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Cr.A.384/2007
Cr.A.594/2007
HIGH COURT OF MADHYA PRADESH: JABALPUR
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri N.K.Gupta
CRIMINAL APPEAL NO. 348/2007
Jeewan Lal Jhariya aged 70 years
son of Bakhtoo Lal Jhariya
R/o Hulki PS Bargi, Tahsil & District Jabalpur
Jabalpur (M.P.)
.......Appellant
-Versus-
State of Madhya Pradesh
Through :PS Bargi Jabalpur M.P.
.......Respondent
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For the appellant: Shri H.S.Dubey, Advocate.
For the respondent: Shri S.K.Rai,Government Advocate
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CRIMINAL APPEAL NO.594/2007
1. Bishansingh @ Guddu S/o Shri Chammu Gond,
aged 24 years, Resident Ramanpur (Munda Tola),
P.S. Bargi District Jabalpur (M.P.)
2. Ganesh Prasad S/o Shri Chammu Gond,
aged 24 years Resident Ramanpur (Munda Tola)
P.S. Bargi, District Jabalpur (M.P.)
........Appellants
-Versus-
State of Madhya Pradesh
Through: P.S.Bargi
District Jabalpur M.P. .........Respondent
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For the appellant: Shri S.C.Datt,Senior Advocate with Shri
Siddharth Datt, Advocate.
For the respondent: Shri S.K.Rai, Government Advocate.
Date of hearing: 04/05/2010
Date of Judgment: 24/06/2010
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JUDGMENT
Per: Rakesh Saksena,J.
Since both the appeals arise of the common impugned
judgment they are being disposed of by this common judgment.
2. Appellants have filed these appeals against the judgment
dated 22.1.2007 passed by Tenth Additional Sessions Judge, Jabalpur
in Sessions Trial No.248/2006 convicting the appellants under
section 302 of the Indian Penal Code and sentencing each of them to
imprisonment for life with fine of Rs.200/-.
3. In short the prosecution case is that Guddo Bai was living
with her husband Shiv Kumar, the deceased, in village Munda Tola
within the jurisdiction of police station Bargi, District Jabalpur. Shiv
Kumar had received agricultural land from his maternal grand-
parents. On 21.4.2006, in the early morning at about 4:00 a.m.
accused Jeewanlal came to his house and asked him to accompany
for searching his lost cow. Shiv Kumar went away with Jeewanlal and
Guddo Bai kept on sleeping. At sun rise at about 7:00 a.m., son of
Anandi Gond came to her and informed that Shiv Kumar was lying
dead in the passage between Munda Tola and Tediya Nala. She went
with him to the spot and saw Shiv Kumar lying dead. The blood was
oozing out from his mouth and his tongue was protruding out. On the
same day, Guddo Bai along with Kotwar Premlal and some other
persons went to police station Bargi and lodged FIR Ex.P/33. Marg
Ex.P/34 was also recorded. Inspector J.L.Barme (PW22) went at the
spot, conducted inquest vide memorandum Ex.P/2 and sent the dead
body for postmortem examination to Medical College, Jabalpur
where Dr.Pyasi (PW17) conducted the postmortem examination and
found injuries on the neck, head, ear and left arm on the body of Shiv
Kumar. In his opinion, his death was caused by throttling.
Postmortem report is Ex.P/19. On 22.4.2006, Inspector Barme
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arrested accused Bishansingh, Ganesh Prasad and Jeewan Lal and on
their information, seized shirt, lathi, a rope, banyan etc.. The seized
articles were sent for chemical examination to Forensic Science
Laboratory and a report Ex.P/39 was received. After investigation,
charge sheet was filed against all the three accused persons and the
case was committed for trial.
4. Accused persons abjured their guilt and pleaded false
implication. According to suggestion put by them to prosecution
witnesses, it appeared that sons and brothers of deceased’s maternal
grand-father entertained grudge against him because the aforesaid
grand-parents had given land to him. Probably they killed the
deceased.
5. Prosecution, to substantiate its case, examined 22
witnesses. Accused also examined 4 witnesses namely Shekhlal
(DW1), Son Singh (DW2), Bhagwan Das (DW3) and Ganesh Prasad
(DW4) to establish that they were not in the company of deceased at
time of his death.
6. Learned Additional Sessions Judge, after trial and upon
appreciation of the evidence adduced in the case, convicted and
sentenced the accused persons as mentioned above. Aggrieved by
the impugned judgment of conviction, appellants have filed this
appeal.
