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2020 DIGILAW 527 (MP)

Pejan Singh v. State Of M. P. And Another

2020-05-11

RAJEEV KUMAR SHRIVASTAVA, SHEEL NAGU

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JUDGMENT Rajeev Kumar Shrivastava, J. - This criminal appeal has been preferred under Section 372 of the CrPC against the judgment dated 25/11/2019 passed by Sixth Additional Sessions Judge, Guna in Sessions Trial No.400237/2012 whereby accused/respondent No. 2 has been acquitted from the charges under Sections 302 read with Section 201 of the IPC. 2. The facts in short are that on 12/7/2011 near A.B. Road, one dead body of the deceased was found. Merg was registered. Statements of the witnesses were recorded and a case under Section 302 of the IPC was registered as Crime No. 276/2011. The brother of the deceased identified the dead body. On the basis of statement of the witnesses, the respondent No.2/accused was arrested, investigation was done and thereafter, charge-sheet was filed. After due appreciation of evidence available on record, the trial Court acquitted respondent No.2/accused from the charged offence. 3. Learned counsel for the appellant has submitted that the impugned judgment passed by the trial Court is illegal, arbitrary and has been passed ignoring the evidence on record. The trial Court has appreciated the evidence in hyper technical manner and reasoning given while passing the impugned judgment is against the settled principle of law, therefore, the impugned judgment deserves to be set aside. In para 19 of the judgment, the trial Court has observed that the wallet of the deceased was found in the restaurant of the accused which prima facie shows that the deceased was with the accused just before the incident. Despite, the trial Court has erred in acquitting the accused. The trial Court has wrongly disbelieved the last seen evidence and the factum of enmity between the deceased and the accused. Hence, prayed to allow this appeal. 4. Per contra, learned Public Prosecutor has supported the judgment passed by the Trial Court and prayed for dismissal of the appeal. 5. Heard learned counsel for the parties and perused the record. 6. Perused the impugned judgment passed by the trial Court on 25/11/2019 in Sessions Trial No.400237/2012, wherein the trial Court has rightly analyzed the evidence produced by the prosecution and has rightly acquitted the accused. 7. In the present case, as per merg intimation, case was registered against unknown person. Thereafter, statements were recorded. 6. Perused the impugned judgment passed by the trial Court on 25/11/2019 in Sessions Trial No.400237/2012, wherein the trial Court has rightly analyzed the evidence produced by the prosecution and has rightly acquitted the accused. 7. In the present case, as per merg intimation, case was registered against unknown person. Thereafter, statements were recorded. Only on the basis of statements recorded and evidence collected in merg inquiry, the case was registered under Section 302 of the IPC against the accused/respondent No.2. The last seen theory as well as seizure of wallet of the deceased from the restaurant of the accused is the main circumstantial evidence which was required to be proved beyond reasonable doubt. The evidence with regard to last seen theory is discussed in para 27 of the impugned judgment, wherein the trial Court has specifically mentioned as under:- 8. When the case fully resists upon the circumstantial evidence then it is the settled principle of law that all the circumstances available against the accused should be so connecting that only inference can be drawn that it is the appellant/accused who is the author of the crime concerned. For this proposition, reliance can be placed on a leading case of the Hon'ble Apex Court reported in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) AIR SC 1622 , wherein the Hon'ble Apex Court after discussing the entire law on the point case to the conclusion as under:- "The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established; (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." 9. (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." 9. On perusal of the aforesaid case laws on the point, we are of the considered opinion that the prosecution has failed to prove the chain of circumstances available against respondent No. 2 on which basis the only conclusion can be drawn against him that he is the author of this crime. Only on the basis of the fact that the wallet of the deceased was found in the restaurant of the accused/respondent No. 2, no inference can be drawn that he can commit the murder of the deceased. 10. Again in the case of Ramreddy Rajeshkhanna Reddy (supra), it has been held in placing reliance on the judgment in the case of Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A. P., (2005) 7 SCC 603 :- "It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances can not be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be substitute for a proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence." In the aforesaid case Hon'ble Supreme Court has also considered the last seen theory and held that- "The last seen theory, furthermore, comes into play, where the time-gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case Courts should look for some corroboration. [Held in the case of @START_TAGState of U. P. v. Satish,2005 3 SCC 1141.]" 11. Even in such a case Courts should look for some corroboration. [Held in the case of @START_TAGState of U. P. v. Satish,2005 3 SCC 1141.]" 11. Seizure of wallet from the restaurant cannot be said to be a link to connect the accused in commission of offence under Section 302 of the IPC because as per seizure memo, the Baka (a deadly weapon) was seized but the seized weapon Baka was not examined by the FSL regarding presence of blood content or for further deeper examination which may connect the accused with this case. 12. It is settled principle of law that if the trial Court after due appreciation of the evidence comes to the conclusion about the finding of acquittal then normally if the finding is not perverse, this should not be interfered with by the Appellate Court. For this, reliance can be placed on the decision of the Hon'ble Apex Court in the case of Chandrappa vs. State of Karnataka, (2007) AIRSCW 1850 , wherein the Hon'ble Apex Court laid down the legal principles for to entertain the appeal against acquittal and held as under:- "39. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court". 13. In the case of Gamini Bala Koteswara Rao v. State of Andhra Pradesh, (2010) AIR SC 589 , wherein it is observed as under:- "It is open to the High Court to re-appreciate the evidence and conclusions drawn by the trial Court but only in a case when the judgment of the trial court is stated to be perverse. The word "perverse" to mean "against the weight of evidence". 14. It is also observed in the cases of K. Prakashan v P. K. Surenderan, (2008) 1 SCC 258 and T. Subramanian v. State of Tamil Nadu, (2006) 1 SCC 401 as under :- "When two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non- consideration/ misappropriation of evidence on record, reversal thereof by High Court was not justified." "When two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt." 15. In view of the above discussion, we are of the considered opinion that the Trial Court has rightly acquitted the accused. Hence, this appeal sans merit and is hereby dismissed. Let record of the case be sent back to the trial Court along with copy of the judgment passed by this Court.