Gheesalal @ Ghisu vs State Of M.P.
2021 Latest Caselaw 6707 MP

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 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.1086/2009
       Gheesalal @ Ghisu S/o Harisingh
       Meena, aged about 32 years, R/o Gram Appellant (s)
       Dudhakhedi, P.S. Bhanpura, District
       Mandsaur

                                 Versus
       State of Madhya Pradesh through Police
       Station -Bhanpura, District Mandsaur   Respondent (s)

Smt. Poornima Kanungo, learned counsel for the appellant.
Shri Sudhanshu Vyas, learned Government Advocate for the
respondent/State.


                          JUDGMENT

(Heard and reserved on 20.10. 2021) (Delivered on 23.10.2021)

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 23.03.2009, passed by Additional Sessions Judge, Link Court, Bhanpura, District Mandsaur in Sessions Trial No.135/2008, by which the appellant have 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.200/-.

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

A missing person report No.02/2008 and merg No.12/24/4/05 was registered under Section 174 of Cr.P.C. based on the information given by Udayram Meena and Permanand Sharma. According to which on 22.04.2008 near about 12:00 PM an unknown person in a planned way has abducted minor child Pawan S/o Udayram, aged about 6 years thereafter murdered him on the night of 23/24-04-2008

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and hide the dead body in the yard of Puralal Patidar (bada). Accordingly, an FIR was registered under Section 365, 302 and 201 of I.P.C. against an unknown person. The dead body was recovered and sent for postmortem. The Investigating Officer has drawn Safina form (Ex.P/7) and Naksha Panchnama (Ex.P/3). The autopsy was carried out by the doctor but no definite opinion was given about the cause of death and directed for preserving visra. On the basis of preliminary investigation, this appellant was arrested by the police. After completion of the investigation, a charge-sheet was filed on 31.05.2008.

(3). The trial was committed to the Sessions Court. The learned Additional Sessions Judge framed the charges on 18.08.2008 under Sections 365, 377 read with 511, 302 and 201 of I.P.C. against the appellant, which was denied by the appellant, hence the prosecution was called upon to examine the witnesses.

(4). The prosecution has examined as many as 19 witnesses as PW-1 to PW-19 and got marked 14 documents as Ex.P/1 to Ex. P/14. In defence, the appellant did not examine any witnesses but exhibited counter receipt of the FIR as Ex.D/1.

(5). After evaluating the evidence that came on record, vide judgment dated 23.03.2009, the learned Additional Sessions Judge has acquitted the appellant for the offence punishable under section 365, 377 read with 511 and 201 of I.P.C. but convicted him for the offence punishable under Section 302 of I.P.C. and sentenced to undergo life imprisonment with fine. Hence, this appeal before this Court through State Legal Aid Services Authority.

(6). Vide order dated 07.10.2009, this appeal was admitted for final hearing, the appellant has not filed an application for suspension of his jail sentence, since the date of arrest, he is in jail.

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

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(7). The prosecution has examined Udayram as PW-1 i.e. father of the deceased child Pawan, who states that four months ago, he went Bhanpura market to purchase the goods for his grocery shop. He left his son Pawan in the house. After purchasing the goods from Bhanpura, he came to Bablda where he received information from Motilal (PW-2) that his son is missing. He took the motorcycle and reached the house and searched his son in the houses of neighbours and relatives. Thereafter, lodged a report in the police station vide Ex. P/1. After two days, he found the dead body of his son in the yard of Puralal Patidar. The said area is situated near the house of the present appellant. He further deposes that earlier he searched that area but could not find his son. On the date of the incident, this accused/appellant came to his house and told to him that he is going Bablda and Bhanpur at that time Badri (PW-5) was also present in the shop. According to him since last so many years 10-11 times unfortunate incidents of fire had taken place in his house and this appellant has told that he can stop all these incidents by magic to control supernatural power. On the next date, his son went missing. He alleges that the appellant took Sabbal from the house of Badri Meena. He further states that when the accused came to his shop, his wife has refused to sell him Namkeen at that time his son was eating the Khirni and thereafter he went missing. In cross-examination, he has admitted that there was no previous enmity with the accused. It is clear from the aforesaid evidence, he is not alleging against the appellant that he abducted and killed his son. He was only having only suspicion that the accused came to his shop and thereafter, his son went missing.

