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2022 DIGILAW 580 (MP)

Ramkaran v. State of Madhya Pradesh

2022-04-07

RAJENDRA KUMAR VERMA

body2022
JUDGMENT Rajendra Kumar Verma, J. - The applicant/accused has preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. 1973 challenging the order dated 30/10/2021 by which the charges under Sections 302 and 201 of IPC have been framed against the petitioner. 2. In short the prosecution story is that on 15/07/2021 at about 02:00 p.m., son of deceased Mahendra lodged a Dehati marg intimation that till evening 07.00 p.m. of 14//07/2021, his father Devsing Jatav was at home and, thereafter, his father had gone for some work, but whole night his father did not return at home. On 15/07/2021 ashish S/o Dayaram informed that his father was lying dead near the field of Ramdayal. Thereafter, he alongwith his uncle Ramkaran(present applicant) reached at the spot and saw that the neck of his father was tied by safi and blood was coming from the nose. The slippers of his father was also missing. 3. On the basis of the aforesaid marg intimation 0/2021, police Biaora City inquired the matter and registered FIR at Crime No.427/2021 for offences under Section 302 of IPC and arrested the applicant on 23/07/2021. On the basis of memorandum recorded u/s 27 of the Evidence act, the police recovered one pair of red colour slipper from the open field near the incident spot. after completing the investigation, the police filed charge-sheet under Sections 302 and 201 of IPC before the learned trial court and framed charges against the present applicant for the above-mentioned charges. 4. Learned counsel for the applicant submits that even going through the entire challan and the evidence and the statements of the witnesses, there is no legal and admissible evidence available against the applicant nor any circumstantial evidence available to connect the present applicant in the present case. The applicant has been falsely implicated in this case. On 15/07/2021 applicant was present alongwith complainant Mahendra at the spot inspection and preparation of Naksha panchayatnama of body. Till 22/07/2021 of taking statements u/s 161 of witnesses, there is no allegations levelled against the present applicant, but for the first time on 22/07/2021, complainant and other witnesses raised after thought doubt on the present applicant and even otherwise, no such delay has been explained by any of the witnesses. Till 22/07/2021 of taking statements u/s 161 of witnesses, there is no allegations levelled against the present applicant, but for the first time on 22/07/2021, complainant and other witnesses raised after thought doubt on the present applicant and even otherwise, no such delay has been explained by any of the witnesses. On the basis of such doubt, police arrested the present applicant and took memorandum u/s 27 of Evidence act on 23/07/2021, wherein, applicant disclosed that on the spot, the slippers of the deceased were missing, therefore, on the next day he put slippers near the spot. Thereafter, Police recovered red coloured slippers from the open field near the spot. Neither any of the witnesses in their statement recorded under section 161 Cr.P.C. had stated about the slippers nor they identified that the seized slippers belongs to the deceased. Except the seizure of unidentified slippers after the delay of 8 days from the open field near the spot, there is no other prima facie legal or admissible evidence nor any scientific as well as forensic evidence available in the whole charge-sheet to connect the present applicant in the murder of deceased Devsingh. Even though the prosecution is trying to show that there is some dispute between deceased and applicant regarding property, but such motive alone can't be a ground to implicate the applicant in committing murder of the deceased unless and until any other primafacie direct evidence or complete chain of circumstantial evidence available against the present applicant. 5. Learned Govt. advocate for the non-applicant/State refutes the contention raised by the learned counsel for the applicant and prays for dismissal of the criminal revision. 6. The Magistrate, in turn, committed the matter to the Court of Sessions Judge, Rajgarh(Biaora) from where it was received on transfer by the additional Sessions Judge, Biaora, who framed charges against the applicant by the impugned order. 7. Heard learned counsel for the parties and perused the charge-sheet. 8. admittedly, there are no eye-witnesses in this case and the conviction of the applicant is based on circumstantial evidence. The main circumstances, which the trial Court appears to have considered are :- (i) there were some dispute relating to property between the deceased and applicant/accused. 7. Heard learned counsel for the parties and perused the charge-sheet. 8. admittedly, there are no eye-witnesses in this case and the conviction of the applicant is based on circumstantial evidence. The main circumstances, which the trial Court appears to have considered are :- (i) there were some dispute relating to property between the deceased and applicant/accused. (ii) The applicant gave a discovery memo under Section 27 of the Evidence act leading to discovery of slippers of the deceased, in which he also made statement about killing of his brother/deceased. 9. The essential ingredients of Section 27 is that the information given by accused may lead to discovery of the fact which is direct outcome of such information and only the portion of the information given, which is distinctly connected with the discovery of the fact, can be received in evidence and that the discovery of the fact must relate to the commission of the offence. The discovery of a fact in a consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. For the application of Section 27, the statement must be split into its components to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected. Therefore, a confession made by an accused while he is in custody must be excluded from evidence leaving the discovery part as same would not be admissible in the evidence u/s 27 of the Evidence act. 10. So far as the circumstance of seizure of the slippers from the field at the instance of applicant is concerned, the same is of no use to the prosecution. Firstly, because the seizure was made from an open place and secondly, that there is no evidence that the said seized slippers belongs to the deceased. There is also no identification of slippers by any of the relatives of the deceased. 11. It is pertinent to note that on 15/07/2021, Dehati Nalishi/Dehati Marg has been made by Mahendra son of deceased Devsingh Jatav and as per the aforesaid Dehati Nalishi and Dehati Marg, the same leaves or creates no doubt over the accused. There is also no identification of slippers by any of the relatives of the deceased. 11. It is pertinent to note that on 15/07/2021, Dehati Nalishi/Dehati Marg has been made by Mahendra son of deceased Devsingh Jatav and as per the aforesaid Dehati Nalishi and Dehati Marg, the same leaves or creates no doubt over the accused. But for the first time, on 22/07/2021, Mahendra son of deceased and other witnesses stated that there were some dispute between the deceased Devsingh Jatav and his younger brother accused Ramkaran(present applicant). There is no evidence of last seen. The only evidence against the applicant is that he gave a discovery memo under Section 27 of the Evidence act leading to discovery of slippers of the deceased, in which he also made statement about killing of his brother/deceased. Except the recovery of the slippers of the deceased and that too from an open area no other incriminating circumstantial evidence is available against the applicant from which the conclusion of his guilt may be drawn. Unfortunately, there is no evidence collected by the prosecution that those slippers were of the deceased. No identification has been conducted by the police regarding it. Therefore, it is not on record that those slippers belongs to the deceased only. 12. In Hanumant Govind Nargundkar & anr. Vs. State of Madhya Pradesh reported in aIR 1952 SC 343 , the apex Court observed that "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, 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 within all human probability the act must have been done by accused". 13. In other words, 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 within all human probability the act must have been done by accused". 13. In the matter of Dhananjoy Chhatterjee v. State of W.B. (1994) 2 SCC 22, the apex Court held 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 but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilty 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. 14. In Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, aIR 2002 SC 3164 , the apex Court laid down that there is not doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. They are: (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 of accused. 15. However, at the stage of framing of the charge the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. a framing of charge is not a stage at which stage final test of guilt is to be applied. The power of quashing criminal proceeding, should exercised very sparingly and with circumspection and that too in the rarest of rare cases. 16. Keeping in view the above facts and circumstances, this Court do not find any incriminating circumstantial evidence against the applicant from which the conclusion of his guilt may be drawn. The trial court erred in law in framing charges against the applicant under the aforementioned sections. 17. Resultantly, the criminal revision is allowed. The order dated 30/10/2021 wherein charges have been framed against the applicant by the trial Court is hereby set-aside. He be set at liberty, forthwith, if not required in any other case.