HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 1744/1995
1. Ramesh, S/o Ram Prasad,
aged about 18 years.
2. Babloo @ Jitendra, S/o Chhotte Lal Yadav
aged about 18 years
Both are residents of Umaria, Police Station
Barela,
Distt. Jabalpur
Versus
The State of Madhya Pradesh
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For the Appellants : Shri Surenda Singh, learned Sr. Counsel
with Shri Shivam Singh,Advocate.
For the State: Shri Prakash Gupta, Panel Lawyer.
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PRESENT :
HON'BLE SHRI JUSTICE G.S. Solanki
Date of hearing: 20/08/2010
Date of Judgment: 25/08/2010
JUDGMENT
The VIIIth Additional Sessions Judge, Jabalpur,
vide impugned judgment dated 18.12.95, in Sessions
Trial No. 828/92 recorded conviction of
appellants/accused under Section 304 II of IPC,
sentenced them to undergo rigorous imprisonment for 4
years and to pay fine of Rs. 1,000/- with default
stipulation.
2. Being aggrieved, appellants/accused have
preferred this appeal under Section 374(2) of the Code of
Criminal Procedure.
3. The prosecution case, in short, is that on 11.08.92
in the evening appellants were playing with Rajesh
(deceased) in the cattle pound of village. Appellants
returned to their home but deceased did not. Father of
the deceased Harilal(PW-1) during search asked
appellant Babloo regarding deceased but he did not give
any information. Munnulal(PW-2) peon of Kanji House,
when went in cattle pound to care cattles he saw the
dead body of Rajesh there. Munnulal(PW-2) lodged marg
intimation to Police Station Barela. Marg was registered
vide No. 30/92. During the investigation of marg dead
body was sent to post-mortem. Dr. D.K. Sakalle
performed the autopsy on the dead body and opined that
death was due to strangulation.
4. It was further alleged that on 11.8.92 deceased
was last seen together with the appellants. Appellants
were arrested and they were sent for medical
examination. Dr. Bajpai(PW-12) found simple injuries on
their hands.
5. After usual investigation appellants/accused were
charge-sheeted.
6. The appellants abjured their guilt and pleaded false
implication.
7. On appraisal of evidence on record, the learned
Additional Session Judge found them guilty of the
offence under Section 304 II of IPC and convicted and
sentenced, as mentioned hereinabove.
8. Learned counsel for the appellants submitted that
there is not eye witness in this case. Prosecution based
on circumstantial evidence. Firstly circumstance of last
seen together is not proved beyond reasonable doubts.
Secondly mere recovery is not evidence enough to
convict appellants. Thirdly injuries found on the person of
appellants was 6 to 7 days old and according to Dr.
Girish Bajpai(PW-5) those could have been caused by
fall. In the circumstances, trial Court failed to appreciate
the evidence on record in its proper perspective.
Therefore prays for setting aside the finding and
sentence recorded by the trial Court.
9. On the other hand, learned Panel Lawyer justified
and supported the finding recorded by the trial Court.
10. It is true that there is no direct evidence in this
case. Prosecution case is based on three
circumstances :-
(i) The deceased was seen last together with the
appellants.
(ii) Recovery of Rs. 30/- from the appellant no.
1/accused.
(iii) Injuries found on the person of appellants/accused
remained unexplained..
11. It was not disputed that Rajesh(deceased) died
homicidal death. Dr. D.K. Sakalle(PW-6) performed
autopsy on the dead body on 13.8.92. He found 8 injuries
on the body of deceased and opined that cause of death
was due to strangulation i.e. throttling therefore, it is
proved that Rajesh died homicidal death.
12. The prosecution examined as many as 13
witnesses to substantiate his case. Mahesh(PW-3) and
Santosh(PW-7) are witnesses to the fact of last seen
together.
13. Mahesh(PW-3) is the brother of deceased and he
deposed that appellant/accused Babloo(A-2) taken
Rajesh(deceased) with him after calling him from the
house. He further deposed that when he went to throw
ash he saw that his brother Rajesh and both appellants
were in the kanji house. He further deposed that when he
was returning he listened the sound of damadam. When
Rajesh was not returned in night, on third day dead body
of Rajesh found in the kanji house. But the facts like
appellant/accused Babloo taken his brother with him after
calling from the house and he listened the sound of
damadam from the kanji house and Rajesh(deceased)
was playing in the parchhi of kanji house were not found
place in his statement recorded under Section 161 of
Cr.P.C.(Ex.D-2). There are material improvement before
the Court which goes to the root of the case.