(8). Motilal Meena (PW-2) has only stated that on the night of the incident the Gheesulal borrowed Sabal from the house of Badri Meena. He also alleged that this appellant has also engaged in magic (Jadu Tona). He has also not made any allegation against this appellant.

(9). Parwati (PW-3) mother of the deceased has stated that she did not find her son after leaving the shop by this appellant. The dead body

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was found near the open place of this appellant i.e. the yard of Puralal.

(10) Likewise Parmanand (PW-4), Badrilal (PW-5), Mangilal (PW-6) and Bhagwan (PW-7) have deposed only in respect of recovery of dead body from the yard of Puralal. The Puralal has not been examined by the prosecution in this case.

(11) The prosecution has examined one Bablu (PW-8), who was minor, on the date of the incident, he was playing with the deceased and other similarly aged children. He saw this appellant sitting nearby place. Thereafter, Dinesh (PW-9) has been examined, to whom the appellant has made an extra-judicial confession about the killing of the child Pawan by strangulating his neck. According to him, he has narrated the entire incident to Motilal and thereafter lodged the report. In cross-examination, he has admitted that since he was afraid of the appellant hence he did not inform the police about his confession. The rest of the witnesses are formal witnesses who have supported the case of the prosecution in respect of recovery of dead body and arrest of appellant etc.

(12). Prosecution has examined Dr. Arun Kumar as PW-18, who conducted the autopsy of the deceased. According to him, neither he found external injury nor internal injury on the body of the deceased, hence, he could not retrieve the cause of death.

(13). Rahim Baig SI has been examined as PW-19, who conducted the investigation. According to him in merg investigation, the statement of Parmanand is not available on record.

(14). The appellant gave suggestions to each and every witnesses that he has been falsely been implicated in this case as the villagers wanted to grab his land and house. After his arrest, the villagers have set into the fire the house and taken his the land. He has not committed any offence and he has falsely been implicated in this case. There is no recovery from him.

(15). The learned Additional Sessions Judge on the evidence collected

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by the police has held that the prosecution has failed to prove the charges under section 365, 377 read with 511, 302 and 201 of I.P.C. but convicted the appellant 302 of I.P.C. The appellant was prosecuted on the charges of kidnapping, killing and hiding the evidence. As per the prosecution story, he abducted the minor child Pawan and killed him by strangulating his neck and thereafter tried to hide his body in order to conceal the evidence. On the same set of evidence he has been acquitted under section 365, 377 read with 511, 302 and 201 of I.P.C, then how he could be convicted under section 302 of I.P.C alone. There cannot be killing of the child Pawan without abduction in given facts and circumstances. It is not a case of the prosecution that, the appellant has killed the child Pawan in his house. The evidence of Udayram (PW-1) his wife Parwati (PW-3) and Bablu (PW-8) are not sufficient to establish the complicity of the appellant with this offence. It appears that the villagers were having doubt over the present appellant because he was involved in magic (Jadu Tona) activities. After his arrest, they have demolished his house and taken his land. No one has seen him abducting the child Pawan. Nothing has been recovered from his possession as well as his house to connect him with this offence. The only allegation against him was that on the date of the incident, he came to the shop of Udayram (PW-1) to purchase the Namkeen and when the wife of Udayram refused to him and thereafter she did not find the Pawan in her house. In our considered opinion that this evidence is not sufficient to connect the appellant with this case. The investigating officer has failed to explain that on what basis he arrested the appellant in this crime. The dead body of the Pawan was found in the open place. As per the spot map, the dead body was found in open Bada having an excess from three sides and only one side the house of the appellant was situated. In absence of any medical evidence, the learned court has concluded that the appellant has killed the deceased by strangulating his neck.

(16). In view of the above, we set aside conviction and sentence imposed on him. Appellant is acquitted of all charges levelled against

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him.

(17). The appellant is in jail for the last 13 years without committing any crime. After his arrest, his house and property must have been grabbed by others, therefore, by way of compensation, we direct the Collector and Superintendent of Police, Mandsaur to restore him with possession of house and land and submit a compliance report to this Court in 90 days. The Principal Registrar is directed to send a copy of this judgment to the collector and Superintendent of Police Mandsour.

(18) Appellant be released from jail forthwith if he is not wanted any other criminal case. State Legal Aid Services Authority is directed to send a copy of this order to the concerned jail authority for compliance.

The registry of this High Court 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: 2021.10.25 18:02:30
+05'30'