Bapulal vs State Of M.P.
2021 Latest Caselaw 6605 MP

-1-                                                 CRA NO.514/2009

 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
   & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA

                    CRIMINAL APPEAL No.514/2009

Appellant:                Bapulal s/o Kanhaiyalal
(Accused in jail)         Age 23 years, occupation Agriculturist,
                          R/o Gram Akya Palra, PS
                          Narayangarh, district Mandsaur M.P

                                    Vs.

Respondent:                 State of M.P police Narayangarh
                            district Mandsaur.


             Shri D.K.Saxena learned counsel for the appellant.
             Smt.Mamta Shandilya learned Government
             Advocate for the State.


                          JUDGMENT

(Delivered on 21.10.2021) Per Vivek Rusia J:

Appellant Bapulal has filed this appeal against the judgment dated 31.03.2009 passed in Sessions Trial No.12/2008 by Ist Additional Session Judge Mandsaur whereby he has been convicted under section 302/34 of the IPC and sentenced to undergo life imprisonment with a fine of Rs.500/-; in default of payment of fine, further RI for one month.

2. The prosecution story is as under:

The complainant has lodged a report that he is the younger son of late Karulal . Jitendra, aged about 35 years and Antim, 20 years are his elder brothers. Jitendra went to the house of in-laws and Antim was also out of the station and he was with his mother, sister and father Karulal in the house. On 19.10.2007 Karulal was going to village Chitakhedi for playing the drum. On the way, the appellant and one Bhuralal have caught him and compelled him to play the drum. Thereafter they took his father towards Chitakhedi village and on the way 3 other persons met. After 7.30 p.m, no one had seen his father. At

-2- CRA NO.514/2009

7 a.m on 20.10;2007 Aswin has informed him that Karulal has been murdered. He immediately rushed to the spot and saw dead body of his father lying outside the limits of the village with injury by sharp- edged weapon on his neck. He immediately lodged an FIR Ex.P/5 against unknown persons. The police reached the spot, drew a Safina form Ex.P/9 and Naksha Panchayatnama Ex.P/1. The blood-soaked soil, plain soil and a piece of cloth (pocket) of the shirt from the fist of Karulal were seized vide Ex.P/3. The dead body was sent for postmortem. The statement of witnesses was recorded and thereafter the appellant Bapulal was arrested vide seizure memo Ex.P/10. His memorandum statement was drawn vide Ex.P/12. Thereafter Bhuralal was arrested vide Ex.P/11. They were medically examined. On the disclosure of Bapulal, a knife, shirt white colour with strip, blue shirt with strip Ex.P/13 were recovered. All the seized articles were sent to the FSL. The Tahsildar was requested to draw a spot map Ex.P/19. The FSL report was received vide Ex.P/20 & P/21. The cause of death in the postmortem report was reported to be by cutting the throat (homicidal in nature). In order to prove the charges, the prosecution examined ten witnesses and exhibited 23 documents Ex.P/1 to P/22. After completing the investigation charge sheet was filed against appellant Bapulal and co-accused Bhuralal. The trial was committed to the sessions court.

The charge u/s 302/34 IPC was framed against both the accused on 29.2.2008 and they abjured the guilt, hence the trial court was directed to examine the witnesses. In defence, the accused examined Pawan Rathore DW/1 and Narendra Shrivastava DW/2 and got exhibited 4 documents as a statement of Laluprasad as Ex.D/1, statement of Ashwinikumar as D/2, Bherulal as D/3 and death information of Karulal as D/4.

After appreciating the evidence came on record learned Sessions Judge has held that the prosecution has proved beyond reasonable doubt that on 19.10.2007 near about 7.30 near village Akhiyabalra the accused persons in furtherance to the common intention has committed

-3- CRA NO.514/2009

the murder by causing injury by a sharp-edged cutting weapon on his neck, hence accordingly they have been punished u/s 302/34 IPC, hence the present appeal before this court.

