Chuniya vs The State Of M.P.
2021 Latest Caselaw 8429 MP

1                                                    CRA No.1102/2001

     The High Court of Madhya Pradesh Bench at Indore


Case Number                         CRA No.1102/2001
Parties Name                      Chuniya S/o Bhawa Bhil
                                           Vs.
                                       State of MP
Date of Order          08/12/21
Bench                  Division Bench:
                       Justice Sujoy Paul
                       Justice Pranay Verma
Judgment delivered     Justice Sujoy Paul
by
Whether approved       No
for reporting
Name of counsel for Shri Vivek Singh, learned counsel for the
parties             appellant.
                    Shri Aditya Garg, learned Public Prosecutor
                    for the State.


                              JUDGMENT

(8th December, 2021)

Sujoy Paul, J.:

This Criminal Appeal filed under section 374 of the Cr.P.C takes exception to the judgment dated 27.09.2000 passed in Sessions Trial No.593/2000 by Additional Sessions Judge, Jhabua whereby the appellant is convicted for committing offence under section 302 and 201 of the IPC and directed to undergo sentence life imprisonment and 3 years with fine of Rs.2000/- and Rs1000/- respectively.

2. The relevant facts necessary for adjudication of the matter are that as per prosecution story on 10.10.2000, the deceased Mangu alongwith the appellant Chuniya left the house of Mangu and while leaving the house informed the father of the deceased namely Tauliya that he is going to a guest's home. He obtained gun of Tauliya alongwith him. Thereafter, body of Mangu was found on 13.10.2000.

A 'merg' intimation was recorded. After recording of 'Merg' intimation, the police registered the FIR. The post mortem of the deceased was conducted and it was found that there were four injuries on the body of deceased. Thereafter, the police arrested the present appellant on 20.10.2000 and in turn, the gun and 'falia' were recovered at the instance of the present appellant. The present appellant was also charged for committing offence under section 25 (1A) of the Arms Act.

3. The matter was ultimately committed by the concerned Chief Judicial Magistrate to the Court of Sessions. The appellant abjured his guilt and demanded a trial. The Court below framed four questions and after recording the statement of witnesses opined that the gun was recovered from an open space and therefore, offence under section 25 (1A) of the Arms Act is not established. Resultantly, the appellant is acquitted from the offence under the Arms Act.

4. The court below opined that the offence under section 302 of the IPC is established based on the circumstantial evidence.

5. Shri Vivek Singh, learned counsel for the appellant criticized the judgment by contending that as per the prosecution story, the deceased Mangu was not traceable since 10.10.2000. No missing person report or FIR was lodged by the family members. On 13.10.2000 only, the body was found and FIR was registered. Statement of mother of deceased Kesar Bai PW/1 and father Touliya PW/2 were recorded under section 161 of the Cr.P.C. on 20.10.2000.

6. Learned counsel for the appellant submits that a plain reading of statements recorded under section 161 and 162 of the Cr.P.C Exb.D/1 and D/2 clearly shows that there is no iota of information given by the parents of the deceased to police about last seen between 13.10.2000 to 20.10.2000.

7. The further argument of learned counsel for the appellant is that the statements of PW No.1 and 2 are not trustworthy because their conduct is highly unnatural. The statement of mother PW/1 is based on hearsay evidence which has not evidenciary value as per the section 16 of the Evidence Act. Mangu has gone missing on 10.10.2000 and statement under section 161 of the Cr.P.C of PW/1 and PW/2 (parents) were recorded on 20.10.2000. For the first time on 20.10.2000 they informed that the appellant has taken Mangu with him on 10.10.2000. Since such a crucial information was not given to the police for 10 days, the statements recorded on 20.10.2000 are highly doubtful. The statement of PW/2 is further relied upon to contend that the relation between the appellant and the deceased and his family members were cordial. There is no iota of evidence which may lead to the conclusion that their relation were strained and therefore, there existed a motive because of which the appellant could have committed the offence.

8. The statement of Bhaggu PW/5 (uncle of the deceased) is also relied upon. It is submitted that there is contradiction between the statement of Touliya (PW/2) and Bhaggu (PW/2). Tauliya PW/2 deposed that when they approached Chuniya's house, he was available there whereas Bhaggu PW/5 took a diametrically opposite stand by deposing that when he alongwith Touliya approached Chuniya's house, Chuniya was not available there.

9. Furthermore, the arrest of appellant is shown to be on 20.10.2000. The falia and gun were allegedly recovered on 21.10.2000. The seizure memo under section 27 of the Evidence Act was prepared on 20.10.2000 at 23:45 Hours. Thus, the story of seizure is also untrustworthy and appears to be an afterthought.