7. It was no longer disputed that deceased died of
homicidal injuries. It is also reflected from the evidence of
Dr.R.P.Pyasi (PW17), Assistant Surgeon, Medical College, who
conducted the postmortem examination of the dead body of Shiv
Kumar on 21.4.2006. According to him, on examination of the body
of Shiv Kumar, he found following injuries:-
(1) Contusion 3″x 1″ with nail mark ½” semi lunar on left
side of upper park of neck.
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Cr.A.594/2007(2) Contusion 2″ x ½” with nail mark ½” semilunar on right
side of neck upper part.
(3) Contusion 1″ x ½” on right temporal part of scalp.
(4) Lacerated wound 1″ x ½” on right year dorsal part.
(5) Contusion 3″ x 1″ on left upper arm.
Thyroid cartilage was ruptured. Traces of clotted blood were
present in both nostrils and ears. Fecal matter was coming out from
the anus. Injury No.(1) and (2) were caused by manual strangulation
(throttling). Injury No.3 to 5 were caused by hard and blunt object.
Injuries were antemortem in nature. Death was caused within 24
hours from the time of postmortem examination. According to
doctor, cause of death was asphyxia due to manual strangulation. It
was homicidal in nature. Postmortem report Ex.P/19 is also placed
on record. It was thus clearly evident that deceased Shiv Kumar died
of throttling.
8. Learned counsel for the appellants, however, submitted
that the trial Court gravely erred in placing implicit reliance on the
evidence of Guddo Bai (PW1) who stated that accused Jeewanlal took
away deceased with him in the morning, and other circumstantial
evidence adduced by prosecution. According to them, the
circumstances relied upon by the trial Judge were not clinching and
sufficient to establish that the appellants caused the death of
deceased. There was no motive for appellant Jeewanlal to have
committed murder of deceased. Presence of blood stains on the
clothes of accused was also not sufficient to establish that it was the
blood of deceased. Chain of circumstances sought to be proved by
the prosecution was incomplete and insufficient to bring home the
charge against the appellants. According to him, appellants were
falsely implicated. Learned counsel for the State, on the other hand,
justified and supported the conviction of the appellants.
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9. We have gone through the entire evidence on record.
10. There is no direct evidence in the case. Trial Court held
the appellants guilty on the following grounds:-
(i) Appellant Jeewanlal called and took away the deceased
from his house at about 4 o’clock in the morning on the date of
incident.
(ii) Relations between appellant Jeewanlal were cordial with
the deceased, therefore, it was not unnatural on the part of deceased
to accompany him.
(iii) After 2-3 hours of his going with accused Jeewanlal, the
deceased was found dead near Tedia Nala.
(iv) It was undisputed that deceased died of homicidal death
by throttling.
(v) Appellant Jeewanlal furnished no explanation as to how
and when deceased separated from him after 4:00 a.m. when he
accompanied him.
(vi) Appellant Jeewanlal failed to explain as to how the
human blood stains were found on his banyan.
(vii) Appellants Bishansingh and Ganesh Prasad failed to
explain as to how they contracted injuries on their bodies which
were approximately of the same duration on which deceased died.
(viii) Appellants Bishansingh and Ganesh failed to furnish
explanation as to how the blood stains were found on shirt and Kurta
seized from their possession.
(ix) Guddo Bai, wife of deceased, mentioned the fact that
Jeewanlal took her husband in the morning for searching the cow, in
the first information report immediately after the incident.
11. Learned counsel for the appellant-Jeewanlal strenuously
urged that the evidence of Guddo Bai was not worthy of reliance.
Her character herself was suspicious and apart from that the
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evidence of last seen together being a weak kind of evidence, no
conviction could be based merely on the uncorroborated testimony of
Guddo Bai. According to Guddo Bai (PW1), at about 4 o’clock in the
morning, Jeewanlal came to her house and told to her husband that
his cow was missing and he should help him in searching it. She
asked her husband not to go, but he went away with Jeewanlal. She
then went to sleep. In the morning, a boy came to her and informed
that her husband was lying near Nala and blood was oozing out from
his body. She went at the spot and saw her husband dead. There
were injuries on his hands and blood was coming out from his mouth.
Guddo Bai categorically stated that there was no enmity or ill will
between her husband and appellants Bishansingh and Ganesh.
