Ravi @ Himanshu @ Bharatq vs The State Of Madhya Pradesh
2021 Latest Caselaw 7387 MP

                                 - : 1 :-




HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
         D.B.: Hon'ble Shri Justice Vivek Rusia
       Hon'ble Shri Justice Shailendra Shukla, JJ.

                   Criminal Appeal No.1185/2012
1.    Ravi @ Himanshu @ Bharat S/o
      Mahesh Muroliya, aged about 27 years, Appellant
      Occupation Labour R/o Badi Bhabhori
      Behind Sai Vidhya Mandir Anjani
      Nagar, Indore, M.P.

                                Versus
      State    of     M.P.      through      P.S.
      Sanyogitaganj, Indore                         Respondent

 Shri Gaurav Laad learned counsel for the appellant through State
Legal Aid Services Authority
Shri Amit Singh Sisodiya, learned Government Advocate for the
respondent/State.
                        JUDGMENT

(Heard and reserved on 09.11.2021) (Delivered on 15.11.2021) PER VIVEK RUSIA, J: -

Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 06.08.2012, passed by Additional Sessions Judge, Indore in Sessions Trial No.390/2008 by which he has been convicted for an offence under Sections 302 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment with fine of Rs.1,000/- and 2 months Additional R.I. in default of fine.

(2) The case of the prosecution, in brief, is as follows: -

(a) On 06.03.2008 a merg intimation vide Ex. D/1 No.14/2008 was recorded under Section 174 of Cr.P.C on the information given by Laxmibai (PW-1) to the Police-Station Sanyogita Ganj that one unknown person is lying dead in her house situated at Premnagar. She gave said house on rent to this present appellant but the same is locked. After recording the merg, the police reached the spot and

- : 2 :-

prepared a lash Panchnama (Ex. P/2). The dead body was in decomposed condition, the name of Inder Singh was found written in the hand. The police seized the bloodstain soil, plain soil, mattress, clothes and wristwatch. Thereafter, police recorded has the statement of Laxmibai and her Son Raju and Teju. The dead body was sent for postmortem and as per Ex. P/15 autopsy report the Inder Singh was died because of excessive bleeding from the antemortem injuries caused within 24 hours from the death. The doctor has further opined that the death took place 3 to 5 days ago from the date of postmortem i.e. 07.03.2008.

(b) On the basis of aforesaid material, an FIR was registered at crime 911/2008 under Section 302 of I.P.C. against this appellant Ex. P/18. The investigation has further revealed that the wife of the deceased Rekha, Dhiraj and this present appellant used to work in a stitching factory. The neighbours i.e. Fareeda Bee (PW-2) and Tara Bai (PW-3) have disclosed that they saw the appellant leaving the house in the auto-rickshaw of Asif. He brought a sewing machine to the rented house and after leaving the house, he has taken the same. Based on the above material collected the police had no option but to arrest the appellant on 18.03.2008. His memorandum under Section 27 of the Indian Evidence Act was recorded as Ex. P/7 and a knife was recovered vide seizure memo Exb.- P/11 and bloodstain shirt vide Ex. P/10. From the possession of the appellant, the driving license of the deceased Inder Singh and photograph of wife Rekha with the appellant were seized vide Ex.P/9. Vide arrest memorandum statement (Ex.P/6) the appellant was arrested. He was identified by Fareeda Bee, Tara Bai and Teju (PW-5) vide TIP Ex. P/5. A knife was sent to Dr. A.K. Lanjewar (PW-16) to ascertain that the injuries could have been caused by it. Vide Ex. P/16 the doctor gave a positive opinion. The seized articles were sent to the FSL vide Ex. P/17. After completing the investigation, the police filed the charge-sheet alleging that because of the illicit relationship of the appellant with the wife of the deceased i.e. Rekha, he murdered him.

- : 3 :-

(c) The trial was committed to the Additional Sessions Judge, where the charges under Section 302 of I.P.C. was framed, which the appellant has denied. In his statement under Section 313 of Cr.P.C. he has pleaded his innocence and submitted that he was arrested by the police and left, thereafter again arrested. In his defence he did not examin any witnesses.

(3) The prosecution has examined as many as 17 witnesses as PW-1 to PW-17 and got marked 18 documents as Ex.P/1 to Ex. P/18. In cross-examination of prosecution witnesses, the appellant got exhibited four documents as D/1 to D/3.