10. Learned counsel for the appellant also placed reliance on the statement of S.C Kharadi PW/7, Investigating Officer. Para 14 of his

deposition shows that the seizure, statements etc were prepared prior to actual seizure.

11. By taking this court to the nature of injuries, learned counsel for the appellant urged that the reason of death of the deceased is injury nos.2 and 3. Dr. Dawar PW/8 has categorically admitted that injury no.1 and 4 could have been caused by 'falia' but said injuries were simple in nature and were not sufficient to cause death. Injuries nos.2 and 3 could not have been caused by means of 'falia'. For this reason also, learned counsel for the appellant submits that the appellant has been falsely implicated in this case.

12. Learned counsel for the appellant placed reliance on FSL report and urged that blood was found on the 'falia'. However, what to say about the blood group, even this finding is not given by the laboratory that the blood so found, was a human blood. Thus, it is not safe to convict the appellant on the basis of the FSL report.

13. Another limb of argument of learned counsel for the appellant is that the Court below in no uncertain terms made it clear that there is no eye witness to the incident. The conviction of the appellant is solely based on circumstantial evidence. The circumstances so recorded in para 33 of the judgment cannot stand judicial scrutiny.

14. It is urged that circumstance No.1 mentioned in para - 33 of the judgment cannot be a reason to convict the appellant for the simple reason that (i) the statements of P.W-1 and P.W-2 (mother and father) were recorded after ten days from the date Mangu was missing. The statement of parents are noteworthy of credence because from on 10.10.2000 to 20.10.2000, the did not inform the police regarding the element of 'last seen'. By placing reliance on (2014) 4 SCC 715 (Kanhiyalal v/s The State of Rajasthan), Shri Vivek Singh urged that the last seen together alone is not sufficient to hold the appellant as guilty. There should be something more to establish connectivity

between the accused and the crime. (ii) criticizing the second finding about circumstance, learned counsel for the appellant submits that appellant has already been acquitted from circumstance No.2 namely committing offence under the Arms Act.

15. So far as circumstance Nos.3 and 4 are concerned, it is urged that the falia was recovered later in time than the seizure memo which is prepared prior in time. This shows that story of prosecution was like a house of cards which cannot be believed. Apart from this, the falia which allegedly had certain blood stains, it could not be proved that it was a human blood. Reference is made to (1987) 3 SCC 480 (Kansa Behera v/s The State of Orissa) wherein it was held that unless there is some credible evidence to show that it was human blood on the weapon used and connect the blood stains with the deceased, it is not safe to upheld the conviction. For the same reason, circumstance No.5 was also criticized.

16. So far as circumstance No.6 is concerned, learned counsel for the appellant submits that as per the deposition of Dr. Dabar (P.W-8), it is clear like noon day that the reason of death is injuries No.2 and 3 which are not caused by falia. Injuries No1 and 4 are simple in nature.

17. Lastly, while criticizing circumstance No.7 mentioned in para - 33 of the impugned judgment, learned counsel for the appellant submits that a conjoint reading of statements of P.W.1, 2 and 5 shows that it is not established with accuracy and precision that there existed any enmity between the appellant and the deceased which could have become a reason or 'motive' for the murder.

18. AIR 1984 SC 1622 (Sharad Birdhichand Sarda vs. State of Maharashtra) is relied upon to contend that the Apex Court laid down 'panchsheel principles' for the purpose of considering the cases of circumstantial evidence. It is submitted that if the circumstances so mentioned in the present case are tested on the anvil of said principles,

it will be clear that the circumstances are not sufficient to hold the appellant as guilty.

19. Per contra, Shri Aditya Garg, learned Public Prosecutor supported the impugned judgment and contended that four incised wounds were found on the person of the deceased. Dr. Dabar (PW-8) clearly deposed that injury No.1 & 4 were caused by falia, but said injuries were simple in nature. The reason of death is based on injury No.2 & 3 which as per the report could not have been caused by a falia. He submits that Court below has rightly considered seven circumstances on the strength of which the appellant was rightly held guilty.

20. Parties confined their arguments to the extent indicated above.

21. We have heard the parties at length and perused the record.

22. The Apex Court in Sharad Birdhichand Sarda (supra) laid down following panchsheel parameters on the strength of which a case relating to circumstantial evidence can be tested.

"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(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."