According to her, Bishan and Ganesh were falsely implicated. She
also admitted that relations between Shiv Kumar and appellant
Jeewanlal were also cordial and he used to come to her house.
Learned counsel submitted that the conduct of Guddo Bai was
unnatural. She did not disclose the fact that deceased had been
called by Jeewanlal to any body, therefore, her uncorroborated
testimony in this regard does not inspire confidence.
12. On perusal of the evidence of Darbarilal(PW2), it is
revealed that when he went to the spot, he found Guddo Bai there. In
the chief-examination of his evidence, he stated that at the spot
Guddo Bai told her that in the night Jeewanlal had taken away
Shivkumar from her house. In cross-examination, however, he denied
that Guddo Bai disclosed to him the above fact near the Nala.
According to him, she disclosed this fact when she lodged the report.
It was admitted by Guddo Bai that Premlal (PW4) and Gendlal (PW5)
of her village were present at the spot but, according to them, Guddo
Bai did not disclose anything to them. Similar is the situation with
Channulal (PW10) and Shiv Prasad (PW15) who deposed that even
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on their asking as to what happened, Guddo Bai did not say anything
to them.
13. Learned counsel for the appellants drew our attention to
the evidence of Gudda Gond (PW12), Sevaram Gond (PW13) and Shiv
Prasad (PW15) who deposed that relations between the deceased
and his wife Guddo Bai were not good because she had developed
illicit relations with accused Bishansingh. According to Sevaram
Gond (PW13) and Shiv Prasad (PW15), they several time caught
them in the fields in promiscuous situation. It is apparent that Guddo
Bai did not speak against Bishansingh and Ganesh; rather she went
to the extent of saying that police had concocted the case of murder
against Bishan and Ganesh and they had no ill will against her or the
deceased. Similar was the situation with accused Jeewanlal. This, in
our opinion, created suspicion about the veracity of the evidence of
Guddo Bai. Apart from it, Dr.R.P.Pyasi, who conducted the
postmortem examination of the body of deceased, stated that the
death of deceased must have occurred within 24 hours of the
postmortem examination. The postmortem examination was
conducted at about 2:45 p.m. on 21.4.2006. This indicated that death
of deceased could have occurred after 2:45 p.m. of 20.4.2006. Thus,
it cannot be held with certainty that the death of Shiv Kumar took
place within the time given by prosecution. It is quite possible that
his death might have taken place in the night of 20.4.2006. Since the
evidence of Guddo Bai (PW1) does not appear to us to be of such a
quality on which implicit reliance can be placed, we are unable to
hold that the circumstance of last seen together of the deceased with
appellant Jeewanlal was proved by the prosecution beyond
reasonable doubt.
14. Next the prosecution has placed the evidence of
recovery of clothes of appellants, stained with human blood. On
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perusal of FSL report Ex.P/39, it is revealed that human blood was
found on articles D,E,G & J which were respectively, stone seized
from the spot, Kurta recovered from the possession of appellant
Bishan, a shirt seized from appellant Ganesh and a banyan seized
from the possession of appellant Jeewan. However, no group of blood
stains found on the aforesaid articles could be detected.
15. In the case of Kansa Behera Vs. State of Orissa (AIR
1987 SC 1507), Apex Court observed “that in the evidence of the
Investigating Officer or in the report, it is not clearly mentioned as to
what were the dimensions of the stains of blood. Few small blood-
stains on the clothes of a person may even be of his own blood
especially if it is a villager putting on these clothes and living in
villages. The evidence about the blood group is only conclusive to
connect the blood-stains with the deceased. That evidence is absent
and in this view of the matter, in our opinion, even this is not a
circumstance on the basis of which any inference could be drawn.”
16. The situation in the present case also being similar; we
are unable to hold that the presence of human blood stains on the
clothes of the appellants by itself is an incriminating piece of
evidence connecting the appellants with the crime in question.
17. Learned trial Judge held that the injuries found on the
body of appellants were not explained by them, therefore, it formed
a piece of incriminating evidence against them. Dr.Sheela Agarwal
(PW20) examined the injuries of appellants on 23.4.2006 at about
10:30 a.m., she found following injuries on the person of
Bishensingh:
(i) Multiple abrasion on the right shoulder..
(ii) Multiple abrasion on supra scapular region.