(4). Since the prosecution case is based on circumstantial evidence, on the basis of documentary as well as oral evidence produced by the prosecution, the learned Additional Sessions Judge has held that the appellant assaulted the deceased Inder Singh by means of a knife and left him dead in the rented house of Laxmibai and fled away from the spot, hence, he is liable to be convicted under section 302 of I.P.C. and sentenced accordingly. Hence, this appeal before this Court.

(5) Learned counsel for the appellant has argued that this appellant falsely been implicated in the present case. He did not commit any offence. The learned Additional Sessions Judge has wrongly appreciated the evidence that came on record. Learned counsel Shri Laad has further submitted that the identification of the deceased has not been done through scientific evidence, when his wife and children were available, the DNA test ought to have been conducted. On the basis of the name written on the hand, it cannot be said that it was the dead body of the husband of Rekha i.e. Inder Singh. It is further submitted that the FSL report has not been received to confirm the blood group of the deceased and blood found in the knife and shirt. The case is based on circumstantial evidence and the prosecution has failed to establish a complete chain of the circumstantial to give finding that the appellant has committed the offence. It is further submitted that as per the postmortem report the death took place 3 to 5

- : 4 :-

days back from the date of postmortem. No deed has been filed to establish that the appellant took the house of Smt. Laxmibai on rent. The driving license and photographs of Inder Singh recovered from the wallet of the present appellant were planted by the police in order to implicate the appellant. It is further submitted that the prosecution came up with the case of illicit relationship with the wife of the deceased but she has not been examined in the Court despite recording her statement under section 161 of Cr.P.C. Hence, the appellant is entitled to benefit of the doubt. It is further submitted that he is in jail since 2008 . Hence, an appeal may kindly be allowed.

(6) Shri Sisodia, a learned Government Advocate has argued in support of the judgment of conviction of this appellant. Learned Government Advocate has submitted that the police has collected all the circumstantial evidence which has duly established the culpability of this present appellant. He has duly been identified by Fareed Bee, Tara Bai and Teju in the TIP, thereafter, Laxmibai has also identified him in the Court in dock identification. He was working the stitching, hence factory he brought sewing machine in the rented house, which he has taken in the auto-rickshaw of the Asif. The driving license and photo of the wife of the deceased were found in the possession of the appellant. The deceased has been identified by his name written in his hand. Hence, the appellant has rightly been convicted, hence criminal appeal may kindly be dismissed.

We have heard learned counsel for the parties and perused the record of the trial court.

(7) So far the cause of death of an unknown dead body found in the rented house of Smt. Laxmibai which was sent for autopsy is concerned The autopsy was conducted by Dr. A.K. Lanjewar (PW-16). Dr has found as many as 14 stabbed would due which internal organs were also found damaged and opined that unknown person died because of excessive bleeding of the injuries. The death is homicidal in nature and took place 3 to 5 days ago. He has preserved the visra and

- : 5 :-

handed over the SHO Sanyogitaganj. Therefore, we have no reason to disbelieve the aforesaid report and especially there is no challenge to the cause of death in this appeal. Hence, we affirmed that the deceased died because of antemortem 14 stabbed wounds.

Now the issue which is liable to be examined first is that the deceased was rightly identified as "Inder Singh" by the prosecution?

(8) Admittedly, this case is based on circumstantial evidence. The FIR was lodged at the instance of Smt. Laxmi Bai, who said to have rented her Premnagar House to one Bharat on the 18th of the preceding month. She directed him to bring the family otherwise vacate the house. Bhart assured that he would bring his family within a month. He gave one month rent to her. When she was not in town, her neighbour informed her about the smell coming from the house. She broke the lock and found the dead body of an unknown person in a decomposed condition. The police registered Dehati Nalish and thereafter registered FIR against Bharat. The name of the decesed was tattoed in his had as "Inder Singh" which was read by Teju son of Laxmi Bai and the police. The dead body was sent for autopsy as an unknown male aged about 32 years. According to him, the dead body was brought by constable Trilok, Police Station- Sanyogitaganj. The dead body was identified by the constable as well as Teju son of Laxmibai (landlord) as Inder Singh on the basis of name tattooed in the hand. It means there is no evidence except the name in the hand in respect of his identification.