14. One more thing is observed that when Rajesh was
not returned to home in night and according to witness
Mahesh(PW-3) his mother and father were searching
Rajesh in night. If Mahesh had seen him in the kanji
house then it should be natural for him to narrate this fact
to his parents and would have been inspected kanji
house then and there. In these circumstances, reliance
can not be placed on his testimony.
15. Santosh(PW-7) deposed that when he was going
with Mahesh(PW-3) to his new house he saw
Rajesh(deceased) was playing with appellants/accused
in kanji house. He admitted that at that time other
students of school were also playing near by to the kanji
house. Santosh(PW-7) claims that he went with Mahesh
(PW-3) but this fact was not deposed by Mahesh. In this
way presence of this witness became doubtful with the
Mahesh. Further more according to him, when he saw
deceased was playing with the appellants, at the same
time, other students of the school were also playing near
by the Kanji house. In these circumstances, fact of last
seen together seen by Santosh(PW-7) became
immaterial.
16. Further, Harilal(PW-1) deposed that when he was
searching his son Rajesh(deceased), he enquired from
the appellant/accused Babloo(A-2) but he did not say any
thing to him. He further deposed that when police asked
Babloo then he disclosed that he, Ramesh and and
Rajesh were playing. But he went to his home and
Ramesh(A-1) was continued to play with Rajesh. This
second pat of his statement is not admissible in
evidence. Because this fact was claimed to be narrated
before the police officer. Regarding first part that
appellant/accused Babloo(A-2) did not disclose any thing
to Harilal can not clinch the issue unless, one start with
the presumption that the appellants had committed the
crime.
17. R.S. Patel(PW-13), Investigating Officer, deposed
that he seized money at he instance of appellant
Ramesh(A-1) from the corner of kanji house vide (Ex.
P-4) and some other money was scattered on spot vide
Ex. P-10.
18. Panch witnesses Munnulal(PW-2) Ganesh Prasad
(PW-4) both of them not supported that
appellant/accused Ramesh(A-1) disclosed any thing
before them. They only deposed that there was a seizure
from appellant/accused Ramesh(A-1). In these
circumstances, money was concealed by
appellant/accused Ramesh(A-1) remained doubtful and
mere seizure of money from the spot can not said to be
clinching evidence against the appellant/accused
Ramesh(A-1).
19. Dr. Bajpai(PW-12) deposed that he examined
appellant/accused Ramesh (A-1) on 16.8.92 and found
abrasion on the root of little and middle finger, semicircle
2 mm on size. It was simple in nature and caused by
hard and blunt object like nail mark and was 4 to 5 days
old. He further deposed that he examined Babloo (A-2)
on the same and found :- (i) abrasion size 3″ x 1 cm on
the rout of the nail, (ii) Abrasion on upper lip, 2x2mm, (iii)
contusion on forehead 3×2 mm, (iv) abrasion 2×2 mm on
post aspect of palm. All were simple in nature and could
be caused by hard and blunt object. Injury no. 4 may be
caused by nail of finger. Duration was 4 to 5 days. He
admitted that injury on the head may be caused by fall or
my be caused by stone. He further admitted that he did
not mention the colour of abrasion in his reports Ex. P-6
and P-19 and he further admitted that injuries could be 6
to 7 days old. He further admitted that they may be
caused by thorn during the cutting of bari.
20. Learned Panel Lawyer vehemently argued that
appellant failed to assign any explanation regarding their
injuries during their statements under Section 313 of
Cr.P.C. and they only stated ignorance. On the contrary
learned counsel for the appellant argued that they had
explained their case through cross examination of expert
witness Dr. Bajpai.
21. Dr. Bajpai(PW-5 and 12) admitted that he did not
mention the colour of the injuries, also duration of injury
may be 6 to 7 days and they may be caused by thorn. In
these circumstances it can not be said that accused
persons failed to explain their injuries. Both the
appellants are students of school, after finishing school
they were playing here and there and they might receive
such type of abrasion during their play. Hence this
circumstance is also not clinching evidence, against the
accused persons.
22. As discussed hereinabove circumstances of last
seen together is not proved beyond reasonable doubts
and other circumstances also not found proved beyond
reasonable doubts. Therefore, I am of the opinion that
the trial Court erred in appreciating the evidence in their
proper perspective, therefore finding recorded by trial
Court is unsustainable and liable to set side.
23. Resultantly, appeal succeeds. The finding and
sentence recorded by trial Court is set aside and
appellants/accused acquitted to the charge under
Section 304 II of IPC
24. The appellant are already on bail, their bail bond
and security bond stands cancelled.
(G.S. Solanki)
JUDGE
25/08/2010
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