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At about 10:50 a.m. she found abrasions on the left clavicle
lateral aspect of Ganesh and at about 11:05 a.m. she found
abrasions on the left arm and infra scapular region of Jeewanlal.
18. According to Dr.Sheela, injuries found on the body of
appellant Jeewanlal could have been caused by fall. In her opinion,
these injuries were sustained by the appellants 58 hours before their
examination. She admitted that initially she had mentioned in her
reports the aforesaid time as 72 hours but subsequently she had
corrected it and made it 58 hours. According to her, after
examination when she calculated the time she mentioned 58 hours.
It does not stand to reason that the doctor could have calculated the
duration of injuries so precisely and with such exactitude. Initially
Dr. Sheela recorded the duration 72 hours i.e. 3 days before the
time of examination of injuries that would mean at about 11:00 a.m.
of 20.4.2006. It appears that this time was deliberately modulated by
the doctor to bring it in harmony with the time of incident as alleged
by the prosecution. Apart from that, the nail clippings of the
deceased were not preserved which could have given some
indication, if these injuries were contracted by the accused persons
as a result of struggle or resistance put by deceased at the time of
occurrence. The explanation of the accused persons is that these
injuries were caused to them by police and also by fall. Even
presuming that the explanation of the accused with regard to those
injuries was not trustworthy, still this circumstance is hardly
sufficient to warrant conviction of the accused in a serious offence
like murder in the absence of other cogent circumstances. It is well
settled that the circumstantial evidence in order to warrant
conviction should be consistent only with the hypothesis of the guilt
of the accused.
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19. In Jagta Vs. State of Haryana (AIR 1974 SC 1545),
Supreme Court held: “The presence of injuries on the person of the
accused does create a suspicion regarding his complicity but that
suspicion by itself and in the absence of other incriminating
evidence would not warrant his conviction.” In Bakhshish Singh
Vs. State of Punjab [1971(3) SCC 182], Supreme Court held:
“The law relating to circumstantial evidence has been stated by the
Apex Court in numerous decisions. It is needless to refer to them as
the law on the point is well-settled. In a case resting on
circumstantial evidence, the circumstances put forward must be
satisfactorily proved and those circumstances should be consistent
only with the hypothesis of the guilt of the accused. Those
circumstances should of a conclusive nature and tendency and they
should be such as to exclude every hypothesis but the one proposed
to be proved. 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 the
accused.”
20. In our opinion, from the injuries found on the body of
appellants, it could not be inferred unerringly that these injuries
were sustained by the appellants in causing death of the deceased.
21. Another important aspect in the case is the absence of
proof of any motive on the part of appellants. There is absolutely no
evidence on record to indicate that appellant Jeewanlal had any
grudge or animus against the deceased which could have led him to
commit his murder. Though it has been tried by the prosecution
witnesses to say that complainant Guddo Bai (PW1) had illicit
relations with appellant Bishansingh and for that reason there
occurred some minor skirmishes between the deceased and Guddo
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Bai, but no suggestion was put to Guddo Bai in this regard. It has
been observed by the Apex Court in Tarseem Kumar Vs. The
Delhi Administration (AIR 1994 SC 2585),” Normally, there is a
motive behind every criminal act and that is why investigating
agency as well as the Court while examining the complicity of an
accused try to ascertain as to what was the motive on the part of
the accused to commit the crime in question. It has been repeatedly
pointed out by this Court that where the case of the prosecution has
been proved beyond all reasonable doubts on basis of the materials
produced before the Court, the motive loses its importance. But in a
case which is based on circumstantial evidence, motive for
committing the crime on the part of the accused assumes greater
importance.”
22. The evidence and the circumstances brought on record
in the case though give rise to suspicion against the appellants but
the suspicion whatsoever great cannot take the place of proof. The
circumstances sought to be proved do not unerringly point to the
guilt of the accused persons. In view of the fact that chain of
circumstances has not been established by the evidence on record
and further that the circumstances themselves have not been proved
beyond a reasonable doubt, the appellants are entitled to have the
benefit of doubt. In that view of the matter, we find that the
prosecution has failed to bring home the charge against the
appellants.
23. Accordingly, the conviction and sentence of appellants is
set aside. They are acquitted of the charges. Both the appeals are
allowed.
24. A copy of this judgment be kept in Cr.A.No.594/2007.
(Rakesh Saksena) (N.K.Gupta)
Judge Judge
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