(9) Learned counsel has raised an issue whether the deceased was Inder Singh or not? As per the doctor's opinion the dead body was received in decomposed condition as an unknown person. The deceased were wearing clothes and shoes. The name Inder Singh was tattooed in the hand of the deceased. The Inder Singh was not seen coming into the house of Laxmi Bai by any witness. Therefore, the identification of the deceased by Teju as Inder Singh is only based on the name tattooed in the hand of the deceased. No DNA report was

- : 6 :-

obtained to identify the deceased. His clothes , chain and wristwatch were not got identified by police from his wife Rekha, whose statement under Section 161 of Cr.P.C. was recorded. She did not describe her husband in respect of height and clothes which he was wearing before he left the house. The police was also not confirmed about his identity hence, the dead body was sent for postmortem as an unknown male. Question No.125, 126 and 127 were asked from the appellant that the dead body of an unknown person was found and he was identified as Inder Singh. Name only was written in his hand as Inder Singh but the appellant has denied both the questions. Therefore, there is only evidence for the identification of the deceased that is his name tattooed in his hand. Hence the identity of the deceased has not been confirmed by the police by scientific and other cogent evidence.

The police came up with the case of the illicit relationship between appellant and wife of deceased Rekha as a motive for murder but Rekha Bai has not been examined in the Court. A driving license of Inder Singh was found in the wallet of the appellant but there is no reason for the appellant to keep the driving license of a third person, as normally person keeps his own driving license. The photographs of Rekha Bai and the appellant was also found in the pocket but no one has identified the photograph of Rekha Bai. The Rekha Bai herself did not enter the witness box and she was not confronted with the photographs. All the witnesses who have been examined only identified the present appellant but no one has identified the deceased as Inder Singh. Except for the Teju who saw the name tattooed in the left hand of the dead body. No one has seen Inder Singh in the house, Laxmi Bai, during the tenancy period. Hence learned Additional Session Judge has wrongly held that the deceased was 'Inder Singh'.

(10). The Police have recovered bloodstain shirt and knife on disclosure of this appellant but no FSL report is produced, to confirm that the shirt and knife were containing the human blood or that the blood group matches with the blood group of the deceased. Even the

- : 7 :-

Asif Auto-rickshaw driver (PW-7) did not identify the appellant in the Court and he has not stated that he saw any blood on the shirt of the appellant.

(11) According to PW-1, this appellant has disclosed his name Bharat and took the house on rent. The charge sheet was filed against Ravi @ Himanshu @ Bharat. No documentary evidence has been filed to establish that his correct name Ravi or Himanshu or Bharat.

(12) Samrat (PW-8) owner of a readymade cloth factory has identified the appellant as Ravi. According to him, he obtained the sim using his driving license and gave it to Ravi as he did not have any documents to get the mobile connection. After the incident, he came to know that he was having affair with Rekha who is the wife of Inder Singh but he has also not identified the Rekha as well as Inder Singh from the photograph seized by the police.

(13) The younger brother i.e. Dheeraj Kumar of Samarat has also been examined as PW-10, who has identified the appellant as Ravi. According to him, he gave him stitching work in his factory and his brother obtained the sim for him. According to him, he went to Jhansi on 08.05.2008 and returned on 17.05.2008 and the police came to his house and enquired about his mobile number. He has identified the sim number, which was given to this appellant/Ravi. He too did not iden- tify Rekha as well as Inder Singh as he never met them. Even the ap- pellant was given the sim by Samarat but no location and call details have been obtained to establish that the appellant was present on the spot, therefore, on the basis of this shaky evidence, the appellant has wrongly convicted under section 302 of I.P.C. He is entitled to benefit of the doubt. In the case of Shailendra Rajdev Pasvan v. State of Gujarat, reported in (2020) 14 SCC 750 the Supreme Court of India has held as under:

14. This Cour in Trimukh Maroti Kirkan v. State of Maharash- tra [Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] has enunciated the aforesaid principle as under

- : 8 :-

"12. ... The normal principle in a case based on circumstantial evi- dence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing to- wards the guilt of the accused; that the circumstances taken cumula- tively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hy- pothesis other than that of the guilt of the accused and inconsistent with his innocence."

13. Thus, the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates twofold requirements:

(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.

(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.

(14). Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:

(i) Criminal Appeal is allowed, the judgment of conviction dated 06.08.2012, passed by Additional Sessions Judge, Indore in Sessions Trial No.390/2008 by which he has been convicted for an offence under Sections 302 of Indian Penal Code (for short "IPC") is set aside .

(ii) Appellant is acquitted from the charges under Section 302 of I.P.C.

(iii). Appellant is ordered to be released forthwith if he is not required in any other case.

The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.

              ( VIVEK RUSIA )                              ( SHAILENDRA SHUKLA )
                  JUDGE                                           JUDGE

              praveen/-


Digitally signed by PRAVEEN
NAYAK
Date: 2021.11.16 10:22:47 +05'30'