a recent pronouncement in Parasa Koteswararao v. Eede Sree Hari and others [ AIR 2017 SC 1327 ], it is held that mere recovery of dead body, not pin-pointing involvement of the accused in crime. In this condition chain of circumstances found not complete to point guilt of accused. 14. Thus, the ground relied upon by the learned trial Court that recovery of mortal remains alone is sufficient to hold the appellants responsible for the incident do not hold ground. 15. Now, though there is no need to analyze the evidence regarding recovery of dead body but for reassuring ourselves we are doing this. To prove this fact the prosecution has examined Shri Abdul Rafiq Khan, Station House Officer, Police Station, Narsing Garh (PW20), who has stated that on 29.8.2005, i.e. almost one and half year after the incident, he received an information that the appellants have murdered the deceased Harshit. He called them from their houses. They came to the police station. He“called the independent witnesses Rajendra Singh s/o Laxman Singh Parihar and Deependra Sharma and interrogated them (the appellants). They revealed that they have committed murder and have committed it for earning money. He arrested and took them to the spot pointed out by them. Recovered and seized a carcass after pulling it out from the well before Ashok Soni and Rajendra Singh s/o late Shankar Singh Parihar, who both have supported the recovery. 16. On a careful analysis, it appears that when the SHO called the appellant, they were at home. They did not try to hide themselves. Umesh Soni (PW3) also says that even after missing of the deceased ; behavior of the appellant Ranu was normal as it was earlier. It was not the case of the prosecution since beginning that the murder was for recovery of ransom. They did not try to hide themselves. Umesh Soni (PW3) also says that even after missing of the deceased ; behavior of the appellant Ranu was normal as it was earlier. It was not the case of the prosecution since beginning that the murder was for recovery of ransom. Although; mentioning of such facts in the memo prepared under section 27 of the Evidence Act, 1872 is irrelevant, but even then it raises finger and creates doubt about neutrality of the SHO. 17. The most important fact to be noticed about this recovery is that Shailendra and Mohit (PW1 and 5) who are father and brother of the deceased have deposed before the Court that on 29.8.2005, the date of recovery of carcass, they went to the well of Munim Ji on the call of the police. A bale of blanket was pulled out from the well before them. On“opening the knot, bones were found inside the bale. They did not say a single word that at that time the appellants were present there with the police even when they were well acquainted with them. They further said that on the next day i.e. 30.8.2005, the police again called them on the same spot and again some bones were recovered from the same well. Important to note is that on this day they said that the appellants were present there with the police. This omission of both the important witnesses creates a serious doubt about the recovery of carcass on the information of the appellants. 18. The prosecution has examined Pravin Soni (PW11) and Sonu Soni (PW17). They have stated that Pravin had purchased the house where the dead body of Harshit was found 26 months prior to the incident and the appellants had taken that house from them to run a Gym. But both these witnesses have admitted that the appellants actually ran the Gym in that house for some time. After some time they were caught there gambling and then they had taken back their house from them. Thus, this evidence is also not sufficient to show the guilt of the accused persons or to complete the chain of circumstances. 19. Thus, the evidence brought on record by the prosecution is, therefore, not convincing and does not prove the guilt of the appellant beyond reasonable“doubt. 20. Thus, this evidence is also not sufficient to show the guilt of the accused persons or to complete the chain of circumstances. 19. Thus, the evidence brought on record by the prosecution is, therefore, not convincing and does not prove the guilt of the appellant beyond reasonable“doubt. 20. In view of the above, we allow this appeal and set aside the impugned judgment passed by the learned Sessions Court. The appellants be set free forthwith; if not required in any other case. Fine amount deposited by them be refunded back. 21. Copy of the judgement be immediately sent to the concerned trial Court for necessary compliance.