3. After passing the judgment the co-accused Bhuralal expired, hence appellant Bapulal alone has preferred this appeal.

4. Shri Dilip Kumar Saxena, learned counsel appearing for the appellant submitted that the entire prosecution case is based on circumstantial evidence. The deceased was said to have been seen last time with the appellant by Laluprasad PW/2, Ashwani kumar PW/3 and Mukundram PW/6 near the place of incident i.e. agriculture field of Prakash. It is further submitted that the prosecution has examined Bherulal as PW/7 as an eye witness whose statement was recorded by the police after two days from the date of the incident. According to him, both accused were assaulting Karulal by fist and they were insisting that they would also go for playing the drum in Chitakhedi village . Thereafter they went along with Karulal with a liquor bottle in hand but these statements were not recorded in the police station. According to him, he has narrated the entire incident to Hemraj PW/9 and thereafter further informed to Aswin who is related to Karulal but neither Hemraj PW/9 nor Ashwin PW/3 supported the case of the prosecution, therefore, the testimony of Bherulal has rightly been discarded by the learned trial court. The other witnesses Lalu Prasad PW/2, Ashwani Kumar PW/3 & Mukundram PW/6 are said to have seen the appellant with Karulal last time and thereafter his dead body was found, therefore, it cannot be presumed that the appellant and other co-accused have murdered him. There was no previous enmity between them. The prosecution has not established the motive behind the crime. Learned counsel for the appellant has drawn our attention to the Naksha Panchayatnama Ex.P/1 in which a note has been appended in respect of the presence of a piece of cloth (pocket) in the hand of the deceased. According to him, the said note was written from the pen of different ink in order to falsely implicate this present appellant by the I.O. The prosecution has obtained a report from the

-4- CRA NO.514/2009

FSL that the said piece of cloth of the pocket of shirt of the appellant which came in the hand of the deceased at the time of scuffle between them. The I.O has failed to explain making a note by a different pen which makes the Naksha Panchayatnama doubtful. Shri Saxena learned counsel has further argued that the seizure witnesses are not supporting the case of the prosecution in respect of seizure of shirt and knife from the possession of the appellant. The learned trial court has wrongly disbelieved the statement of defence witnesses. It is further submitted that the co-accused was seriously ill during the pendency of the trial. He was referred to the Govt. hospital from jail on 20.10.2007 but he died. The appellant is in jail for more than 14 years without committing any crime. He has no criminal past. The prosecution has failed to prove all the circumstances connecting this appellant with the crime, hence he is entitled to acquittal.

5. Learned Govt Advocate has argued in support of the judgment and prayed for dismissal of the appeal.

Heard.

6. In order to prove the charges the prosecution has examined Ratan Singh PW/1 as a witness of spot map, recovery of soil from the spot and the recovery of piece of pocket cloth of shirt of the appellant. The prosecution has examined Laluprasad PW/2 who is the son of the deceased Karulal. According to him, six months ago his two brothers Jitendra and Antim were not in the house. His father went to Chitakhedi for playing the drum. Bapulal and Bhuralal came to his house and took his father forcefully and compelled him to play the drum. Thereafter his father was going to village Chitakhedi then again the accused persons have forcibly compelled him to drink liquor and assaulted him. Two days prior to the incident Bapulal abused his father and threatened to kill him. In cross examination, he was confronted with his section 161 statement to point out the omissions in it. He has admitted that in the statement nothing has been mentioned about the consumption of liquor and the assault. There is a lot of improvisation in his court statement. In the FIR as well as in the 161 statement he

-5- CRA NO.514/2009

has only stated that Bapulal and his relative Bhuralal stopped his father on the way and compelled him to play the drum. Thereafter they all went to the way of village Chitakhedi and thereafter all the three met Prakash Harijan and again compelled him to play the drum near the house of Bherulal. Thereafter no one has seen his father. In the FIR as well as in section 161 statement there is no allegation against the appellant of beating as well as the killing of his father. Ashwani Kumar PW/3 states that he saw Karulal, Bapulal and Bhurelal going towards Chitakhedi and the next morning he received information about the death of Karulal. He saw the dead body of Karulal in which there was a cut injury on his neck. Mukundram PW/6 has only confirmed the death of Karulal and received the dead body of Karulal. According to him after the death of Karulal, both accused came to his house and confessed that they have killed Karulal because he did not play the drum on their instruction. In cross-examination he admits that this fact was not disclosed by him to the police, therefore, his testimony cannot be relied on. So far Bherulal PW/7 is concerned, he has been examined as an eye witness by the prosecution. In cross-examination, he admits that he saw the entire incident in the light of the torch. He further admits that Balu s/o Rama (his elder brother) has been detained by the police in the police station for the last 5 days. He has denied the suggestion that Bapulal has received compensation of Rs.80,000/- on account of death of his father and he did not give him share that is why he has given a false statement against him, however, the trial court has disbelieved this testimony given in the court. Hemraj PW/9, the witness of arrest memo has turned hostile.

7. So far the injuries are concerned the prosecution has examined Dr.Nishant Sharma, PW/4 and according to him on 21.10.2007 he was posted as Medical Officer in the PHC, Narayangarh where Constable Jitendra brought the dead body of Karulal for postmortem. Apart from abrasion on his body, he found a deep cut injury on the neck from left to right. The thyroid crisp and trachea windpipe were also found cut. In cross-examination he admits that the injury was not caused in one

-6- CRA NO.514/2009

go rather it was caused by cutting slowly. From the testimony of Dr.Nishant Sharma PW/4 and the postmortem report, it is not in dispute that the death was homicidal in nature and there is no challenge to the said finding, hence we are not re-appreciating the same.