(Emphasis Supplied)

23. Learned Court below has recorded following circumstances on the strength of which the appellant was held guilty (in para 33 of the impugned judgment). It reads as under:-

''33- bl izdkj vfHk;kstu us tks mijksDr lk{; izLrqr dh gS] ftlesa vfHk;qDr ds fo:) tks ifjfLFkfrtU; lk{; izekf.kr gqbZ gSa og fuEufyf[kr gS %& 1- vfHk;qDr e`rd dks mlds ?kj ls cqykdj ys x;k FkkA bl izdkj e`rd dks vfHk;qDr ds lkFk vafre ckj ns[kk x;k gS vkSj mlds i'pkr e`rd dks fdlh ds }kjk dgha Hkh thfor & ugha ns[kk x;k gS vkSj e`rd dh yk'k gh & dq,a ls izkIr gqbZ gS \ 2- e`rd ekaxq ?kj ls vfHk;qDr ds lkFk tkrs le; vius firk dh yk;lsal cUnqd vkSj dkjrql ysdj x;k Fkk] ;g cUnqd vkSj dkjrql & vfHk;qDr pquh;k ds }kjk nh xbZ lwpuk & iz-ih-&6 ds vuqlkj gfj ?kkal esa ls tIr dh xbZ gSA 3- vfHk;qDr dh lwpuk ds vuqlkj gh Qkfy;k tIr fd;k x;k gSA 4- vfHk;qDr ds vf/kiR; ls tIr fd;k x;k & Qkfy;k jDr jaftr Fkk ;g rF; iz-ih-& 16 dh tkap fjiksVZ ls izekf.kr gSa \ 5- vfHk;qDr ds crk;s vuqlkj ml LFkku dh & feV~Vh tIr dh xbZ gSa tgka rd e`rd dh ekjuk laHkkfor Fkk] ml LFkku dh feV~Vh esa jDr gksuk iz-ih-&16 dh fjiksVZ ls izekf.kr gSA 6- e`rd dh vkbZ gqbZ pksV Øekad&1 o 4 vfHk;qDr ls & tIr Qkfy;k ls vkuk laHkkfor gSA 7- vfHk;qDr e`rd ekaxh;k dh ifRu ds laca/k esa cqjh utj j[krk Fkk vkSj og mls viuh ifRu cukuk pkgrk Fkk ;g **gsrq** Hkh vfHk;qDr ds fo:) izekf.kr gSA^^

24. The first and foremost circumstance is 'last seen'. As per Court statement of PW-1 & PW-2, the deceased was taken by appellant from his house in the presence of PW-1 & PW-2 on 10/10/2000. We also find substantial force in the arguments of learned counsel for the appellant that when factum of taking Mangu by appellant was known to the parents right from the date Mangu had gone missing on

10.10.2000, the normal human response would have been to immediately apprise the police regarding this crucial and relevant fact.

Non furnishing of this information in a case of this nature makes the case of prosecution highly doubtful. Thus, we find substance in the argument of Shri Vivek Singh,learned counsel for the appellant that in the facts and circumstances of this case, the last seen evidence is quite weak. Apart from the above, in Kanhaiyalal (supra), the Apex Court opined as under:-

"12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant in our considered opinion, by itself cannot lead to proof of guilt against the appellant."

(Emphasis Supplied)

25. The reason of death is injury No.2 & 3 which as per expert evidence was not caused by the falia, the weapon which was allegedly recovered from the appellant. The doctor further deposed that the injury No.1 & 4 could have been caused by means of a falia whereas injury No.2 & 3 could not have been caused by the said weapon. This is an important fact which, if tested in the light of circumstance No.4 & 5 mentioned in para-33 of the judgment, will lead to the conclusion that recovery of falia alone is not sufficient. Even if bloodstains were found on the falia, as per the FSL report, that is not sufficient to hold the appellant as guilty in view of law laid down in Kansa Behera (supra). The relevant portion reads as under:-

"12. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. 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 cloths 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."

(Emphasis Supplied)

26. So far question of enmity and motive is concerned, a careful and conjoint reading of statements of PW-1, PW-2 & PW-5 shows that although it is stated that the appellant had developed some illicit relation with the wife of the deceased, the witnesses mentioned that thereafter the relations became cordial. There was no enmity between the parties. The land of Taulia was given for cultivation to the deceased and he did farming on the said land, but because of that also, there was no bad blood developed between the parties. Thus, the 'motive' was also not established with accuracy and precision.

27. In view of foregoing analysis, there was no chain of circumstances connected with one another as required to prove a case of circumstantial evidence as per 'panchsheel parameters'. Accordingly, in our view, the prosecution could not establish its case beyond reasonable doubt. It will be highly improper to hold the appellant guilty on the basis of aforesaid weak pieces of evidence which are not interconnected with one another with utmost clarity. We deem it proper to acquit the appellant by giving him the benefit of doubt.

28. Resultantly, we are unable to countenance the impugned judgment. The impugned judgment dated 27/09/2001 passed in ST No.593/2000 is set aside.

Appeal is allowed.

             (SUJOY PAUL)                              (PRANAY VERMA)
                 JUDGE                                      JUDGE
soumya
               Digitally signed by
               SOUMYA RANJAN
               DALAI
               Date: 2021.12.09
               17:12:37 +05'30'