8. The issue is whether the appellant has rightly been convicted u/s 302/34 IPC in this case or not. The entire case is based on circumstantial evidence. The eye witness has been declared as an unreliable witness. The son of the deceased has only stated that he saw the appellant and other accused last time with the deceased. There was no allegation that they compelled him to play the drum and there is no allegation of killing by them. The seizure witnesses have turned hostile. The only evidence against the appellant is that a piece of cloth of the shirt of Bapulal has been recovered on the spot and as per the prosecution case during the scuffle, this piece of cloth came into the hand of the deceased. However, the FSL report has established that the cloth seized from the spot and the cloth of the shirt of the appellant is the same. That cloth was used as a pocket in the shirt by stitching. In the Naksha Panchayatnama it is written that the dead body of the deceased was lying from east to west direction, finger and palm of both the hands were half-open in which there is no mention about the piece of cloth. By a different pen, a note has been appended that there is a piece of cloth in the hand and the same shall be seized separately for the evidence purpose. A separate seizure memo was prepared vide Ex.P/3 but its colour is not mentioned. Hemraj PW/9 has not supported the case of prosecution but admitted his signature in the seizure memo. As per FSL report, Ex.P/20 articles e, f & g i.e. knife and two shirts of the accused Bapulal human blood was found. The blood group of the deceased was found as "O" but blood on the articles f & g could not be found.

9. This appellant Bapulal was arrested on 21.10.2007 at 14.40 and in clause no.7 no injury was mentioned. Likewise, Bhuralal was ar- rested on the same day at 14.30 and in the seizure memo, no such in-

-7- CRA NO.514/2009

jury was mentioned. They were medically examined by the police on 22.10.2007 at 11.50 and as many as 2 & 3 injuries were found respec- tively. A suggestion was given by the defence counsel that 3rd-degree treatment was given to them in police custody to record their confes- sional statement. We find substance in the aforesaid submission be- cause in both the arrest memos no such injury was mentioned but in the next day they were examined and abrasions were found on their body and the duration is mentioned as within 24 hours. As we have discussed above, the Naksha Panchayatnama is doubtful. The colour of the cloth seized from the spot has not been mentioned in the seizure memo. Learned trial court has ignored all these because there was no enmity between the accused persons and the I.O. The accused cannot be convicted merely on the ground that there was no enmity with the police officer ignoring the improper investigation and contradiction, omission in the statements. The prosecution is liable to prove the charges beyond reasonable doubt. In the case of circumstantial evi- dence, all the circumstances should be established to prove the charge against the appellant. It is settled law that all the documents of prose- cution should be proved so as to convict any person for the alleged crime. Admittedly, it was the duty of the prosecution to prove all the documents of recoveries to connect the accused-appellant with the crime because no other evidence is on record, to prove the case. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra re- ported in AIR 1984 SC 1622, the Hon'ble Apex Court has held that the prosecution is required to prove its case beyond reasonable doubt, if the allegation is based on circumstantial evidence. The following pa- rameters/ guidelines are laid down by the Hon'ble Supreme Court to assess the circumstantial evidence, which reads as under:-

"A close analysis of this decision would show that the follow- ing conditions must be fulfilled before a case against an ac- cused 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 circum- stances concerned 'must or should' and not 'may be' estab- lished. There is not only a grammatical but a legal distinction

-8- CRA NO.514/2009

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 ob- servations 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 con- clusive 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 inno- cence of the accused and must show that in all human proba- bility the act must have been done by the accused. These five golden principles, if we may say so, constitute the Panchsheel of the proof of a case based on circumstantial evi- dence."

10. The sole eye witness Bherulal was planted by the police and he has been disbelieved by the court. The son of the appellant did not make any allegation against the appellant. Merely based on last seen the appellant has wrongly been convicted in this case . In view of the above, we are of the firm opinion that in this case the complete chain of circumstances has not been proved by the prosecution beyond reasonable doubt. Therefore, the accused-appellant, who has been convicted on the basis of circumstantial evidence, is entitled to the benefit of the doubt, hence we accordingly set aside the judgment dated 31.03.2009 passed in Sessions Trial No.12/2008 by Ist A.S.J Mandsaur. The appeal is allowed. The appellant be released forthwith, if not required in any other case. Fine amount, if deposited, be also returned to him .

Record of the trial court be sent back along with a copy of this judgment.

         (VIVEK RUSIA)                              (SHAILENDRA SHUKLA)
            JUDGE                                          JUDGE
hk/    Digitally signed by HARI
       KUMAR C G NAIR
       Date: 2021.10.21 16:38:14
       +05'30'